what took place between him and his client | generally that such evidence was irrelevant Mr. Norton on some occasions, and these or related to collateral matters or to transcriticisms have been as if there was some- actions between other parties. Such evidence thing of a discreditable nature in his repeat- included records of the proceedings for the ing matters here in court in response to the appointment of the receivers, and of the acclaims and statements of Mr. Norton on the tions against the defendants above referred witness stand, let me say to you that the seal to, of correspondence between Norton and of secrecy as between attorney and client is others shown to the plaintiff by Norton, corbroken, when, in a suit for services by an at- respondence and conversations between the torney against his client, his client enters up- plaintiff and others respecting said actions, on a line of defense which involves what in and the affairs of the National Mercantile fact took place between him and his attor- Company offered in presenting the plaintiff's ney, and respecting which the client testifies case, and of questions to Norton upon crossas in this case, the client waives any right examination regarding letters, and documents to object to the attorney's giving his ac- afterwards laid in evidence, and concerning count of the matter, and the criticism of entries in the books of the National Mercancounsel as to Mr. Pierce revealing profession- tile Company, offered generally for the pural secrets has no justification in law." pose of contradicting the testimony of Norton that he had committed no criminal offense, and was not indebted to the National Mercantile Company, and that he had so told the plaintiff. We must decline to discuss all of the claims of defendants' counsel respecting the rulings of the trial court, and the purpose for which such evidence was offered. Many of them are such as should find no place in a brief addressed to this court. It is sufficient to say of most of the rulings complained of that the evidence received was admissible either to show the character of the plaintiff's services or to contradict the defendants' evidence that the plaintiff was either incompetent, or that he acted in bad faith. The line of defense adopted in this action, and attempted to be supported by the testimony of Norton, was that the plaintiff either corruptly or from incompetency had induced the defendants to pay $15,000 to the receiver, in settlement of the suits against them, when he knew, or had good reason to know, that the defendants had neither committed the offenses, nor were indebted to the National Mercantile Company as charged in the civil and criminal actions against them. An attorney may maintain an action against his client for professional services, and, when to such action a defense like that in the present case is made, he may show the circumstances under which the services were rendered in proof of their value and in proof of his good faith. The finding states that the defendants offered evidence to prove that L. B. Norton had not been guilty of any crime or wrongdoing, that neither of the defendants owed the National Mercantile Company, and that L. B. Norton had so repeatedly told the plaintiff. The record shows that such was the testimony of L. B. Norton. Clearly the plaintiff was entitled to meet this evidence by proving either that L. B. Norton did not so inform him, or that Norton told him the contrary, or that the plaintiff, from his investigations of Norton's transactions, had good reason to believe that such statement, if made by Norton, was untrue, and that the plaintiff acted in good faith and with good judgment with reference to the settlement made. There was no error in the language of the charge above quoted. Hunt v. Blackburn, 128 U. S. 464-470, 9 Sup. Ct. 125, 32 L. Ed. 488; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 550; Nave v. Baird, 12 Ind. 318. We find no error in the remainder of the charge or in any failure to charge as requested. There is no sufficient reason for repeating here the exceptions of defendants' counsel, some 28 in number, to the rulings of the trial court upon questions of evidence. They were all taken to the admission of evidence against One of the rulings complained of was the admission, against the defendants' objection, of the testimony of the plaintiff in rebuttal that the cashbook of the National Mercantile Company, which the plaintiff had examined, contained entries showing that four claims amounting to over $100, which had been sent to the company by one of its customers for collection, and which had been reported to such customer as not collected, had in fact been collected. The admission of this oral testimony of the contents of the book furnishes no ground for a new trial. Certain pages of the cashbook had already been laid in evidence, and it does not appear that these items were not upon those pages. The books in question were apparently in court and available to the defendants. It does not appear that the defendants attempted to show from the books, or that they even claimed, that the plaintiff's statements regarding the entries in the books were incorrect. In Elmira Roofing Co. v. Gould, 71 Conn. 629, 42 Atl. 1002, we held that a trial court might, in its discretion, when books of account were voluminous, and were produced for inspection and for the purpose of cross-examination, permit a competent witness who had examined them to testify to the result of such examination. There is no error. The other Judges con DAYETT v. WILLITS. (Orphans' Court of Delaware. New Castle. Dec. 15, 1909.) 1. EXECUTORS AND ADMINISTRATORS (8 264*) -PAYMENT OF CLAIMS-PRIORITY. 15 Laws Del. p. 616, c. 477, § 1, as amended (20 Laws Del. p. 976, c. 458), provides that a bona fide mortgage of personal property, duly signed, sealed, and delivered, and acknowledged as mortgages of real property are, shall for five years be a valid lien upon such personal property, though the possession remain in the mortgagor, if it be lodged for record, etc. Held that, upon the death of the mortgagor in possession, the mortgaged property would not go into the hands of his administrator unconditionally, to be sold, and the proceeds distributed under the statute, which provides the order in which demands against decedents shall be paid, but the mortgagee has a specific lien upon the mortgaged property not lost by failure to foreclose before the administrator's sale thereof, which would take precedence over the claims of general judgment creditors. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1002-1011; Dec. Dig. § 264.*] 2. EXECUTORS AND ADMINISTRATORS (§ 263*) -PAYMENT OF CLAIMS-PRIORITY. H. Dockety, deceased, were filed, said exceptions being as follows: "Exceptions to the first and final account of Merritt N. Willits, administrator of William H. Dockety, deceased, passed before the register of wills on April 22, 1909, said exceptions being taken by and on behalf of William T. Dayett, a judgment creditor of the said William H. Dockety, said judgment being No. 331 as of May term, A. D. 1895, for a debt of three hundred and eighty dollars ($380.00), with interest thereon from May 29, A. D. 1895, judgment Docket C, vol. 3, p. 72, the following causes being assigned: "First. That the said administrator erred in not paying said judgment or any part thereof, he having had due notice of said judgment, and having had funds in his hands as administrator applicable to the payment thereof. "Second. That the said administrator erred in paying to himself the sum of four hundred and sixteen dollars ($416.00) for 'judgment, levy and interest,' to the exclusion of the judgment of the said William T. Dayett, the judgment of the said Merritt N. Willits being subsequent to that of the said William T. Dayett. "Third. That the said administrator erred Rev. Code 1852, p. 846. c. 111, § 63, provides that an execution shall not bind chattels until it is delivered to the proper officer to be executed, and shall from that time bind all defendant's chattels within the bailiwick, which shall be actually levied upon, etc. Held that where one creditor obtained judgment and execution, and levied upon certain chattels of the judgment debtor, and another creditor obtained a judgment, but no execution or levy, and the chattels were sold at an administrator's sale, the creditor who had levied had a specific lien on the chattels, which entitled him to the proceeds of the sale in preference to the other cred-ed in paying 'school taxes 1907,' taxes being itor who had no lien. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 982; Dec. Dig. 263.*] 3. EXECUTORS AND ADMINISTRATORS (§ 261*) ALLOWANCE OF CLAIMS - PRIORITIES TAXES "OTHER DEMANDS." Rev. Code 1852, c. 89, § 25, fixing the order in which executors or administrators shall pay demands against decedent, does not mention taxes, though the last clause provides for payment of "other demands." Held, that though the statute does not mention taxes, in view of the intention to include all legal claims against the estate, taxes will be deemed to come under the class designated "other demands" to be paid after judgments. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 951; Dec. Dig. 261.*] Proceedings for settlement of the estate of William H. Dockety. Hearing on exceptions of William T. Dayett to the first and final account of Merritt N. Willits, administrator. Account modified and approved. Argued before CURTIS, C., and HAST INGS, J. Edward W. Cooch, for exceptant. Martin B. Burris, for accountant. HASTINGS, J. Exceptions to the first and final account of the administrator of William in allowing to himself the sum of three hundred and thirteen dollars and fifty cents ($313.50), for 'chattel mortgage and interest,' to the exclusion of the judgment of the said William T. Dayett, mortgages being in a class subsequent to judgments. "Fourth. That the said administrator err included in a class subsequent to judgments. "Fifth. That the administrator erred in making an allowance of seven dollars and forty-seven cents ($7.47) for 'cash paid, costs on Willis' judgment,' (evidently intended for Willits' judgment), said judgment being subsequent to judgment held by the said William T. Dayett. "Sixth. That the said account shows a bal ance in the hands of the administrator of fifty dollars and fourteen cents ($50.14) 'subject to the following claims for taxes,' which itemized, amount to thirty-three dollars and sixty-four cents ($33.64), thus ignoring judgment of the plaintiff. "Seventh. That the said account shows payments to M. B. Burris, attorney, and to the administrator, as commissions, where as the said administrator stated in effect to inducement to his being selected to act as the heirs of the deceased and others as an administrator that he would make no charge, and that the administration would cost the estate nothing as he had his own attorney. "Eighth. That the account shows an allowance as attorney fee the sum of one hundred dollars ($100.00), which is excessive for an insolvent estate, considering the small amount of work involved. *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes "Tenth. That the said account shows an allowance to the administrator for 'rents, tenement house,' twenty-five dollars and twenty-five cents ($25.25), whereas the said administrator agreed to accept the clearing of a piece of new ground in payment of said rents." The witnesses were produced in this case, and the court, after careful consideration of the evidence and the argument of counsel, have come to the following conclusions; but in stating our opinion we will not consider the exceptions in the order in which they were filed: "Ninth. That the account shows an allow-mitting that this preference could not extend ance to the administrator of one hundred to a judgment creditor over a chattel mortand thirty-one dollars and thirty-nine cents gage creditor who had a lien upon specific ar($131.39) for commissions, which is excessive ticles, yet, when the mortgagee in a chattel for an insolvent estate, considering the small mortgage failed to foreclose his mortgage amount of work involved. and permitted the property covered thereby to be sold at the administrator's sale and the proceeds turned into the general fund in the hands of the administrator, the mortgagee forever loses his lien and his preference, and must share with other creditors of his class. Chapter 477, p. 616, 15 Laws Del., as amended (22 Laws Del., p. 976, c. 458), provides: "Section 1. A bona fide mortgage of personal property, if duly signed, sealed and delivered by the party making it, and, acknowledged as mortgages of real property are, shall, for the space of five years, be a valid lien upon such personal property, though the possession remain in the mortgagor, if it be lodged for record in the recorder's office of each county where any of the mortgaged property is held, within ten days from the time of the acknowledgment thereof." The proper execution, the deliverance, and the recording of the chattel mortgage gave certain rights to the mortgagee with respect to the mortgaged property, and at the same time, while leaving the mortgagor in possession of the property, it took away from him certain rights with respect to it. The mortgagee could not sell the property except by foreclosure, and the mortgagor could not remove it without Taking up the seventh, eighth, and ninth exceptions, relative to the amount allowed for counsel fee and commissions to the administrator, we are of the opinion that the evidence does not show that the administrator agreed that the estate should be administered without expense, and we also conclude that the sum of $100 allowed for counsel fee and the sum of $131.39 allowed the administrator as commissions for services were reasonable sums, and not excessive. The tenth exception was abandoned by counsel for the exceptant. We will classify the remaining exceptions, the written consent of the mortgagee. as follows: Upon the death of the mortgagor does the First. The third, which relates to the chat- mortgaged property, merely because it was in tel mortgage. Second. The first, second, and fifth, which relate to the judgment held by the administrator against the deceased. the mortgagor's possession, go into the hands of the administrator unconditionally, to be sold and the proceeds distributed under the statute which provides the order in which Third. The fourth and sixth, which relate executors and administrators shall pay deto the payment of taxes. mands against the deceased? We are very We will now consider the exceptions as clear that it does not. The mortgagee had a thus classified. First. With reference to the chattel mortgage. The evidence and records show that a chattel mortgage was given September 4, 1906, by William H. Dockety and wife to Merritt N. Willits for the sum of $300, payable on or before the expiration of three months from date, with lawful interest from date. This chattel mortgage covered horses, cattle, wagons, etc., all of which were sold at public sale by Merritt N. Willits, administrator of William H. Dockety, the mortgagor. The said Merritt N. Willits was also the mortgagee in the chattel mortgage. It appears from the evidence that the property covered by the chattel mortgage brought at the administrator's sale the sum of $810.75, which was in excess of the mortgage debt. If we understand the contention of the counsel for the exceptant, it is of a twofold nature: First, that a judgment being mentioned in the statute as of a higher class of debt than a mortgage the administrator was bound to pay all judgments before applying specific lien upon this property, and, until the amount due the mortgagor upon such mortgage was paid, the property could not be a part of the estate of the deceased; in other words, it was the equity in such pledged articles that belonged to the estate, and not the articles themselves. The law is well laid down in 18 Cyc., at page 464, under the head of "Secured Claims," as follows: "According to the weight of authority, a debtor whose claim is secured by mortgage, pledge, or any specific lien need not present his claim for allowance in order to preserve his right to subject the property covered by the lien to the satisfaction of his claim, for the reason that such claims cannot in any just sense be considered claims against the estate, but the right to subject specific property to the claim arises from the contract of the debtor whereby he has during his life set aside certain property for its payment, and such property does not, except in so far as its value may exceed the debt, belong to the estate, and the instrument being of record or the property er having none. We think that the conclusions arrived at with respect to the lien of the chattel mortgage apply to this question, and that further consideration of it is unnecessary. Third. Taking up the third and last class of exceptions with relation to the payment of taxes, there was presented to the administrator, for payment, school and town, county and poor, and road taxes for the years 1905, 1906, and 1907, all being assessments upon amounting to $15.10, were paid by the administrator, and the balance he holds subject to the decision of the court. tice to all the world of the contract. But | class; one having a specific lien and the othwhere a mortgagee, pledgee, or other secured creditor seeks to obtain payment either in full of a deficiency out of the general assets of the estate, and this to enforce his claim against property not covered by his lien or held by him as security, his claim stands on the same footing with the claims of other creditors, and must be presented for allow ance. The security of a mortgagee, pledgee, or other secured creditor is not affected by his presentation and securing the allowance of his claim." There are numerous cases cit-personal property. The school taxes for 1907, ed there to sustain this doctrine. A similar rule is laid down by Woerner in his work on the American Law of Administration, at section 408. Indeed, we find no decisions to the contrary. We know of no law and can conceive no reason for compelling a foreclosure of a mortgage in order that the lien may be of a mortgage in order that the lien may be preserved. Whether this property was sold under levy and execution or at the administrator's sale of all the personal property of the deceased can make no difference, as the administrator was bound under the law to satisfy the specific lien creditors in the order in which they had obtained their liens before applying anything to the general creditors, unless the statute provides otherwise, as it apparently does in chapter 186, p. 310, 15 Laws Del., with respect to funeral expenses, medicines, medical attendance, and nursing. Second. We will now take up the second class of exceptions, which relate to the judgment held by the administrator against the deceased. The evidence and records show that a judgment was obtained by the said Merritt N. Willits against the said William H. Dockety and wife at the May term, 1904, for the sum of $600. Upon said judgment an execution was issued on August 28, 1905, and a levy made by the sheriff on September 6, 1905, upon certain horses, cattle, wagons, etc., of the defendants in the judgment. The exceptant also had a judgment against the deceased, obtained at the May term, 1895, but upon that judgment there was no execution and levy. At the administrator's sale the chattels levied upon were sold for about $700, which was in excess of the amount due upon the judgment of Willits. The counsel for the exceptant contended that the administrator was bound to pay all creditors of the same class pro rata, and could not pay one judgment creditor in full to the exclusion of another. The Revised Code (Laws Del. 1852, c. 111, p. 846, § 63) provides as follows: "An execution shall not bind goods and chattels until it is delivered to the sheriff or other proper officer to be executed. An execution shall, from the time it is so delivered, bind all the goods and chattels of the defendant within the bailiwick, which shall be actually levied upon within sixty days thereafter. ***" The levy upon the goods and chattels was in force at the time they were sold. It appears, therefore, that the creditors in The statute fixing the order in which executors or administrators shall pay demands against the deceased, being chapter 89, Rev. Code 1852, § 25, does not mention taxes, though the last class is composed of "other demands." It is contended by the counsel' for the administrator that at common law taxes were of a high class and were payable after funeral expenses and costs of probate, and that, therefore, they were not "demands" within the meaning of the statute. In most of the states specific provision is made for the payment of taxes, and they are usually placed in a high class, though Pennsylvania places them in the lowest class. Our statute has provided the order in which demands against the estate of the deceased shall be paid, and, while such statute does not mention taxes, we think it was intended to include all legal claims against the estate, and that taxes must come under that class designated as "other demands." The tax laws provide a certain mode of assessment and that duplicates shall be placed in the hands of the collector, who is absolutely responsible to the county for the collection of the duplicates placed in his hands. That is to say, so far as the county is concerned, it has a charge against the collector, and not against the taxable. The statute has at the same time provided a very summary manner by which the collector may proceed against the taxable, and, until he proceeds, he has no lien upon the personal property. In this case he had not so proceeded. There is no priority given by the statute to the claims for taxes on personal property, and they must therefore be placed in the lowest class and be paid under the class of "other demands," and after judgments. It may be well to observe, also, that there is nothing in the statute which prevents the tax collector from reducing his claim to judgment, and, of course, thereby placing it in a higher class. That this estate is still indebted to William T. Dayett, a judgment creditor, in the sum of $380, is not denied, as we understand it. The conclusion of the court, therefore, is that Merritt N. Willits, the administrator, should pay to the said William T. Dayett the TIONS-SELLING WITHOUT LICENSE-ADMIS- to $50.14, together with the sum of $15.10, | 6. INTOXICATING LIQUORS ($_234*)-PROSECUwhich he has previously paid John A. Cleaver for school taxes for the year 1907, less the costs of this proceeding, and that the account in all other respects be approved. Let an order be entered accordingly. STATE v. FAGAN. (Court of General Sessions of Delaware. Castle. Nov. 5, 1909.) A license to sell liquor, obtained after the date on which accused was charged with selling without a license, but bearing a test date prior thereto, is not admissible in evidence as a defense to the prosecution, being no defense. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 298; Dec. Dig. § 234.*] New 7. INTOXICATING LIQUORS (§ 154*)-OFFENSES -SALE WITHOUT LICENSE. 1. INTOXICATING LIQUORS (§ 206*) - INDICT- [Ed. Note. For other cases, see Intoxicating TION. Papers handed to a witness on cross-examination to prove their issuance by a public officer, after which they were marked for identification, could not be inquired into on redirect examination by the state, not having been offered in evidence, but merely marked for identification. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 999; Dec. Dig. § 286.*] 3. INTOXICATING LIQUORS (§ 168*)-OFFENSES -PERSONS LIABLE-PRINCIPAL'S LIABILITY FOR AGENT'S ACTS. The holder of a liquor license is criminally liable for the acts of his agents or servants in violation of the law pursuant to which the license was issued. One sells liquor without a license who sells in less than one-quart quantities to be drunk off the premises, when he only has a license to sell in such quantities to be drunk on the premises. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 168; Dec. Dig. § 154.*] 8. INTOXICATING LIQUORS (§ 224*)-OFFENSES -PROSECUTIONS-BURDEN OF PROOF. In a prosecution for selling intoxicants by drunk off the premises, when accused only had an agent in less than quart quantities to be on the premises, the burden was on him to show a license to sell in such quantities to be drunk that the sale was made by his agent without his knowledge and against his instructions. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 281; Dec. Dig. § 224.*] 9. CRIMINAL LAW (§ 308*)-PROSECUTIONS— ($ INNOCENCE. Accused is presumed to be innocent until proven guilty. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*] 10. CRIMINAL LAW (§ 561*) - EVIDENCEPROOF REASONABLE DOUBT." Proof of guilt must be beyond a "reasonable doubt," which means such a doubt as reasonable men would have under all the circumstances, and not a mere speculative or indefinable doubt. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.* For other definitions, see Words and Phrases, [Ed. Note.-For other cases, see Intoxicating 4. INTOXICATING LIQUORS (§ 168*)-OFFENSES A license holder is prima facie liable criminally as principal for the acts of his agent in selling liquor without license, by selling in less than one quart quantities to be drunk off the premises, when he only had a license to sell in such quantities to be drunk on the premises, but may avoid such prima facie liability by showing that the sale was without his authority or knowledge and against his instructions. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189--192; Dec. Dig. § 168.*] 5. CRIMINAL LAW (§ 447*)-EVIDENCE-PAROL EVIDENCE. The law requiring the admission in evidence of instruments under the seal of such officer as the Secretary of State contemplates that they appear on their face to be regularly signed and sealed and a liquor license, offered in evidence as a defense to a prosecution for selling without a license, which bore two dates, one after the date on which the offense was alleged to have been committed, was ambiguous, and evidence was admissible to explain the meaning of the latter date, and to show when the license was issued, and was not objectionable as varying a writing by parol. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1029-1031; Dec. Dig. § 447.*] John Fagan was indicted for selling intoxicants without a license. Verdict of guilty. Argued before WOOLLEY and HASTINGS, JJ. Josiah O. Wolcott, Deputy Atty. Gen., for the State. William F. Kurtz, for defendant. The indictment was as follows: "New Castle County-ss. September Term, 1909. "The grand inquest for the state of Delaware, and the body of New Castle County, on their oath and affirmation, respectively, do present that John Fagan, late of New Castle hundred, in the county aforesaid, on the first day of July in the year of our Lord one thousand nine hundred and nine, with force and arms, at New Castle hundred, in the county aforesaid, in a certain house there situate, to wit, in a certain house, New Castle, in school district number forty-five, in the hundred aforesaid, and in which said house the business of selling intoxicating liquors was then and there carried on, he the said John Fagan, then and there being the tenant and occupant of said house, he, the said John Fagan, then and there having a |