determine whether the plea of guilty was entered by reason of a misunderstanding between the attorney for the defendant and the state's attorney. If there was none, the parties to the misunderstanding were officers of the court, were before the court at the time the evidence was objected to, and it must be presumed that, if the court was not already familiar with the circumstances under which the plea was entered and leave obtained to withdraw it, it at once made itself familiar with them and ascertained whether the plea was, in fact, entered by reason of any misunderstanding which in any way affected the defendant's action in making the confession. The court will be presumed to have done its duty in the first instance and to have satisfied itself that the plea of confession was made voluntarily and without mistake on the part of the accused before ordering such plea to be entered.

[5] The fact that the plea was accepted is prima facie proof that the confession was voluntary, and, as before stated, if not withdrawn, is conclusive of the guilt of the accused. Where, as in this case, the plea had been withdrawn, it was not conclusive, and it was open to the accused to show, if he could, that the plea was mistakenly entered.

[6] It is apparent from the record that the state offered the proof that the defendant entered the plea of guilty, and afterward withdrew it, not as proof of a judicial confession which would be conclusive upon the defendant, but as showing conduct on the part of defendant which was inconsistent with his claim of innocence before the jury. It was manifestly so regarded and treated by the defendant's attorney and by the court. The state proved not only the fact that the plea was entered, but that it had been withdrawn, showing that the proof was not offered as showing the conviction of the accused by his own plea; and the objection to it was not that a judicial confession so given in the trial court was not admissible under any circumstances, but that it was entered through a misunderstanding. It was thus by all parties treated as an extrajudicial confession or admission. Such an admission or confession is not conclusive, and, unless further proof to establish the corpus delicti is offered, is not sufficient to justify a conviction. State v. Willis, 71 Conn. 293, 308, 41 Atl. 820. It appears from the record that such further proof was offered by the state in the present case. When the fact was established that the admission had been made by the accused, the admission was not before the jury as testimony by the accused establishing

the truth of all or any of the allegations of the information, but the fact that he had made it, had pleaded guilty, was before them, and was relevant, as being inconsistent with his claim to the jury that he stabbed Bartolotta in selfdefense and was not guilty.

The defendant made no claim in the superior court, nor on his appeal here, that the fact that a plea of guilty had been entered and withdrawn in the trial court could not be proved in any case against the accused. But we have been referred to some authorities which hold that a plea of guilty which the court refused to accept, or which had been entered, and afterward withdrawn, and a plea of not guilty entered, is not admissible against the accused. In People v. Ryan, 82 Cal. 617, 23 Pac. 121, a plea of guilty was entered and afterward withdrawn, a statute giving the accused the right to withdraw such a plea before sentence. It was held error for the trial court to permit a plea of guilty to be given in evidence upon the trial to the jury upon the plea of not guilty subsequently entered. It does not appear in the report of the case that the evidence was offered to establish a judicial confession, but it appears that no conviction could have been obtained without it, and the court speaks of it as a confession. In State v. Meyers, 99 Mo. 117, 12 S. W. 516, the court had refused to accept a plea of guilty, but afterward permitted the state to prove that the accused at first pleaded guilty to the charge upon which he was on trial. This was held to be error, the court saying that the trial court properly refused to accept the plea, and that the plea "should never have been heard of again." In the case the court treats the plea of guilty, when proved, as conclusive evidence of the defendant's guilt. He says:

"By refusing to receive the plea and granting the defendant a trial, this of necessity meant. a trial with the issues of fact to be determined by a jury, and not to be determined by the previous plea of the defendant which admitted all that the state desired to prove."

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The court thus treats the evidence as ceived as a judicial confession of the accused, and so conclusive upon him. Wharton, in his Criminal Evidence (10th Ed.) vol. 2, pp. 1326, 1327, says that, where a plea of guilty has been withdrawn, it is not binding upon the accused, and cannot be used in evidence against him. In a case in Kentucky (Commonwealth v. Ervine, 8 Dana [38 Ky.] 30) a sentence upon a plea of guilty had been reversed, and upon a trial thereafter had upon a plea of not guilty entered without objection by the

common

wealth the former plea of guilty was introduced in evidence, and it was held that it was properly admitted, but was not conclusive of the defendant's guilt. Where an accused person has pleaded guilty in a justice or other inferior court, and has taken an appeal or been bound over to a higher court, he is there always permitted to plead anew, and it has always been the rule in this state that upon the trial there the fact that he pleaded guilty in the lower court may be put in evidence either by the record or by testimony of witnesses who were present and heard the accused when he entered the plea. This is not conclusive upon the accused, and is insufficient to warrant a conviction without other evidence to prove the corpus delicti. This is the rule in a majority of the other states, although some have held that the confession in the lower court is a judicial confession and sufficient without independent evidence of the corpus delicti to warrant a conviction. It would seem that the same principle which admits the admission or confession of the accused in the lower court to be introduced against him in the upper court should admit, with the same consequences, his confession by a plea of guilty, afterward withdrawn, in the upper court. The plea of guilty, as was said in State v. Willis, 71 Conn. 293, 41 Atl. 820, "is conviction" until the plea is withdrawn. The withdrawal of the plea withdraws the evidence of conviction, but it does not withdraw the fact that such a plea was entered. It is as competent to give evidence of that fact as to give evidence that a similar fact occurred in the justice or magistrate's court. Neither is conclusive upon the accused. The evidence in each case establishes a fact which is inconsistent with his later claim before the jury that he is innocent. Had the accused in the present case, called as a witness in his own behalf, testified that, being stabbed by Bartolotta, he pursued him in the heat of passion and stabbed him intending to kill him, and later, upon leave to change his testimony, had testified that he only pursued his assailant for a few steps, when the latter turned upon him, and he killed him in selfdefense, the fact that he first gave evidence corroborating the state's claim of guilty would be a fair matter of comment for the state's attorney in his argument to the jury and a proper matter for the jury to consider in determining the weight to be given to the defendant's claim. For the same reason the defendant's conduct in pleading guilty and later changing his plea was a proper matter to be brought to the jury's attention by the evi

dence objected to. We do not understand that the cases referred to and a few others of like import which may be found are in conflict with this view. They seem to be decided upon the view that the evidence was offered and received as evidence of a judicial confession which was conclusive of the defendant's guilt. And Wharton, in the paragraph to which we have referred, is speaking of judicial confessions, and we understand the paragraph to go no further than to say that, when such confessions by plea of guilty have been withdrawn, they are no longer conclusive against the accused, and cannot be used in evidence as judicial confessions against him. However that may be, we are of the opinion that the fact that a plea of guilty was entered and afterward withdrawn may be given in evidence against an accused for the purposes which we have indicated, and for which it is manifest such fact was offered and received in the present case. There is no error.

In this opinion BEACH and GREEN, JJ., concurred.

NOTE.-Evidence in a Trial of a Plea of Guilty That Has Been Withdrawn.-The ruling in the instant case appears to me both unfair and contrary to law. It is unfair, because a defendant is constrained to allow plea to stand, if the fact of its having once been entered may be shown upon its being withdrawn. It is contrary to law because it was first offered in the hope of benefit to accrue and therefore it cannot be considered voluntary. The fact that benefit is hoped for is something like an irrebuttable presumption of law-it is impossible to show that a deliberate act like the interposing of a plea of guilty does not have its rise in the hope of leniency or some other benefit. A defendant interposes it because he prefers to submit his case to the court or he wishes to suppress facts that would come out in a trial before a jury which might implicate third parties or furnish clues in regard to himself in other transactions.

In Wharton on Cr. Evidence, § 638, it is laid down that: "Where a plea of guilty is withdrawn by permission of the court, it is not binding as a confession, nor can it be used as evidence." In 2 Encyc. of Pl. and Pr., p. 229, it is stated that: "The effect of withdrawing a plea is to render it functus officio, and it cannot afterwards be given in evidence against the accused." In 8 Ruling Case Law, § 78, it is said: "It is hardly necessary to state that when a plea of guilty has been withdrawn and a plea of not guilty entered, the plea of guilty is not admissible in evidence against the accused."

In People v. Ryan, 82 Cal. 617, 23 Pac. 121, the court said: "We do not think that the legislature in passing the law which the defendant was allowed to nullify and render functus officio his plea of guilty by substituting or putting in place of it a plea of not guilty, intended to say that. notwithstanding such substitution and doing away with the first plea, it may be given in evidence

and sometimes serve as the only conclusive proof of a man's guilt under the plea of not guilty."

In State v. Curtis, 28 N. C. 247, it was ruled in a case where the plea of guilty was stricken out that: "The case now stands as if no trial had ever been had."

In State v. Meyers, 99 Mo. 107, 12 S. W. 516, the court refused to accept a plea of guilty and the prosecutor was allowed to show that upon the indictment being read accused pleaded guilty thereto. The court said: "Such testimony should not have been admitted. * * *By refusing to receive the plea and granting the defendant a trial, that of necessity meant a trial with the issues of fact to be determined * * * by the previous plea of the defendant which admitted all that the state desired to prove. In short, the trial court could not refuse to receive the defendant's plea of guilty at one time, and then use it against him at another." It seems to me it would be a great deal worse to use a withdrawn plea of guilty against an accused than to use one that he still is wishing to interpose.

In People v. Jacobs, 151 N. Y. Supp. 522, 165 App. Div. 721, it was ruled that: "There was no error in receiving testimony of a prior plea of guilty. Defendants had so pleaded, although thereafter, on their motion, the county judge had reversed this judgment and given them a new trial. The voluntary plea of guilty at the prior hearing was an admission of the failure to take out a license, which with the other evidence was properly left to the consideration of the jury." No authority whatever is cited to the ruling, but it is seen it is not stated that this plea had ever been withdrawn and another plea of not guilty had taken its place. And also it may have been in the mind of the court, that this was a different hearing and this made a difference.

This case was in a lower New York court and it does not appear to be consistent with a New York Court of Appeals ruling in a case where there was first a plea of not guilty to murder in the first degree and later a plea of murder in the second degree, which was accepted, but afterwards his plea was withdrawn by leave of the court and defendant on trial was convicted of murder in the first degree. It was claimed that the acceptance of the plea of guilty of murder in the second degree prevented conviction, after it was withdrawn of murder in a higher degree, but this contention was overruled. The withdrawal "left the case without any plea whatever until the defendant again interposed her general plea of not guilty to the whole indictment." In other words, the case was as if only the last plea had been entered.

The distinction in the contention I make appears in the rule that a former plea of guilty is admissible where made in another trial for a different offense. Com. v. Ayers, 115 Mass. 137; Com. v. Hazeltine, 108 Mass. 479. In such case it is taken as admission of facts embraced in a plea that has not been substituted by another plea. Where an accused has the benefit accorded to him of his plea of guilty, he should be held to the onus put upon him. But this is different from making him bear a burden from which he derived no benefit whatever and which only was assumed under some expectation of benefit. In addition to this, however, it looks like trickery in the law for a court to expunge from the record something that can have existence in no other way, and then to give force to what has been expunged. C.

ITEMS OF PROFESSIONAL

INTEREST.

BAR ASSOCIATION MEETINGS FOR 1916WHEN AND WHERE TO BE HELD. American-Chicago, Ill., August 30, 31 and September 1.

Alabama-Decatur, July 14 and 15.

Illinois-Chicago, at Hotel LaSalle, June 1, 2

and 3.

Kentucky-Louisville, July 6 and 7.
Louisiana-Opelousas, May 5 and 6.

Michigan-Battle Creek, June 30, and July 1.
Mississippi-Laurel, May 2.

Ohio-July 11, 12 and 13. Place not fixed. South Carolina-Charleston, latter part of June.

HUMOR OF THE LAW.

A negro woman in Denver went to the polls to register on the appointed day and after giving her name and address the clerk said: "With which party are you affiliated?" "Suh?"

"With which party are you affiliated?" he repeated.

"Is Ah got to tell you whut pahty Ah is 'filiated with?"

"You certainly have, if you vote."

"Well, jes scratch mah name off dat list, 'cause the pahty Ah is filiated with ain't got his divo'ce yet and I sho' ain't goin' tell no white man who he is."-St. Louis Globe-Democrat.

The small boy had applied at the lawyer's office for a job, and the lawyer, kindly man, was asking him a few preliminary questions of a moral character.

"Now, my boy," he said, after several interrogatories, "do you know what will become of you if you tell lies?"

"Yes, sir," replied the boy promptly.

"Good for you," said the pleased attorney. "Now tell me what."

"I'll be a great lawyer when I grow up; mother said I would!" And the gentleman collapsed.

An Arkansas man accused of murder was assigned by the court to conduct his defense a kid attorney. When asked if he had anything to say why sentence should not be passed upon him, he replied:

"Well, judge, I hope you will take into consideration the youth and inexperience of my lawyer."

com

1. Abatement and Revival-Pleadings.-The defense that the plaintiff is a fictitious person attacks the capacity of the plaintiff to mence or continue the suit, and is properly the subject of a plea in abatement.-Baldauf v. Nathan Russell, N. J., 96 Atl. 96.

2. Accord and Satisfaction-Check in FullAct of agent of insurance company in sending the company a check, marked as payment in full to a certain date, held not an accord and satisfaction of their disputed account.-Factors' Fire Ins. Co. v. Whilden, N. Y., Supp., 156 N. Y. S. 362.

3. Action-Merger.-Under Rev. St. 1909, § 1795, attorney's services performed under two separate contracts of employment, one with an individual, and one with a company, would become a separate and distinct cause of action which could not be merged into one against both employers nor united in the same action. -Rounds v. Strang, Mo. App., 180 S. W. 1069.

4. Adverse Possession-Claim of Right.-A naked possession of land unaccompanied by a claim of right cannot constitute a bar to the true owner, but, in the absence of statutory requirement, the bona fides of the occupant's claim is not essential.-Ramapo Mfg. Co. V. Mapes, N. Y., 110 N. E. 772, 216 N. Y. 362.

a cor

5. Statutes of Limitation.-Since poration may recover land on record title acquired by ultra vires act, no reason can be advanced why it cannot do so on a title by limitation so acquired.-Buchanan v. Houston & T. C. R. Co., Tex. Civ. App., 180 S. W. 625.

6. Alteration of Instruments-Materiality.Where executed notes left with two makers for delivery, where materially altered without knowledge or consent of the other makers by indorsing a fictitious credit thereon, pursuant to a secret agreement, such alteration, avoided the notes as to the makers not participating in the alteration.-Voris v. Birdsall, Okl., 153 Pac. 673.

deed from his mother, then living, held void.Dailey v. Springfield, Ga., 87 S. E. 479.

8.

Attorney and Client-Disbarment.-Where the course of conduct of an attorney shows that he is unfit to remain a member of an honorable profession, although the charges, taken separately, might not require disbarment, he should be disbarred. In re Montegriffo, N. Y. Supp., 156 N. Y. S. 512.

9. Disbarment.-In disbarment proceedings against an attorney, evidence that he had sought to have the appellate court pass upon a fictitious controversy, for the purpose of obtaining an adjudication as to the validity of the Torrens Act, held to require suspension.In re Hawes, N. Y. Supp., 156 N. Y. S. 283.

Attorney,

10. Lien for Services.-An attorney having no lien prior to judgment, the cause of action may be compromised without his consent, and the adverse party is not liable unless guilty of fraud.-Campbell's Automatic Safety Gas Burner Co. v. Hammer, Or., 153 Pac. 475. 11. -Professional Misconduct. preparing answer and causing his client to verify it, containing a general denial of the material allegations of complaint which he knew to be true, and filing it solely for delay, held guilty of professional misconduct and severely censured.-In re Schreiber, N. Y. Supp., 156 N. Y. S. 398.

was

12. Ratification.-Where defendant present in the courtroom, presumably advising with his counsel, he thereby ratified all his counsel had already done in his behalf regardless of whether such counsel had been authorized prior thereto to represent him.-Young v. Martin, Kan., 153 Pac. 542. 13.

answer

Bankruptcy-Concealment.-The of opposing creditors in involuntary bankruptey for written admission of inability to pay held not to sufficiently aver fraud and collusion between the debtor and petitioning creditors, of which the proceedings were the result, but at most concealment of goods and preferences.In re Cohn, U. S. C. C. A., 227 Fed 843.

14.- -Evidence.-Schedules and discharge in bankruptcy held prima facie evidence of what they purported to show including notice to creditors of creditors' meeting, especially in view of Bankruptcy Act, § 39, subd. 4.-Claflin v. Wolff, N. J., 96 Atl. 73.

15.- -Fraudulent Transfer. The trustee in bankruptcy of a debtor is vested with the right of action of creditors with respect to property fraudulently transferred by the bankrupt, and may, on their behalf, assail such transfers to the same extent as though the debtor had not been declared bankrupt.-Beasley v. Smith, Ga., 87 S. E. 293.

16. -Insolvency.Insolvency of persons against whom liens specified in Bankr. Act, § 67f, are obtained, held indispensable to their avoidance under that section, and to the jurisdiction of the court of bankruptcy to order conveyance or make other orders to that effect thereunder.-Stone-Ordean-Wells Co. v. Mark, U. S. C. C. A., 227 Fed. 975.

17.- -Judgment Appealed from.-Judgment against defendant and his sureties on appeal from justice court judgment, rendered prior to bankruptcy, held not void though pending appeal defendant was adjudged a bankrupt, the bankruptcy court having authorized plaintiff to proceed to judgment.-Kohn, Weil & Co. v. Weinberg, Miss., 70 So. 353.

18. Judgment Creditor.-Under the Bankruptcy Act, as amended by Act, July 25, 1910, the trustee in bankruptcy attacking a sheriff's sale under a chattel mortgage, as in fraud of creditors, stands with all the rights and powers of a judgment creditor holding an execution duly returned unsatisfied.-Bean V. Parker, Vt., 96 Atl. 17.

19. Notice.-Knowledge by a grantee of facts sufficient to put a reasonably prudent man on inquiry which, if pursued, would lead to a knowledge of the bankrupt grantor's insolvency at date of the conveyance, charges him with knowledge of such insolvency. First Bank of Maysville v. Alexander, Okl., 153 Pac. 646. 20.

-Preference.-Payments of notes to a bank, made by a bankrupt within four months prior to bankruptcy, by checks drawn on its

ordinary deposit account in such bank, held not to constitute voidable preferences.-American Bank & Trust Co. v. Coppard, U. S. C. C. A., 227 Fed. 597.

21. Proof of Claim.-A secured creditor, who retained his security, held not entitled to prove a claim against the estate after the year for proving claims had expired.-In re Thompson, U. S. C. C. A., 227 Fed. 981.

22. Schedules.-Though bankrupt did not mention in his schedules his assignment of life policies, yet, he supposing he had a right to assign, the trustee is not entitled to the whole amount of insurance, bankrupt having died, as concealed property and its increment.-In Levy, U. S. D. C., 227 Fed. 1011.

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23. Banks and Banking Dividend.-Where the record of the vote by which a stock dividend was declared recited that it was from the surplus earnings of the bank, it will be presumed it was declared from surplus earnings available for distribution among stockholders.-In re Heaton's Estate, Vt., 96 Atl. 21.

24.- -Federal Reserve Board.-Federal Reserve Act Dec. 23, 1913, § 11k, empowering Federal Reserve Board to grant to national banks applying therefor the right to act as trustee, executor, etc., held not within power of Congress, as such functions belong exclusively to the states.-People v. Brady, Ill., 110 N. E. 864.

25. Interest.-The term "discounted," within Comp. Laws 1913, § 5166, authorizing banking associations to deduct interest in advance, has a more comprehensive meaning than the dismere purchase of negotiable paper at a count and covers loan transactions as well. Sundahl v. First State Bank of Edmunds, N. D., 155 N. W. 794.

26. Ultra Vires.-Banks, which with а natural person formed a firm to deal in cotton, were liable to such person for his share of profits, or, if he were an agent, for any compensation due him, though the formation of the firm was ultra vires as to them.-Dexter v. First Guaranty State Bank, Tex. Civ. App., 180 S. W.

1172.

27. Bills and Notes-Direction of Verdict.Where the introduction in evidence of the notes sued on established prima facie that they were given for a valuable consideration, it was error to direct a verdict for defendant, though all the witnesses gave testimony tending to show invalidity of the notes.-McCormack V. Wil

liams, N. J., 95 Atl. 978.

28. Carriers of Goods-Bill of Lading.-The words in a bill of lading "notify V. at S." do not indicate to the carrier that V. is the consignee; it appearing in the line above that the goods were consigned to P.-New York, N. H. & H. R. Co. v. Sampson, Mass., 110 N. E. 964.

29. Carriers of Passengers-Care.-A railroad common carrier is not bound to prevent its doors, which have been opened by others, from closing when its train is in motion, and it commonly has no reason to expect passengers to he standing on the platform.-Shaughnessy v. Boston & M. R. R., Mass., 110 N. E. 962. 30. Exemplary Damages. -Where a carrier carries his beyond destination a passenger through reckless, careless, wanton, and willful neglect, but not otherwise, the passenger may recover exemplary damages in addition to actual damages. St. Louis & S. F. R. Co. v. Lilly, Okl., 153 Pac. 810.

31. Passengers Defined.-Ordinarily, every person not an employe being carried by the express or implied consent of the carrier on a conveyance usually employed in the carriage of passengers, is presumed to be lawfully upon it as a "passenger."-Georgia & F. Ry. Co. v. Tapley, Ga., 87 S. E. 473.

a

but

32. Sudden Starting. The starting of street car without any sudden jerk was not negligence as to a passenger standing on the rear platform. holding to the handrail, would be negligence as to a passenger who had placed one foot on the platform and was raising the other foot to the platform.-Bennett V. Metropolitan St. Ry. Co., Mo. App., 180 S. W. 1050.

33.

Commerce-Employment.-The engineer of a train engaged in hauling gravel for the repair and improvement of his employer's road

bed over which interstate commerce regularly passed was engaged in interstate commerce, so that for his injury from a collision he might maintain an action under the federal Employers' Liability Act.-Holmberg v. Lake Shore & M. S. Ry. Co., Mich., 155 N. W. 504.

34. Intoxicating Liquor.-Under the WebbKenyon Act, intoxicating liquors, brought from another state and intended to be used in violation of the law of Kansas, are not articles of interstate commerce.-Kansas City Breweries Co. v. Kansas City, Kan., 153 Pac. 523.

35.

Intoxicating Liquor. Webb-Kenyon Law, divesting intoxicating liquors of their interstate character in so far as power of the state to regulate the sale and disposition thereof and the shipment into the state for that purpose is concerned, is valid.-Gottstein v. Lister, Wash., 153 Pac. 595.

36. -Migratory Birds.-Congress cannot prescribe regulations to protect migratory game birds within the boundaries of a state.-State v. McCullagh, Kan., 153 Pac. 557.

37. Prize Fight Films.-Act July 31, 1912, § 1, making it unlawful to bring into the United States any film of any prize fight for purposes of public exhibition, is not beyond the powers of Congress under the commerce clause of the federal Constitution.-Weber V. Freed, U. S. Sup. Ct., 36 S. Ct., 131.

38.- -Safety Appliance.-Car in interstate train marked for repairs and to be switched to repair track was not withdrawn from interstate commerce so as to relieve carrier from liability for injuries to a switch foreman under the Safety Appliance Acts and the Employers' Liability Act.-Great Northern Ry. Co. v. Otos, U. S. Sup. Ct., 36 S. Ct. 124.

39. Constitutional Law-Delegation of Power. While a legislative body cannot delegate its powers, it may delegate to a board, as a railroad commission, the right to determine question of fact such as whether a railroad falls within a given class for purpose of license taxes under Laws 1912, C. 102.-New Orleans M. & C. R. Co. v. State, Miss., 70 So. 355.

40.-Discrimination.-A person not belonging to a class alleged to have been unlawfully discriminated against by a statute cannot, in judicial proceedings, assail the constitutionality of the state, as it affects that class.-State v. Philips, Fla., 70 So. 367.

41.- -Police Power.-The police power of the state is not limited to regulations necessary for the preservation of good order or the public health and safety, but extends to the prevention of fraud and deceit in the sale of articles of food.-People v. Dehn, Mich., 155 N. W. 744.

42. Public Waters.-The state may without denying equal protection of the laws justly discriminate in favor of its citizens in regulating the taking for private use of the common property in fish and oysters found in the public waters of the state.-Ex parte Gillette, Fla., 70 So. 446.

43.- -Remedy.-No person has a vested right in any particular mode of procedure or remedy. -American Nat. Ins. Co. v. Donahue, Okl., 153 819.

Pac.

44. Workmen's Compensation Law.-Workmen's Compensation Act, modifying the common-law defense of contributory negligence, and abrogating the defenses of assumed risk and fellow servant's negligence, is not unconstitutional as denying equal protection of the laws. Consumers' Lignite Co. v. Grant, Tex. Civ. App., 181 S. W. 202.

45.

Contracts - Consideration. Where the owner of a building agreed to pay subcontractors if they would continue and would not quit, they may recover the value of the work, though no terms of payment were agreed upon and no amount fixed.-Paul v. Haber, N. J., 96 Atl. 41.

46.- -Duress.-As duress in executing a contract involves the state of mind of the complaining party, his age, sex, and condition of life, the character of the threats made, and attendant circumstances, are competent evidence.-Gate City Nat. Bank v. Elliott, Mo., 181 S. W. 25.

47. Proposal and Acceptance.-Where plaintiff's offer to sell his share in a business