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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022841922 Modern American Law A Systematic and Comprehensive Commentary on the FimdameintaL Principles of American Imw and Pro- cedure, Accompanied by Leading Rlustrative Cases and Legal Forms, with a Revised Edition of Blackstone's Commentaries^ PBEPABED BY JUDGES, MEMBERS OF THE BAE, TEACHEBS IN LAW SCHOOLS, AND WEITEES ON LEGAL SUBJECTS tTNBEE THE EDITORIAL SUPERVISION OP EUGENE ALLEN GILMORE, A. B., LL. B. , PBOPESSOE OP LAW, UNIVERSITY OP WISCONSIN ' ASSISTED BY WILLIAM CHARLES WERMUTH, M. S., LL. B. LAW LECTUEEK, NORTHWESTERN UNIVERSITY FIFTEEN VOLUMES BLACKSTONB INSTITUTE CHICAGO Modern American Law GENERAL INTKODUCTION BY EUGENE A. GILMOHE, A.B., LL.B., PKOFESSOK OF LAW, UNIViaiSITY OF WISCONSIN THE MODERN DEMOCRACY, THE CITIZEN AND THE LAW BY JOHN B. WINSLOW, LL.D., JUSTICE, SUPREME OOUHT, WISCONSIN LEOAL ETHICS BY OEEIN N. CAETEB, LL.D., JUSTICE, SUPREME COUHT, ILLINOIS LAW— ITS ORIGIN, NATURE AND DEVELOPMENT BY CHARLES A. HUSTON, A.B., J.D., J.S.D., FBOFESSOR OF LAW, LELAND STANFORD JR. UNIVERSITY COURTS— FEDERAL AND STATE BY AKTHUE L. SANBOEN, LL.B., JUSnCE, UNITED STATES DISTRICT COURT LAW OF CONTRACTS BY WILLIAM C. WEEMUTH, M.S., LL.B., LAW LECTURER, NORTHWESTERN UNIVERSITY VOLUME I. BLACKSTONE INSTITUTE, CHICAGO. •B 9?53f COPTEIQHT, 1914, BT BLACKSTONB INSTITUTE COPYEIGHT, 1917, BT BLACKSTONE INSTITUTE Modern American Law SUBJECTS AND AUTHORS VOLXJMB I. Qeneral Introdnction. Eugene A. Gilmore, A.B., LLhB., University of Wisconsin. The Modem Democracy, the Citizen and the Law. John B. Winslow, LL.D., ^ Supreme Court, Wisconsin. Begal Ethics Orrin N. Carter, LL.D., Supreme Court, Illinois. Law — ^Its Origin, Nature and Devel- opment Charles A. Huston, A.B., J.D., J.S.D., Leland Stanford Jr. Vnivers/ity. Courts — Federal and State Arthur L. Sanborn, LL.B., United States District Court. Contracts William C. Wermuth, M.S., LL3., Northwestern University. Torts: Introduction — Trespass William C. Jones, A.B., M.A., University of California. Conversion Frank L; Simpson, A.B., LL3., ' Boston University. Negligence and Legal Cause Barry GUbert, A.B., LL.B., State University of Iowa. Deceit Edward D. Osbom, University of Kansas. Defamation Charles M.' Hepburn, LL.D., Indiana University. Malicious Prosecution John C. Townes, LL.D., University of Texas. Domestic and Business Eelations. William C JbhfeS, A.B., M.A., University of California. Eight of Privacy , '. .William C. Jones, A.B., M.A., University of California. Miscellaneous — Explosives, Etc. ] George F. Wells, LL.D., University of West Virginia. Fellow Servant Doctrine Theophilus J. Moll, Ph.B., LL.M., American Central Law School. V vi SUBJECTS AND AUTHORS VOLUME III. Criminal Law William E. Mikell, B.8., LL.M., University of Pennsylvania. Criminal Procedure William L. £urdick, Ph.D., LL.B., University of Kansas. Persons and Domestic Belations Elmer M. Liessmann, LL£., Northwestern University. VOLUME rv. Personal Property and Bailments. .. .Henry W. Ballantine, A.B., LL.B., University of Wisconsin. Liens and Pledges E. L. Henry, Jr., PI1.B., J.D., B.C.L., University of North Dakota. Agency William A. Ferguson, A.M., LL.B., Fordham University. Sales H. Claude Horack, Ph.B., LL3., State University of Iowa. a VOLUME V. Eeal Property • .Arthur W. Blakemore, A.B., LL3., Of the Boston Bar. VOLUME VL Descent — Wills — Administration — Guardian and Ward Charles S. Cutting, LLJD., Of the Chicago Bar. Landlord and Tenant WUliam L. Burdick, Ph.D., LLJB., University of Kansas. Water Bights and Irrigation James W. McCreery, University of Colorado. Mines and Mining William E. Colby, LL.B., University of California. . VOLUME VIL Equity John N. Pomeroy, A.M., IiL3., University of IlKnois. Trusts George G. Bogert, A.B., LL.B., Cornell University. Quasi-Contracts Arthur M. Cathcart, A.B., Leland Stanford Jr. University. Estoppel Oliver S. Eundell, LL.B., Of the Wisconsin Bar. VOLUME VIIL Negotiable Instruments .William G. Hale, B.S., LL.B., University of Illinois. Guaranty and Suretyship .Charles E. Carpenter, A.M., LL.B., University of North Dakota. SUBJECTS AND AUTHORS vii Mortgages— Eeal and Chattel Manley O. Hudson, A.M., LL.B., University of Missouri. Statutory Interpretation John E. Bood, LL.B., University of Michigan. VOLUME IX. Private Corporations I. Maurice Wormaer, A.B., LL.B., Fordham University. Partnership Eugene A. Gilmore, A.B., LL.B., University of Wisconsin. Banks and Trust Companies James L. Hopkins, LL.B., Of the St. Louis Bar. Beceivers TheophUus J. Moll, Ph.B., LL.M., American Central Law School. VOLUME X. Pleadings in Civil Actions Louis B. Ewbank, LL.B., Indiana Law School. i Practice in Civil Actions William N. Gemmill, LL.B., LL.D., Municipal Court of Chicago. Equity Pleading and Practice William E. Higgins, B.8., IjL.B., University of Kansas. Evidence John T. Loughran, LL.B., Fordham University. Attachments and Garnishments Oliver A. Harker, A.M., LL.D., University of Illinois. Judgments and Executions John E. Eood, LL.B., * University of Michigan. Extraordinary Eemedies Harvey N. Shepard, A.B., Boston University. Habeas Corpus John Wurts, M.A., LL.B., M.L., Tale University. VOLUME XI. Constitutional Law: Definitions and Principles James W. Garner, B.S., Ph.D., University -of Illinois. Organization and Powers of the United States Government James Wilford Garner, B.S., Ph.D., University of Illinois. Constitutional Guaranties of Fundamental Eights Emlin McClain, A.M., LL.B., LL.D., Leland Stanford Jr. University. Eminent Domain Philip Nichols, A.B., LL.B., Of the Boston Bar. Taxation Philip Nichols, A.B., LL.B., Of the Boston Bar. Naturalization George P. Tucker, A.B., Ph.D., LL.B., Of the Boston Bar. viii SUBJECTS AND AUTHORS VOLUME XII. Conflict of Laws George L. Clark, A.B., lliS., J-SJJ^ ' University of Missouri. Interaational Law Paul S. Beinsch, A.B., Ph.D., LLJB., University of Wisconsin. (nterstate CbmmeTce Dudley O. McGovney, A.M., LL.B., Tulane University. Bankruptcy George Lawyer, A.M., liLkB., Albany Law School, Patents .George C. Holt, A.B., LL.B., LL.D., United States District Court. Copyrights William. L. Symons, LL.M., M.PX., Washington College of Law. Trademarks .William L. Symons, LL.M., M.PX., Washington College of Law. Unfair Competition and Good Will. .James L. Hopkins, LL3., Of the St. Louis Bar. VOLUME xin. Public Service Companies — Carriers. .Bruce Wyman, A.M., LL3., Harvard University. Municipal Corporations Henry H. Ingersoll, M.A., LL.D., University of Tinnessee. Public Officers and Elections Edwin Maxey, D.C.L., IjL.D., University of Nebraslca. Parliamentary Law John H. Perry, M.A., IiL3., Tale University. VOLUME xrv. Damages : William P. Kogers, A.B., LLJ)., Cincinnati Law School. Insurance Henry W. Humble, AJf ., LL3., University of Kansas. Admiralty Law and Practice George C. Holt, A.B., LL.B., LUD., United States District Court. Medical Jurisprudence George F. Wells, LLJ)., University of West Virginia. Forms Francis L. Harwood, A.B., LL.B., Of the Chicago Bar. VOLUME XV. Blackstone Henry W. Ballantine, A.B., LL.B., University of Wisconsin, Cumulative Index Frederick W. Schenk, University of Chicago. GENERAL INTRODUCTION. Modern American Law is a general, systematic and compreliensive commentary on the fundamental prin- ciples of American law and practice. The commentaries of Sir William Blackstone on the laws of England and of Chancellor James Kent on American law demonstrate the feasibility and value of presenting, within comparatively narrow limits, the principles of the law. The works of legal writers of a previous century, however, do not ade- quately expound the law of the present day. The rapid increase of legislation, the enactment of con- stitutional amendments, and the necessity of apply- ing the principles of law to new problems clearly indicate the need of a modern commentary. Modem American Law is the work of judges, teachers in law schools and writers on legal subjects. That the work is the combined effort of many minds and not of one, is a source of unusual strength and advantage. The authors present not only the modem rules of law, but, as well, the origin, nature and growth of the law. The entire field of law is systematically covered. The foundational or the basic subjects are treated first, and, following them in related groups, are the GENERAL INTRODUCTION derivative subjects. The work thus provides a logical and systematic course of reading in law. Each volmne contains: first, treatises dealing with the several branches of the law ; second, leading illustrative cases taken from the federal, state and English reports, elaborating and explaining the treatises; third, quiz questions and problems, based upon the treatises ; fourth, bibliographies ; and fifth, a comprehensive index of the voliune. In the four- teenth volmne are included standard legal forms. The fifteenth volume is devoted to a modem edition of Blackstone's Commentaries and a table of all cases cited throughout the volumes together with a cumula- tive index. It is possible by means of the index and the table of cases to find the discussion of any par- ticular principles as applied to all branches of the law. Modem American Law is offered to the reader with the confident belief that it will prove to be a standard legal conunentary, useful alike as a work of general reading and of reference. Eugene A. Gilisoee, University of Wisconsin. W. C. "Wermuth, Northwestern University. PREFACE. The spirit of Modern American Law is exemplified by the practical ideals of service so earnestly pro- posed by Judge John B. Winslow, of the Supreme Court of Wisconsin, in his monograph, "The Modem Democracy, the Citizen and the Law." He urges all citizens to acquire a knowledge of the law and espe- cially asks the legal profession to aid in greater measure in the solution of modem legal and social problems. Judge Orrin N. Carter, of the Supreme Court of Illinois, then presents in his exposition of "Legal Ethics" a dignified but practical course of conduct for such social service, eminently suitable for all. Imbued with the spirit of these articles, follows a highly interesting account of "Law — Its Nature, Origin, and Development," by Professor Charles A. Huston, of Leland Stanford Junior University. Further to prepare the reader. Judge Arthur L. Sanborn, of the United States District Court, pre- sents a treatise on the system of federal and state courts of the American Union. A valuable commen- tary preparatory to a discussion of legal and equit- able rules and a study of cases, this article on "Courts" is of infinite value. PEEFACE The first commentary dealing with the principles of substantive law is that of the "Law of Con- tracts," by Mr. W. C. Wermuth, of Northwestern University. Underlying the doctrines and rules of many important subjects, this branch of the law is the foimdation for thorough legal knowledge. The treatises and commentaries in this volume are of inherent value to every reader of the law. TABLE OF CONTENTS {The figures refer to those at the foot of the pages.) THE MODERN DEMOCRACY, page THE CITIZEN AND THE LAW • i LEGAL ETHICS SECTION 1. Introduction 21 2. Necessity for rules pf ethics 22 3. Legal ethics generally 24 4. Standard of admission to the bar 27 5. Duty to the court 28 6. Reciprocal duty of the court 30 7. Lawyer and judge — Out of court 30 8. Maintaining the dignity of the profession 31 9. Relations between members of the profession 32 10. Attorney as a witness 33 11. Conduct as to jury 33 12. Attorney and client 34 13. The defense or prosecution of those accused of crime . . 37 14. Relation of lawyers to the public 39 15. Fees 41 16. Contingent fees 43 17. Conclusion 44 3dS LAW-ITS ORIGIN, NATURE AND DEVELOPMENT PART I. ELEMENTS OE LEGAL THEORY. CHAPTER I. THE NATURE OF LAW. SECTION PAGE 1. Ways of beginning the study of law 47 , 2. The meaning of law 48 3. The administration of justice 51 4. The evolution of law 51 5. The sanction of law 54 CHAPTER II. THE SOURCES OF LAW. 6. The sources of law — In general 56 7. Custom 57 8. Judicial precedent — The following of precedent. ... 58 9. The disregarding of precedents 60 10. The creation of precedents 60 11. The persuasive sources of law in general — Legal reasoning and persuasive precedent 62 12. Professional opinion 63 13. Juristic writing 63 14. Public policy and natural law 65 15. Legislation 67 16. Interpretation of statutes 68 17. Relative contribution of the sources 70 18. Codification 71 xiv CONTENTS XV CHAPTER III. THE SUBJECT MATTER OF LAW. SECTION PAGE 19. The law and interests 74 20. Classification of interests — Individual interests 75 21. Public interests 76 22. Social interests 77 23. Balancing of interests 78 24. The securing of interests — Legal rights and duties . . 78 25. The elements of rights and duties 81 26. The classification of rights — Rights in rem and in personam 82 27. The classification of rights, continued — ^Primary and remedial rights 84 28. The law of procedure — Adjective and substantive law 85 CHAPTER IV. CLASSIFICATIONS OF LAW. 29. Logical and practical classifications — In general .... 87 30. Systems of law — The common and the civil law 90 PART II. SKETCH OF ANGLO-AMERICAN LEGAL HISTORY. CHAPTER V. • THE BEGINNINGS OF LAW. 31. Introductory— The relation of English history to the English law 93 32 The Anglo-Saxon beginnings 93 33. The effects of the Norman Conquest 97 34. The feudal system 98 xvi CONTENTS SECTION PAGE 35. The Curia Regis or King's Court 99 36. The local and ecclesiastical courts 101 37. General view of the period 102 CHAPTER VI. THE MAKING OF THE COMMON LAW. 38. The work of Henry II— In general '. ^104 39. The crown, the Church, and the barons 104 40. The older modes of trial 105 41. The inquest 107 42. The king's peace and the grand jury 109 43. The writ process Ill 44. The itinerant justices and the court at Westminster. 112 45. Magna Charta 114 46. The professionalizing of the administration of justice 115 47. Development of trial by jury 116 48. Precedent as a source of law 117 49. Growth of legal doctrine 118 CHAPTER VII. THE ENLARGEMENT OF THE COMMON LAW. 50. Legislation a source of law 120 51. The limits of common law jurisdiction 121 52. The development of the land law 122 53. The writ-issuing power 123 54. The courts of law 125 55. The legal profession 126 56. The ossification gf the common law 128 57. The need for elasticity 130 58. Legislation in the fourteenth and fifteenth centuries 130 59. The expansion of the law through the Court of Chancery 132 60. The equitable jurisdiction of chancery 134 61. Chancery procedure 136 62. Development of law in the courts of common law. . . 138 63. The law merchant and the Court of Admiralty 139 CONTENTS xvii CHAPTER VIII. THE MATURITY OP THE LAW. SECTION PAGE 64. The administration of justice by councils 142 65. The constitutional struggle with the Stuarts — Legal aspects 145 66. The standardizing of equity 146 67. Slow growth of private law doctrine to nineteenth century 148 68. The inclusion of the law merchant within the com- mon law 150 69. Legislative reform 151 CHAPTER IX. THE AMERICAN DEVELOPMENT OF THE COMMON LAW. 70. The adoption of the common law — The' colonial period 155 71. The Revolution and the common law 156 72. The effect of the Revolution— The reaffirming of the common law 157 73. The new states 158 74. The demand for a native law . . . .• 159 75. The content of the adopted law 160 76. The courts of law 162 77. American development of the common law 165 PART III. MATERIALS AND METHODS IN THE STUDY OF LAW. CHAPTER X. THE USE OP STATUTES, REPORTS, AND SEARCH-BOOKS. 78. Aims in the study of law 167 79. Material for study — ^Books of primary and secondary authority 168 xviii CONTENTS SECTION PAGE 80. Lines of study 169 81. Enacted law — Kinds and characteristics — Relation to case law 169 82. Reports— Nature 170 83. Reports— Official and unofficial 171 84. Reports — ^Value — Decision and dicta 173 85. The study of reported cases 174 86. Comparison of cases 175 87. Books of authority 177 88. Treatises and text-books 177 89. Search-books — ^Digests — Citators , 178 90. Encyclopedias 179 91. Text-books and citators 180 92. Conclusion' 180 Bibliography 181 LAW OF COURTS CHAPTER I. 6ENEBAL RULES APPLICABLE TO ALL COURTS. SECTION PAGE 1. Definition of court 183 2. Courts of review 185 3. Superior and inferior courts 185 4. Effect of presumption 186 5. Cases in which a judicial record may be disregarded as an estoppel, or as sustaining a lien by con- structive notice, or when offered in evidence in another suit (collateral attack) 187 6. Fraud — Collusion — Want of hearing 190 7. What courts are superior and what inferior 191 8. Instances of superior and inferior courts 192 9. General and special 193 10. Terms and sessions 194 11. Judicial, legislative, and executive power 195 12. The relation of the courts to the executive depart- ment — Discretionary and ministerial functions .... 196 13. Jurisdiction 197 14. Kinds of jurisdiction 198 15. Facts strictly jurisdictional, and those quasi-jurisdic- tional 199 16. Inception of jurisdiction 200 17. Jurisdiction in rem and in personam 202 18. Proceedings affecting a subject matter or status .... 204 xix XX CONTENTS SECTION PAGE 19. Territorial limits on jurisdiction 205 20. Exclusive and concurrent, jurisdiction 206 21. Jurisdiction of subject matter and of the person. .. . 206 22. Jurisdiction by consent 207 23. Ancillary jurisdiction 208 24. Executive and political questions 209 25. The mandatory or strict record and the statutory record 210 26. The mandatory record 211 27. Loss of jurisdiction by extra-judicial judgment 213 28. Jurisdiction and venue 214 29. Concurrent and conflicting jurisdiction 215 30. Stare decisis and judicial comity 218 CHAPTER II. THE COURTS OF THE UNITED STATES. Federal Jurisprudence, and Its Relation to the Common Law and State Jurisprudence. 31. The federal judicial power 220 32. In what courts the judicial power must be vested . . . 221 33. General rules as to jurisdiction and powers 222 34. Exclusive jurisdiction 224 35. Concurrent state and federal jurisdiction 229 36. Quasi-exclusive power of the court first taking jur- isdiction 230 37. Personal actions against prior custodian 232 38. Federal and state habeas corpus 232 39. Habeas corpus in state and federal courts 233 40. Following state laws and decisions in federal courts. 237 41. Conformity with local practice 240 42. The common law in the federal courts ; civil cases . . 242 43. The federal law of evidence 243 44. Equity in the federal courts 244 45. Equity jurisdiction when there is a common law remedy 245 CONTENTS xxi CHAPTER III. THE VAEIOUS UNITED STATES COURTS AND THEIR JURISDICTION. SECTION PAGE 46. The Supreme Court 247 47. Organization of the Supreme Court 248 48. Its original jurisdiction 249 49. Appellate jurisdiction over state courts 252 50. Appellate jurisdiction over the district court 255 51. Appellate jurisdiction on constitutional or treaty. questions 256 52. Indirect review of district court by Supreme Court ; mandamus 258 53. Direct review of final decrees in prize cases 261 54. Review of decisions of the circuit court of appeals by writ of error or appeal 261 55. Review of decisions of the court of appeals by cer- tiorari 262 56. Certifying questions to the Supreme Court 263 57. Appeals from the Court of Claims 263 58. Review over Porto Rico courts 264 59. Review over supreme and district courts of Hawaii Territory 264 60. Review over courts of Alaska Territory 265 61. Review over District of Columbia courts 266 62. ;^eview of bankruptcy cases 266 63. Review over Court of Commerce 267 64. Review under special statutes 267 The United States Circuit Court of Appeals. 65. Organization aud general jurisdiction 268 66. Review over district courts 269 67. "When decision final and when not 270 68. Appeals from injunction and receiver orders 271 69. Review over territorial courts 271 70. Review of proceedings in bankruptcy 272 71. Review over federal courts of China and Alaska 273 X3di CONTENTS The Court of Claims. SECTION PAGE 72. Organization and history 274 73. Jurisdiction of the court of claims 275 74. Concurrent jurisdiction of the district court 277 The Court of Customs Appeals. 75. Organization and jurisdiction 277 The Commerce Court. (Abolished.) 76. Organization and jurisdiction 278 The District Court. 77. Organization and history 280 78. The former circuit court 281 79. The district court jurisdiction 282 80. Civil suits brought by the United States or its of- ficers 283 81. Civil suits between citizens of the same state claim- ing under diverse state land grants 283 82. Civil suits arising under the federal Constitution, laws, or treaties 284 83. Civil suits between citizens of different states 285 84. Suits on assigned contracts 287 85. Civil suits between alien states or citizens and state citizens 288 8|6. Crimes and offenses under federal laws 288 8T. Admiralty and non-admiralty, seizures and prize . . . 288 88. Slave trade 290 89. Suits under revenue, customs, tonnage, postal laws . . 291 90. Suits under patent, copyright and trade-mark laws . . 291 91. Interstate commerce suits 293 92. Penalties and forfeitures 293 93. Suits on customs debentures 294 94. Suits for damages against persons enforcing the revenue or civil rights laws 295 95. Suits for damages under civil rights laws 295 96. National bank suits 295 97. Suits by aliens for torts against the law of nations . . 297 CONTENTS XXllI SECTION PAGE 98. Suits between aliens 297 99. Suits against foreign consuls and vice-consuls 298 100. Bankruptcy proceedings 298 101. Jurisdiction concurrent with the Court of Claims 301 102. Unlawful enclosure of public lands 301 103. Habeas corpus and appeal in immigration and Chinese exclusion cases 302 lOi. Suits under anti-trust laws 303 105. Suits relating to Indian allotment of land 304 106. Partition suits where the United States is an owner in common 305 107. Jurisdiction of Wyoming district court over Yellow- stone Park 305 108. Jurisdiction oVer the Hot Springs reservation, Arkansas 306 109. Suits against states 306 110. Amount in controversy 308 111. Ancillary jurisdiction , 309 Territorial and Insular Courts. 112. Nature and organization of territorial courts 310 113. Courts of Hawaii 313 114. Courts of the Philippine Islands 314 115. The courts of Porto Rico 315 116. Jurisdiction in Guam and the Guano Islands 315 117. The District of Columbia courts 316 118. Consular courts 318 119. The United States court for China 321 Military and Naval Courts. 120. Military provisional courts 322 121. Courts martial 322 Removal of Cases from State Courts to the District Court. 122. History of removal acts 324 123. What cases now removable 326 124. Separable controversies 326 125. Prejudice or local influence 327 xxiv CONTENTS SECTION PAGE 126. Removal of civil rights eases 328 127. Removal of suits by aliens against federal officers. . 329 128. Effect of removal on state proceedings 329 129. Remanding cases improperly removed 329 CHAPTER IV. STATE COURTS AND COURTS OF SPECIAL AND STAT- UTORY JURISDICTION. 130. State courts of general jurisdiction 331 131. Probate courts ' 332 132. Justices of the peace and justices' courts ^ . . . 333 133. Liability of justice of the peace 335 134. Pleading and practice in justices' courts 335 135. Municipal courts 33G 136. Courts of the Indian tribes and nations 337 CHAPTER V. THE COURTS OF THE BRITISH EMPIRE. 137. Definition and classification 340 138. Superior and inferior courts 340 139. The English courts— the House of Lords 341 140. Appellate jurisdiction of the House of Lords 341 141. Judicial power of the House of Commons 342 142. Lord High Steward's Court 342 143. The Judicial Committee of the Privy Council 342 144. Jurisdiction of the Privy Council 342 145. The Supreme Court of Judicature 343 146. Its jurisdiction 343 147. Criminal jurisdiction of the Court of Judicature 344 148. Service beyond the jurisdiction 344 149. His Majesty's High Court of Justice 345 150. Appellate jurisdiction of the Supreme Court of Judicature 345 151. The various divisions ; Chancery Division ; 346 152. The King's Bench Division 346 153. Actions against the Crown in the King's Bench 347 154. The Crown side of the King's Bench Division 348 CONTENTS XXV SECTION p^QE 155. Probate, Divorce and Admiralty Division 348 156. His Majesty's Court of Appeal 348 157. Officers of the courts 349 158. Other officers , ... 350 159. The circTlits 350 160. Criminal courts — Courts of summary jurisdiction . . . 351 161. Quarter and general sessions 351 162. Courts of special session 352 163. The Central Criminal Court. 352 164. The Court of Criminal Appeal 353 165. The Court of the Admiral 353 166. English admiralty courts — Local courts 353 167. Local and naval courts 354 168. The Admiralty Division of the Supreme Court of Judicature 354 169. The Court of Admiralty of the Cinque Ports 355 170. The Liverpool Court of Passage 355 171. Colonial courts of admiralty 356 172. County courts having admiralty jurisdi&tion 356 173. The English coimty courts 356 174. Equity jurisdiction of the county court 357 175. County court jurisdiction under Bills of Exchange Act 358 176. Appeals from county courts 358 177. Cotmty court jurisdiction under special statutes 358 178. Courts of escheat. 359 179. Forest courts 359 180. The Court of Chivalry 359 181. The Court of Claims 360 182. The Sheriff's Court 360 183. The Palatine Courts 360 184. The Chancery Court of the County Palatine of Durham 361 185. Criminal courts of the Cinque Ports. 361 186. Borough and local courts of record 361 187. Hundred and manorial courts. 361 188. The judicial commissions 362 189. The British prize courts 362 190. Lunacy courts 362 LAW OF CONTRACTS PART I. INTRODUCTORY TOPICS. CHAPTER I. DEFINITION AND HISTORY OF CONTRACT. SECTION PAGE 1. Eights and obligations , 363 2. Contract defined 364 3. Essentials of the definition 365 4. Use of term "contract" 366 5. Classification of contracts 367 6. Same subject-^Express, implied, and quasi-contracts 368 7. Same subject — ^Executed and executory contracts . . . 370 8. Same subject — ^Bilateral and unilateral contracts. . . 370 9. Contracts in civil law. 371 10. Terminology / 371 11. History of contract 372 ' 12. Same subject — Forms of action 373 PART II. THE FORMATION OP CONTRACTS. CHAPTER II. OFFER AND ACCEPTANCE. 13. Agreement 376 14. Nature of the agreement 377 15. What is an offer 377 xxvi CONTENTS xxvu SECTION PAGE 16. Duration of offers — Reasonable time 379 17. Same subject — Options 380 18. Same subject — Time fixed 380 19. Same subject — Death — Ipsanity 381 20. Same subject — Acceptance not in terms of offer... 381 21. Eevocation of offers 382 22. Continuing offers 383 23. Counter offer — ^Inquiry — Quotation 384 24. Offers at auction 385 25. Orders for goods 385 26. Knowledge of terms of offer 386 27. Agreements made by post 387 28. Same subject — Cases considered 388 29. Meeting of minds 390 30. Rewards 391 31. How acceptance may be made 391 32. Same subject — Silence 392 33. Who may accept offer 393 34. Advertisements as offers 393 35. Cross offers 394 36. Rule as to written draft 394 CHAPTER III. REALITY OF CONSENT. 37. Reality of consent 396 38. Mistake 396 39. Mistake of one party only 401 40. Mistake in motive 402 41. Mistake of law 403 42. Effects of mistake 403 43. Misrepresentation 403 44. Expressions of opinion 407 45. Representations of law 407 46. Misrepresentation — Conditions — "Warranties 408 47. Representation must be acted upon ; 409 48. Care by party 409 49. Effect of misrepresentation 410 xxviii CONTENTS SECTION PAGE 50. Fraud : 410 51. The effect of fraud 414 52. Duress 415 53. Undue influenee 416 54. Right to rescind for undue influence 419 55. Bescission 419 # CHAPTER IV. CONTRACTS UNDER SEAL. 56. History of sealed instruments 421 57. Seals 421 58. Contracts under seal and specialties 422 59. Same subject — ^Deeds, bonds, records 423 60. Same subject — Delivery and form 425 61. Same subject — Statutory changes 426 CHAPTER V. CONSIDERATION. 62. Definition of consideration 428 63. Consideration distinguished from motive 429 64. Valuable consideration 430 65. Valuable consideration need not be adequate 431 66. Executory and executed considerations 431 67. Good consideration 432 68. Moral consideration 433 69. Unreal considerations 434 70. Mutuality of obligation 434 71. Forbearance to sue 436 72. Compromise 438 73. Accord and satisfaction 441 74. Legal duties as consideration 442 75. Contractual obligations as consideration 443 76. Promises to third persons 444 77. Mutual promises 445 78. Compositions with creditors 445 79. Present and past considerations 446 CONTENTS XXIX SECTION PAGB 80. Subscription agreements 448 81. Failure of consideration 450 82. Presumption of consideration 451 CHAPTER VI. STATUTE OP FRAUDS AND PERJUEIES. 83. Provisions of fourth section of Statute of Frauds. . . 453 84. Construction of the fourth section of the Statute of Frauds 454 85. Nature of the contracts in the fourth section — Clause (1) — ^Executor 455 86. Same subject — Clause (2) — Any special promise to answer for the debt, default or miscarriage of another person 455 87. Seime subject — Clause (3) — Marriage 457 88. Same subject — Clause (4) — Contract or sale of lands 457 89. Same subject — Clause (5) — Agreement not to be per- formed within the space of one year from the making thereof 460 90. Executed contracts — ^Part performance 461 91. Provisions of the seventeenth section 463 92. Construction of the seventeenth section 463 93. Satisfaction of the requirements of the Statute of Frauds — Memorandum 465 CHAPTER VII. CAPACITY OF PARTIES. 94. In general 469 95. Infancy .469 96. Married women 473 97. Persons mentally deficient 474 98. Aliens 475 99. Professions 477 100. Convicts 477 101. Corporations 477 102. Power of a state to contract 477 XXX CONTENTS CHAPTER VIII. LEGALITY OP THE SUBJECT MATTER. SECTION PAGK 103. The subject matter as an element in a valid contract 479 104. Contracts illegal by common law and by statute. . . . 480 105. Same subject — Wagers , 481 106. Same subject — Usury 483 107. Agreements contrary to public policy 484 108. Contracts in restraint of trade 488 109. Contracts restraining marriage 490 110. Fiduciary relations 491 111. Effect of illegality— In general * 492 112. Effect of promises made regarding past illegal trans- actions 493 113. Effect of intention 494 114. Partial illegality ' 495 115. Effect on illegality of change of time or place 496 PART III. THE OPERATION OP CONTRACT. CHAPTER IX. LIMITS OP CONTRACTUAL OBLIGATION. 116. Scope of contractual obligation 497 117. A contract may not impose liability on a third party . 497 118. Same subject — Apparent exceptions 498 119. Duty of third parties 499 120. Rights of a third person — English rule 499 121. Same subject — New York rule 500 122. Same subject — Limitations to the New York rule , . . 501 123. Same subject — ^Release 502 124. Same subject — Sealed contracts 502 CHAPTER X. THE ASSIGNMENT OF CONTRACTS. 125. Assignment 503 126. Liabilities may not be assigned 503 CONTENTS XXXI SECTION PAGE 127. Assignment of rights 504 128. Novation 505 129. Assignments in equity 505 130. Defenses 506 131. What is assignable 507 132. Same subject — ^Personal service contracts 507 133. Form 508 134. Assignment of future earnings 509 135. Contracts and claims non-assignable 509 136. Partial assignments 510 137. Priority of assignments 511 138. Assignment and negotiability distinguished 512 139. Assignments by statute 512 140. Assignment by operation of law 513 CHAPTEE XI. JOINT CONTRACTS— JOINT AND SEVERAL CON- TRACTS—SEVERAL CONTRACTS. 141. Classification 515 142. Promisors and promisees 515 143. Joint contracts 516 144. Several contracts . 518 145. Joint and several contracts 518 PART IV. INTERPEETATION AND CONSTRUCTION OF CONTRACT. CHAPTER XII. PRINCIPLES OF INTERPRETATION AND CONSTRUCTION. 146. What is meant by interpretation and construction of contract 521 147. Rules of evidence 521 148. Same subject — Proof of the document 524 xxxii CONTENTS SECTION PAGE 149. Same subject — Pact of agreement 525 150. Same subject — Terms of the contract 526 151. Rules of construction 530 152. Same subject — Subsidiary rules 531 153. Rules as to penalties and liquidated damages 532 PART V. , THE PERFORMANCE OF CONTRACTS. CHAPTER XIII. PROMISES AND CONDITIONS. 154. Nature of promises 535 155. Independent promises 535 156. Dependent promises 536 157. Conditions 536 158. Express conditions 538 159. Conditions implied in fact 538 160. Conditions implied in law 539 161. Performance of express and implied conditions 540 162. Precedent conditions 540 163. Conditions concurrent 541 164. Conditions subsequent 542 165. Pleading and proof 544 166. Representations and warranties 546 CHAPTER XIV. RULES ON CONDITIONS. 167. History of conditions 550 168. Rules on express conditions 551 169. Performance dependent on approval. . . . -. 553 170. Contracts conditional upon satisfaction 553 171. Promises to pay 555 172. Rules on conditions implied in fact 555 173. Rules on conditions implied in law 556 174. Act on one side requiring .time 557 CONTENTS xxxiii SECTION PAGE 175. "Where only the time for performance of one act is definite 558 176. Breach of condition 559 177. Eules as to time 560 178. Instalment contracts 562 179. Renunciation of contract 564 CHAPTBE XV. IMPOSSIBILITY OF PERFORMANCE. 180. Kinds of impossibility 569 181. "Where impossibility is known 569 182. Subsequent impossibility 570 183. Same subject — Exceptions 572 184. Impossibility of performance created by a party .... 574 185. Impossibility by acts or change of law 576 186. Existence of subject matter and place - .•■ 580 187. Personal incapacity 584 188. Scope of impossibility 586 189. Alternative contracts 587 190. Rights of parties 587 PART VI. THE DISCHAEGE OF CONTRACTS. CHAPTER XVI. DISCHARGE BY AGREEMENT. 191. Modes of discharge 589 192. Discharge by agreement 590 193. Discharge by substituted agreement 591 194. Release 592 195. Novation 593 196. Form 594 197. Provisions for discharge 595 xxxiv CONTENTS CHAPTER XVII. DISCHARGE BY PERFORMANCE. SECTION PAGE 198. Performance 598 199. Payment 598 200. Tender 600 201. Strict and substantial performance 601 CHAPTER XVIII. DISCHARGE BY OPERATION OF LAW. 202. Modes of discharge by operation of law 604 203. Merger 604 204. Alteration of written instrument 605 205. Discharge by failure of consideration 606 206. Discharge by breach going to the essence and by re- pudiation 607 207. Marriage 608 CHAPTER XIX. DISCHARGE OF RIGHT OF ACTION. 208. Modes of discharge of right of action 609 209. Discharge by terms of contract 609 210. Discharge by acts 609 211. Accord and satisfaction 609 212. Arbitration and award 611 213. Discharge by operation of law 612 214. Statutes of Limitations 612 215. Bankruptcy 613 CHAPTER XX. REMEDIES AND AUTHORITIES. 216. Remedies for breach of contract 614 217. Damages 614 218. Specific performance 615 219. Cancellation and rectification 615 CONTENTS XXXV PAGE Bibliography 616 Quiz Questions ' Legal Ethics 617 Law — Its Origin, Nature and Development 619 Courts — Federal and State 625 Law of Contracts. 639 Leading Illnstrative Cases, Table of Contents 651 Indes 867 THE MODERN DEMOCRACY, THE CITIZEN AND THE LAW BY JOHN B. WINSLOW, LL.D.* If we take account of time by the majestic marcli of the centuries rather than by the feverish flight of the seasons, and measure progress by great world movements, rather than by the petty events of this or that community, we shall find that it is no very long time since the law was generally regarded as a mysterious, if not an occult, science, entirely beyond the grasp of the ordinary citizen. Its decrees were accepted and obeyed not because they were based upon reason, but because they eman- ated from a power capable of enforcing them. When told that some grievous and palpably unjust result must be endured because the law said so, the citizen was, perforce, content, or at least resigned to his fate, wondering, perhaps, why it must be so, — ^but hardly venturing to think that law could ever be made logical and just, as well as inexorable. In the days of absolutism this attitude of the citi- * Chief Justice of the Supreme Court of Wisconsin; former President, American Institute of Criminal Law and Criminology. Author: "History of Supreme Court of Wisconsin;" "Legal Forms." 2 THE MODERN DEMOCRACY zen towards the law was natural and almost inevit- able. The liege-subjects of a feudal sovereign had a valid excuse for not familiarizing themselves with the fundamental law of the state ; they did not make the law and could not change it, however wrong it might be. The citizens of a democracy, however, have no such excuse ; they are the lawmakers, and it is their duty no less than their privilege to change the law if it be wrong. The future historian will find many things of sur- passing interest when he comes to review the open- ing decades of the twentieth century, but he will find nothing more interesting or significant than the great wave of democracy which is now sweeping over the earth. It is not that this will be the only great and significant movement of the present day which he will find it necessary to review, for there will be many others. Among these will be the wonderful increase of education among the masses of the people. Brougham said nearly a century ago that the school- master was abroad ; but, where there was one school- master abroad at that time there are a hundred now. He is not always educating wisely, perhaps; his courses may be superficial and fragmentary, and his abilities meagre, but whatever be the faults or defi- ciencies of his system, he is imparting to his pupils something in the way of knowledge, either utilitarian or abstract, and for the first time in the history of the world the ^reat mass of the people are receiving some sort of education. It can hardly be doubted that before the lapse of many years practically every citi- zen of the so-called civilized nations, whether male or THE MODERN DEMOCRACY 3 female, black or white, will not only be able to read and write, but will have such general knowledge on subjects connected with his occupation or the general welfare, or both, that he will be able to discuss and take a more or less intelligent part in the social and political movements of the time. Again, the future historian will be compelled to note the great industrial revolution now approaching its culmination, the astounding growth of the city at the expense of the country, the change from the individual to the community life, the vast increase ip creature comforts, and the evolution of the means of commimication and travel on a scale never before dreamed of. All these he will see, and more, and yet the great fact which wUl overshadow them all will be the fact that at this time the people of every na- tion first began to realize the fact that democracy may weU mean something more than the right of certain classes of citizens to vote at stated intervals for rep- resentatives who may or who may not carry out the will of those who elect them. This remarkable world movement must be apparent to the most superficial present day observer of the signs of the times. Let any such observer take the world's map and put his finger where he will, he will find some phase of it. In Great Britain it takes the form of nullifying the powers of the House of Lords and curbing privilege of birth; in France and Germany it appears in the garb of socialism ; in China a republic supplants the rule of the Manchu dynasty, and in other countries it appears in various movements aU directed with greater or less wisdom to the wiping out of one form 4 THE MODERN DEMOCRACY or another of privilege. Everywhere there is political unrest; everywhere there is clamor for more direct and complete control of the government by the peo- ple. In our own country the democratic drift is, per- haps, more marked than anywhere else. We have long thought that we, in fact, had a democracy, or, perhaps more exactly, a group of democracies united for self -protection and mutual benefit here on this side of the Atlantic. As a matter of fact there is much in our state and national governments that is not strictly democratic. But, unless every sign fails, we shall have democracies here before many years such as the world has never seen on any such scale before; at least we shall experiment with them. The democracies which we have had are represent- ative democracies founded on the principle of pre- serving to the greatest possible extent the rights of the individual. The democracies which are coming, unless all signs fail, are democracies of direct popular action in which individual rights and privileges must give way in very many and very important particu- lars to regulations and restrictions deemed necessary for the benefit of the great mass of the people. The democracies of the present enact their laws by representative bodies chosen from the electorate, and delegate many governmental powers to officials or bodies of officials removed by many steps from the direct control of the people. The democracies which are coming propose to place both legislative and exec- utive power directly in the hands of the people, or under their immediate control, so far as that may be possible. The democracies of the past have limited THE MODEEN DEMOCRACY 5 the electorate to male citizens, the democracies which are coming will, without doubt, welcome to the elec- torate female citizens on equal terms, not as privi- lege, but as right. The direct primary, the initiative and referendum, the recall, the equal suffrage movement, the election of United States senators by popular vote, the presi- dential preference primary, — all these movements, whether yet crystallized into law or only agitated, are simply manifestations of the overwhelming demo- cratic spirit of the time. Some of them may prove to be mere experiments which will be abandoned after trial, but some either have come or will come to stay, and, unless all signs fail, other changes which will tend to bring the administration of governmental af- fairs more quickly and completely within the control of the electorate will, at no distant day, be added to them, and ultimately be incorporated in our state and national governments. The wisdom of the innovations which are coming, or are already here, is not germane to the purpose of this article. It is sufficient to say here that there seems no doubt that they are coming, that they will be tried out, that some of them will be permanent, that they will work important changes in our social, as well as our governmental life ; changes which every citizen ought to seriously consider. The most serious thought which must present it- self to the mind when these great movements for more direct and speedy control of governmental affairs are considered, is the thought of the vastly increased responsibility of the citizen. A benevolent despotism 5 6 THE MODEEN DEMOCRACY may, perhaps, rule wisely and well, although its sub- jects are generally ignorant and have no high ideals, but it is very certain that the only foundation upon which a democracy can safely rest is the intelligence and virtue of the people. If this be true of a repre- sentative democracy, where legislative and other gov- ernmental activities are carried on by representatives with only an occasional appeal to the people, how much more true must it be where the people them- selves, by initiative, referendum, recall, or other kin- dred means, keep their own hands directly upon gov- ernmental processes. If the people are to rule in person and not by rep- resentatives, a proposition which, as applied to a great and populous state, is difficult, but perhaps not impossible, the people must be fit to rule; to be fit to rule they must not only be educated, but the great mass of them must be of good, moral character. A pure democracy cannot exist if its electorate be cither ignorant or corrupt. If the fountain head be I)oisoned, the waters of the stream cannot be sweet. The question whether the American electorate is in all respects fit to assume the duties and responsibili- ties which must result from the new democracy which is at our doors is by no means free from doubt. We are much accustomed to boast of the intelligence and good morals of our people, but boasting proves nothing. Taking up the question whether the moral tone of the people is improving as the need for higher ideals increases, we shall find conditions not altogether re- assuring. In the first place, we find that the indus- THE MODERN DEMOCRACY 7 trial revolution has brought us not only the vast fac- tory and largely supplanted human labor with ma- chine labor, but has added very serious difficulties to the problem of maintaining, not to say elevating, the moral standards of the people. The great city has come, and come to stay, and it has -brought its great problems with it, — ^problems which will call loudly and more loudly for solution as the years go by. They are the problems of the slum, the tenement house, the social evil, of child labor, of congested population and unsanitary living, of alluring vice in all its phases, and many others, all of which have 'greater or less bearing upon the physical and moral manhood and womanhood of the race. The sturdy farmer, who is daily breathing in health and strength under the open sky, surrounded " by the inspiration of Nature's wonders, is giving way to the city dweller, the operative in the great shop, and the thousand and one stunted and narrow-chested workers in the city streets, who just manage to keep body and soul together, and go to bed at night hope- less and wearied, or try to drive away all thought of the morrow by forced and shameful merriment. The picture is not overdrawn, and it is not encouraging to one who is looking for improvement in the moral tone of the people at large. This is not to say that the moral fibre of the nation is weakening. Churches, schools and philanthropic societies of various kinds are working as never- be- fore, but there is need of such work as never before. The political condition of most, if not all, of our great cities is distressing already under a representative 8 THE MODEEN DEMOCRACY democracy; what will it be if we are to have direct democracies and immediate control by the electorate ? What will it be when the cleavage between great wealth and abject poverty becomes more pronounced? What will it be if class hatred grows more acute? What will it be if the urban nurseries of crime go unchecked and the professed criminal classes increase in the fu- ture as they have in the past ? Who can answer ? It is not pleasant to speak of these things, — ^indeed they are not much spoken of in our best society. People go to their receptions, their teas and their banquets, and talk of the weather, of the last opera, or the latest book. It is far more comfortable to ignore such dis- agreeable questions as those suggested. Yet the time has certainly come when they must be considered, and the wonder is that anyone could think of ignor- ing them. So far only the problems which are peculiar to the great city have been spoken of, but there are others which are present not only in the city but in the vil- lage and in the country as well, and they also threaten to affect the moral tone of our citizenship. The great increase of wealth and luxury which has come from the development of our wonderful natural resources has resulted in a perceptible lowering of ideals. Our forefathers struggled for very existence in the face of tremendous difficulties ; they subdued forests, endured the privations of the frontiers, and in the midst of toil and privation laid the foundations of the state that was to be. Amid such labors and pri- vations it was natural that they should develop the sterner elements of character, the elements of f orti- THE MODERN DEMOCRACY 9 tude, both physical and mental, of self -control, stead- fastness and probity of purpose. We who have entered into their labors and are reaping the results of their self-denial, either by way of making gain from vast business enterprises or dwelling in an atmosphere of ease or luxury which they made possible, are quite apt to have our thoughts directed to the material things, — the things which make life pleasant and en- joyable, to the neglect of the sterner virtues. It is not possible for one citizen, or for any group of citizens, to make any appreciable change in the material conditions of the age in which we live. We cannot go back to the days of Our fathers if we would. "The moving finger writes, and having writ, moves on," — not backward. The great city will be- come greater, the opportunities for the acquisition of wealth will not decrease but rather increase, the use of the conveniences and luxuries which modern life places within our reach will not cease, the temp- tation to live a life of ease and pleasure, regardless of the cry of the imfortunate and afflicted, will be just as strong. How are all these weakening tenden- cies to be met and overcome? How are we to make sure of that high grade of morality in our citizenship which will be necessary in such democracies as we shall have? This question is probably not capable of an authori- tative answer in a single word, nor will the attempt be made to give one, but the word which comes near- est to it is the word "Service." For centuries individualism has been the keynote of civilization, especially in this land which has 10 THE MODEKN DEMOCKAGY boasted so loudly of its freedom and quality. We have gloried in the idea that every man was the mas^ ter of his own destiny and must fight his battle alone; we have seen the struggle for wealth and social dis- tinction,— nay, even for the necessities of life become fiercer and fiercer, and we have condoned the ruthr less cruelty and selfishness of it aU on the ground that aU citizens have equal opportunities and that the tri- umph of the strong and the trampling down of the weak is but the working of Nature's immutable and righteous law. But the consciousness that man cannot live for him- self alone has come at least ; the public conscience is awake ; we now, for the first time, realize faintly and imperfectly the marvelous significance of the parable of the good Samaritan. We are learning who are our neighbors and we are realizing that an in- jury to "one of the least of these" is an injury to society as a whole. Thousands of naen and women with the spirit of the good Samaritan in their hearts are hearing the call, — men and women who could, if they chose, be clothed in purple and fine Unen, and fare simaptuously every day. But they have chosen the better part. Com- paratively speaking their work has but just begun, and yet there are results to show. The slum is yield- ing to the settlement. The haunts of vice in the great cities are still practically untouched, but there is handwriting on the wall, and the waves of an awakened public sentiment are rising with ominous strength. Everywhere earnest men and women are banding together and devising ways and means, 10 THE MODERN DEMOCRACfY 11 either by way of legislation or agitation, or both, by which moral standards shall be raised, the frightful injustice of modei-n life in the great cities shall be corrected, disease vanquished, vice made hateful and life made to hold forth its promise of hope and joy to the most unfortunate. The layman is springing to the aid of the priest and the preacher, not always using methods which the priest and the preacher approve, and not always rely- ing on orthodox theology, but still rendering great and undoubted service to the cause of good morals and good citizenship. He will not supplant the church, but he will be its efficient aid. He will not use so much the methods of prayer and praise ; these he will leave largely to the church, but he will use agitation and legislation; he will build, if it be possible to build, a system of law which shall assure justice to all ; which shall, as far as may be, equalize opportunity, rid the city of the slum, protect childhood, stop the propaga- tion of defectives and criminals, and gradually elimi- nate poverty, disease, and crime. The vastness of this programme is only exceeded by the desirability of its realization. It has been said that these American commonwealths are too much ^ given to legislation already, and the countless volumes of useless statutes now burdening the shelves of our law libraries are pointed to with derision as proof of the fact. There is too much of truth in the gibe to allow of its being turned aside without notice. We have had and are stiU having too much hasty and ill-digested legislation. It is natural that it should be so. New 11 12 THE MODERN DEMOCRACY states, filled with young and enterprising people, fac- ing new questions and charged with the duty of devel- oping untold natural resources, will necessarily adopt new and untried means of meeting difficulties. There are few conservatives ia such communities; youth and experience knows not fear and dreads not nov- elty. Every man in a new community is apt to deem himself a fully equipped legislator, ready and able to take up the greatest questions of statecraft and settle them satisfactorily in a three months' legisla- tive session. In view of all the circumstances, the wonder is not that there has been so much useless leg- islation, but that there has been so little. The results prove not by any means that legislation is f utUe, but rather that it must be more scientific if the best results are to be reached. We are willing to admit that we ought to have experts for other governmental func- tions which require special qualifications, but we seem very slow to learn that law-making is the most diffi- cult science of all, because it requires not only the wisdom of the philosopher and student of history, but the foreknowledge of the seer. He who would make a new law in a yet untrodden field of legislation must have the ability to read the future as well as the past ; he must have prescience as well as experience. But we ought to be fair to the legislatures of the past, even though wie feel obliged to be critical. Notwith- standing their blunders and the mass of hasty, crude, and of ttimes absurd legislation which they have piled upon our shelves, it would be imtrue to say that they have accomplished no valuable results. Decry their ill-considered efforts as we may, we must admit that 12 THE MODERN DEMOCRACY 13 there are two sides to the picture, after all. They have not been experts, but they have done much valu- able work, notwithstanding their inexpertness. Con- sider for a moment the matter of compensation for injuries received by workingmen in the course of their employment, and the compensation of their families in case of death resulting from such injuries. Prior to the development of the railroad, the mam- moth shop, and the infinite mechanical dangers to which the modem workman is momentarily subject, the common law had laid down a few simple princi- ples regulating the liability of the master in case of his negligent default resulting in injury to the serv- ant, and denying any liability in case the injury was caused by the negligence of a fellow servant, or in case contributory negligence or assumption of risk existed on the part of the employee. These principles were not seriously faulty, perhaps, when applied to the conditions of the time. Those were days when the workman knew his fellow servant, worked with hand tools or simple machinery, and ran comparatively small risk of injury. The personal injury action was one of the rarest actions upon the calendars of the courts. Gradually, very gradually, the great industrial revolution came upon us. The little body of workmen, all knowing each other and working within sight of each other with simple tools, by slow and almost imperceptible degrees, became the army of employees, working, perhaps, at great dis- tances from each other, and known by number rather than by name ; the small shop grew to be the enor- mous plant, covering acres; the simple machinery, 13 14 THE MODERN DEMOCRACY under easy control, became a mighty and complicated system of vast machines, driven by a power rivaling that of the thunderbolt itself ; and the lumbering stage coach gave way to the palatial railway train. During the same time, and by equally slow and imperceptible degrees, the occasional simple accident was replaced by daily and almost hourly accidents, amounting fre- quently to tragedies, and the victims of industrial accidents became a veritable army, marching with halting steps and dimming eyes to the great hereafter. Slowly and imperceptibly also personal injury actions increased in number until they began to clog the cal- endars of the trial courts. It was not the proper funcr tion of the courts to change well established principles of law, and so the doctrines of feUow servant, con- tributory negligence, assumption of risk, and ordi- nary care continued to be applied as they were applied in the earlier and simpler days. The result was a really deplorable condition of things. The injured man or bereaved widow was generally poor and unable to employ an attorney in the ordinary way, and hence was generally obliged to pay the attorney by giving him a share (and sometimes a very large share) of the recovery, if a recovery was had. This system wrought harm in more ways than one : It distinctly lowered the tone of the bar by creating a class of attorneys who sought such business, and became really fomenters of such litigation; the lawyer became a joint adventurer with the client, and his keen interest in the result dulled his conscience and tempted him to overlook perjury, if not to actively encourage it. On the other hand, juries well knew that the recovery 14 THE MODERN DEMOCRACY 15 would have to be divided with the lawyer, and thus often rendered excessive verdicts in order that the in- jured party might have adequate compensation after the lawyer's share had been taken. Thus the eco- nomic waste became enormous. The employer, after contesting the case through aU the courts, paid an exorbitant sum if defeated, of which the injured per- son received only a fraction, but he also paid a con- siderable sum to his own lawyer, even if successful, of which, of course, the injured person received noth- ing. One could hardly imagine a greater economic waste than this. A system which spends many dollars in the effort to ascertain whether one doUar should be paid by one citizen to another can scarcely be con- sidered a desirable system. But a stOl more unfor- tunate result of the situation was the bad feeling which it encouraged between employee and employer, and the distrust with which the employee, defeated perhaps by one of the common-law defenses bef orp mentioned, began to regard the courts. The employer was charged with heartlessness and greed, the courts with dishonesty and corruption, and the litigant fre- quently met the supposed combination between capi- tal, on the one hand, and courts which rigidly enforced the technical rules of archaic law, on the other, with flat perjury. Class hatred, distrust .of the cdurts and the law, wholesale perjury, and enormous economic waste — ^these were the inevitable and lamentable re- sults of the legal proceeding known as the personal injury action. Here the common law was sUrely break- ing down. Nothing short of legislation novel in its character 15 16 THE MODERN DEMOCRACY could meet these grave questions, and that legislation has finally come in many of our states, and wiU un- questionably follow in all. In most of the states where this legislation has been attempted, two definite results have been aimed at: first, to reduce to the- minimum the number of injuries by rigid inspection of all manufacturing establishments, by the enforced introduction of every practicable safeguard against accident or disease ; and, second, to provide in some form for the automatic adjustment of claims for all industrial accidents on a fair and equitable basis, so that every injured employee (not wilfully negligent) should be assured of a reasonable indemnity, without delay and without expense, the method of payment being so arranged that the consuming public should ultimately bear the burden. The first of these aims was relatively easy of accom- plishment, but the second has been fraught with much difficulty by reason of the restraints imposed upon legislation by the terms of our written constitutions. While it would not be accurate to say that the prob- lems have been fully solved, it may be said with confi- dence that the legislation already secured has been substantially successful and that the results make certain ultimate extinction of the personal injury action between employer and employee, and a great reduction in the number of industrial accidents. These things have been accomplished by legislators who are not experts, who have been forced to act with little help from scientific investigation or research, and who have left their regular occupations for a few weeks to struggle with and attempt to satisfactorily 16 THE MODERN DEMOCRACY 17 solve some of the gravest questions which have ever confronted the human family. In other fields, where modern civilization has pro- duced evil conditions with which the common law has been unable to successfully cope, legislation has made fairly satisfactory efforts to meet the new problems. Witness the sanitary inspection laws, the tenement house laws, the laws preventing the employment of . children in life-destroying occupations, the laws regu- lating the service given to the public by public utility corporations, and many other laws which can not here be mentioned. Who shall say, in the face of these achievements, imperfect though they may be, that legislation is futUe, or that the legislators of the past have done little but cumber the statute books with useless laws ? Rather we should say that in scientific and well con- sidered legislation lies the great hope of the future. The ever-increasing problems arising from our com- plex community life wUl have to be met unless we are ready to admit our incapacity and are content to fol- low the civilizations of the past into well merited decadence and oblivion. And so it seems as certain as any future event can be that we are entering on a period of great legisla- tive activity, when remedies will be proposed for all our ills, both real and fancied. It may be at once admitted that legislation can not remedy every wrong, nor make the nation virtuous and moral ; but still it is undoubtedly true that legislation can exert a pro- found influence on the morals of a people by elimi- nating as far as possible the material conditions which 17 18 THE MODERN DEMOCRACY make for misery and crime and by creating and fos- tering those conditions which make for happiness and right living. yice will find little room for growth in a commu- nity where prevail living wages, healthful homes, equal opportunities, innocent amusements for young and old, and social justice ; where the slum, the bawdy house, and the indecent show do not exist. Now, if these conditions are to be brought about or hastened by legislation, and if the people themselves by means of the initiative and referendum are to take a controlling or even an important part in such legis- lation, the necessity of a highly intelligent as well as a moral electorate is very evident. Not only shall we require the services of the skilled investigator and philosopher in the preparation of the new laws ; not only shall we require the legisla- tive expert in our national and state legislatures ; but, above all, we shall require an educated electorate — an electorate capable of appreciating the nature of the problems presented, and sufficiently acquainted with present conditions, both material and legal, to be able to judge of the wisdom of the proposed legis- lation, and vote intelligently thereon. This does not mean that all citizens must become lawyers, but it does mean that the study of the law should no longer be left to the lawyers alone ; it does mean that the law should cease to be regarded as a sort of black art, whose unaccountable results only the initiated can understand, but as a true science of which every educated person should have at least a general knowledge. 18 THE MODERN DEMOCRACY 19 It is as impracticable for all of us to be thoroughly educated lawyers as it is for all of us to be thoroughly educated engineers, physicians, or political econo- mists ; yet it is very certain that educated men and women are rapidly coming to be sufficiently familiar with the basic principles of engineering, health, and political economy so that they are able to compre- hend the expert discussion of questions in either science, and pass intelligent judgment thereon. It would not be correct to say that they are experts themselves, but rather that they are becoming highly intelligent jurors, fitted to take intelligent cognizance of questions discussed by the experts. This result has been reached rather by the general -dissemination of books and periodicals treating of such subjects in familiar language than by systematic study in any institution of learning. ' There has doubtless been much less of this sort of education in the law than in either of the other sciences mentioned. It is true that there are some legal periodicals which have a field larger than the legal profession, and there are some recently estab- lished magazines which are making an earnest appeal to educated men and women of all classes, with a view of bringing together all such people in the intelli- gent study and appreciation of legal problems. The modern legal text-book, however, is not an inviting object to the most intelligent layman. In most of them, philosophic discussion of legal principles has ceased, and they have become simply more or less perfect guides to that "myriad of precedent, that wil- derness of single instances" known as the reports. 19 20 THE MODERN DEMOCRACY They are most valuable to the practicing lawyer, but are hardly more inviting to the layman than a dinner of husks set before a hungry man. It is confidently believed that there is a well defined place for a work which shall cover the field of exist- ing law comprehensively, concisely, and accurate^, and which shall not consist of lifeless rules fortified by multitudinous citations, but which shall be a read- able and accurate commentary upon the existing law, couched in language which may be easily understood by layman as well as lawyer — a work which will be a welcome addition to every private library, and which may be consulted with pleasure as well as profit by every intelligent citizen who desires to know the condition of the law upon any subject. It is thought that the present work fulfills this idea ; it is hoped that it will take its place as a lumi- nous and complete commentary upon the existing law; it is hoped also that it will assist in solving the great problems of government under the direct con- trol of the electorate, by materially hastening the day wh^n the layman as well as the lawyer will not only have knowledge of the general principles of the law, but understand the reasons behind the principles as well, and thus be able to vote intelligently when the question of a substantial change in the existing law is submitted to the electorate, and discharge under- standingly the many onerous and exacting duties which will inevitably fall upon the citizen of the Democracy of the future. 20 LEGAL ETHICS BY ORRIN N, CARTER, LL.D.* 1. Introduction. — The legal profession may be most helpful or most debasing. Whether it is one or the other depends largely on whether it is made a trade or a profession. Learning, ability, industry and integrity rarely find more certain rewards than in the profession of the law. If, however, it is fol- lowed solely for financial gain, its influence is most pernicious. No one should subordinate his standards of right and wrong to his success as a lawyer. Lord Coke said, centuries ago, "I never saw any man of a loose and lawless life attain to any sound and perfect knowledge of the laws; and, on the other side, I never saw any man of excellent judgment in these laws, but was withal, honest, faithful and virtu- ous."^ Judge Sharswood, in our own times, thus admonished the profession: "Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man." ^ A lawyer of great learning, but unrestrained by principles of * Justice, Supreme Court of Illinois; former President of American Institute of Criminal Law and Criminology. 1 10 Ohio Law Eeporter, p. 170. 2 Sharswood, Legal Ethics, p. 168. 21 2 LEGAL ETHICS morality, may be a menace to a community. No mem- ber of the profession should consider himself merely a private citizen. He is entrusted with a public service as well. As a minister of justice he occupies a double fiduciary relation, on the one hand to the public, and on the other to his clients. He might well choose as his guide the old German motto, "Ich dien" — "I serve." His is a duty of faithful service — of fidelity — to the community, to his profession, and to his clients. As a citizen he should refuse to give countenance to abuses which may tend to bring the administra- tion of justice into disrepute. Many believe that the profession at present is confronting the most serious perils it has ever faced. It is charged that it is losing the esteem and confidence of the public because it is now representing special interests — ^the great cor- porations — ^rather than the interests of the general public, as it did fifty years or a century ago; that in its struggle for the material things of life it is losing sight of the distinction between right and wrong. If there be any basis for these charges, then it be- hooves the members of the profession to bestir them- selves. 2. Necessity for rules of ethics. — The rules in some jurisdictions that require candidates for ad- mission to the bar to subscribe to a reasonable stand- ard of ethics, as a condition to admission, are to be commended. Our professional habits are largely formed in our early practice. It has been stated by high authority "that many men depart from honor- able and accepted standards of practice early in their 22 LEGAL ETHICS 3 careers as the result of actual ignorance of the ethical reqmrements of the situation. ' ' * My own experience as a member of the bar, and especially in a court of last resort in the hearing of disbarment proceedings, has convinced me that there is much truth in that statement. In more than half the states of the Union the state bar associations have adopted a code of ethics. The first was adopted in Alabama, December 14, 1887. All the others used that largely as a basis until the adop- tion by the American Bar Association of its Canons of Ethics; and that contained many of the funda- mental principles found in the Alabama code. Since the adoption of this latter code in 1908 most state associations adopting codes have modeled theirs after the national one. It is to be hoped that in the near future such a code will be found in every state and that an applicant for admission to the bar will be required as a prerequisite to take an oath that he will be guided and controlled by its essential prin- ciples; that a wilful violation of them shall justify disbarment. Some there are who insist that the field of ethics and the law should be the same. Jeremy Bentham entitled one of his great books "A Treatise on Mor- als and Legislation." One of his reviewers has stated that he might have called it "Morals or Legisla- tion."* Blackstone's definition of municipal law was "a rule of conduct commanding what is right and prohibiting what is wrong." As to substantive law, s 21 Green Bag, 273. * Palmer, The Field of Ethics, p. 42. 23 i LEGAL ETHICS this is generally, and ought to be, true; law neces- sarily deals with external matters — the relation of one man to others. It is objective, while morals may operate upon a man subjectively. The consequences of the act operate upon the character of the man himself. The law may not deal with falsehood or hypocrisy if it affects only the person who is the falsifier or hypocrite, and yet those acts may exert a powerful influence upon the man himself. Whether we believe in the utilitarian theory of morals as urged by Bentham, Austin and John Stuart Mill and do right simply for selfish reasons, or are actuated by different principles, there can be no question that it is our duty to do certain things because they are for the public good. The only" question is, what is the highest public good and the best method of ac- complishing it? ° 3. Legal ethics generally. — ^Ethics is the science of human conduct. Public morality is a matter of education and development. A code of ethics should be based upon actual experience and should attempt to set up definite ideals of conduct evolved from such experience. Any code of legal ethics must be approved by the leaders of that profession. It is difficult for any lawyer to follow a higher code of morality than his competitors. Generally, he will act and think like those with whom he comes in con- tact. Our ideals of conduct vary with different ages and countries. Every trade and profession has its own stiandard of conduct. In Ancient Greece it was taught that B 6 Michigan Law Eeview, 471. 24 LEGAL ETHICS 5 stealing was not wrong; it was only condemned if found out. In many localities, especially in our great cities, even at this date, it is thought right by the , local leaders of the political parties to colonize vot- ers — the supreme effort always being to conceal from the public authorities their wrongdoing in this re- gard. The newsboys and bootblacks are said to have their codes of business conduct. In Ancient Rome lawyers were held up as a favored class standing as the ministers of justice and the oracles of the law. The old ideal of the lawyer as the assistant of the courts and the friend of the helpless is still advocated to a greater or less extent, but the change in the practice of the law in recent years has made his work of such a nature that he is no longer solely the scholar and orator, but now must be a student of business affairs. To his knowledge of the law he adds that of business, so that he may be competent to advise from his office, without going iiito court, the great business interests of the day. He may never argue to a court or jury, but may . devote his time to adjusting debts, drawing con- tracts, construing statutes, negotiating settlements, and bringing about or preventing legislation; never- theless, with all this he should retain the ideals of his profession. It is vital that the legal profession should, through its various organizations, stand for the highest ideals. If the day ever comes when the leaders of that profession think more of winning a lawsuit or the acquisition of money than they do of right and 25 6 LEGAL ETHICS justice, then its leadership and influence would neces- sarily become harmful. In the legal profession, as in all other walks of life, its members learn only by "line upon line, precept upon precept." It is an old but true maxim that "Character is a bundle of hab- its." Every law school, every bar association, every court, should assist in upholding the standards of the profession. Legal ethics should be taught, not alone in the law schools, but most effectively by the per- sonal example of those in the everyday practice of the law. General rules laid down for the guidance of the profession are most helpful, but no rule or set of rules will determine an attorney's duty in every case. If there be a statutory rule in the jurisdiction in which he is practicing on any given question, that, of course, must be controlling and any attorney in the United States should also hesitate and seriously con- sider before clearly violating or disregarding any authoritative rules laid down by the American Bar Association or his own state association. Every member of the bar is in some sense morally bound to follow the rules laid down for htm by the organ- ized bar. The specific statement of the principal duties of the members of the legal profession by the codes of the various bar associations will be most beneficial. They wiU furnish an authoritative standard by which every lawyer, when in doubt as to the conduct he should pursue, may be safely guided. The law student, also, will by these codes be furnished at the beginning of his legal studies the ideals that 26 LEGAL ETHICS 7 should remain with him through his entire profes- sional career.® 4. Standard of admission to the bar. — ^First, and perhaps as important as any duty devolving upon the legal profession, is that of exerting its united influence so that only those who are honest, intelli- gent and adequately prepared should be admitted to the practice of the law; that only those who retain and uphold those characteristics shall be permitted to remain as practitioners. Practically everyone now agrees that no one should become or remain a member of the profession unless he is a man of good moral character, but there is not the same unanimity among the members of the bar as to the legal and educational qualifications required before one can be admitted. Frequently it may be heard stated that in the early history of many of the states the leaders at the bar were men who never had even a fair education and obtained practically all their knowledge of the law after they began its practice. We are cited to such excep- tional cases as Lincoln and other leaders of fifty or seventy-five years ago, with which every old lawyer is familiar, as proving that men could be great law- yers without education in the schools. Conditions now are widely different from those of that time. Everything else being equal, the young man who has had a college education and regular course in the law necessarily stands a better chance of reaching true success in the practice of the profession than one who never had an opportunity for this prelim- 6 8 Columbia Law Review, 546. 27 8 LEGAL ETHICS inary study. Moreover, the average man, through •such preliminary studied, should so fully appreciate what the ideals of the profession require that it should be comparatively easy for him to stand firmly for such ideals. 5. Duty to the court. — ^Every lawyer owes a duty to the courts of the country. The respect for the courts and its officers is required for the sake of the office and not for the sake of the individual who is its temporary incumbent. The judicial position in a large measure prevents its occupant from defend- ing himself against criticism. For this reason it is usually imderstood to be improper for attorneys to publicly criticize judicial conduct, especially as to cases, in which they have been counsel. Of course this rule does not apply as to reasonable criticism of the rulings of the trial judge in the arguments of a given case in any court. Neither does it apply when the conduct of the judge is such as to justify charges against him for removal from office. Courts, ia the rightful exercise of their functions, should ever receive the public support of lawyers against unjust and baseless popular clamor and criticism. In the conduct of their business with the courts, lawyers should exercise candor and fairness. They should never knowingly cite an authority that has been overruled or misquote the language from any text book or decision. Neither should an attorney attempt to get before a jury evidence which he knows to be illegal or improper. Such a practice in all jurisdictions should be properly classed as "petti- 28 LEGAL ETHICS 9 fogging" and unworthy of the members of the profession. While upholding the rights of his client, counsel should be courteous and respectful in his attitude towards the court. He has nothing to gain and very- much to lose by forgetting his duty in this regard. He has a right on every proper occasion within the rules of court to respectfully insist on presenting his views to the judge, even though upon what may seem to be elementary principles. This may require much tact and judgment. One of the great legal writers has said, "There is no work, which it is often incumbent on the practitioner to perform, so diffi- cult and requiring so much adroitness, as to teach to a bench of judges some simple principle of ele- mentary law, and keep concealed the fact of what is being done."^ Oral argument should be encour- aged in courts of review. Lawyers, however, waste much time of the courts in such arguments. They should remember that some propositions "speak for themselves" "res ipsa loquitur" — ^that argiiment cannot make them plainer. Under such circum- stances, it is the duty of the judge courteously but firmly to prevent the time of the court being wasted. Lord Campbell is reported to have said that it is one of the duties of a judge to "render it disagree- able to counsel to talk nonsense."* No judge or court knows all the law on any subject. For that reason in most cases lawyers after an investigation and careful preparation, by clearly and succinctly ' Bishop, 7 Virginia Law Journal, 326. s Sharawood, Legal Kthics, p. 63. 29 10 LEGAL ETHICS stating the facts in a given case and the law applica- ble thereto, can be of great assistance. In doing this the right and duty of counsel is aptly expressed by the epigram, "Neither truckle nor be truculent."® 6. Reciprocal duty of the court. — ^While attorneys should always act with due deference toward the members of the judiciary, it is just as essential to the cause of justice that a judge should pay to the members of the bar the deference and respect which is their due. The essential qualities for a judge are courtesy, tactful patience, conscientiousness, legal learning, sound sense and judgment, even temper and the moral courage to decide in accordance with the law and the evidence.^" 7. Lawyer and judge — Out of court. — There is a wide divergence of views as to the relations of law- yers and judges out of court. Beyond question, during the trial of a case the attorneys in that ease should not show marked attention or hospitality to the sit- ting judge. Such attentions are certain to be mis- construed and should be most carefully avoided. Everything that should be considered by the judge should be presented in open court. It is most repre- hensible for an attorney to communicate or argue with the judge privately as to the merits of a pending cause. If such practice were generally to obtain, it would greatly impair the confidence of the public in the just administration of the law. The instances are rare where this is attempted, but it is not so rare that clients themselves seek out the judge in » 29 Canadian Law Times, p. 9. 10 §§53 and 54 Kentucky State Bar Association, Code of Ethics. 30 LEGAL ETHICS 11 his chambers and undertake to present certain fea- tures of the case under litigation. This is ordinarily done without the suggestion or even knowledge of counsel. The only thing a judge can do if the liti- gant calls is, as soon as he learns the object of the visit, to refuse to have any communication on the subject of the litigation. If the litigant be an honest man he can easily be brought to see the impropriety • of such a discussion by calling his attention to the fact that he would not wish the other side to have their case heard ex parte. Of course, the members of the bar should discourage all such practice on the part of their clients. 8. Maintaining the dignity of the profession. — The members of the bar should at all times uphold and maintain the honor and dignity of their pro- fession and promote its usefulness. Its duties are so interwoven with the administration of justice that whatever tends to advance the interests of one will advance also the interests of the other, and likewise that which tends to degrade the one will degrade the other. While they should not hesitate to expose fearlessly, at the proper time and before the proper tribunal, corrupt and dishonest conduct by members of the legal profession, they should not speak slight- ingly and disparagingly of that profession or foster in any way the unjust prejudices that now exist and always have existed. The criticism of lawyers is as old as the law. Plato, in ancient Ureece, argued that it was a sign of a corrupt commonwealth when lawyers abounded. At one time they were so much disliked in Rome that 31 12 LEGAL ETHICS they were banished from that city. The cry of Jack Cade, "the first thing to do is to kill all the lawyers," was received with acclaim by his associates. In 1307 the English House of Commons passed a law that "no man of law" should be returned to that body and if returned he should have no compensation. In Massachusetts in 1663 they were excluded from the General Court. Shakespeare in the grave digger's scene in Hamlet says, "Why may that not be the skull of a lawyer? Where be his quiddities now, his quiUets, his cases, his tenures and his tricks?" Our many-sided genial Franklin once said, "A country- man between two lawyers is like a fish between two cats." Dickens in his Bleak House said, "The one great principle of the English law is to make business for itself."' Some writers have insisted that this prejudice has been caused by poets and novelists, while others insist that it is due to the jealousy which physical strength in man has always felt towards intellectual power. Whatever the reason, the members of that honored profession should not by their actions or remarks as to brother attorneys add to this popular misconception. 9. Relations between members of the profession. — Much of the lawyer's real success in the law will depend upon his association and standing with his brother attorneys. He must have their respect and confidence or he cannot expect to have a reputation as a great lawyer. The good opinion of his brethren of the bar is far more important than that of the general public. No matter what ill-feeling may exist between clients, it should not be allowed to influence 32 LEGAL ETHICS 13 counsel in the conduct of the litigation, A lawyer should never ignore known customs or practices of the bar, or the rules of a particular court, without notice to the opposing counsel. While it is by far the better practice to have agreements and stipula- tions between attorneys in writing, still counsel should never refuse to carry out any oral agreement affecting the conduct of a case, fairly entered into. If a client wishes the assistance of additional coun- sel, a lawyer should not object, if the colleague of- fered is unobjectionable. If he cannot agree with his client on these matters, then he will be entirely justified in withdrawing as counsel after giving his client a reasonable time and opportunity for engag- ing other counsel. 10. Attorney as a "witness. — ^An attorney should not be a witness for his client without withdrawing from the case and leaving the trial of the cause to other counsel and then only when essential to the ends of justice. A lawyer occupying the attitude both of counsel and witness for his client necessarily subjects his testimony to criticism, if not suspicion. Counsel should withdraw just as soon as he learns that his. testimony will be necessary, and it does not satisfy the spirit of this rule simply to turn the trial of the case over to a partner. Testifying as to merely formal matters, not vital to the merits of the case, or as to those things about which there is no dispute, is usually held permissible without withdrawing from the case. 11. Conduct as to jury. — ^During or before the trial of a case counsel ought never to converse pri- 1-3 33 14 LEGAL ETHICS vately with any of the jurors. No matter what the attorney's motives, they are liable to be misconstrued if he talks with jurors. While it is the duty of the court and its officials to provide for the comfort of the jurors, any special public interest by attorneys so as to attract the attention of the jurors, during the trial of a case, is not to be commended. I^ attorneys think they see anything that should be done for the comfort of the jurors they can properly suggest it privately to the court. 12. Attorney and client. — The relation of an at- torney to his client is one of trust and confidence, calling for the highest degree of good faith. In his intercourse with clients he should be absolutely can- did and fair. The relationship should be such that the client will have the utmost confidence in his couni- sel, so that he may feel entirely free to tell his attor- ney all the particulars of the case, those that are prejudicial as well as those that are favorable. In order that this may be done, the lawyer is bound to act for the client's interests. So long as the rela- tionship continues it is best for the lawyer to refrain from engaging in business dealings with his client, particularly with reference to the subject matter of the litigation. Lord Brougham in the defense of Queen Caroline is reported to have said, '*An advocate by the sacred duty which he owes his client knows in the discharge of that duty but one person in the world, the client, and none other. To save that client by all expedient means — ^to protect that client at all hazards and costs to all others, and among others to himself — is the 34 LEGAL ETHICS 15 highest and most unquestioned of his duties. " " The biographer of Eufus Choate, one of America's most famous trial lawyers, says that he accepted Lord Brougham's doctrine without any qualification, that he should identify himself completely with his cli- ent's interests and balk at nothing which would win. That "he fought his cause through every court into which it could be carried or driven, and he went in for victory to the last beat of the pulse and the last roll of the drum."" The extreme limit in defending a client's inter- ests advocated by Brougliam and Choate has not met with the approbation of the members of the Eng- lish and American bar. It is agreed that a lawyer is only bound to present one side of a case, but in do- ing this he should not use vmfair or unlawful means. In presenting his case to a court or jury he is entitled to take all fair advantages as shown from the evi- dence, but as an officer of the court he should not attempt to mislead by going outside the record or insisting upon that which he knows to be false. True, under our present system of the conduct of trials, the lawyer cannot — ^like the judge — ^be solicit- ous only to do justice. The facts stated to him by his clients have always been held confidential com- munications, even though if known they would abso- lutely defeat the cause for which the lawyer is contending. Abraham Lincoln is reported to have said to a client, "I can't serve you, for you are wrong and the 11 29 Canadian Law Times, p. 270. 12 10 Ohio Law Eeporter, 172. 35 IG LEGAL ETHICS other fellow right. My business is never to defend wrong." 1* Sir Matthew Hale is stated to have said in his early practice that he would not take a case if he thought it was unjust, but afterwards he changed his views in this regard, finding that it would be impracticable to decide, without knowing either the facts or the law, which side was just." Such a rule might put an end to the administration of justice. An. attorney owes complete devotion to the inter- ests of his client and a zealous defense of his cause with the utmost skill and ability, yet it should be ever kept in mind that the great trust is to be per- formed within the limits of the law.^^ He should never in the trial of a ease express his personal opin- ion without making it clear that it is his opinion. Rarely is he justified in stating his personal belief in the justice of the cause he is representing. If such a practice were followed, such statements would lose their force and subject counsel to the charge that he was wilfully trying to mislead the court and jury, and the failure to make them in a particular case would frequently be held a tacit admission that he did not believe his client had a meritorious cause. Such a practice would necessarily place the young and inexperienced attorney at a great disadvantage in the trial of a case against a veteran of the bar. In doing this the lawyer makes morality subject to professional success.^® 13 10 Tale Law Journal, 24. »* Sharswood, Legal Ethics, p. 88. »= Par. 10 Alabama State Bar Association, Code of Ethics. . i« Sharswood, Legal Ethics, p. 101. 36 LEGAL ETHICS 17 13. The defense or prosecution of those accused of crime. — ^This subject is very closely related to the one that has just been considered, but it is so im- portant that it deserves special consideration. The first duty of a lawyer engaged in prosecuting a crim- inal case is, not to convict, but to try to see that justice is done. The New York Bar Association Canons of Ethics say that the prosecutor "should avoid oppression and injustice of any kind whatso- ever. The suppression of facts or the secretion of witnesses capable of establishing the innocence of the accused is a public wrong."" It is a funda- mental principle of Anglo-Saxon jiu-isprudence that every man has a right to be defended, whether guilty or innocent. The Sixth Amendment to the Federal Constitution states: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, and to have the assistance of counsel for his defense." Most of the state constitutions of this coimtry contain similar provisions. This right includes the opportunity of consulting with his coun- sel and to have the latter 's advice on all matters relating to his defense. If he is without financial means to obtain a lawyer, it is the duty of the court to assign counsel to aid him, and one so assigned ought not to ask to be excused for trivial reasons." An attorney should not necessarily refuse to accept the defense of a person accused of a criminal offense because he knows or believes him guilty. A much discussed case illustrating this question was that of " Par. 5, New York" State Bar ABSociation, Canons of Ethics. 18 § 4 American Bar Association, Canons of Etiiics. 37 18 LEGAL ETHICS the defense of one Courvoisier, a Swiss who was accused of killing his employer, Lord William Rus- sell, in 1840. It was a crime of great atrocity. Dur- ing the trial of Courvoisier he confessed his guilt to l^is counsel, Charles Phillips. Thereupon Mr. Phil- lips consulted one of the judges in the case as to his duty with reference to continuing the defense. He was advised that it was his duty to remain in the case and present every fair argument that arose from the evidence, and proceeded in accordance with that advice.^® The consensus of opinion among the mem- bers of the legal profession is that Mr. Phillips was right in remaining in the case; that a lawyer de- fending a criminal he believes or knows to be guilty is justified in using, as Baron Parke has expressed it, "all fair argument arising- on the evidence." In this country a lawyer is not obliged to accept a retainer either in a civil or criminal case unless he desires. The practice, however, is different in Great Britain, as to those members of the profession who under the English practice present the cases in court. The ethics of the bar in Great Britain requires an advocate to accept a retainer in any case in which his services are requested. Lord Erskine in 1792 stated, "From the moment that any advocate can be permitted to say that he will or will not stand be- tween the Crown and the subject arraigned in the court where he daily sits to practice, from that mo- ment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defense, he assumes the char- iB Sharswood, Legal Ethics, p. 103. 38 LEGAL ETHICS 19 acter of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of the Eng- lish law makes all presumptions, and which com- mands the very judge to be his counsel."^" In the year 1913 there has been a very vigorous discussion in England over this practice when certain promi- nent members of the bar who were also members of Parliament were retained to defend persons charged with violations of the law in connection with a cor- poration that was undergoing investigation by the House of Commons. The general consensus of views of the legal profession in Great Britain was that these advocates could not refuse to follow the rule which had been "handed down to us by long genera- tions of men who have left the reputation of the Bar of England for integrity, fearlessness, and impar- tiality unrivaled in the world. "^^ In this country, as we have said, an attorney is not required to ac- cept a retainer in any case unless he desires, but if he has accepted the defense of one accused of crime, then it is his duty to use all fair and honorable means to present the defense of his client so that he may not be deprived of life or liberty ''without due proc- ess of law."^* 14. Relation of lawyers to the public. — ^A lawyer must have business in order to live. May he solicit 2" 22 state Trials, 411 (Eng.). 21 Law Times (London), June 21, 1913, p. 181. 22 11 Law Notes 191. 39 20 LEGAL ETHICS business or advertise for it in any way? In England the rule is that a barrister should not advertise, even by means of a card.^^ In this country, especially in the smaller towns or cities, it is considered entirely proper to advertise by handing out a simple card with the place of business on it, or to insert such a card in the public press or legal directories, but gen- eral solicitation of business is usually considered un- professional. Some, in discussing this question at the present day, assert that the traditions of the legal profession that advertising is improper is founded upon the fact that advertising was originally used only by charlatans and impostors.'** The law- yer's personality has much to do with his success. It is entirely proper for him to seek a good location for his business, with suitable furnishings for his office. It is considered professional to extend his personal acquaintance in every .proper way, by join- ing clubs or other organizations. Generally speak- ing, there is no objection to an attorney who makes a specialty in a certain branch of the law announcing that fact on his card, but in so doing he should sim- ply make a statement of that fact and nothing more. It is highly unprofessional, however, to solicit busi- ness under such headings as "A bad debt collector," or "No fees if unsuccessful." Neither is it within the limits of legitimate law practice for lawyers to visit the hospitals and other places where can be found persons recently injured and solicit their busi- ness. It is equally improper to procure business by 28 29 Canadian Law Times, 267. 2* 17 Case and Comment, p. 441. 40 LEGAL ETHICS 21 indirection, through persons employed for that pur- pose, whether connected with real estate firms or trust companies or by advertising directly, or indi- rectly through the newspapers to the effect :tjiat the lawyer has been very successful in the conduct of a case of great magnitude, or self-laudatioii in the newspapers as to the importance of the cases that the lawyer has tried or the positions he has held.'^^ It may well be doubted whether a lawyer will get any enduring standing at the bar by any self -adver- tising. His experience and ability as a lawyer will sooner or later become known to those who are seek- ing legal services. Especially is this true in smaller cities and sparsely settled communities, and in the long run, even in the large cities, a lawyer's reputa- tion will almost certainly without advertising become familiar to those who might wish to employ him. 15. Fees. — This is one of the most difficult sub- jects upon which to lay down any definite rule. In ancient Greece and Rome the lawyer was not sup- posed to charge anything for his services. What he received was a gratuity or present from the client. In Great Britain at the present time the ruleis that counsellors, advocates and barristers ha,ve no right to charge and enforce the payment of, compensation for their services, as they are considered purely hon- orary. A different rule prevails there with regard to attorneys and special pleaders below the bar. In the United States the rule is, in most jurisdictions, that attorneys have full power to contract with their clients for compensation and to compel the payment zs I 27, American Bar Association, Canons of Ethics.. 41 22 LEGAL ETHICS by a legal action.^* Judge Sharswood, in his lectures on legal ethics, stated that ia his judgment it had been neither to the honor nor profit of the bar to depart from the ancient rule in regard to the charg- ing of fees. He seemed to think that the practice as it had obtained in most of the states of this coun- try tended to fill the ranks of the profession with pettifogging, custom-seeking, money-making law- yers, which he said was "one of the greatest curses with which any state or community can be visited." ^^ The general consensus of opinion in the legal pro- fession at the present time is that Judge Sharswood was mistaken in his views on this subject; that a lawyer, as weU as anyone else, should receive his reward in the payment of reasonable fees, rather than depend upon the gratitude of his clients; that men in the legal profession will not do their best work on the latter basis; that it will almost inevita- bly result in a class of rich lawyers, or require the payment by the state for legal services,^® While it is sometimes difficult or impossible, wher- ever practicable there should be a frank and definite understanding at the time of the employment as to the amount of compensation to be received by coun- sel. All persons are apt to estimate their services too high rather than too low. In fixing attorney's fees, care should be taken not to unduly magnify the value of the services as well as not to belittle them. A client's wealth will never justify a charge 2« 3 American & English Encyclopaedia of Law (2d ed.), 414. 2' Sharswood, Legal Ethics, p. 148. 28 20 Green Bag, 92. 42 LEGAL ETHICS 23 of more than the services are worth. In fixing the fees it is fair to consider the time used and the skill employed, the amount involved and the result of the services; whether the person charged is a regular client or not, and especially the customary charges for similar services by lawyers in general practice. It is far preferable to lessen one's fees somewhat rather than engage in litigation for their collection.^® It is not usual to charge for slight services to a brother attorney, and it is not customary to charge for ordinary service and advice to the family of a deceased attorney. 16. Contingent fees, — ^In England such fees have always been held within their statutes of champerty and maintenance.^** In most jurisdictions in the United States contingent fees may be contracted for, but it is held by all codes of ethics that they are subject to many abuses and certain compensation is preferable. Champerty has been held to be the un- lawful maintenance of a suit in cpnsideration of a bargain to have a part in any dispute or some profit out of it. The early common laAv has been modified and relaxed in Great Britain, and maintenance now seems to be confined to the intermeddling of a stranger in a suit for the purpose of stirring up strife and litigation. In some of the United States the eonmaon law doctrine seems to have been accepted, while in others it has been accepted only in part.^^ A contract for contingent fees is held to be cham- ps § § 12 anil 14 American Bar Association, Canona of EthieB. 80 Sharswood, Legal Ethics, 157, note. 316 Qyc. 854. ^ 43 24 LEGAL ETHICS pertous in most states only when the person, whether an attorney or not, agrees to bear the expenses and costs of the litigation. Such a contract will not be enforced i^ law or equity.^^ There is grave danger^ however, that anyone who makes a contract for con- tingent fees will be tempted to obtain success by any and all means. A high sense of honor among the bar may tend to lessen the evils growing out of con- tracts for contingent fees, but such contracts are almost Certain to be an undue encouragement to litigation. 17. Conclusion. — ^It is impossible within reason- able limits to enumerate all of the important duties resting upon attorneys in the practice of their pro- fession. Many very important ones have not been specifically referred to. A great German thinker, Ihering, in his lecture on the Struggle for Law, takes for its central thought that "the end of law is peace." The practice of the law is a continual struggle for peace. The conflicting interests of mankind will either be. settled by the law or else by force. Legal settlements must be based upon moral rights and justice. It has ever been, and should ever be, the glory of the common law that it can adapt and adjust itself to every emer- gency, as the air envelops every hill and vale and the water of the stream conforms to its every crook and bend. Only thus can every citizen have that priceless legacy, equality before the law. Every ob- ject, animate or inanimate, and every person, is sub- ject to some law, human or Divine. Without law, 82Geer t. Frank, 1T9 ni. 670. 44 LEGAL ETHICS 25 neither ©rder nor civilization can exist. Not only the property of the wealthy, but all kinds of labor and all kinds of skill would be subject to the whim or caprice of "plutocracy," "mobocracy" or the tyrant of the hour. "Of law, no less can be said than that her seat is the bosom of God, her voice the harmony of the world. All things in heaven and eartb do her homage; the very least as feeling her care, and the greatest as not exempt from her power." Law is and must be a progressive science, growing with our growth and expanding with our needs, and he is but "a blind leader of the blind" who says that the old laws are necessarily the best. It rests largely upon the legal profession to see to it that the admin- istration of justice keeps step with the changes of society and civilization. This must be done, how- ever, with aU the assistance and learning that the past can give. To meet the ever changing condi- tions of each age we need and must have the in- spiration of high ideals. If one will study the chaiiges of the law in the past he cannot but believe that the legal profession has fairly borne its high responsibilities. We know not what the future has in store for the protection and guidance of mankind under human laws, but the history of our jurispru- dence teaches that in that domain, as elsewhere, "There are great truths that pitch their shining tents Outside our walls, and though but dimly seen In the gray dawn, they will be manifest When the light widens into perfect day." 45 LAW ITS OEIGIN, NATUEE AND DEVELOPMENT BY CHARLES A. HUSTON, A.B., J.D., J.S.D.* PARI I ELEMENTS OF LEGAL THEORY CHAPTER I. THE NATUEE OP LAW. 1. Ways of beginning the study of law. — There are two very distinct ways of beginning the study of law, ways which may roughly be distinguished as the practical and the logical. On the one hand, a start may be made with the separate rules of law which constitute a chief content of a legal system. Or on the other, one may begin with some consid- eration of the first principles which underlie the great mass of separate rules and make possible its organization into a system. This latter method has obvious logical advantages, but its practical disad- vantages are equally obvious. First principles, to * Professor of Law, Leiand Stanford Junior University Law School. Author: "The Law of Agency," in American Law and Procedure; "Busi- ness Corporation Law of the United States," in Commercial Laws of the World. 47 2 LAW— ORIGIN AND DEVELOPMENT be fully comprehended and appreciated by the stu- dent, must be arrived at by a process of induction from concrete applications of them, applications which in our law are found largely in the form of decided eases. On the other hand, the concrete de- tails of the law are more fully understood, and their content better remembered, if they are seen and rec- ognized as interrelated parts of a general system, a system based on certain fundamental principles. Some background of legal theory and legal history, slightly sketched at first but gradually growing in elaborateness, is at least highly desirable as a prep- aration for any really scientific study of law; and it is even more important that the student should seek from the first to cultivate as a habit of mind the consideration of the social origin and purpose of the rules and principles of law which he learns, and their relation with each other as parts of the legal system, ; 2. The meianing of law. — The law with which lawyers: deal is concerned with the control of men's conduct.; Law in this sense is thus readily distin- guishable from the figurative use of the word "law," common; in the natural sciences, for instance, in the phrase "the law of gravitation." But it is harder :tp; distinguish the law, as lawyers use the word, from the laws of etiquette, morals, and re- ligion,, all of which alike provide standards to which men's actions are conformed. In primitive socie- ties, indeed, these various influences moulding men's conduct are not at aU distinguishable. The fear of social disapproval, of the armed vengeance of the 48 THE NATURE OF LAW 3 ' tribe, or of the individual or group their acts may in- jure, and the dread of the wrath of offended gods,— all combine to keep men in the path which custom has marked out as safe. Gradually, however, the means by which conformity to these different stand- ards is secured are differentiated. The pressure of social opinion, the dictates of a man's own con- science, or the teaching and iniauence of religious authority, are relied on to secure conformity to those rules of social conduct which are not regarded as law in the stricter sense of the word; while those which are so regarded find recognition and, in the course of time, enforcement, in definitely organized public tribunals, the courts of the state. Laws, then, are the rules of conduct which are recognized and enforced in courts of law.^ An important distinction is, however, to be taken between "a law" and "the law." A law is a rule which forms a part of the law; but the law is not merely the sum of these rules. It is rather a system composed not solely of rules, but also of general principles derived from judicial experience and re- flection, and bringing the mass of separate rules into a unified whole — a system for the guidance and or- dering of men's conduct in their relations with each i"A law, in the proper sense of the tcnn, is therefore a general rule of human action, taking cognisance onljr of: external acts, enforced by a determinate authority, which authority ij human, and, among human authorities, is that which is paramount in a political society. More briefly, a general rule of external human action enforced by a sovereign political authority. "All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only." Holland, Elements of Juris- prudence, chap. 3. 1-4 49 i LAW— ORIGIN AN£> DEVELOPMENT other. Laws in this concrete sense of Individual rules are in general the product of legislative enact- ment, and are spoken of collectively as statute law. But the principles which have been gradually- evolved out of juristic experience, and which form the most important and basal elements of the sys- tem we call the law, are generally spoken of col- lectively as the common law.^ To the lawyer the law which is the field of his pro- fessional study and practice is based on and derived from both-these elements. The law to him is a sys- tem for the just regulation of men's conduct in re- lations with each other, with the community, and with the state. Its contents are rules laid down by the state through its law-making organs, and tradi- tional principles derived from the experience of the judicial profession in the administration of justice. The former he is used to call the written, the latter the unwritten law — a pair of phrases somewhat con- fusing but signifying to the lawyer that in the stat- utory rule the very words, but in the judicial deci- sion the embodied principles rather than any written phrases, constitute the law. This recognition of the two-fold character of law is fundamental in obtaining any adequate concep- tion of the nature of law. As a system by which jus- tice is administered, it is a composite of definite rules and of principles of more general application, from which rules for dealing with new situations may be derived by the courts by processes of legal reason- ing. 2 See for further discussion of this phrase, § 30. 50 THE NATURE OF LAW 5 3. The administration of justice. — Law, then, is a system of rules and principles used by the courts in the administering of justice. The achieving of justice is its purpose and end — ^the establishment and maintenance, that is, of such relations between man and man, and between man and the community and the state of which he is a member, as in the opinion of the community will further social progress. This administration of justice by some recognized author- ity is a necessary step in the evolution of society. Social experience has demonstrated that man's natu- ral sense of justice is inadequate permanently to secure such action on the part of all the members of a society as will assure the conditions of social prog- ress. Some external authority must be provided, some means of social control over individuals, to ad- just their conflicting interests. The arbiter may be priest or ruler, popular assembly or gild meeting; but some tribunal for the administering of justice is required, not only for the advancement of society but for its very existence. Private vengeance for wrong, private self-help in assertion of a claim of right, if left free to run their course, would disrupt and eventually disintegrate society. The substitu- tion of civil justice for self-help and of criminal jus- tice for private vengeance is an epochal event in the history of civilization. 4. The evolution of law. — The judge precedes the law. A court may be a court of justice without be- ing a court of law. The judgments of Solomon as recorded in the Old Testament settled disputes be- tween litigants by nieans of the shrewdness and nat- 51 6 I/AW— ORIGIN AND DEVELOPMENT ural sense of justice of the judge, unguided and also unhampered by any system of predetermined prin- ciples. So, too, the tribunals of our own Par West on the ranges and in the mining camps of half a century ago administered a justice which owed little if any- thing to Blackstone, or even to remembered rules of the common law, but much to the judge's sense of fairness and his knowledge of the equities of the particular case before him. It is, however, only in the simplest and most primitive social groups that the administration of justice can be permanently based on the wisdom and fairness of an individual judge. Such a plan, however effective it may be in adjusting disputes which have arisen, is inefEective in enabling men to avoid new ones. Men, especially when their judgment is warped by self-interest, are incapable of deciding for themselves whether or not a contemplated course of conduct will seem just to the court that may be called upon to pass upon it. The need «E a formulated rule by which men can guide their future conduct is one of the basal causes for the administration of justice by law. Moreover, as the community grows in size and the activities of its members become more complex, more calls for adjudication will arise than can possibly be met by a single tribunal. But similar cases should ob- viously be similarly decided by different judges; £i,nd, practically, a uniform course of decisions is possible only when the decisions follow some formulated prin- ciple or rule. Thus both the community and the tribunal inevitably come to recognize the need of settled principles and rules by which the admin- 52 THE NATURE OP LAW 7 istration of justice will be made predictable and uniform. Again, the natural tendency of the court itself is to follow, where the eases are substantially similar, the lines it has laid down in earlier decisions, and thus to impart uniformity to its practice. The rea- sons which prevailed with it in the former case are likely to be cogent stiU; and moreover, to adopt the decision as a rule in the subsequent case saves the time and mental effort involved in retracing the process by which the former was arrived at. In response to these contributing causes — the ten- dency to repetition by the courts, the demand for uniformity and certainty by the community — ^the course of justice becomes in the main and charac- teristically justice according to law, that is, 'accord- ing to predetermined and definitely formulated rules and principles which more and more restrain and bind the once unfettered discretion of the judges. The administration of justice becomes administra- tion according to law when judicial action becomes uniform because governed by general and formulated rules and principles. No system of administering justice can be entirely reduced to rule. The variety of possible cases call- ing for adjudication is practically limitless, and aU attempts to provide for a complete covering of the field of human action by predetermined detailed rules have proved, and must prove, futile. Nor would a complete reduction of the administration of jus- tice to procedure under definite rules be desirable even if possible. Some questions can far better be 53 8 LAW— ORIGIN AND DEVELOPMENT settled by allowing a trained judge to exercise his discretion freely upon the facts of the particular case. But in these cases such uniformity of decision as is desirable may be expected to result from the training of the judiciary in legal reasoning and the application of legal rules, and from the influence of ^the criticism of the legal profession upon the course of their decisions. Both bench and bar are by educa- tion and habit inclined to refer action to definite principles and to seek to base their decision on rea- son. 5. The sanctioii of law. — ^Historical investigation seems to establish that obedience to the decrees of the tribunals which administered justice in primi- tive societies was secured by the forces of public opinion and religion prior to its systematic enforce- ment by the state. Today, however, a characteristic mark of the law is that its sanction, the coercive force which lies back of it to compel obedience from a recalcitrant, is the physical power of the state. By this physical character of its sanction the law is distinguishable from other instruments of social con- trol. Conformity to social ends is secured now, as it always has been, not only by law but by the forces of religion, morality, and public opinion. Most men are good citizens not because of the coercive force lying back of law, but because of the persuasions of their own conscience, their unwillingness to incur the divine displeasure, or their reluctance to defy the force of public opinion. But powerful as are the sanctions of these forces, they are essentially psych- ical. They react primarily on the mind of the per- 54 THE NATURE OP LAW 9 son influenced by them. Defiance of them' does not directly affect a man's physical person or property. Moreover, in case of conduct inconsistent with their precepts no definite human authority can be ap- pealed to. The sanction of law, on the other haHd, is primarily physical. Disobedience to the rules laid down by its tribunals is today the ground for the official intervention of the state to enforce these rules by seizure of the disobedient party's property or imprisonment of his person, or in extreme cases by the infliction of death itself as a penalty for viola- tion of the rule of law. And yet, while law is thus directly dependent for enforcement against the disobedient upon the physi- cal force of the state, in the long run its effective sanction is still the moral sentiment of the commu- nity. A law, however established, to which the com- munity is hostile or even indifferent soon becomes a law in name only. In the Anglo-American legal system this is particularly true, because of the large element of popular participation in its enforcement as well as in its creation. The jury of the vicinage and the elected executive officers of the law often nullify both the legislatively expressed will of the state and the judicially formulated rules which are the product of legal reasoning and experience. 55 CHAPTER n. THE SOURCES OF LAW. 6. The sources of law — ^In general. — ^If law is the system of rules and principles used by the courts in administering justice, the inquiry is natural: Whence do the judges obtain these rules by which their discretion is controlled? The law derives its sanction and authority from the state, but not neces- sarily nor wholly its content. The state enforces laws which it did not itself make. The sources from which the rules af law are idtimately derived are incapable of exhaustive enumeration, but those of the greatest importance and influence are custom, judicial precedent, legislation, judicial reasoning, pro- fessional opinion, and jirristic writings ; and the cur- rent political, economic, and ethical ideas which are loosely grouped in legal phraseology now as public policy, and again, when the ethical element is pre- dominant, as natural law. It is, however, important to note that all legal systems recognize a certain order of precedence among these sources. The di- rect formulation of the will of the state in legisla- tion is everywhere given primacy. If the state has laid down a rule covering the case at bar, the court has no discretion but to apply the legislatively pro- vided rule. To legislation as a source having this imperative character, Anglo-American law adds two others of authority inferior only to legislation. 56 THE SOURCES OF LAW U These are judicial precedent and custom. Only in the absence, then, of a rule derivable from legisla- tion, precedent, or custom, may a court seek guid- ance for its decision in other sources of law. These latter may, by way of contrast with those having a legally recognized imperative authority, be spoken of as persuasive sources. 7. Custom. — ^Historically the first of the sources of law is custom. In the earliest times the prin- ciples guidiag the judges to their decisions were probably, .even by the judges themselves, without conscious formulation. But the basis of their de^ cisions was, nevertheless, doubtless the implicit no- tion that conduct which was customary was just, and that which departed from the recognized and pop- ularly approved practice of the clan or other group was unjust and hence to be disapproved. The body of popular custom known to the judges was thus in thi^ sense the first source of law. But in another sense, also, custom is a source of law, resorted to oc- casionally even in a well-developed legal system. Where judges have found that the members of soci- ety in general or some particular part of it have been following in their relations with each other a par- ticular mode of action, they wUl adopt this custom as the rule of right action under the circmiistances. Thus, the custom of allowing three days of grace after the expiration of the time for payment of a bill of exchange — a custom existing among mer- chants—was adopted by the English judges as a part of the common law. Even in recent times the min- ing law of California was constituted in large part 57 12 LAW— ORIGIN AND DEVELOPMENT out of the customs in force among the miners of the state. The growth of the law in modem times, how- ever, has owed but very little to custom. Custom in our law furnishes a rule only where statute law is lacking, and only where the custom is not inconsistent with the general principles of the common law. These limitations on its field tend more and more to exclude its operation as a source of law. 8. Judicial precedent— The following of prece- dent. — ^It is a principle of Anglo-American law, and one of the greatest importance, that a court is bound, with but few exceptions, to apply the rules and prin- ciples embodied in former decisions in similar cases, unless these rules and principles have been changed by statute. This principle is generally spoken of as the rule of stare decisis (standing by the de- cisions). The largest part of our law, at least so far as it deals with the relations between individuals, is the product of these judicial precedents. -No other system of law allows such authority to ad- judication. In the civil law of European countries, for example, the opinion of a court as to what rule should be the ground for a decision carries weight just likp the opinion of any other legal expert. It is solely on the merits of its reasoning that it makes an appeal to the tribunal having the later case in hand. In Anglo-American law, on the other hand, as Professor Gray succinctly puts it, the peculiar force of a judicial precedent "does not lie in its ac- cordance with the opinion of the learned, or in the fact that it is right; it is a judicial precedent not 58 THE SOURCES OF LAW 13 because it ought to have been made but because it has been made."® In other words, courts recognize the authority of previously decided cases as pre- venting the exercise of their own discretion. They follow precedents which they may think ought not to have been made. With respect to their binding force, precedents are usually divided into those which are imperative and those which are only persuasive. The former class, however, is the only one which is a legally recognized source of law. Judges are bound by it even where they disapprove of it. Persuasive prec- edents are really authoritative only as their merit impresses the court to whose consideration they are presented. The judges are not bound to follow them. Thus, decisions of English and Canadian courts, while they receive careful consideration in American tribimals, are merely persuasive and not binding on these tribunals. Imperative precedents, on the other' hand, are of binding authority. They cannot be disregarded at all by courts subordinate ta the court making them, that is, subject to re- versal by it on appeal. Thus the decision of the United States Supreme Court makes a precedent which is absolutely binding on all the federal Dis- trict Courts, whatever their opinion of its soundness may be. On courts of coordinate jurisdiction, on the other hand, or on the court itself in subsequent cases, they are not so absolutely binding. Such a court may disregard its prior rule in some circumstances. The only Anglo-American court which apparently sGray, The Nature and Sources of the Law, p. 188. 59 14 LAW— ORIGIN AND DEVELOPMENT binds itself irretrievably by a decision is the British House of Lords.* 9. The disregarding of precedents. — It is hard to formulate exactly the situation in whi^h a court will feel justified in rejecting a precedent which it has made. Mr. Salmond has, however, made an attempt to define such a situation by saying that if the rule is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interest of justice, it may be overruled or dissented from.' This requires a balancing by the court of the evil of unsettling what has been regarded as law against the benefit of correcting the erroneous decision. If the precedent, while it still stood, has been the basis of numerous or important transactions it would be better to let it stand. On the other hand, if the rule h!as not been followed, but has become obsolete through disuse and changed conditions, it may be more freely disregarded. 10. The creation of precedents. — ^Hitherto con- sideration has been directed to the question of how a precedent once established furnishes a rule for subsequent cases. But one may well ask how did the precedent itself come to be established in the first place. The answer is to be found in the primary principle that the purpose of the court and the duty of the judge is the administration of justice. A case brought for decision must be decided, and in the administration of justice according to law it must * London Street Tramways Co. v. London County Council, (1898) A. 0. 375-379 (Eng.). 5 Salmond, Jurisprudence (3rd ed.), §§64-65. 60 THE SOURCES OF LAW 15 if possible be decided on a general principle. This principle may be found in custom, in a statute or other legislative enactment, or in a judicial prece- dent already provided in an earlier case. But if a case arises for which no rule can be found in any of these sources it is none the less incumbent upon the judge to decide it, and to do so if possible on a principle susceptible of general application. This principle he must seek ultimately in his own ideas of right and justice, and in formulating it he creates a new precedent. But in his search for a principle a judge is habituated to obtaining guidance from va- rious sources, the chief of which is the analogy of the preexisting law. Thus the rules for the control of aeroplanes may be suggested by analogies from the rules governing water craft or land vehicles. Com- peting analogies are likely to be presented to him by counsel for consideratipn, and most new prece- dents are essentially the selection of one of two or more possible analogies for development into a prin- ciple. In this selection the trained jurist is guided by a desire to choose the analogy which will best fit into the existing system of the law, and be most likely at the same time to work out justice in its applications. In the accumulated experience of the courts as embodied in the reports of their decisions — now reaching into the thousands of volumes and extend- ing over centuries of experience with actual situa- tions — ^he has a guide to his own reason which is of inestimable value. It is in this aspect that one of the chief merits of our Anglo-American legal sys- 61 16 LAW— OEIGIN AND DEVELOPMENT tern of adherence to the course of development of the law through decided cases becomes conspicuous. A certainty that the court, even in an untrodden field, will be guided by the judicial experience of the past, and will reach its principle of decision by lines of reasoning tested and accredited by professional usage, enables the lawyer to advise his client and the client to engage in his enterprise with confidence in the uniform and definable development of the law to cover the new situation. 11. The persuasive sources of law in general — Legal reasoning and persuasive precedent. — Those sources of law which have been spoken of as per- suasive may perhaps be most appropriately discussed at this point, since from the point of view of the student of law they get their chief significance as the sources guiding judicial discretion where the author- itative sources fail to furnish a binding rule. It is a peculiarity of the Anglo-American system which can- not be too often emphasized, that not merely when the legislator has laid down a rule but, under the doc- trine of stare decisis, when a court of superior au- thority has provided a precedent, the court cannot exercise its discretion. It is only when the question raised is an open one within the jurisdiction, when the judges are not concluded by an existing rule of law, that they may look further afield for help in the creation of a new precedent, or even in the deci- sion of the particular case in hand. It has already been said that the chief source of guidance in such a situation is the judge's own trained reason, oper- ating on the various analogies found in existing law 62 THE SOURCES OF LAW 17 to the situation in hand, and informed by his politi- cal, economic, and ethical views. Another and val- uable source of guidance is in what have been spoken of as persuasive . precedents — the decisions of the courts of other jurisdictions in similar cases, and especially decisions of courts administering the same systems of law as his own. Thus, precedents from Massachusetts, though not in the strict sense of the term authoritative sources of law for Illinois, * are treated with great respect in the courts of the sister state. While they have no binding force, they carry weight, not merely because of the merits of the reasoning they exhibit, but because of the repu- tation of the bench as expert in the law. They are taken in a measure on faith, as any expert opinion is sure to be. In this sense they are authorities. 12. Professional opinion. — ^A weight scarcely to be distinguished from that attaching to precedents from other jurisdictions is given to the current opin- ion of the bar of the jurisdiction itself. As Professor Gray says: '-That the bar who practice before a judge would be universally or generally of opinion that a certain decision ought not to be made, al- though not conclusive on his judgment, ought to have and does have an influence on him, and an influ- ence of a distinctly more stringent character than, the knowledge or belief that the unlearned laity would disapprove of the decision."* 13. Juristic writing.— Again, closely allied to this form of expert opinion, is the authority of the jurist, exerted through his legal writings — commen- 8 Gray, The Nature and Sources of the Law, § 558. 63 18 LAW— OEIGIN AND DEVELOPMENT- taries, criticisms, and text books. In the civil law this form of persuasive authority is of cardinal im- portance. In this legal system no law-conferred au- thority is given to precedent. There is no assump- tion such as prevails in our law that an earlier de- cision is necessarily correct. Hence one tribunal may decide a case in one way today, and tomorrow a second tribunal, or conceivably even the same one, may decide a precisely similar case in a different way. The principal check on the actual occurrence of such a possibility lies in the weight given in civil law countries to the writings of men learned in the law. In the Anglo-American system, on the other hand, the criticism and suggestion of juristic writers are available to the courts only in the cases where the creation of a precedent is possible. Often, however, their writings, through their influence on the legis- lature, have been the means of securing legal reform. It is frequently objected that the doctrine of stare decisis is an element of weakness in our legal sys- tem, an artificial weighting in favor of the reason- ing processes of earlier judges, as against the judges and jurists of today. On the other hand, the very establishment of a comparative scale of values among the sources from which the 'courts draw their rules has its advantages in producing that cer- tainty and orderly development in the law which is an essential to both the stability and the progress of society. Moreover, the superior weight given to decided cases as a source is not by any means a purely arbitrary thing. The principles embodied in them have been worked out under conditions 64 THE SOUKCES OF LAW 19 especially favorable to the production of rules of justice. The judge is not a mere theorist. He is an administrator of justice, a decider of actual cases between real men, and the responsibility of his posi- tion is concretely brought home to him by the conse- quences of his decisions to the litigants who stand before him. Moreover, the public nature of his office, the attention not only of his professional associates but of the community in general, which his powers as an administrator focus upon him, as well as the allied forces of professional tradition, all contribute to give a special value to the doctrine he establishes by his decisions. It is true, on the other hand, that the enormous and rapidly increasing bulk of the case law and the difficulty inherent in the form in which it is found make the task of the jurist in analyzing, arranging, and criticizing this material more and more neces- sary. At those points in the system where no set- tled precedent prevents further -judicial develop- ment, his expert suggestion is becoming increasingly valuable to the judge, and where the existing law, whether embodied in custom, precedent, or legisla- tion, needs alteration, amendment, or repeal, as well as where it may well be supplemented by new rules, the jurist's work is of similarly valuable service to the legislator. 14. Public policy and natural law. — ^No external authority of the persuasive kind can justify a judge in disregarding his own convictions of what is re- quired in the case before him by the various consid- erations of public policy and natural law, or natural 1-5 , 65 20 LAW— ORIGIN AND DEVELOPMENT justice. He may use the experience of other juris- dictions, the opinions of the legal profession, and the theories of jurists to guide his own reason. He may well pause and reflect before he renders a decision that runs counter to the weight of this authority, but his first duty where he must create a precedent is to administer justice according to a principle which commends itself to his own judgment. This means that in the main he must be swayed by consid- erations of an ethical character. But it must be recognized that the fields of law and social ethics are not entirely coincident. In the first place, because of the character of its pri- mary sanction, the external and physical power of the state, the law must leave untouched as beyond the reach of its machinery much conduct which, though morally wrong, cannot be corrected by legal processes. This limitation on the power of legal tri- bunals is further emphasized by the necessary gen- erality of legal rules and principles, which cannot take account of the special circumstances of particu- lar cases, circumstances which may make just the difference between moral justification of an act and the absence of such justification. On the other hand this requirement of a uniform and general rule for the guidance of human conduct, makes it necessary for the legal system to provide many rules in mat- ters morally indifferent. The classic example is the rule of the road which in America requires one to turn to the right — ^in England the requirement is to turn to the left. Either rule serves its purpose, which is merely to secure uniformity of conduct. 66 THE SOURCES OF LAW 21 Moreover, considerations of expediency frequently produce rules which impose responsibilities on indi- viduals quite independent of any moral considera- tions of desert. For example, a master, however careful he may be in the procuring of servants and the supervision of their conduct, may yet be held re- sponsible for some injury inflicted on an innocent third person by the carelessness of the servant in discharging his duties. Considerations of these sorts may better be called considerations of public policy than of ethics. A situation must always be looked for in which neither judicial experience nor legisla- tive prevision has provided the judge with authority to bind him or even, except in the most general way, to guide Mm in arriving at his decision. Hence the trained, intelligent, and upright administrator must always be a factor in the legal system. But he will more and more find aid in the necessary experimen- tation he is called upon to make, from materials furnished him by the research and reflection of workers in the allied fields of ethics, economics, politics, and sociology. 15. Legislation. — ^In modern times the state itself, through its special law-making organs, the various bodies possessing the power of legislation, under- takes more and more actively the direct formulation of rules for the guidance of the courts in admin- istering justice. Precedents are created only when a new situation is presented to the court in an actual case calling for decision. Hence if the legal result of a particular transaction is uncertain because no precedent is yet formulated which settles its lawful- 67 22 LAW— OEIGIN AND DEVELOPMENT ness, none but the adventurous will embark on it. Legislation can resolve the doubt beforehand, and enable a man to know with greater certainty what his rights and duties with respect to the contem- plated transaction will be. Thus legislation is the chief instrument by which a regular and systematic development of the law, keeping pace with economic or social changes, is possible. Moreover, legislation can repeal or amend for fu- ture cases the rules formulated by custom or judicial decision. Unlike these latter sources of law, it can change as well as create law. If a customary or ju- dicial rule is deemed to work injustice because of changed social conditions or because of changed ideals of justice, an act of the legislature can abolish the rule and substitute a new one. Thus in several states the judiciallly formulated rule known as the "fellow servant rule," to the effect that a master is not responsible to one employee for injuries caused by the negligence of a fellow employee, has been abol- ished, and in others materially altered, by statute. 16. Interpretation of statutes. — ^As has already been pointed out,'' the very letter of a statute has the force of law. Hence the courts are frequently called on to decide what the legislature meant by a particular form of expression. In this task it is the duty of the court to look first to the letter of the act in question: the literal meaning of the words and phrases used, together with any light thrown on the matter by the context. If a single and definite mean- ing can thus be arrived at it must be declared by the I §2. 68 THE SOURCES OF LAW 23 court to be the law. The court has no authority in such a case to go behind the letter of the law be- cause of a belief that the law is unwise, or even that it did not accurately express the intent which its makers had in mind. If, however, the letter of the law is ambiguous or inconsistent, it is then the duty of the court to seek to interpret it by inquiring as to the spirit of the rule and the relative consistency of possible rea- sonable interpretations with the legal system as a whole and with the requirements of justice which the system aims at. Here, too, the object of the court is to arrive at the meaning which the law- maker had in mind, but since literal interpretation is insufficient to disclose that definitely, recourse is had to the presumption that the legislature intended to promulgate that rule which seems to the judge the fairest and wisest of all the possible interpretations of which the language of the statute is, in his opinion, susceptible. Further than this genuine interpretation cannot go. The courts must not, under the guise of inter- pretation, try to make the legislature say what it has not meant to say. But it is often true that the legislature had not at aU in mind the particular point in Litigation. No genuine interpretation of its in- tention is then possible, since it had no intention. The case before the court must, however, be decided; and for this purpose the court must supplement the defective statute by a rule formulated precisely as precedents are formulated where the existing body of law provides no rule for decision. It is mislead- 69 24 LAW— OKIGIN AND DEVELOPMENT ing to call this process interpretation. It is really judicial law-making.* 17. Relative contribution of the sources.— In spite of the fact that the direct creation of legal rules by the legislative organs of the state is the most conspicuous feature of modern law-making, the legislative activity has been in the main directed to the organization and administration of the govern- ment; to regulations of a public character, such as provisions for the collection of the revenue, for the maintenance and regulation of public highways, the licensing of special trades, and other administrative acts. In the great field of private law regulating the relations of individuals with each other, a field from which the vast majority of the every-day sub- jects of litigation arise, our legal system is still es- sentially the product of judicial decisions. Legis- lative invasion of this field is in the main only for the purpose of amendment of detail. Moreover, the Anglo-American law has hitherto been curiously inhospitable to legislative innovation in the system developed by the courts. Legislation, before it can become a part of the system, has to be interpreted by the courts, and there has been a ten- dency, at least during the last two centuries or more, to make the interpretation such as will produce the least possible alteration in the body of principles already developed. A conspicuous instance of the discrimination against legislatively made law is the refusal of the courts to indulge in such analogical reasoning from legislation as they employ in devel- 8 S«e subject, Statutoky Interpeetation. 70 THE SOURCES OP LAW 25 oping new rules from judicially formulated princi- ples. At present in Anglo-American law, a statute is never reasoned from. It is interpreted only ac- cording to its letter. Doubtless this attitude of the courts has in great measure been justified by the character of much of the legislation of the past, due to the conditions under which it was produced. But it is scarcely to be expected, nor is it to be desired, that this conservatism shall be permanent. Not only is scientific legislation by a specialized law-making organ of the state theoretically possible, but the ex- perience of other countries, conspicuously Germany, shows that this possibility may be realized. When such a time arrives, legislation may well be recog- nized as capable not only of correcting errors and amending details of judicially formulated, law, but also of introducing new principles or altering the old, where, under social conditions essentially different from those in which they were first developed, they have ceased to work out justice.^ 18. Codification. — In many jurisdictions attempts have been made to reduce the whole legal system to the form of enacted law. This is spoken of as codifi- cation, and the result as a code, though the term is often less accurately applied to any logical arrange- ment of the statutory law of a jurisdiction. In other jurisdictions a partial codification has been made of particular portions of the law, such as the law of negotiable instruments, of sales, and of partnership. 9 See for excellent discussion Pound, Common Law and Legislation, 21 Harvard Law Eeview, 383, and compare Carter, J. C, Law, Its Origin, Growth, and Function, 204-220. 71. 26 LAW— ORIGIN AND DEVELOPMENT In certain civil law countries, notably Germany, this work of codification has been done with great thoroughness. In the United States several states have more or less complete codes; New York and California are conspicuous exalmples. At least thirty states have codified the law of civil procedure. Of course modern schemes of codification do not con- template the abolition of precedent as a source of l^w. It is generally recognized that no prevision of the development of society is adequate to the task of providing beforehand for all possible contingencies involving a need for law; the trained administrator of the code must constantly supplement it by the same processes by which the judge now creates precedent and extends the common law. But the code would provide him with a simplified and mod- ernized system of general principles from which could be made a new start for judicial development. The advantages of codification planned and exe- cuted along right lines are obvious, especially in the United States, where the judicial and statutory de- velopment of the law in nearly fifty separate juris- dictions has emphasized not merely its enormous bulk, becoming more unmanageable daily, but also its other defects of lack of orderly and complete de- velopment in individual jurisdictions, and of any- thing like uniformity between different jurisdictions — a serious defect in a country becoming more and more a commercial and industrial unit. On the other hand, the great practical difficulties in the way of codification are also obvious: the lack of scientific knowledge of our complex and highly elaborated law, 72 THE SOURCES OP LAW 27 and the impatience and lack of training of the legis- latures whose aid would be necessary in enacting into law a drafted code. But while the conclusion seems clear that a successful codification of the com- mon law requires much patient and careful prelim- inary work, study, and probably experimentation, it is also clear that this is a goal toward which progress must be made. 73 CHAPTER m. THE SUBJECT MATTER OF LAW. 19. The law and interests.'" — The end of law is the adjustment of human relations in accordance with the ideal of justice held at the time by the commu- nity. The need for adjustment arises because of the conflicting interests of the individuals and groups brought into relationship by the existence of a com- munity in which they must live their lives together. JEach of these individuals and groups of individuals seeks the satisfaction of his desires, — ^makes claims upon society for their realization. These claims on society may be, first, personal, for the protection of a man's health, his physical integrity, his reputation, or his family relationships; or, second, economic, for the protection of his property or his contract rela- tions with others. A man's interests are as manifold as his desires. They include all that he claims and strives to obtain for himself. It is the task of a legal system to decide which of these claims are reasonable and so far as it is pos- sible by the means at the disposal of the court, to enable the realization of those deemed reasonable. The development of a legal system, then, takes place through, first, a selection of the interests which it is felt that the law should recognize and secure as a 10 The author wishes to acknowledge his special indebtedness in the preparation of the sections on interests to the class room discussion of Professor Pound of Harvard University Law School. 74 THE SUBJECT MATTER OP LAW 29 means of assuring social progress; second, the ad- justment of conflicts between these interests; and third, the devising of appropriate means to give ef- fect to them, so far as legal machinery may be suc- cessfully employed in so doing. 20. Classification of interests— Individual inter- ests. — The human interests which the law thus rec- ognizes, defines, and seeks to effectuate are either interests of the individual, — individual interests; of the state, — ^public interests; or of the community generally, — social interests. Of these interests the legal systems of the present day are the most con-, cerned with those of individuals, though originally the group interests, those of the clan or family group, were paramount. The interests of individuals which have secured legal recognition and protection may be classified as personal and economic. In the for- mer would be included all the demands the individual might make and claim to havei secured to him by law by the virtue of his personality independent of any proprietary or other economic relations. Thus, much law is concerned with defining and protecting for the individual his interest in his own bodily in- tegrity and health, his interest in the uncoerced ex- pression of his "Urill, his beliefs and his opinions, his interest in the freedom of his honor from insult, his interest in the personal relations with his family and the social group of which he is a member. Not only is much of our present law concerned with these in- terests of personality, but much of law now in the making deals with them. Problems in this field are especially difficult as well as numerous because of 75 30 LAW— ORIGIN AND DEVELOPMENT the intangible nature of the interests involved, the practical difficulties in the way of ascertaining the facts where imposture is easy and hard to detect. Many of the interests of personality do not lend themselves so readily to enfprcement by general rule as do interests of substance, and a wider discretion must be left to the coxu-ts in order that injustice may not result from the application of general and rigid rules to cases essentially incapable of reduction to general principles. The law of domestic relations and much of the l^w of torts deal with these in- terests. The other large division of legally recognized in- terests is the economic one — ^the claims of the indi- vidual to economic advantage, — control of corporeal thingd, or of intangible property on the analogy of tangible property, freedom of industry and contract, and profit from transactions or other relations with others. The law of property and of contract and of business association such as agency, partnership, and corporations deals with these interests. These eco- nomic interests are more susceptible of treatment by the legal deyice of general rules than are interests of personality, and hence are on the whole more sat-, isfactorily protected in our legal system. 21. Public interests. — The law is concerned also with the protection of the interest of society as polit- ically organized in the state. Originally in Anglo- American law the interests of the state were prob- ably the personal interests of the sovereign — ^his kingly prerogatives; but now the state is regarded as itself a legal person, with interests of personality 76 THE SUBJECT MATTER OF LAW 31 and substance analogous to those of the human in- dividual, and also with representative interests as guardian of the interests of society generally, all the interests of the community as such. These interests form the field of international law, a part of consti- tutional and administrative law, as well as the law of public corporations. 22. Social interests. — Apart from those of the community as politically organized in the state, there are other social interests which the law rec- ognizes and protects. Indeed, the primary interest for the protection of which the law originated was the interest in general security — the safety, peace, and order of the society. This was the primary, as indeed it is the ultimate end of the law: the as- surance of the conditions of social progress. To attain this end experience has shown that individual interests must be recognized and secured, but after all only as means to an end which is larger than the protection of individual interests as such. Society is interested in the preservation and development of general morals, of social institutions, and of nat- ural resources. The criminal law which protects this interest in the general security, is the earliest and most complete development of the legal protection of a social interest. All other recognition of such in- terests in the legal system is comparatively recent, and correspondingly undeveloped. Most of the legal rules designed for the furtherance of social inter- ests exist at present only as elements limiting or qualifying individual interests, as is shown by cur- rent classifications of legal rules. Thus the law of 77 32 LAW— ORIGIN AND DEVELOPMENT nuisances is generally treated as a branch of the law of torts. 23. Balancing of interests. — The social interest is the chief incentive to the balancing of interests. Not all interests can be secured; it is therefore the task of law, by reason and experimentation, to work out that balancing of interests which will consort most fully with the ideal of justice held by the society of the period, and will most fully satisfy the socially valuable interests of the members of the community. Thus, for e-xample, the social interest in the institu- tion of marriage must be balanced against the individual interests of the parties to a mar- riage, in elaborating the law of divorce. The balancing of the interest of society in the health of its members against the individual interest in freedom of contract determines the law governing hours and conditions of labor. 24. The securing of interests — Legal rights and duties. — ^Besides determining what interests shall be recognized by law, and within what limits a just bal- ance of conflicting interests will confine this recog- nition, a legal system must also work out means for protecting^ and securing these interests. The Anglo- American system in order to do so. regulates hmnan action in two ways. It lays duties on individuals to act or to abstain from acting in certain ways, and en- forces this action or non-action by invoking the force of the state where necessary to secure obedience. It also confers advantages on individuals in the way of permission or assistance from the law to the realiza- tion of their interests. 78 THE SUBJECT MATTER OP LAW 33 Duties are either absolute or relative. Absolute duties are those imposed by law to protect the social interest in the peace, order, and well-being of the community in general rather than to protect indi- vidual interests against infringement. Relative du- ties are those corresponding to a right conferred or recognized by law for the purpose of benefiting* a particular individual. The same violation of duty by wrongful act or omission may infringe both social and individual interests, and give rise to a liability on the part of the wrongdoer which is both civil and criminal, violating as it does a duty corresponding to a right of a definite individual or individuals and a duty which has no corresponding right conferred by law in the interest of any particular individual. The rules of criminal law are rules imposing absolute duties and making.them effective by prescribed pun- ishments. The advantages conferred by law on individuals are of three chief kinds, distinguishable as rights, powers, and privileges, although all three are often spoken of generally as rights. A legal right of one man in the strict sense of the word corresponds to a legal duty in another or in others. It is a capacity sanctioned by law in the former to cause or restrain certain action by the latter. Thus, if A has made a legal contract with B, he has a legal right to have B fulfill it, which the law will lend its aid to enforce either specifically or by way of compelling B to com- pensate A for non-performance. B's duty corre- sponds to A's right. But the law may confer advantages on A to which 79 34 LAW— ORIGIN AND DEVELOPMENT no corresponding duty exists. For example, it may allow A to bring an action against B to compel him to perform his contract. This so-called right of ac- tion corresponds to no duty in anyone else. It is properly a power conferred by law on A to enable hiTn to realize his interest in the contract. Of the same sort of legal advantage are the power to make a will, the power to dispose of property, the power to appoint an agent. In essence these powers are legally conferred abilities to create or alter or de- stroy rights and duties either in oneself or in others; thus, when A exercises his power to dispose of prop- erty and sells it to B, he creates in B rights of own- ership, duties corresponding to which are laid by law on the community of men in general. A third type of legal rights of recognized ad- vantage is the capacity to act without legal re- straint or liability in ways that but for the exemp- tion granted would constitute a violation of a legal duty. Such an advantage is spoken of as a privi- lege or liberty. Thus, in self-defense one is privi- leged to use force against another which but for the liberty of self-defense would be an infringement of his right to physical integrity. Again, if A has given B a license to cross his field, the law recognizes in B a privilege to do that which without the license would be unlawful. A privilege differs from a right in that no duty in others corresponds to the privi- lege in its possessor. The license granted B imposes no djity on A. A can revoke it at any time. Its sole effect is to enable B to do what without it would be unlawful. Again, a privilege differs from a power 80 THE SUBJECT MATTER OF LAW 35 in that the exercise of it carmot violate a legal duty of its possessor. The possessor of a legally recog- nized power may, by its exercise, violate a legal duty. For example, B may have engaged A to work in his store for a year. He has the power to dis- charge him without excuse in a month, and the dis- charge will be given legal effect. A is no longer B's employee, and cannot act as such. But the exercise of the power nevertheless violated a duty which B owed A under the contract, and B will be liable for this violation. Of these three legally conferred advantages, rights are by far the most common and most important. It is with the protection of interests by means of rights and duties that law chiefly concerns itself. 25. The elements of rights and duties. — Every right conferred by law is a right belonging to a per- son and operative against a person or persons. So, every duty imposed lays an obligation on a person or persons in favor of another person. The person for whose legal advantage the right is conferred or recognized is spoken of as the owner or subject of the right; the person on whom the duty is imposed, as the person obliged, or the subject of the duty. This duty is an obKgation to act or refrain from acting, which the owner of the right is entitled to exact from the subject of the duty. It constitutes the content of the right. Moreover, the act or ab- stention relates to some object, material or imma- terial, in respect to which it exists — the subject- matter of the interest to satisfy which the owner of the right exercises it. Thus, for example, if a man 1-6 81 36 LAW— ORIGIN AND DEVELOPMENT purchases a horse he becomes the subject of a right in the horse. The subjects of the corresponding du- ties are persons in general; for such property rights as arise from the purchase are rights against every- one. The duty imposed is one not to interfere with the owner's exclusive use and enjoyment of the horse; and the horse is the object of the right. 26. The classification of rights — Rights in rem and in personam. — The most important classification of legal rights is based on the incidence of the corre- sponding duties — whether they bind people gener- ally or only particular persons. In the example above, the right of ownership involved was one which imposed an obligation on all persons not to infringe upon the owner's interests in the horse. Such a right, good against persons generally, is called a right in rem (literally, a right in respect of a thing) . If now the owner of the horse hires it out to X for X's use, his interest in the contract is legally protected by a right available not generally, but only against X, a particular person. This right is called a right in personam (literally, a right against or in respect to a person) }^ The importance of this distinction is well pointed out by Mr. Sal- mond :^^ "The law confers upon me a greater advantage in 11 The literal meaning of the terms is apt to cause confusion without a rather complicated explanation of the history of their application to the rights. It is perhaps unfortunate that the use of the terms is so general in the vocabulary of the law that others cannot well be substituted for them. The student must hold fast to the real distinction involved rather than to the literal meaning of the Latin phrases: a right in rem is a right against men in general; a right in personam against one or more particular individuals. 12 Salmond, Jurisprudence (3rd ed.), § 81. 82 THE SUBJECT MATTER OP LAW 37 protecting my interests against all persons than in protecting them only against one or two. The right of a patentee, who has a monopoly as against all the world, is much more valuable than the right of him who purchases the good will of a business and is pro- tected only against the competition of his vendor. If I buy a chattel, it is an important question whether my interest in it is forthwith protected against everyone, or only against him who sells it to me. The main purpose of mortgages and other forms of real security is to supplement the imper- fections of a personal right by the superior advan- tages inherent in a right of the other class. Further- more, these two kinds of rights are necessarily very different in respect of the modes of their creation and extinction. The indeterminate incidence of the duty which corresponds to a real right, renders im- possible many modes of dealing with it which are of importance in the ease of personal rights." A substantially similar primary classification of rights is that made by Blackstone,^^ who divides rights of persons into absolute and relative. Abso- lute rights he defines as those which belong to men merely as individuals, and which every man is en- titled to enjoy whether out of society or in it. Rela- tive rights are those incident to men as members of society and standing in various relations with each other. Under the former class he includes what he calls the primary rights of personal security, per- sonal liberty, and private property, and certain aux- iliary rights designed to preserve the principal ones 13' 1 Blackstone, Commentaries, pp. 124 and following. 83 38 LAW— ORIGIN AND DEVELOPMENT from violation. Under relative rights he classifies the rights which arise out of public relations to the government, and private relations of which he enu- merates master and servant, husband and wife, par- ent and child, guardian and ward, and relations with corporations. This analysis of relative rights is ob- viously unsatisfactory, since it fails to take into ac- count such important legal relations as contract and quasi-contract. The underlying idea of the classi- fication into absolute and relative rights has, how- ever, been elaborated by others, notably by Professor Langdell," who follows Blackstone in calling the rights of personality and property absolute rights, but defines relative rights as those which arise from duties or obligations owed by determinate persons. 27. The classification of rights, continued — ^Pri- mary and remedial rights. — Another important clas- sification of rights is that into primary and remedial rights. Primary rights are conferred and recog- nized by law for the protection of interests gener- ally. Once these rights are created they themselves become interests, for the fulfillment of which the law creates a secondary line of rights properly called remedial. Thus, A has a right in rem to the undis- turbed enjoyment of his land, and a right in per- sonam to the fulfillment of his contract with B. These rights are primary. But if X trespasses on the land, or B breaks the contract, a secondary right is conferred by law on A to protect his interest in his primary right. Indeed, even if the wrong of X KLangdeil, A Brief Survey of Equity Jurisdiction, pp. 219-259, espe- cially at 219-222 and 229, 239-240. 84 THE SUBJECT MATTER OF LAW 39 or B is merely a threatened one, a preventive reme- dial right will be granted to forestall injury to the interest in the primary right. These secondary rights are, then, either preven- tive or curative, depending on whether the violation of the primary right is merely imminent or has al- ready taken place. The chief forms of preventive rights are the process of binding over to keep the peace and the process of injunction. Curative rights may be specific or compensatory. Specific relief aims at the production or reinstatement of the con- dition which would have existed had the violated primary right been fulfilled. Thus, if X has taken wrongful possession of A's property, the law may give A a right to restitution; or if B refuses to turn over to A land which he has contracted to sell to A, the law may compel from him a specific performance of his contract. Compensatory relief substitutes for the primary right which has been violated pe- cuniary compensation for the loss the violation has caused the owner of the right. Thus, if B, who has contracted to paint A's portrait, refuses to do so, the law will give A pecuniary damages by way of compensation. It is obvious that these three forms of remedial right are not all equally effective. The only entirely adequate one is the preventive remedy; specific redress comes next, and compensatory relief is often only a rough approximation to a protection of the interest involved. 28. The law of procedure — Adjective and sub- stantive law. — ^Not only is it necessary for a legal system to define the interests which it will recognize 85 40 LAW— ORIGIN AND DEVELOPMENT and protect, and the rights and duties by which it will effect these ends, but it must also provide a regular and orderly procedure to govern the legal process through which this administration of jus- tice according to law shall attain its purpose in the individual cases presented to the courts for decision. This normally involves, first, the provision of a method by which the parties whose conflictiag in- terests require adjustment may come or be brought before the court for the hearing and decision of their case; second, a method by which the exact question or questions at issue between the parties to the suit may be definitely formulated for decision (plead- ing) ; third, a method by which the trial of this issue may be conducted in a way b6st adapted to securing a just decision, especially how the facts necessary for such decision may be introduced and proved (evi- dence), and how the legal arguments which may help the court in arriving at its decision may be pre- sented; fourth, a method of formulating and pro- mulgating the decision; and fifth, a method of exe- cuting this decision by the force of the state if it is not voluntarily obeyed by the parties. The law thus governing the means by which the administration of justice according to law attains its ends is the law of procedure, or, as it is often termed, adjective law. It is thus contrasted with the substantive law, the law which deals with the purpose and subject mattfer of the legal system.^^ 15 See subjects, Pleading in Civil Actions, Practice in Oivil Actions, Eqititt Pleading and Peactice. 86 CHAPTER IV. CLASSIFICATIONS OF LAW. 29. Logical and practical classifications — In gen- eral. — ^Numerous attempts have been made to clas- sify the enormous mass of legal rules and principles which constitute a legal system, in order to make it more understandable and more easily mastered. If the purpose is primarily scientific, the attempt is to make" a logical classification of the material so that the groups of rules shall be mutually exclusive. On the other hand, if the purpose of the classification is primarily practical — to make the rules applicable to a given situation easy of access — considerations of logic give way to the desire to secure ease of ref- erence. Hence, classifications designed for the use of lawyers in practice divide the law into numerous groups of closely related topics, the boundary lines of which are drawn with more regard for practical convenience than for logical accuracy. These group- ings, however, are by ho means arbitrary. At bot- tom they are logical; but historical reasons and the test of practical use have led to modifications which disguise in some measure their underlying scientific character. Thus, the usual classifications of law are based on the nature of the relations with which each department of the law deals. Law is first divided into international and national or municipal law; the former being the system of rules and principles 87 42 LAW— OKIGIN AND DEVELOPMENT governing the relations between independent states, and the latter the system regulating relations within a single state. This municipal law is again divided into public and private law, the former dealing with the structure and functions of the state and its re- lations with individuals, and the latter with the rela- tions of private individuals and groups with each other. The division into substantive and adjective law, just discussed, applies to both public and pri- vate law. Each has its substantive rules of justice and its procedural rules for their orderly application and enforcement. Public law includes constitutional law, dealing with the organization and larger functions of the state, and administrative law, dealing with the rela- tions arising between the government and individ- uals in the exercise of the various governmental functions. Criminal law, which deals with the ab- solute duties of the individual to the community, is generally treated as a branch of public law, since the protection of these community interests is in modem societies entrusted almost entirely to the state. Private law is generally divided into the law of persons, the law of things or property, and the law of obligations. This classification is based on the nature of the rights considered in each subdivision. The law of persons -treats of those rights in rem which protect the personal interests in life, physical integrity, health, and honor, in personal liberty and in various personal relationships — ^for example, the domestic relationships of marriage, parentage, and guardianship, and those other relations which in- 88 CLASSIFICATIONS OF LAW 43 volve status or legal disability of some sort, such as infancy, alienage, and lunacy. The law of property deals with those rights in rem which protect the economic interests in ownership, possession, and kin- dred relations to things material and immaterial. The law of obligations is concerned with the rights in personam which protect the interests in legal agreements (contracts), or which are granted re- medially by way of prevention, enforcement, or com- pensation where a preexisting right in rem may be or has been violated. The law of torts and quasi- contracts, and much of the law administered in pro- ceedings in equity, are concerned with these rights in personam. These are the general divisions of our legal sys- tem; but for the purposes of ready reference further subdivision is required in those departments of the law which have been most elaborately developed; for example, that part of the law of obligations dealing with contracts, which in a highly organized indus- trial and commercial civilization has been worked out by the processes of litigation and legislation into great detail. Thus, besides a general law of con- tracts embodying those rules which are of funda- mental importance and general application, there are special laws governing contractual obligations cre- ated in sales, insurance, agency, bills and notes, and other special relations, originating in agreement but having legal peculiarities due to the essential na- ture of the relation or to historical reasons con- nected with the legal recognition of the particular interest involved. 89 44 LAW— ORIGIN AND DEVELOPMENT In covering the field of our Anglo- American legal system, this commentary adopts in its articles the practical division which legal experience has proved most usahle; but in its arrangement and grouping the careful student may observe its conformity to the analytic classification on the basis of the nature of the rights involved in each branch of our system - of the law. 30. Systems of law — The common and the civil law. — ^Different civilizations have developed different systems of administering justice according to law. In the western world, however, two great systems divide the field. These are usually designated as the civil and the common law. The civil law prevails over all Europe except Eng- land, Ireland, and Wales, and over all the Americas except the United States and Canada. In the United States, Louisiana, Porto Rico, and the Philippines are under legal systems derived in the main from the civil law; and the same is true of Quebec in Canada. In general the division is one between the English-speaking world and the rest of western civili- zation. Of the British colonies, Ceylon and South Africa are under civil law, and India under the com- mon law, with some concessions to Mohammedan and Hindu law. The term "common law," however, besides this use to distinguish the Anglo-American legal system from the civil or Roman law system, has at least three other more restricted meanings. "Within the Anglo-American legal system the expression "com- mon law" is used to distinguish the imenacted law 90 CLASSIFICATIONS OF LAW 45 developed in courts of justice from the law estab- lished by legislatures. Thus, the common law is set off against statute law. Again, a distinction is made between "common law" and equity. The lat- ter term, as will shortly appear,^* is applied to the law developed and recognized only in the English CoTB't of Chancery and its American analogues. When set in contrast with this, the common law re- fers to all the law, enacted or judicially developed, which is recognized and administered in other courts than courts of equity. In still another usage the term "common law" is used to designate the general law of the land as contrasted with various forms of special law, which have a limited application, such as local customary law, the canon law, or the law (merchant.^'' One must note that, in the largest use of the term, the common law, as a body of rules and principles for the administration of justice, distinguished from the civil law, is not the physically sanctioned law of any particular state. In a sense it is true that there is one common law of Massachusetts and another of Illinois. But, with the exceptions already noted of Louisiana and our insular possessions, there is a single body of principles common to all our juris- dictions; a body which in the main has been received by these jurisdictions as their particular sanctioned law, and which, by its influence as a source of per- suasive authority and a training ground for legal thinking, maintains a general conformity to the 10 See §160, 61, 77. 17 For explanation of these terms see § § 63, 68. 91 46 LAW— ORIGIN AND DEVELOPMENT original English type in all the independent juris- dictions where justice is administered according to the common law. 92 PART II SKETCH OF ANGLO-AMERICAN LEOAL HISTORY CHAPTER V. THE BEGINNINGS OF LAW. 31. Introductory — The relation of English history to the English law. — ^No legal system can be fully ex^ plained on merely logical lines, arid the Anglo- American system is perhaps peculiarly dependent for any complete understanding of it on some knowl- edge of its historical development. The diligent student of the common law wUl not rest satisfied until he has mastered in some detail the political and social history not only of his own country but also of England, the land in which this law had its early development. Here only the merest prelim- inary outline of the more definitely legal history, and particularly of the origin of legal institutions, can be attempted. 32. The Anglo-Saxon beginnings. — In its main body the Anglo-American law is almost purely Germanic. Of any direct influence of the aboriginal Celtic stock, or even of the Roman occupation of Britain, no perceptible trace remains. Our law be- gins with the English, the Teutonic conquerors of 93 48 LAW— ORIGIN AND DEVELOPMENT England from the Britons. But of the period be- fore the Norman Conquest materials for legal his- tory are naturally meager. Early law is, as we have seen, largely customary in origin. Its rules, there- fore, are fresh in the common memory, and there is little need of reducing them to writing. Thus the first written laws which have come down to us from the Pre-Norman period are those of Ethelbert of Kent, which, date from about 600 A. D. These and the laws of Ine of Wessex, coming from toward the end of the seventh century, are in the main mere tariffs of compositions for injuries ; for example, one of Ethelbert 's laws runs: "If one man strike an- other with the fist on the nose, three shillings." As the various tribes which divided England among them became united into a single nation, their more or less varying customs had to be brought into har- mony; and the first laws of all England, those of the great Alfred, coming in the latter part of the ninth century, are fuller and somewhat wider in scope. But throughout this period the purpose of the law, so far as its written forms disclose it, seems to be little more than an attempt to maintain the peace. The effort at first is merely to restrict, and then later to put an end to, the practice of private vengeance and self -redress. The injured person must demand justice before he takes revenge himself or seizes property wrongfully detained from him. The money composition set for an injury is meant to provide a substitute for the satisfaction obtained in wreakiilg vengeance on the wrongdoer. So the price fixed is -proportioned not to the actual injury done, 94 THE BEGINNINGS OF LAW 49 but to the intensity of the desire for vengeance which must be bought off. Thus the penalty for a black bruise was greater if it was where it showed than if it was hidden under the clothing. Spots where the peace will be preserved by the power of the state emerge from the welter of the feud like islands from a flood. The claim of the church is recognized in Ethelred's law: "Be every church in the peace of God and of the King, and of all Christian folk;" in Alfred's ordinance recogniz- ing the special sacredness of the holy days; and in the provision for sanctuary, granting safety from the avenger to one who has escaped to the hallowed spot. The state is similarly recognized. Men going to and from the public assemblies must be free from molestation, and not only the king, but those in his presence as well are protected by the imposition of a heavier composition for offenses against them. But the enforcing machinery of the law is at first conspicuously weak. We are not yet far removed from the time when the popular tribunal which is the ancestor of our modem court decided only such disputes as were voluntarily submitted to it by the parties. The Anglo-Saxon court had little power" to compel submission to its jurisdiction or obedience to its judgments. The injured party must himself summon his adversary into court. If he did so in due form he was permitted to seize cattle belonging to the adversary as a security that the latter would attend the court to answer the plaintiff's complaint. Did this fail to induce his appearance, the only measure left to the court was formally to pronQunce 95 50 LAW— OKIGIN AND DEVELOPMENT the recalcitrant outside the protection of the law. Judgments by default were unknown. Similarly, if, after a judgment was pronoimced against him, the losing party did not pay the composition set, or re- turn the chattel adjudged to be his adversary's, or was otherwise disobedient, the successfxil party was left to his own resources, but permitted to exercise the immemorial rights of private vengeance or self- redress to which these previous proceedings had in- terposed a temporary check. The Anglo-Saxon courts were not specialized tribunals for the administration of justice. Their members were neither professional judges nor law- yers. The courts were the popular assemblies by means of which all the functions of government, so far as they were then developed, were performed. In each locality the Hundred Moot, composed of the freemen of the neighboring settlements, met for de- liberation on local affairs, and among these the set- tlement of what we would now regard as matters of law for the courts. The freemen were bound also to attend the less frequently convened Shire Moot where they decided matters for this larger area. The meeting was presided over by the local nobleman or bishop, but the decisions were rendered by the meet- ing itself. The Witan or Council of great nobles who advised the king also exercised judicial powers among their other functions. The latest laws we possess from the Pre-Norman period are those of Cnut, the Danish conqueror, 1016-1035. They disclose a development in the law which parallels the increased power of the central 96 THE BEGINNINGS OF LAW 51 government. Certain offenses are now treated, wherever committed, as offenses against the king, and are punished, not by compelling a payment to the injured man or his kinsfolk, but by the inflic- tion of corporal punishment on the wrongdoer — ^mu- tilation or even death. In other words, a real crim- inal law is developing. Again, certain places — like the king's highway, and certain persons — like his immediate retinue, are under the king's special ju- risdiction. Another evidence of the growing power of the king is traceable in the beginnings of a sys- tem of allotment by him of land from his private domain to his followers on condition of their per- forming various services to him. This system of tenure, elaborated under the Norman kings, lies at the foundation of much of our real property, law. To sum up, the Anglo-Saxons had developed the conception that the object of law was the mainte- nance of peace and order in society. Their political organization, however, long weakened by internal dissension, and then by the menace or actuality of foreign invasion, faUed to develop a strong state to support the legal system by a vigorous sanction. 33. The effects of the Norman Conquest. — ^No definite break with the Englishlaw marks the Nor- man Conquest of 1066. Indeed, the Norman kiags sought to placate their English subjects by promis- ing them the" benefits of their ancient law. But the necessities of administration, the task of holding the throne against danger from a powerful and re- bellious set of great nobles, as weU as from rival claimants to the kingship, and the menace of a peo- 1-7 97 52 LAW— ORIGIN AND DEVELOPMENT pie restless under what was after all a foreign yoke, and one whicli the royal expenditure pressed heavily upon their shoulders, — these factors insensibly but none the less thoroughly altered the fabric of the English law. The chief clue to the changes during the two centuries followiag the Conquest is to be found in the effort of the kings to make their hold on the kingdom first secure and then profitable. 34. The feudal system. — His position as con- queror of England by force of arms gave to William I. an unexampled opportunity of elaborat- ing for his own advantage the system of feudalism. Already not unfamiliar to the England of his day, it received in his hands and those of his sons such extended development that practically all the land of England came to be held by a feudal tenure, and the whole English people was organized on a feudal basis. As lord of all the land William granted to his followers and supporters rights of lordship over it on condition of their rendering him service, paying to his treasury an assessment proportioned to their holdings, and pledging their loyalty to him in war and peace. Those men who received their lands di- rectly from the king subdivided them among their own followers, exacting similar duties from them, and this partition was repeated until the lowest in rank among the free tenants was lord of but a few acres. But, since all free tenants, besides the duty of homage or loyalty to their immediate overlord, were bound in fealty to the king, the rules of their tenancy came in the course of time to be settled by the decisions of the royal courts, and so were rules 98 THE BEGINNINGS OF LAW 53 which prevailed throughout the whole kingdom and constituted an early element of a common law. At the bottom of the social structure were the peas- antry, who worked the farms for the lords and could not seU the land they tilled or escape from their duty of service. This unfree class lay outside the pro- tection of the king's courts, safeguarded only by the local custom of the manor or Hundred. As the in- cidents of the free and unfree tenures were gradu- ally elaborated in the royal and the baronial courts, the legal aspects of the relation assumed greater and greater importance, the purely military features shrank into comparative insignificance, and the re- lation of tenure and service developed into the law of real property, to which are traceable many of the essential features of the property law of today. 35. The Curia Regis or King's Court. — ^A second line of the development of our legal system during this period was the centralization in the king's courts of the administration of justice. This also took place only gradually. During the Norman pe- riod the king's jurisdiction was but one of many. It was more or less vaguely recognized that, the king being the head of the whole feudal system, his prerogatives included that of administering justice to all his subjects. In practice, however, his judi- cial work was confined to the summary trial and punishment of those wrongs which were regarded as offenses against his honor as king, and the set- tlement of disputes which arose among his great lords who held land from him by direct grant — the tenants in capite (chief tenants). In this judicial 99 54 LAW.K>RIGIN AND DEVELOPMENT work, as in the administrative work from which it was as yet scarcely, if at all, differentiated, the king was assisted by his great lords, as the Saxon kings had been by the Witan. More and more, however, this group tended to narrow down to the group of the monarch's personal followers who constituted his household, and so were in immediate and constant attendance upon his per- son. The multiplicity as well as the magnitude of the administrative tasks involved in the government of the kingdom, and the absence of the nobles from their wide estates, to say nothing of the conflicting interests of the king and these powerful vassals of his, naturally drove the king to rely more and more on this smaller group of household officers; and this group itself came to be called in a special sense the King's Court. In the early days after the Conquest,- they had, of necessity, been entrusted with much administra- tive as well as advisory authority. One principal task they performed was the raising of the royal revenue. How thoroughly their work was done is traceable in the monumental inventory of the taxable re- sources of the country compiled under their direc- tion — the celebrated Domesday Book. An elaborate system of tax-collecting was gradually developed, with its administration centered in the Curia, and appeals from the tax-gatherers to it as the source of their authority gave a judicial turn to much of its deliberations. As a judicial body, too, it assisted the king in settling the duties owed him by his ten- ants, and in deciding disputes between these tenants 100 THE BEGINNINGS OF LAW 55 themselves. Moreover, it guarded the king's honor by visiting with swift and heavy punishment the of- fenses which were regarded as especially in violation of his peace. This conception of the king's peace was much enlarged by the Norman monarchs. Not only were the king's own person and household sacred, butTio- lence offered to any of his followers was a breach of his peace. One of the few direct enactments of WiQiam the Conqueror was his decree that all the men whom he had brought with him or who had come after him should be in his peace and quiet. Gradually the performance of these judicial func- tions came to overshadow the other features of the work of the Curia, and the King's Court took on more and more the aspect of a court of law, at the same time retaining from its connection with the work of administration an efficiency in enforcing its deci- sions and a constancy in operation which distin- guished it thoroughly from the loosely constituted Witan of Anglo-Saxon days. 36. The local and ecclesiastical courts. — ^Apart from those great causes in which the interests of the crown or of its tenants in capite were directly in- volved, the administration of justice throughout the kingdom generally lay almost whoUy in the hands of local courts : communal, Ijke the shire and hundred courts, and the kindred courts set up in cities and at fairs; feudal, as were a multitude of baronial and manorial courts erected as a matter of feudal right by the greater land-holders for the settlement of disputes between their tenants; and finally the 101 56 LAW— OEIGIN AND DEVELOPMENT courts in which the Church administered a foreign law. These ecclesiastical courts deserve a special men- tion, particularly because of their influence on certain branches of our modern law. William the Norman had, probably in return for the valued aid of the Pope in his invasion of England, recognized the courts of the Church as entitled to jurisdiction in England in matters spiritual. This recognition was very broadly interpreted by the ecclesiastics; and church courts administering the canon law, a well- defined and organized system of rules derived in part from Scripture but in greater part from Roman law, dealt with cases affecting the Church, the clergy, and such matters as marriage and divorce, wills, and the administration of the estates of deceased persons. In these matters our law is still deeply colored by the doctrines of the canon law. 37. General view of the period. — ^WhUe English feudalism was unique in the actual power it gave to a king strong enough to wield it — a power which was most significantly indicated in the reservation of loyalty to the king which limited the homage ren- dered by each vassal tenant to his overlord, yet in the feudal incident of the lord's right to hold court for his undertenants, and in the Church's right to deal with all matters spiritual, a strong decentraliz- ing force threatened the monarchy; and when a dis- puted succession gave an opportunity to the baron- age to free themselves from the strong hand of an overlord, the wars that marked the reign of Stephen threatened a general anarchy, from which 102 THE BEGINNINGS OF LAW 57 the country was rescued only by the superior ability of Henry II. And yet to the strong political and administrative organization which William and Henry I gave to England was due the survival of the idea of law and order through this troubled time. The Normans had created a state. It remained for the Angevins to turn the state into the service of a reahn-wide justice: to make the state, in other words, the efficient protector of the whole of the so- ciety under its sway. 103 CHAPTER VI. THE MAKING OF THE COMMON LAW. 38. The work of Henry II— In general.— The de- velopment of English law owes more, perhaps, to the administrative genius of Henry II (1154-1189) than to the contribution of any other man in its history. Taught by the shameful lawlessness and disorder of Stephen's reign the absolute necessity of a strongly centralized organization of the government to main- tain the supremacy of the kingly power, Henry found in the King's Court his most effective means of securing this end. In certain fields of operation the central government must have direct control, or it could not endiu-e. In the first place, the crown must control the land, for the land was the source of the royal revenue and the basis of the whole po- litical structure of a feudal monarchy. Moreover, the crown must assert and establish its right to pun- ish violence and maintain order, or the country would relapse into the anarchy from which it had just emerged. 39. The crown, the Church, and the barons. — The powers which chiefly menaced the supremacy of the crown in these fields were the Church and the barons. These owed much of their strength to the courts in which they administered justice. To weaken the influence of these tribunals was Henry's first task. The conclusion of his long struggle with Arch- 104 MAKING OF THE COMMON LAW 59 bishop Becket, the head of the Church in England, was marked by the king's enactment known as the Constitutions of Clarendon (1164), ordinances which restricted materially the jurisdiction permitted to the ecclesiastical courts. The contest against the baronial jurisdiction was more prolonged, but on the whole more permanently successful. The king's method was partly repressive, but still more com- petitive. Instead of keeping the King's Court con- cerned merely with the disputes of the great lords and difficult of access to the common man, he threw it open to a wide variety of litigation, and by his plan of judicial itineraries brought it to the door of every Englishman, a rival of the local court bidding for lawsuits with an offer of speedier and surer justice. 40. The older modes of trial. — ^Henry 's advantage over the local courts lay in great part in the superior machinery of his own tribimal, already developed in the administrative practice of that body. The local courts retained the historic modes of trial developed in the popular courts. That is, the judgment of the assembled freemen in these courts did not profess to determine the truth of a controversy. That, they felt, was a matter often beyond human power to as- certain. The judgment they rendered merely de- cided how one or the other party to the suit should prove his case; the three main methods in vogue be- ing proof by oath, by ordeal, and by battle. All were appeals to the justice of God to manifest the right. In proof by oath, called wager of law, the man called upon to prove might sometimes swear to his claim or clear himself of the charge against 105 60 LAW— ORIGIN AND DEVELOPMENT him by his unsupported oath. Oftener he was re- quired also to bring a certain niunber of other men, called compurgators (oath helpers), who would swear that the oath he had sworn was clear and un- perjured. In a conflict of sworn testimony men be- lieved that God would vindicate the right. As Mait- land drily says, "It is common knowledge that those who perjure themselves are often struck dead or re- duced to the stature of dwarfs, or find that they can- not remove their hands from the relics they have profaned."^® The ordeal was the commoner mode of proof in cases of crime. Various forms were prescribed for different classes of men — ^the ordeal by cold or hot water for the lowest or servile classes, by hot iron for lay freemen, or by morsel for the clergy. In essence the ordeal of whatever kind was a requirement that the person remitted to proof by its means should successfully invoke the Divine interposition on his behalf. Thus, in the ordeal by fire the man decreed to prove his case must Kft a red-hot piece of iron, weighing a pound or more, and carry it in his bare hand three paces. His hand was then wrapped in clean linen for three days, and when unwrapped must be well healed. It is clear that without a friend at court a remission of the accused to the ordeal was practically equivalent to his conviction. To these forms of proof familiar to the Anglo- Saxon courts the Normans added another of essen- tially similar sort, which they brought with them from BVanee — ^the institution of the judicial combat 18 Maitland, Collected Papers, vol. II, p. 447. 106 ■ MAKING OF THE COMMON LAW 61 or wager of battle. In this institution, in the case of a criminal accusation, the parties in person, at least when they were not incapacitated by age, sex, or physical infirmity, fought with special weapons under the eyes of the court, from dawn until night- fall, or imtil one was beaten helpless or confessed de- feat by crying "Craven." If this result was not reached until the stars appeared, the party who had been adjudged to prove his case lost. In disputes about land a champion might be appointed to take the place of either party, as also where personal participation was, for any of the reasons mentioned above, impossible. Wager of battle was the appro- priate mode of proof in trials as to the ownership of land, one of the commonest sources of litigation in medieval England. 41. The inquest. — ^Fortunately for the future of legal development, these arbitrary and extra- rational modes of proof were not resorted to in the administrative work of the Curia Eegis. In ascer- taining what lands were subject to the royal tax levy, and for how much, a far more efficient means had long been used. This was the inquest, an insti- tution which had come down from the days of the Roman government of Prance and had been adopted in turn by the Frankish kings and the Norman dukes. The inquest was, in essence, an inquiry con- ducted by royal officials, originally to ascertain the facts necessary to enable the collection of the royal revenue. These officers had the power, to summon before them the leading men of a neighborhood and require from them under oath (whence they were 107 62 LAW— OKIGIN AND DEVELOPMENT called jurors) the desired information as to land and chattel ownership and value. An early instance of the fiscal use of the inquest in England was that which had produced the Domesday Book. But even in William I's day the king had turned this rational method of arriving at facts to judicial uses, and had commanded his sheriffs to inqtiire in particular cases from "the honest men of the vicinage" the facts which woul4 enable him to settle a dispute as to the right of possession of land by one or another of his tenants. What had before been only an occa- sional use, Henry II now made usual in judicial pro- ceedings where a decision turned upon a question of fact, such as the possession of land, which would be a matter of common knowledge in the neighbor- hood. By a series of royal ordinances known as as- sizes, he provided that certain questions of common occurrence in litigation, such as the right to the pres- ent possession of freehold property, should be deter- mined by the royal courts and upon the oath of a jury of the neighborhood. Another assize, known as the Grand Assize, gave to a defendant in a suit re- lating to the ownership of land the privilege of re- fusing the wager of battle by which the matter would be decided in the feudal court of the overlord of the disputants, and submitting the question which of the disputants had the greater right in the land to a court under royal control, to be settled by a reference to a jury of the county in which the free- hold was situated. The advantage of this is graphi- cally put by Glanvil, one of Henry's legal ofl&cers and the author of the first general treatise on Bn- 108 MAKING OP THE COMMON LAW 63 glish law: "So effectually," he writes, "does this proceeding preserve the lives and civil condition of men that everyone may now possess his right in safety at the same time that he avoids the doubtful event of the Duel. Nor is this all; the severe punish- ment of an unexpected premature death is evaded, or at least the opprobrium of a lasting infamy or that dreadful and ignominious word that disgracefully resounds from the mouth of the conquered cham- pion." Prom the poinlof view of the king, moreover, these assizes gave him direct control over the most important sources of private litigation, disputes about the possession and ownership of land. They were supplemented by an enactment which provided that no suit as to a freehold should be commenced without the royal permission embodied in what was called a writ of right. These various ordinances of the king sapped the very stronghold of the baronial courts, since it had been of the essence of the feudal tenure of the barons that disputes between under- tenants should be decided in the court of the lord of both litigants. 42. The king's peace and the grand jury. — The other field of law which Henry had to control was the prevention and punishment of crime. The ma- chinery of the local authorities for this purpose — ^the hue and cry after a fleeing suspect, and the appeal of felony brought by a private accuser, were both seriously defective. The outcome of the appeal was likely to be a trial by battle, in which the original offense might be augmented by the wounding or 109 64 LAW.-ORIGIN AND DEVELOPMENT killing of the accuser. The local courts, moreover, often lacked power either to pursue or to punish a malefactor who refused to submit to their jurisdic- tion. Henry met the situation by making a wide ex- tension of the king's claims to punish certain wrongs as offenses against the royal honor, and by using the institution of the inquest in this field also for ascer- taining the facts as to crimes committed in each neighborhood. At first the men summoned merely answered under oath the inquiry as to what crimes had been committed and who had committed them or were generally suspected to have done so. In other words, they presented to the king's officers the information current in the neighborhood as to suspects, but did not pass upon their guilt or inno- cence. They were really an accusing jury, and their responses constituted an indictment which had to be followed by a trial — ^unless, indeed, the suspect was already of bad reputation, in which case he was ptmished as a felon on the mere indictment; the punishment including both mutilation and forfeiture of goods to the king. It was not until later times that there developed from this germ a separate trial jury in criminal cases. Successive ordinances extended the list of the wrongs which the king treated as in a special sense wrongs against him. Treason, murder, robbery and theft, and later arson and false coinage, were of- fenses which the king asserted his right to punish in his own court by forfeiting the criminal's goods as well as inflicting death or mutilation upon him or banishing him from the realm. The vigor and 110 MAKING OF THE COMMON LAW 65 efficiency of the royal crimmal justice naturally tended to reduce the appeals of felony by which pri- vate individuals sought vengeance in the local courts, and thus the conception of the crown as the guardian of the social interest in peace and order, the root of a genuine criminal law, was made fanuliar to the English mind. 43. The writ process.— Henry drew litigation into the royal courts not only by substituting an efficient mode of trial for the obsolete methods of the local courts, but also by providing for his own tribunals a better preliminary process for securing the attendance of the defendant. The older courts, as we have seen, left this task to the plaintiff; and moreover they made his performance of it difficult by prescribing with much detail the procedure he must foEow to entitle him to use any foi;ce to com- pel his adversary's compliance. But if a man sought the aid of the Bang's Court, Henry lent him the power of the royal officers to bring his adversary before the judges. Here again he turned the admin- istrative machinery of the Curia Regis to judicial ends. The king's writ, a writing from the king, was the regular means by which the court as an ad- ministrative body had directed the action of the royal officers. Now, if a man presented a good case to the King's Court, a writ issued from the chancery, one of its offices, but signed with the king's sign manual, directing the sheriff to summon the defend- ant into court. This royal summons no one would lightly disobey. A second value of the writ lay in the very fact that it was a written document. The 111 66 LAW— ORIGIN AND DEVELOPMENT local courts had no written records. Their decisions were embodied only in an oral tradition, necessarily more or less unreliable. But a writ was the begin- ning of a record; it put into preservable shape a brief statement of the ground on which the plaintiff sought redress in the King's Court. If the clerks of the chancery issued it, and the judges of the King's Court recognized it as entitling the plaintiff to relief at their hands, one definite point was fixed in the law : such and such facts entitled one to relief in the King's Court. A writ once thus approved would be good in subsequent cases of similar sort. Thus by this simple means the law received one of its earliest and greatest impulsions toward uniform- ity and certainty. The clerks of chancery began to compile a register of the writs which had been ad- judged to ^ state good causes of action, and upon this Register of Writs was reared in later reigns the fabric of a scientific law. 44. The itinerant justices and the court at West- minster. — The King's Court administered a better justice than the local tribunals, but the local tri- bunals met regularly and near at hand. Henry's •reforms were incomplete imless the King's Court were not merely open but accessible to all England. Here again Henry adapted to judicial uses an insti- tution already in existence. From time to time the kings themselves had journeyed over the country and administered justice to those who sought their court wherever it might happen to be. Moreover, royal commissioners had been many times sent from place to place to hold inquests for fiscal and kindred 112 MAKING OF THE COMMON LAW 67 purposes. Henry experimented with a view to es- tablishing throughout the land a regular course of visits by royal officers, representing the court and free from local prejudice or interest, to hear the pleas of the crown as well as to look after the col- lection from various sources of the royal revenue. From 1176 on, these commissioners, now called jus- tices, so largely did the judicial function occupy them, were sent on regular circuits through England; and Henry's instructions in 1166 and 1176 to them and the sheriffs, who had the duty of seeing their judgments executed, may be said to constitute the initial charter of a law for all England — a real com- mon law, professionally administered throughout the whole land and hence achieving a imiformity hitherto largely impossible. The king's central court at his capital of West- minster, composed of his household officers, was of course the Curia Regis par excellence, but the courts held by the itinerant justices were also royal courts, administering the same rules of law. This uniform- ity was secured by sending the members of the cen- tral court (Curia Regis capitalis) themselves from time to time on circuit. Gradually the judicial func- tions of the central court became so important that we read that in 1178 the king has chosen five men, two clerks and three laymen, to hear all complaints of the kingdom; and questions they cannot decide are to be reserved for the king and his wise men. In this specialization for the administration of jus- tice, both among the judges in eyre and in the cen- tral tribunal, we get the first distinct separation of .1-8 113 68 LAW— ORIGIN AND DEVELOPMENT the judicial from the administrative functions of the royal establishment. In fine, Henry's tireless energy and administra- tive genius had before his death familiarized Eng- land with a common law covering both the most im- portant form of land tenure and the most serious breaches of the public order. Moreover, this law is administered in a way so much more efficient than the law of the local communal or baronial courts that it is likely to draw all litigation into its courts. These courts, too, have been brought to the people by an elaborate system of visits by professional judges familiar with a imiform and certain law — one for all England. 45. Magna Charta. — The work of Henry stood the test of the absentee rule of Richard I (1189-1199), and even of the malignant tyranny of John (1199-1216). The successful revolt which ex- torted the Great Charter (Magna Charta) in 1215 from John was largely a revolt of the barons, and in a measure it restored to them the judicial privi- leges which they had been losing imder the skillful encroachments of Henry n. But on the whole the charter is more noteworthy for restoring to the people the protection of property which Henry's assizes had secured to them. Its greatest contribu- tions were to Constitutional Law. It established by the very fact of. its promulgation, as well as by the obvious implications of its language, the cardinal doctrine of English law, around which in after cen- turies the struggle for the liberties of the people against tyranny centered: that the king himself was 114 MAKING OF THE COMMON LAW 69 subject to the law. In the famous thirty-ninth and fortieth articles we read: "39. No freeman shall be arrested or detained in prison or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him nor send against him, imless by the lawful judgment of his peers and by the law of the land. "40. To no one will we sell, to no one will we refuse or delay, right or justice." In the next reign Bracton, the second great Eng- lish legal author, though himself a royal appointee as judge, could write, in language afterwards nota- bly echoed by Coke, that the king was under God and the law. 46. The professionalizing of the administration of justice.— The reign of Henry III (1216-1272), de- spite the occupation of its statesmen with the long and doubtful struggle between the king and his per- sonal followers on the one hand and the barons on the other, was a period during which the English law developed not only steadily but even rapidly. The political turmoil affected only the matters of constitutional law. The royal party still thought of the king's relation to the provisions of the Great Charter as that of the signatory to a treaty, bomad only by his express consent, but the nation, headed by the barons, by persistently extorting re-issues of the Charter from the reluctant sovereign, gradually hardened into law the conception of the supremacy of the English constitution. The steady progress of the common law was due 115 70 LAW— ORIGIN AND DEVELOPMENT to the fact that the course its development was tak- ing removed it from the arena of political strife. The administration of law was becoming a distinct profession; its judges were no longer mainly com- posed of the great men among the king's advisers, whose first interest was in statecraft. In the earlier years of Henry's long reign they were in the main clerics, who combined with a knowledge of the grow- ing structure of English law, gained from serving as clerks in the royal courts or chancery, a knowl- edge also of the canon law administered in the eccle- siastical tribunals. Some elements of the Roman law, though on the whole surprisingly few, found their way into English common law in this way. As time went on, however, the professional judges were more and more frequently laymen whose knowledge of law had been gained in pleading the cause of cli- ents at the bar of the royal courts, and who because of their professional emiaence had been selected to argue cases on behalf of the crown, and finally had been elevated to the bench. In both its branches, the bench and the bar, the administration of justice was becoming a lay profession with a specialized learning, consisting in the main of the rules of ad- jective and substantive law followed by the King's Court. 47. Development of trial by jury. — The pro- cedure of the King's Court had, by its very merits, imposed itself even upon the lower courts, and grad- ually the jury was developing out of the inquest. In 1216 the Church had disapproved the ordeal as superstitious, and a substitute was foilnd for it in 116 MAKING OF THE COMMON LAW 71 criminal cases in allowing the man accused by the Grand Jury to submit his defense to a second jury of the neighborhood, who apparently came to act as triers of the case rather than as witnesses them- selves. In theory, since the accused should not be deprived y jury had begun to assume something of its essen- tially modern character of a determination by a sworn body, drawn from the vicinage, of the facts necessary for the decision of a case. Evidence was presented to them at first probably only by way of supplement to their own knowledge. It is not until well on in the next century that the jury loses its character as a body of witnesses, and becomes purely a body of judges of the facts. 48. Precedent as a source of law. — ^Not only was a common procedure unifying the law administered in English courts, but the rules by which the royal justices determined the cases presented to them — rules which they professed at least to draw from the customs prevalent through the realm — were becom- ing recognized as constituting precedents for the de- cision of future cases. In the case of diverse cus- toms, the one selected as just by the learned, pow- erful, and justly respected royal courts was likely to prevail as general law, only the most tenacious and frequently recognized local customs holding out against the leveling and unifying tendency. By this 117 72 LAW— ORIGIN AND DEVELOPMENT selection and generalization of existing customs, and their establishment through a uniformly followed course of decisions vigorously enforced, there grew up in England a body of law native to the soU, fa- miliarized by use, and scientifically developed by a learned profession. It was the existence of a strongly sanctioned and well developed native law which enabled England alone of the countries of Europe to withstand the increasing pressure brought to bear by the learning of the day upon the courts to adopt the Roman law as the standard of their decisions. 49. Growth of legal doctrine. — ^In Henry's day almost the whole law of landed property was admin- istered in the king's courts. One great enlargement of their field took place during this reign: this was the invention of the writ of trespass, which greatly extended the protection already given by the king's courts to the possession of land through the pos- sessory assizes. The courts invoked the doctrine that any interference, however slight, with posses- sion not only of land but of movable property, might be a breach of that peace of the realm which it was the king's prerogative to protect. Hence, when such interference occurred, the person wronged could complain to the king and secure a writ of trespass, under which the wrongdoer would be summoned by the sheriff, fined and outlawed, and from his goods compensation awarded to the injured party. The advantages of procedure and remedy drew the busi- ness into the King's Court, and the introduction of an element of compensation to the victim as well as 118 MAKING OF THE COMMON LAW 73 of punislmient indicated the beginning of the distinc- tion between the law of crime and that of tort. More slowly and vaguely still the law of contract, aided by the processes of the ecclesiastical courts, was emerging from the writ of debt, which was a by- product of the writ of right. 119 CHAPTER Vn. THE ENLARGEMENT OF THE COMMON LAW. 50: Legislation a source of law. — Next to that of Henry H, the name of Edward I (1272-1307) is the greatest in the history of the formative period of our common law. Like Henry he was a great administrator and organizer, and he possessed some- thing of the same legal turn of mind. His most im- portant work was the organization of the great Council of the nation into a regularly functioning organ of the government. In his reign Parliament developed into something like its present form. To its original constituents, the great lords, both lay and clerical, Edward added definitely representa- tives of the other classes of his people who enjoyed political rights: the lesser barons, the knights of the shire, and the citizens and burgesses of the towns. Legislation now began to be a prolific source of law; and the conception began to grow that the accredited organ of the state in formulating new law was Parliament rather than any administrative power. The statutes of Edward's reign are of the most fundamental and far-reaching character, cov- ering indeed the whole field of the law, private as well as public: making radical alterations in the existing law, establishing new rules, and even un- dertaking a systematic arrangement of the whole body of law. Their result was to elaborate and com- 120 ENLARGEMENT OP THE COMMON LAW 75 plete the work initiated by Henry II. The work of concentrating the administration of justice ia the royal courts was aU but perfected in a notable series of statutes. The Statute of Gloucester (1278) set limits to the jurisdiction of the feudal courts over freeholders, and fixed the jurisdiction of the county courts at claims for less than forty shillings. The Statute of Mortmain (1279) forbade the alienation of any land to the Church without the consent of the king — a serious check to the growth of ecclesiastical power; and a later statute, while acknowledging a rather large jurisdiction in the church courts, estab- lished the right of the royal courts to check any- excess of this jurisdiction, by a writ of prohibition. The Statute of Winchester (1285) by establishing a national system of police enabled the crown more effectively than ever before to maintain the peace and order of the realm. 51. The limits of common law jurisdiction. — Cer- tain classes of cases still fell outside the sphere of the common law: those recognized as within the jurisdiction of the church courts, and those arising in foreign transactions or occurrences on the high seas — matters felt to be territorially outside the field of the common law jurisdiction, since the common law was a law for the king's subjects and the king's reahn. Moreover, the crown and the Parliament never lost entirely their judicial functions. The king in council retained the power to do justice in extraordinary cases, which was a part of the original prerogative of the crown; and Parliament also de- rived from the council, of which it was in theory a 121 76 LAW— ORIGIN AND DEVELOPMENT development, a power, at first, of original jurisdic- tion, to hear grave and important causes and to answer petitions. Gradually this power shrank to a jurisdiction in error from the common law courts, and became specialized in the House of Lords. The House of Lords is still the ultimate appellate tribunal of the British system. 52. The development of the land law. — The suc- cessful establishment of a practically exclusive juris- diction over freehold land in the royal courts had deprived the system of tenure of most of its political significance. Land was prized as a source of reve- nue rather than as a source of military or political strength. Hence the interests of the king, himself the largest landowner in the realm, and of his ten- ants-in-chief, the greater barons, were to a large ex- tent identical; and the land legislation of the period seems to have been designed to protect the interests of the king and his chief tenants as landlords. Two important statutes sought to prevent the utilization to the detriment of the feudal overlord of those new interests in land which had been developing as its commercial value rose into prominence. The clause De Donis (concerning gifts) in the Second Statute of Westminster (1285) favored the system, so important in English law, of entailing estates. It forbade a tenant for life from selling his estate. The land could pass only to his lawful heir; or if there were no heir it "escheated," or fell back into the hands of his feudal overlord. The statute Quia Emptores (1290) — ^so named from its opening words, "Whereas purchasers" — forbade subtenants' to 122 ENLARGEMENT OF THE COMMON LAW 77 make over tlie land they held to others in such a way as to retain for themselves the nominal posses- sion and feudal incidents in the land. If they sold, they must sell outright, so that the new purchaser stood in the same relation to the overlord that the seller had occupied. Indirectly this resulted in the breaking up of the great baronial estates into smaller holdings owned by men who, though tenants directly from the king, held too small an estate to be a men- ace to the royal power. The land law developed in Edward's reign moulded the social and economic history of England down to the present day. 53. The writ-issuing power. — ^Another chapter of the Second Statute of Westminster (1285) throws an important light on the history of procedure. It has been pointed out that a characteristic element of the litigation in the King's Court was the writ process. A complainant could get a remedy from the royal court only if he had a writ by which the king commanded the court to do justice in such a case. As the number and variety of the cases han- dled by the king's courts increased, blank forms of the writs that could be issued to suit the different cases were kept by the king's secretary, the chan- cellor, and the clerks of his office — the masters in chancery, as they were called. These could be had by applicants for justice in the courts on the pay- ment of fees, some of them fixed, some of them the subject of special bargains. As late as Henry IH's time, a royal writ for the recovery of a debt cost the plaintiff a fourth or more of the amount of the debt. The writs framed to meet ordinary cases of 123 78 LAW— ORIGIN AND DEVELOPMENT continual recurrence were, however, obtainable for a moderate fixed price. These were called brevia de cursu or "writs of course." For a long time the king, or in reality the chancellor and his clerks, had very free discretion in making new writs for new cases. But as it became clear that the power to make new writs was really a power to grant new remedies, that is, to make new law. Parliament, jeal- ous of its nascent legislative functions, began to protest. Even in Henry Ill's reign, before Parlia- ment was a definite body with regular sessions, the barons by the Provisions of Oxford had forced the chancellor to swear that "he would seal no writs except 'writs of course' without the commandment of the king and of his council." Further than this, the judges began to assume the right to decide on the validity of the writs on which actions were brought before them. An attempt to mitigate the severity of this double check on the expansion of the law through the royal power to create new remedies was made by the Stat- ute of Westminster II referred to above. One of its clauses allowed the chancellor to issue a new writ whenever "in one case a writ is found and in like case {consimili casw) falling under like law and requiring like remedy is found none." In later gen- erations this clause was used to create very many new actions. Indeed the law of tort and also that of contract are in large part traceable to writs con- simili casu, modeled on the earlier writs of trespass and deceit. But in Edward's own time the judges seem to have allowed but little effect to the pro- 124 ENLARGEMENT OF THE COMMON LAW 79 vision made by the statute for expansion. The list of writs was treated as practically fixed, and the addition of new remedies required parliamentary action. Already was becoming apparent the ten- dency of the common law to ossify. 54. The courts of law.— Not only the substance of the law but the institutions by which it was for- mulated and administered assumed during Edward's reign much of the character that they were to bear untU modem times. Under the need of specializa- tion imposed upon it by the growing burden of its work, the central court of the king had been grad- ually splitting into three distinct courts. Even in Henry II 's reign the fiscal department of the court — the Exchequer — ^had begun to specialize its organ- ization for the better administration of the king's revenue, and especially for the judicial questions originating in the course of its collection. Magna Charta had provided that a division of the court should sit constantly in a fixed place for the settle- ment of disputes between private individuals over land and over claims for money debts or chattels wrongfully withheld; this division was known as the Common Bench or Court of Common Pleas. Orig- inally the King's Pleas, the causes originating from breaches of the king's peace, were to be heard by the king himself, and so in theory the King's Bench was a division of the court which followed the king's person wherever he might journey. In practice, both the personal attendance, which Henry II and also John had made in a measure actual, and the migration of the court with the king's movements 125 80 LAW— OKIGIN AND DEVELOPMENT about the country, ceased during the long minority of Henry IH. The king came to be present at the sessions of the Court of King's Bench only by his representative, the Chief Justice. But the King's Bench retained in its jurisdiction traces of its spe^ cial importance. It heard both criminal cases and the civil cases where a breach of the peace was al- leged. It exercised also a control over the royal officers by means of the so-called prerogative writs which could issue from it alone. Finally it exer- cised an appellate jurisdiction to correct errors made by any of the judges or justices of the other tri- bunals, with some exceptions in the case of the Exchequer. By Edward's time this process of division was complete, but the distinction of jurisdiction did not long remain clean-cut. Since the judges were paid out of fees of litigants in their courts, each court, imitating the method by which the King's Court had trespassed on the jin-isdiction of the baronial and communal courts, sought to extend its own juris- diction and bring into it parties seeking relief. As a result, jurisdiction in the ordinary civil cases came to exist in all three courts. 55. The legal profession. — ^The development of the courts was paralleled by the development of the legal profession. Before Edward's reign had ended the practice of law had become virtually a profes- sional monopoly, almost wholly in the hands of lay- men. Professional pleaders argued the cases before the bar of the court. Professional attorneys con- ducted the legal business of clients outside the court- 126 ENLARGEMENT OF THE COMMON LAW 81 room. Men were apprenticed to the study of law as to a craft. When they had mastered its rudi- ments under the guidance of the older members of the bar, supervised, moreover, under royal order, by the judges, they were admitted to practice, and re- warded if especially and permanently successful with the title of serjeant or servant of the king's people. From the ranks of successful practitioners, rather than as in the older days from those of clerks trained in the various divisions of the king's courts, the judges were selected — ^men who had won their dis- tinction by knowledge of the law and skill in dealing with it in practice. The results of this professional- izing of the administration of justice were both good and bad. On the one hand, the law was to be formu- lated by men whose training and experience were extensive, and moreover highly practical. The prac- titioners and the bench were sympathetic, and pro- fessional opinion could and did exercise a strong in- fluence on the development of the law. On the other hand, the effect of this professional monopoly was to narrow and makie highly technical the learning which constituted the preparation for practice. A common lawyer need have no such knowledge of the canon law as the clerics of an earlier period possessed. The rules of the common law were best learned by studying the records of cases decided in the past, by observing the practice of the courts, the writs they allowed, the causes of action which might - be included within the terms of these writs, and the rules governing the decisions made by the judges. To supplement and aid their memories, diligent stu- 127 82 LAW^OEIGIN AND DEVELOPMENT dents made notes of the arguments of counsel and the reasons for the decisions in the cases which they heard in the courts. Collections of these notes, some of them perhaps made by young students, and others by practicing lawyers, and handed down from one to another, constitute, according to the prevailing theory, the long series of rough reports of cases known as the Year Books. In the legal text-books of Edward's time also appears the narrow and in- tense practicality which was valued in the legal profession. They are mere commentaries on writs or discussions of other elements of procedure. As Professor Holdsworth says: "The Common Law is becoming a special subject, known only to the prac- titioners of the royal courts, and the principal need of the practitioner is for some simple information as to the rules of court. The law itself lies beyond. The rank and file of the profession, immersed in the routine of practice, never attain to a conception of law as a reasonable and logical science."^" 56. The ossification of the common law. — The reign of Edward marks the culmination of a great period in the history of our law. In this period the conception of the function of law had broadened from a mere preservation of the peace and order of society to the conscious provision of remedies for wrongs. Bracton laid it down as law that there was a writ for every form of action.^** But as we have seen, even before the end of Edward's reign this was no longer true. At the moment of its precocious »» Holdsworth, History of English Law, vol. II, p. 272. ao 2 Pollock and Maitland, History of English Law, p. 564 128 ENLARGEMENT OF THE COMMON LAW 83 maturity the common law had begun to ossify. It was self-limited by technical rules as to jurisdiction which excluded from its control the foreign mer- chants and the growing commerce of the sea. It was unwilling to grant relief except where the wrong complained of could be brought within the purview of some established writ, either a writ of course or, if new, one sanctioned by Parliament. The develop- ment of the jury system has led, in many ways too intricate for discussion here,^^ to the growth of an elaborate, highly technical system of pleading, the refinements of which tended to delay and often en- tirely to frustrate justice. The judges were jeal- ously watched by barons and commons for fear that their decisions might be biased by the fact that they were royal appointees. The surest safeguard against favoritism was adherence to a definite and rigid rule provided by statute or by earlier decisions. Thus straitened, the administration of justice became • more and more formal. If the letter of the rule was satisfied the moral aspects of the case in litigation were quite disregarded. The substance of the law was being developed not in the large by theoretical discussion and generaliza- tion, or even, after Edward's reign, by any far-reach- ing legislative changes, but by very slow degrees and very short steps taken almost unconsciously: by the wresting of a rigid form like a writ of course to some new use only slightly different from the old, or with a material difference disguised under a fic- tion of identity, and by the gradual working out and 21 See subject, PlejUjing in Civil Actions. 1-9 129 84 , LAW— OKIGIN AND DEVELOPMENT adaptation of principles embodied in the accumu- lated precedents found in decided cases. The desire for certainty in the law, the dread of judicial caprice or dishonesty, made for an aversion to change which was intensified rather than lessened by the growing influence of a trained professional opinion upon decisions. 57. The need for elasticity. — Yet England at the beginning of the fourteenth centujry was a rapidly growing nation. Edward had enlarged her bounda- ries and she was cherishing further political ambi- tions. Her foreign commerce, though still largely in the hands of alien merchants, was great and grow- ing. The universities were the center of a vigorous intellectual life. Parliament was in the full tide of its early activity, with an astonishing list of legis- lation to its credit. Moreover, the new century and the one that followed it were to be centuries of the utmost social, political, and moral unrest, demand- ing institutions, legal as well as political and eco- nomic, which could deal with the tremendous prob- lems of adjustment that a period of such change involved. But the courts of common law had chosen to regard as closed many of the avenues by which the past growth of the law had been achieved, ^nd so the further development of an administration of justice adequate to the needs of the time had to be sought elsewhere. 58. Legislation in the fourteenth and fifteenth centuries. — ^Nor could the legislative organ of the state provide what was needed. The period from the death of Edward I to the end of the Wars of the 130 ENLARGEMENT OF THE COMMON LAW 85 Roses is one of increasing governmental feebleness. Incompetent kings, foreign wars, and internecine strife, succeeding one another, combined to turn Parliamentary activity from constructive legislation to an ignoble participation in the history of factional intrigue and armed conflict. There are some few noteworthy statutes. In 1350 and 1360 the organ- ization of the Justices of the Peace completed the outline of the common law control over the peace of the realm. These royally commissioned Justices ab- sorbed the remnants of local court jurisdiction over the minor offenses we now group as misdemeanors. At the same time the statutes gave to these magis- trates important administrative powers, which prac- tically put the local government of England into their hands. Edward Ill's Statute of Mortmain (1390) constitutes the first recognition in English law of that important figure, the corporation, as a juristic person. Legislation was, in truth, actively enacted throughout the period. Parliament dealt with all manner of subjects in minute detail, exhibit- iting apparent confidence in its power to regulate by statute the price of food and labor, and the garb ap- propriate to the various social classes. But the stat- utes reflect how it had become the tool of the great nobles, in their factional fights and in the preserva- tion of their selfish economic interests, particularly against the unrest among the peasantry that began with the Black Death (1349) and came to bloody outbreak against oppression in the revolts of "Wat Tyler (1381) and Jack Cade (1450). Of the legis- lative activity of the Parliament of Edward I's reign 131 86 LAW— ORIGIN AND DEVELOPMENT we find little or no trace. "Parliament seems," says Maitland,^^ "to have abandoned the idea of control- ling the development of the common law. Occa- sionally and spasmodically it would interfere; devise some new remedy, fill a gap in the register of writs, or circiunvent the circumventors of a statute. But in general it left the ordinary law of the land to the judges and the lawyers. In its eyes the common law was complete or very nearly complete." 59. The expansion of the law through the Court of Chancery. — ^Fortunately for England, a new line for advance was opened up by the development of the judicial functions of the king's chancellor. Orig- inally this officer was the chief secretary of the king and the head of his chaplains; originally, therefore, he was both a man of learning and an ecclesiastic. His legal importance was in some part due to the fact that his office issued the royal writs which gave to injured persons access to a remedy in the King's Court; but still more was it the result of his being the secretarial member of the king's council. It has been noted ^* that even in the fervor of Henry II 's reign for the organizing of the administration of justice, some questions were not given to the courts, but were still reserved for the king and his council. This power, constituting what Sir Henry Maine calls a supplementary or residuary jurisdic- tion in the king and his council to grant remedies that, either through a defect in the administration of the law or a defect in the law itself, were beyond 22 2 Collected Papers, p. 479. 23 See § 44. 132 ENLARGEMENT OF THE COMMON LAW 87 the reach of the common law, could be invoked by petition. The council by whom were examined the petitions of those who sought this extraordinary jus- tice of the king was a large and not very definitely limited body, composed of the great officers of state, the judges of the courts at Westminster, and an indeterminate additional group of barons and eccle- siastics summoned by the king, apparently at his discretion. In the case of civil matters at least, the task of examination devolved in large measure on the learned chancellor; indeed, by Edward I's reign many of the petitions were addressed to the chan- cellor directly. Gradually, in the course of the next two reigns, the chancellor's control over this ex- traordinary justice became so special that his office was recognized as a separate court as weU as a de- partment of state. The petitions which he enter- tained sought relief in a wide variety of situations : in some — such as cases of assault and battery and forcible dispossession of property — ^where, though ' the courts of law had jurisdiction, the wealth or power of the wrongdoer corrupted or intimidated a jury of his neighbors; in still others where the limitations, jurisdictional or procedural, of the courts of common law prevented the, injured party from obtaining a remedy .there. At first, then, the chancellor in large part merely administered the common law in the special cases which called for summary and powerfully sanctioned justice. But the very existence of this jurisdiction was a reflection on the courts of common law. The King's Bench claimed the right to forbid a resort to 133 88 LAW— ORIGIN AND DEVELOPMENT chancery if the case fell within the common law jurisdiction. Parliament, who saw in the chancellor the leading member of the King's Council, a body identified with the royal assertions of prerogative of which they were rightly jealous, at first joined hands with the older courts in opposition to interfer- ence by a royal officer with the regular course of jus- tice. In the face of this hostility on the part of Parliament, the chancellor gradually abandoned the exercise of this supplementary jurisdiction, and it became a leading principle of the law developed in the court of chancery that where a remedy existed at common law the chancellor would not interfere. 60: The equitable jurisdiction of chancery. — But, as has been seen, the common law had not evolved remedies for every wrong, and it was to supplement this deficiency that chancery successfully developed its characteristic equity jurisdiction. The burdens of the feudal incidents of tenure had led to the de- vising during the thirteenth century of a scheme' for avoiding them by conveying the land to a trustee, who agreed to hold the legal title for the benefit of some one appointed by the person making the con- veyance. Under the rigid rules of the common law of land the trustee, being the Jiolder of the legal title, was the absolute owner of the land. If he chose to disregard his promise, their writ process provided no remedy; for the obligation was a moral one, not enforcible in act of law. The chancellor, however, was willing to lend the aid of his court and its special process to the enforcement of the promise 134 ENLARGEMENT OF THE COMMON LAW 89 or trust.^* His reason for assuming this jurisdiction was probably not only because it was one in which the common law afforded no remedy, but also be- cause it was one involving the prevention of a breach of good faith — a matter in which as an ecclesiastic he had both a moral and a legal interest, since the chancery courts had always sought, though with but limited success, to exercise jurisdiction over pledges of faith as matters spiritual. It was this insistence on the performance of a moral duty with which the courts of common law confessed themselves unable to deal under the rules governing their action, that gave to the court of chancery its name of a court of equity. The same reasons prevailed upon the chancellors to interfere in other cases where the law in enforcing a strict legal right was really defeating the ends of justice. Cases where duress, fraud, accident, or mis- take had given one party an advantage over the other which it was unconscionable to exercise, were cared for inadequately or not at all under the rul^s of common law. Thus where a man had given a bond to secure a debt, and had paid the debt but had failed to obtain a release of the bond, the holder of the bond could still sue and enforce it at law. In this and similar cases the chancellor gave relief by preventing the suit at law and ordering the cancel- lation of the bond. In time the relief granted at first in special cases where the common law rule was inadequate became a usual form in which the chancellor's equitable powers were exercised, and 24 See subject, Trusts. 135 90 LAW— ORIGIN AND DEVELOPMENT the field of his jurisdiction came to be conceived, though somewhat vaguely, as the compelling of con- duct in accord with what good conscience would re- quire : the enforcement of moral duties by the power of the state. 61. Chancery procedure. — The chancellor's juris- diction was derived from the king's power to do jus- tice. Hence he was not tied down, as the courts of common law deemed themselves to be, by any inflexible rules of procedure. But the nature of the cases presented to him, the summary justice which they usually called for, naturally suggested to a cleric, as the chancellor was, the summary process which the church courts administering the canon law used ia dealing with heretics. Upon considering the petition or bill, as it was called, which invoked his justice, the chancellor issued the famous sub- poena, which required the person complained of to appear before him in person to answer the bill, on pain (sub poena) of forfeiting a hundred pounds. When the defendant appeared, the chancellor him- self examined him under oath, and without giving him a jury trial. Thus the chancellor was not hampered by the rules of practice, pleading, and evidence which the system of a jury trial had imposed upon the common law coiuis ; and though in time equity procedure became as intricate and technical as that at common law, it was at first eminently flexible and expeditious. Thus, for example, the common law could not deal with cases involving more than two sets of parties. It could not supervise the management of a busi- 136 ENLARGEMENT OF THE COMMON LAW 91 ness nor adequately direct the taking of complicated accounts. All this the freer chancery procedure enabled the chancellor to do. s Probably the most important superiority of the procediu*e the chancellor introduced was in the relief he could award to the successful plaintiff. A com- mon law judgment was an exceptionally rigid thing. It had to be absolute in terms ; it could not be made conditional on the performance of some future act. With one exception it was a remedy by way of money compensation for the wrong done the peti- tioner. The common law could put one who had been wrongfully turned out from his land back into possession, but beyond that practically its only rem- edy was a judgment for money damages which could be enforced against the property of the defendant. But chancery as a court of conscience, with its at- tention directed primarily to the duty of the de- fendant, vindicated the right of the plaintiff through compelling the defendant to fulfill specifically his correlative duty. It ordered him to do the very act he was under moral obligation to do, or to refrain from the very act he was under obligation not to do; furthermore, if he were recalcitrant it threw him into prison and kept him there untU he was ready to perform his duty in accordance with the chan- cellor's decree. Equity or chancery could not only redress injuries which had already occurred: by means of its charac- teristic weapon, the injunction, it could prevent threatened injuries, and by its decree of "specific performance" secure to the plaintiff a relief often 137 92 LAW— OHIGIN AND DEVELOPMENT much more adequate than any money compensation could afford him.^^ 62. Development of law in the courts of common law. — ^We have already pointed out the difficulty of further development of the law of the land by the judges and lawyers within the inflexible scheme they had created for themselves. But despite these cramping restrictions genuine progress was made. ■Almost the last remaining bulwark of the baronial jurisdiction was conquered for the courts of common law when they gradually took under their protection the villein tenants and made the law of copyhold a part of the general law of the land. They also rec- ognized and protected the interests of the lessee for years, and gave to the conception of estates in land practically its final formulation. The ingenuity of the bar was but little directed to any general development of the law. The training which both his preliminary education and his ex- perience gave the common lawyer rendered him com- paratively indifferent in questions of the historical origin of the doctrines he dealt with, but extraordi- narily keen in logical disputation about them and technical refinement upon them. Often, indeed, his ingenuity was devoted to their perversion, but on the other hand it resulted in utilizing their limited number and variety to meet the new situations which this period of unrest created in increasing quanti- ties. It is to this logical keenness and ingenuity that we owe the development during this period, by way especially x)f the writs of trespass and trespass 25 See subject, Eqtjitt. 138 ENLARGEMENT OF THE COMMON LAW 93 on the case, of the fundamental doctrines of the civil law of tort and contract, many of which still bear the marks of the cramping procedural mould in which they were cast.^* i 63. The law merchant and the Court of Admir- alty. — The failure of the common law to cover the whole field of the administration of justice had led to another specialization of function in the king's council, which also resulted in the creation of a new national tribunal. This was the Court of Admiralty, presided over by the king's admiral, who commanded the royal fleet. The law administered by this court was in large part the law merchant — a term used in the Middle Ages to include both the maritime and commercial law of modern times. It has been pointed out that during the thirteenth century, when Italian merchants and bankers were developing the commerce of all Northern Europe, including Eng- land, the common law courts, by their reluctance to undertake to do justice in cases involving foreigners, and especially foreign transactions, missed the op- portunity of bringing this rapidly growing field within the system of the common law. Like the clergy, the merchants constituted a class quite dis- tinct from the ordinary ndembers of the community. The merchant was usually a foreigner, without land or a settled place of abode. His occupation was one with which the common law judges were largely un- familiar. His dealings with foreign banks and for- eign factories gave rise to questions of a diplomatic and international sort for which the king and his 20 See subjects, Tort and Contract. 139 94 LAW— ORIGIN AND DEVELOPMENT council of state seemed to be the appropriate tri- bunal. Thus the merchants were left to the control of local courts set up in market towns or seaports where merchants congregated, and administering what was called the custom of the sea or the custom of merchants — bodies of law largely identical, though varying in local detail from town to town, and also largely international in character — the customary observance of this distinct section of the population. Over these local courts the king and his council exercised some supervision, not only be- cause of the international aspects of the subject mat- ter of their law, but also because the king usually had reason for wishing to conciliate the valuable friendship of the foreign traders, and his revenue profited by the customs duties on their business. A special development of the maritime side of this law merchant — that side most closely connected with the king's executive and diplomatic interests — took place when, apparently in Edward Ill's reign, the king's admiral was given judicial authority to enable him to deal with matters that were becoming important to a country with a growing naval power — matters of piracy and such other maritime cases as torts and offenses committed at sea, and contracts relating to masters and mariners. Once established, the jurisdiction of the admiral enlarged rapidly, and began to absorb that of the seaport towns, who had held franchises for courts administering the law mer- chant, and particularly the law of the sea. This law of the sea had been moulded, by mere usage, largely on the models afforded the Italian mariners 140 ENLAKGEMENT OP THE COMMON LAW 95 who first carried on international trade by the Eoman law, modified and developed, however, to meet the new conditions of medieval commerce. Naturally the procedure of the court tended to fol- low civil law models. It had, moreover, the advan- tage of a fresh start, unhampered by the rigid rules which had grown up in the courts of common law. Like the Court of Equity, the Court of Admiralty disregarded the institution of trial by jury, and the elaborate apparatus of pleading that this had initiated. Thus a second new system, free from the technical- ities of the common law, was added to the mechanism of justice in England. The liberalizing effect of these two new courts went a long way toward enabling England to deal with the problems of the new era which opened with the discovery of America, and with the intellectual and religious unrest that accom- panied thfe westward spread of the Revival of Learning. 141 CHAPTER Vin. THE MATURITY OF THE LAW. 64. The administration of justice by councils. — The Wars of the Roses, following hard on the long and draining struggle of the Hundred Years' War with France, left the English people exhausted and anxious for nothing so much as peace. Even during the civil strife the courts of law had carried on their regular operations; indeed the chances the warring nobles had been running of having their estates for- feited for treason, as one or the other faction got hold of the reins of government, had led to a great increase of conveyances of these estates in trust to non-combatants. But the sanction behind the judg- ments and decrees of the courts was weak. It was impossible for them to enforce their orders against the powerful nobles and their retainers. The ma- chinery of the courts, dilatory at best and rendered more inefficient by the timidity and dishonesty of the juries obtainable in the general breakdown of traditional morality characteristic of the time, added to the dissatisfaction of the nation with the justice of the courts. England was ready to welcome a strong government, even though it should be an arbi- trary and despotic one ; and such a government the Tudors, so soon as they were safe on the throne, pro- ceeded to inaugurate. They secured it by reorgan- izing the king's council, the original source not only 142 THE MATURITY OP THE LAW 97 of administration but of judicature, into a close group of officials selected by the king as his advisers because of their personal loyalty to him and their ad- ministrative abilities as his officers. This council laid hold on many of the judicial duties, especially in cases of public wrongs, which the courts of com- mon law had been unable to exercise effectively in the recent troublous times. So largely was this jurisdiction, which had never passed entirely out of the king's hands into those of the law courts, re- sumed by his council, that in this capacity the coun- cil, or a comtnittee of its members, were soon them- selves recognized as a court, the famous Star Cham- ber. It exercised a wide jurisdiction not Only over matters of direct interest to the crown but also over litigation between private parties; indeed its his- torian, Hudson, states that "all offenses might be here examined and punished if the King wiU." Moreover, it was a court of very summary procedure. It had no jury; it could proceed on mere rumor; it subjected the accused to examination; it used torture to extort confessions. Other tribunals of a similar sunmiary procedure exercised jurisdiction in special parts of England, as theCouncOs of the North and of Wales; or over special classes of litigation, as the Courts of Requests and of Wards. In fact, the administration of justice in England threatened to cease to be judicial, and to become executive; for the rapidity of action in these administrative tri- bunals, the simplicity of their procedure, and espe- cially the effective sanction behind their decisions, brought the great bulk of the legal business for a 143 98 • LAW— ORIGIN AND DEVELOPMENT time to their doors. The courts of common law were often idle. The Year Books ceased, being suc- ceeded only by an occasional set of reports put to- gether by individual lawyers. With the executive tribunals monopolizing the important causes, the courts of common law were suffered to live largely because their activity was inconspicuous. Meanwhile the legislative source of law was active, and during the greater part of the reign of Henry Vm and also of Elizabeth, Parliament met regularly and enacted many statutes. But these were really only legislative enactments of the royal will. Par- liament, under the skillful manipulation of the king's ministers, especially Thomas Cromwell, was utterly servile. Fortunately this disposition made it unnec- essary for the crown to dispense with it; and since acts which were really the king's were in form Acts of Parliament, the tradition of the legislative power of Parliament survived its period of servility, to grow, with the more courageous assemblies of the Stuart period, into the organ through which the national liberty was preserved. The cruelty and despotism of the Tudors found only too ready a tool in the councils, but they con- solidated the English people in their opposition to arbitrary government. Prom quasi-judicial institu- tions which imprisoned and tortured arbitrarily, judged without certain and defined rule, and with- out popular participation through the jury, the peo- ple began to turn to the tradition of a justice accord- ing to law. Men recalled the days when even a king Avas subject to the law, and when, in courts where 144 THE MATURITY OP THE LAW 99 precedents were known and adherence to them was enforced by professional tradition, the course of jus- tice was, if slow, still certain. The reaction began in the days of the new sense of nationality which in the closing years of Henry's reign rejected sev- eral attempts to secure in England a reception of the' Roman law similar to that which was spreading it through Europe. This pride in national institu- tions was enhanced by the separation of the church in England from the Roman See, and by the splendid history of "the spacious times of great Elizabeth." The common law, with its adherence to custom and precedent, its trial by a jury of the countryside, its insistence on the superiority of law even over the monarch, seemed, in retrospect and in contrast with the Roman procedure of the administrative courts and the facile aid they lent to arbitrary power, the most valuable of English institutions. 65. The constitutional struggle with the Stuarts — Legal aspects. — In the long struggle of a renascent Parliament with the tyranny of the Stuarts, weaker and less popular than the Tudors as they were also more insensible to popular feeling and tradition, the learning of the common law and the ability of its lawyers were the chief forces on the side of the peo- ple. Bracton and the Tear Books were appealed to against the king's absolutism, and precedent against the arbitrary powers of the executive trib- unals. The courts of common law made headway against those which were offshoots of the Council, and the triumph of the Parliament in 1640 was marked by the abolition of the Court of Star Cham- I-IO 145 100 LAW— OKIGIN AND DEVELOPMENT ber and most of the subsidiary tribunals , of similar powers. The Court of Admiralty lost a great part of its jurisdiction, and only the Court of Chancery survived with practically undiminished prestige. The victory of Parliamentary government and of the common law was none the less thoroughly achieved because of the Restoration of the Stuarts in 1660. The Habeas Corpus Act of 1679 entrusted to the judges of the common law the protection of indi- vidual liberty against arbitrary imprisonment on charge of crime, and the statutory activity through- out Charles II 's reign shows in what complete accord the two great institutions of Parliament and the courts were working. The BiU of Rights (1689) and the Act of Settlement (1701), embodying in definite formulas the results of the long struggle between crown and people, provide alike for the liberty of the individual and of the nation from the arbitrary exercise of the executive power; insuring as they do the freedom and power of Parliament, and the independence of the judiciary not only from the con- trol of the crown over the appointment of judges, but also from the competition of royal commission- ers and courts of like nature in the administration of law. 66. The standardizing of equity. — ^The Court of Equity, as has been said, resisted all attempts at destruction or absorption. It survived alike the op- position of Henry VHE and the even more powerful and long-continued attacks of the courts of common law in Stuart times. In 1535 Henry, by the Statute of Uses, sought to destroy its most important field 146 THE MATURITY OF THE LA' of activity, the enforcement of. the use orn"ust,-'t)ut without any real success. The jealousy of the common lawyers did succeed in confining the en- forcement of chandery decrees to compulsion to be exercised on the person of the defendant. In a later and more vigorous clash equity was successful. The common lawyers denied the power of equity to pre- vent a successful plaintiff in a court of law from having his judgment en:^orced if in the opinion of the Court of Equity it was shown to have been wrongfully obtained. The King, James I, gave de- cision in favor of the contention of equity. But the contention between the courts of common law and equity was mitigated by the practice which grew up after the Reformation of appointing laymen, and eventually lawyers, as Lord Chancellors. These men were less daring in the exercise of their un- aided discretion in determining what constituted be- havior conforming to good conscience than the ear- lier clerical chancellors, who settled cases by ap- peals to Scripture or the law of reason, with some- what arbitrary disregard of the rules furnished by the judicial experience of their brethren of the com- mon law. The lay chancellors, and especially those familiar with the common law, developed the prac- tice embodied in the maxim, ''Equity follows the law." Thus the rules governing trust estates were worked out in close analogy 'with those of common law estates; and in general the chancellor sought merely to extend rather than to run counter to the legal rules he found in the common law, modifying them only where justice in the circumstances of a 147 102 LAW— ORIGIN AND DEVELOPMENT particular case demanded modification. Moreover, these chancellors were willing to guide themselves, at least in general, by the precedents established by earlier decisions in equity — their own and also those of their predecessors. When in time these prece- dents began to be collected and published, equity reports took their place with common law reports as authorities on the law administered in their re- spective jurisdictions. Equity had ceased to be a system of arbitrary and irregular interference with the ordinary course of administering justice accord- ing to law, and had itself become a part of that sys- tem, coordinate with the common law and supple- menting the latter at many points, though at some running counter to it. It had introduced into the conception of law a moral aspect of the legal problem which had come to be neglected in the older idea of the law as the provision of remedies — the new ele- ment of the enforcement of duties. 67. Slow growth of private law doctrine to nine- teenth century. — The constructive energies of the legal profession seem to have been largely taken up with the constitutional and jurisdictional struggles of this period. The services of the law to the nation confirmed its practitioners in their belief that it was, as Coke had named it, "the perfection of reason." Such development of legal doctrine as occurred was smuggled into the perfect system imder the cover of fictions which enabled men to avail themselves of simpler and speedier forms of action than those which fitted the actual state of facts. Fictions were also employed to bust the rival Court of Admiralty 148 THE MATURITY OP THE LAW 103 from much of its jurisdiction. Thus, admiralty hav- ing been given control of wrongs committed in for- eign ports and on the high seas, it was assumed by the courts of common law, in order to obtain juris- diction of these wrongs, that the Mediterranean island of Minorca, for example, was at London in the parish of St. Mary-le-Bone. Form for its own sake came to assume a ritual importance, and the lawyers reveled in the tech- nicalities of procedure as giving to the law the dig- nity of a fine art. An attitude of antagonism even to statutory change in the established order began to characterize the courts in the interpretation of legis- lation; and besides, this advance along legislative lines seemed to be cut off by the increasing inac- tivity of Parliament in the eighteenth century. Such statutes as were passed were verbose and unwieldy through the effort to provide for all contingencies in sufficient detail to enable the acts to pass the or- deal of the unfriendly scrutiny of the courts. For a long time equity was almost the only active source of legal doctrine, and a very important source in- deed; but the doctrine of the binding force of its own precedents had made equity a rather rigid and more or less complete system. Within a few years after the end of the eighteenth century Lord Bldon laid it down that "the doctrines of the court of equity ought to be as well settled and made as uni- form as those of the common law, laying down fixed principles but taking care that they are to be ap- plied according to the circumstances of each case."^?^ 2T6ee T. Pritehard, 2 Swanst. 402 (Eng.). 149 104 LAW— ORIGIN AND DEVELOPMENT The refinements of common law pleading and pr£(,c- tice were now matched by those of equity, and chancery became a byword not only for delay but for the cost of litigation in it.^® 68. The inclusion of the law merchant within the common law. — And yet the common law was not en- tirely incapable, at least in the hands of a strong judge, of fiirther development. The most conspic- uous instance of this capacity was the absorption of the administration of the law merchant into the general body of the common law. As we have seen, the mercantile law had originally been a body of special customs administered for a special class in local courts, but the rise of the court of admiralty divided maritime mercantile law from the law of merchants trading within the country. Admiralty administered the custom of the sea, but the internal trade of the country was in general governed by the common law, whose courts administered justice in mercantile as in other transactions, aided by some rides borrowed from the law merchant and some statutory law which made, as in the case of bank- ruptcy, a distinction between traders and non-trad- ers. As to foreign trade, the separate law merchant remained in control, though the courts of common law and equity had largely supplanted the jurisdic- tion of admiralty to administer it. But the courts of common law were at first inad- equately equipped to deal with these cases. They recognized mercantile law as different from the com- mon law — as binding only on traders, as consisting 28 See subject, Eqihtt. 150 THE MATUEITY OF THE JjAW , 105 of a body of customs to be proved as facts. The chancellor, indeed, In cases coming before him, we are told, referred the cause for d.etermination to a commission of merchants. To Lord Mansfield most of all was due the reduction of this law to estab- lished principles. Widely learned in the civil law, he was also familiar not only with the commercial law of Rome but v^ith its developments in Italy, France, and Holland. From these as well as from the custom of merchants, he formulated definite and gen- eral legal principles to decide cases involving com- mercial transactions and thus established precedents of general law binding on all,' whether merchants or not. The law merchant, ceasing to ba the law of a particular class, to be substituted in their case for the ordinary rules of the common law, became it- self a part of the common law, subject to develop- ment or alteration by the means through which all common law grows and changes. The doctrines thus incorporated into the law constitute the ;principal parts of the subjects of Insurancfe and Kegotiable Instruments. It may be mentioned here that Mans- field is also to be remembered for the enlargement of the common law by the doctrine of quasi-contract. 69. Legislative reform. — ^It was only a Mansfield, however, who could drive a way through the tangle of obsolete precedent, the confusion of multiplied courts with confiicting jurisdictions, and the selfish conservatism of the practitioners who defended the worst of the system equally with the best because it was established. The development of the law nec- essary to deal with the tremendous problems of the 151 106 LAW— ORIGIN AND DEVELOPMENT new industrial and commercial England was no longer to be hoped for from the courts. A thorough- going reconstruction was needed. In this situation it would have been natural to turn to Parliament, for legislation is the source of law which is best adapted to clear the field by root-and-branch eradica- tion of old legal rules. But an entirely unrepre- sentative Parliament, and the stubborn, even re- actionary conservatism into which the French Revo- lution and the Napoleonic wars had frightened Eng- lishmen — ^lawyers, landowners, manufacturers, and merchants alike — ^held back the reform a quarter of a century. But the way was being prepared by the ability and devotion of Jeremy Bentham (1748-1832), who for over fifty years with unwearying zeal waged war on the legal system as he found it. To him it was, in his own words, "a fathomless and boundless chaos, made up of fiction, tautology, technicality, and in- consistency; and the administrative part of it a sys- tem of exquisitely contrived chicanery which max- imizes delay and denial of justice." Bentham was an extremist, but he was a man of extraordinary intellectual endowment; and his work of criticism, especially of the criminal law and of the rules of evidence and procedure generally, was mar- velously well done. Himself a firm believer in the possibility of reform through legislation, he taught as one of his cardinal doctrines that legislation is the ideal form of law. He founded by his writings and teaching a school of legislation; his disciples gradually achieved positions of influence in Parlia- ment; and when the cause of reform in representa- 152 THE MATURITY OF THE LAW 107 tion triumphed in 1832 the cause of legal reform tri- umphed with it. Even before that time the brutal harshness of the criminal law and its administration had been much mitigated, especially by the work of one of the noblest figures in English legal history, Sir Samuel Romilly (1757-1818). From 1832 on, legislation was active in very many fields of law, and the recommendations of successive Parliamentary commissions, composed of able and in general progressive lawyers and judges, were en- acted into statutes which simplified and modernized much of the common law, especially the law of real property and conveyancing, and the law of proced- ure. By successive advances the jurisdictional con- fusion, caused in large part by a multiplicity of courts, was conquered, and at last the great Judica- ture Acts of 1873 and 1875 completed the work of simplification by merging the courts which still re-, mained in one single Supreme Court of Judicature, with all the powers of both a court of law and a court of equity.^" Legislation still continues to be the most active source of law, and much attention has been given to improving its methods and forms. Special branches of the law, particularly in commercial law, have been codified with good results. Of late years the social legislation in England has been noteworthy not only for its amount and range but also for the introduction into it of principles, especially of re- sponsibility and liability, widely at variance with the general tendency of the legislation and of the common law itself during the past century. A rec- 29 See subject, Courts. 153 108 LAW— ORIGIN AND DEVELOPMENT ognition both by Parliament and by the courts of the protection of social interests as the paramount object of the law seems portended by these recent developments, which have also their parallels in America. Social justice bids fair to replace a purely individualistic conception of the justice the regular administration of which it is the supreme end of the law to secure. 154 CHAPTER IX. THE AMEBICAN DEVELOPMENT OF THE COMMON LAW. 70. The adoption of the common law — The colo- nial period.^" — America inherited from the mother country a developed legal system. The Judicial Com- mittee of the Privy Council, who, under the British system of colonial government prevailing in the sev- enteenth and eighteenth centuries, had control of the American colonies, had in 1722 laid it down as a rule of English law "that if there he a new and uninhahited country found out by English subjects, as the law is the birthright of every subject, so wherever they go they carry that law with them, and hence such new-found country is to be governed by the laws of England; though after such country is inhabited by the English, acts of Parliament made in England without naming the foreign plantations will. not bind them." This ruling, which was in- deed only a practical application of "a generally rec- ognized principle of international law, states clearly the prevailing doctrine as to the relation of the American to the English common law. Even before this doctrine had been thus definitely enunciated, the charters under which the colonists were living were all based on the common law, and 30 See Richard C. Dale, The Adoption of the Common Law by the Amer- ican Colonies, 21 American Law Begister, 554-574. 155 110 LAW— ORIGIN AND DEVELOPMENT in general recognized its sway in the new land. But the Puritan colonists of the North, with unpleasant memories of courts cruel to them and often syco- phantic to their oppressors, at ^I'st repudiated the law of England administered in the courts of law, and especially in the court of. chancery, and avowed themselves to be governed only by the law of God, as revealed in the Bible. But so thoroughly imbued were both people and magistrates with the common law ideas, and so exclusively accustomed to the com- mon law institutions, that the actual result in prac- tice was not easily distinguishable from a regime of common law. Again, the Judicial Conunittee of the Privy Coun- cil was given the power to act as a court of appeal from the courts set up in the colonies under their charters, and also to veto the enactments of colonial legislation. Through this revisory jurisdiction not only was the law of the colonies kept in substantial conformity with that of the mother country, but a general imiformity was preserved between the laws of the various colonies themselves. The Americans early disclosed the legal bent which has been fre- quently noted by students of the national mind. The colonial bar boasted some able and learned lawyers. But the literature of the law was, of course, exclu- sively English, and the law reports, and even more the widely studied commentaries of Blackstone, gave a thoroughly English content to the law of the pre- Revolutionary period. 71. The Revolution and the common law. — In the contest with the mother country which culminated 156 AMERICAN DEVELOPMENT 111 in the Revolution, the colonies, even those which, like Connecticut, had pretty consistently disclaimed the common law, found it to their interest to insist on the common law as the right of Americans. The First Gontiaental Congress in its Declaration and Resolves declared "that the respective colonies are entitled to the common law of England, and to the benefit of such of the English statutes as existed at the time of the colonization, and which they have by experience respectively found to be applicable to their several local and other circumstances." 72. The effect of the Revolution — The reaflarming of the common law. — ^Independence of the British sovereignty did not change the legal system of the United States. This was not merely because of a principle of the law of nations that the law of a coun- try is imchanged by a mere change of political sov- ereignty, but also because the Americans insisted that their revolution had in part been fought to se- cure the rights to which the common law entitled them. Many states proceeded to provide by stat- ute that the common law of England should be the basis of their law. Thus, for example, Virginia: "The common law of England, so far as it is not re- pugnant to the principles of the Constitution of this state, shall continue in force within the same, and the right and benefit of all writs, remedial and ju- dicial,^ given by any Statute or Act of Parliament made in aid of the common law prior to the fourth year of the reign of James I, of a general nature and not local to England, shall still be preserved so far as the same may consist with the Constitution of this 157 112 LAW— ORIGIN AND DEVELOPMENT state. "^^ Even in the absence of express legisla- tion the same doctrine was assumed by the state courts in practice; and the nation, in providing a government for its national territory by the North- west Ordinance, granted to its inhabitants "the ben- efits of the writ of habeas corpus, and trial by jury, and of judicial proceedings according to the course of the common law." 73, The new states. — The same assumption of the adoption of the common law was applied also in the case of newly acquired territory which had been un- occupied hitherto by civilized men. Judge Field, in the case of Norris v. Harris,*^ laid down the rule that when American citizens emigrated into such territory they were "considered as carrying with them so much of the same common law in its modi- fied and improved condition under the influence of modem civilization and republican principles as is suited to their wants and conditions." In the case, however, of states in which a govern- ment already existed at the time of their becoming a part of the United States, the law then in force remained until abrogated by statute. Thus, Florida and Texas adopted the common law by statute, but Louisiana retained the French law of her earlier allegiance. Michigan abolished the French, and Mis- souri the Spanish law, which at one time were in force within their respective territories, before they were admitted as states, and adopted the common law. 81 Pollard's Va. Code (1904), chap. 2, §2. 82 15 CaL 226. 158 AMERICAN DEVELOPMENT 113 74. The demand for a native law. — But while the wiser statesmen and the legal profession of the day- wished to preserve the common law, the anti-British feeling in the commmiity, which persisted after the Eevolution and was aggravated by the War of 1812, called for a new and native law. In 1799 New Jersey forbade the citation in court of any decisions of the English courts since the Declaration of Independ- ence, and other states followed suit. This attitude, however, was only temporary, and the persuasive influence of English cases as precedents re-asserted itself. The only important result of the demand for an American law was that it led to an early and im- portant enlargdment of the field of study which American lawyers sought to cultivate. Perhaps an even greater impulse in this direction was given by the French sympathies of many of the leaders of the American thought of that day. A study of the civil law, especially as expounded by the great French jurists and political theorists, was a part of the preparation of serious students for the bar, and the influence and teaching of James Wilson, trained in the civil law in Scotland, were important in the same direction. This enlargement of the outlook of the American bar resulted in an early liberalizing of the doctrine of American commercial and mari- time law, and in a tendency toward a recognition of the influence of juristic writing as a persuasive source of law which not only has produced much and valuable legal literature in this country, but has also constituted a unifying element in preserving a common tradition in the large number of separate 159 114 LAW— ORIGIN AND DEVELOPMENT jurisdictions now administering law in the United States. 75. The content of the adopted law. — ^While it is clear that the American people adopted the common law in general, yet the adoption by statute or judi- cial decision was always expressly subject to lim- itation. The classic statement by Justice Story puts it thus: "The common law of England is not to be taken in all respects to be that of America. Our an- cestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their condition." ^' This raises several somewhat difficult questions. What was the content of the law adopted from England? What were the conditions which rendered a particular portion of the English law inapplicable in America'? How far was the English law modified by the usages of the colonial courts? In the first place it is generally agreed that the law received included the fundamental principles of the common law, and its characteristic method of de- velopment by judicial decision.** It has never been seriously disputed by the bar of this country, nor by the bench so far as it has been drawn from the ranks of the legal profession, that the doctrine of adherence to precedent and of development of the law by judicial reasoning in analogy to the general principles established in precedent, obtains in America. ssVan Nefs v. Pacard, 2 Peters 137, at 143-144 (TJ. a). 34 See Morgan v. King, 30 Barb. 9 (N. T.), at 12-15. 160 AMERICAN DEVELOPMENT 115 As to the extent to which the particular rules of the common law were adopted, two limitations have been set. In the first place, it has been recognized as within the province of the courts to decide whether or not a given principle of the common law is applicable in American conditions. Thus, in the case of Morgan v. King, already cited, a distinction was suggested between the test of navigability in a country like England, whose rivers are relatively short and flow into the sea — i. e., that those only are navigable in which the tide ebbs and flows — and the test appropriate to our long and full-fed interior rivers. So also the English rule that the owner of cattle must keep them fenced has given way on our Western prairies to a rule better suited to these great plains.*^ In the second place, even when con- ditions are not such as to render an English common law rule inapplicable, a distinction is drawn between those English precedents and statutes which are binding on American courts, and those which in the case of precedents have persuasive authority only and in the case of statutes, none. State statutes, in most cases, fix a point of time after which this situa- tion arises. This point is fixed by most of the orig- inal states at the date of their own settlement. The majority of those carved out of the Northwest Ter- ritory selected 1607, the year of the foimding of Jamestown, Va. Some chose 1776, the date of the national independence. In some Western states the date set by the statute is qualified by the position that their adoption of the conunon law does not re- ssSeeley v. Peters, 5 Gilman 130, at 150 (HI.). I-ll 161 116 LAW— ORIGIN AND DEVELOPMENT quire adherence to the rules formulated by English decisions prior to that date if a later English or American decision seems to the local court to set forth a principle more consonant with the general scheme of the common law,^® As to English stat- utes, the date fixed either by the adopting act of the state, or by judicial construction where no date is set, is usually the date of colonization. Some later statutes, if made applicable to the colonies and treated there as such prior to the Revolution, are also deemed to be adopted." It has been debated whether the common law sys- tem included the rules of English chancery, ecclesi- astical, and administrative courts; but the law is well settled that so far as the rules of these courts are applicable to American conditions they consti- tute a part of the English common law in the broad use of the term. They had become before the sepa- ration from England a part of the general law of the realm, and as such of the law to which the American people laid claim. This same recognition was ex- tended to the law merchant, so far as it had become a part of the English common law, and was of a gen- eral nature applicable to American conditions. American law, then, is fundainentally one with the common law of England, both in content and in method of development. 76. The courts of law. — The administration of law in Anierica by a trained profession is largely post-Revolutionary. In the colonies the legislatures 36 Williams v. Miles, 68 Nebr. 463, 94 N. W. 705. 37 Commonwealth v. Knowlton, 2 Mass. 530 ; and Commonwealth t. Churchill, 2 Mete. 118 (Mass.). 162 AMERICAN DEVELOPMENT 117 were themselves courts and exercised a wide range of jurisdiction. The legislature of Massachusetts is still called the General Court. The bench was largely made up of laymen, and the pioneer condi- tions which existed west of the Atlantic coastline made a lay administration of justice for a long time a necessity over most of the American territory. The adoption of the content and principles of devel- opment of the common law of England by the new republic did not, of course, carry with it the organ- ization of the machinery through which the law was administered. That is a matter entirely of statu- tory and constitutional provision. But the experi- ence of England was obviously drawn upon by con- stitution-makers and legislatm-es in constructing the scheme of the judicial establishments both state and federal. Fortunately the multiplicity of courts so markedly characteristic of the English system at the time when the American was being organized arose in great part from special local and historical conditions which did not prevail in America. In general, however, the provision of a local lay magis- tracy with jurisdiction of petty causes was modeled on the English magistracy. Next were provided a court of common law jurisdiction, civil and criminal, patterned after the King's Bench, and a court of equity like the English chancery. In the organiza- tion of courts of probate and appellate tribunals more independence was shown. The confusion of jurisdiction in England between the courts of com- mon law, the court of chancery, and the ecclesias-- tical courts, in the case of problems relating to the 163 118 LAW^ORIGIN AND DEVELOPMENT estates of decedents, was avoided by the establish- ment of separate courts of probate, with jurisdic- tion over both wills and the estates of intestates. In many Western states, however, probate jurisdic- tion is vested in the courts of general jurisdiction. The need of a new appellate court was emphasized especially in the federal organization by the scheme of government itself, and the doctrine of separation of powers forbade the imitation of the English model, which put ultimate jurisdiction in the House of Lords. The Supreme Court of the United States furnished the model for the appellate tribunal of most of the states, though some combined the func- tion of acting as a supreme court of review with the legislative duties of governor and council or the legislative duties of the state senate. Although the authority of the English equity sys- tem was admitted prior to the Revolution, and its rules were to some extent applied in the colonial tribunals, the attitude of the colonies to the courts administering equity was in general adverse. This was, in part, due to a traditional jealousy of a court which in the early Stuart days had been the ready instrument of arbitrary royal power, and in part, per- haps, to the fact that the colonists were in general not only unfamiliar with the system which had de- veloped in England after their migration, but also without particular need of its most important doc- trine, which had to do with property relations un- usual in the relatively simple social conditions of colonial life. Hence in some states, after the Revo- lution, notably Massachusetts and Pennsylvania, 164 AMERICAN DEVELOPMENT 119 general chancery courts were not established for a long time; and in many th^ more or less restricted equitable jurisdiction created by statute was admin- istered by the same tribimal as administered the rules of common law. This, indeed, the typical or- ganization in the federal jurisdiction, is usual in the older states. In only a few states was a separate court established to administer equity. The abolition of the separate tribunals was fol- lowed by the fusion of the administration of the two systems under what is usually called the reformed procedure, which abolished the distinction between actions at law and suits in equity and their form, and established instead a single form of action, to be called a civil action.^* 77. American development of the common law. — It is not within the scope of this article to trace the history of the American legal system. Its his- tory is largely the history of the development of the legal doctrines discussed in the articles which follow. Here one can do no more than call attention to the fact that our law and our judicial system are essentially a phase of the great system of the com- mon law. To the growth of that system American legal history has made very important contribution. It has illustrated the applicability of the law to new and widely divergent conditions. Its separate ju- risdictions, increasing from thirteen to more than fifty, have been experiment stations for the testing of new rules, judicial and legislative. Under the influence of the legislative reform movement of the s8 See subjects, Pleading in Civil Actions and Equity. 165 120 LAW— OKIGIN AND DEVELOPMENT nineteenth century it inaugurated the largest ex- periment in codification yet attempted in English- speaking countries. It anticipated England in the fusion in many states of the administration of equity and the common law. It has developed, to a very high degree, a theory and method of legal education. Here as in England social legislation has been a feature in recent years of the program of statute- makers, and, partly as a result of the changed eco- nomic and social conditions of today, a growing ten- dency is being exhibited to break away from the in- dividualistic theories of our constitutions and of the judicial and legislative thinking of the nineteenth century. The wide differences, political, social, and eco- nomic, which divided the America of a century and a half ago from the mother country explain, in great part, the divergencies now existing between the common law of any of our jurisdictions and the common law of England at the present time. But these divergencies are relatively unimportant com- pared with the basic similarity which entitles us to speak of the Anglo-American legal system. The rapid disappearance of pioneer conditions with the settlement of our public domain, the development of our industries and commerce on a scale which sur- passes in s<^me respects and in others rivals the economic development of England, are elements which tend to bring together again at least the prob- lems, if not the solutions, of our laws. The Ameri- can student of law can afford to neglect neither the past nor the present of English law. 166 PART III MATERIALS AND METHODS IN THE STUDY OF LAW CHAPTER X. THE USE OP STATUTES, REPORTS, AND SEARCH- BOOKS. 78. Aims in the study of law. — The student of law must keep before him in his efforts a two-fold aim. He must acquire both a knowledge of the rules and principles which compose the content of the legal system he seeks to master, and also the power of legal reasoning that makes it possible to use and apply these rules in advising his clients and present- ing his contentions before a court. Indeed it may fairly be said that mastery of the law is a matter of acquiring a method of thinking even more than of storing the mind with an accumulation of legal rules. As has been pointed out,^^ the foundation principles of our Anglo-American legal system are - essentially the product of judicial experience and reasoning. It is built up by the slow but safe and steady process of deciding actual cases according to general principles — a process in which the trained reason of professional administrators of justice has 80 See §§ 8-10, 17. 167 122 LAW— ORIGIN AND DEVELOPMENT been brought to bear upon concrete situations with the purpose of briilging these particular facts within some principle of justice. The task of the student of law is, therefore, primarily to familiarize himself with the methods of thought of the jurists whose ideals, reasoning, and experience have built up the structure of our law; to make these methods natural to bim so that he moves comprehendingly and easily through its characteristic reasonings. No man is a master of the common law, no matter how vast and encyclopedic his acquaintance with its detailed rules, unless those processes of reasoning characteristic of what is called the legal mind have become habitual with him. 79, Material for study — Books of primary and secondary authority. — Law, as the great teacher, Professor Langdell, has remarked, is a science the terms and materials of which are found in books. This material of the common law is conveniently divided into two classes — ^books of primary and books of secondary authority. The law in the Anglo- American system is found in three forms, legisla- tion, reports of litigated cases, and a few legal classics known as books of authority. These three literary sources furnish the only authentic evidence of what the law is, and are the primary authorities with which the student must deal. But dealing with these authorities is often a difficult matter. In the first place, they have not been written at all with the student in view. They are not arranged with a view to setting forth in a logical order the rules and principles he is seeking. They employ a highly 168 THE USE OP STATUTES 123 technical and unfamiliar vocabulary and style. In the second place, they are enormous in bulk, running into thousands of volumes, and growing in number almost daily. For these reasons there has come into being a great mass of secondary literature. This is of two distinguishable sorts, being designed either to expoimd the law or to render it accessible to one searching the primary authorities for law on a par- ticular point: on the one hand, institutes, treatises, text-books, and commentaries ; on the other, digests, citators, and similar search-books. 80. Lines of study. — The aims the student has in view and the material with which he has to work dictate the lines along which his study must be di- rected. In acquiring the power of legal reasoning nothing can take the place of first-hand acquaint- ance with and analysis of the primary authorities. But as aids in this analysis and as helps of practical convenience in acquiring a knowledge of legal rules, the student may well pursue the study of the com- ment and discussion he will find in treatises and text-books. Finally, the enormous multipKcation of the authorities and consequently the increasing dif- ficulty in determining how far the law has been formulated upon a given point, make it highly de- sirable that a student should acquire such, famil- iarity with the books which are the apparatus of his profession that he can use them intelligently and quickly, and knows where and how to find the in- formation he needs. 81. Enacted law — ^Kinds and characteristics — Relation to case law. — Enacted law consists, in the 169 124 LAW— ORIGIN AND DEVELOPMENT main, of three distinct types : constitutions, statutes, and ordinances. These differ in the manner of their enactment and the source and extent of their au- thority. They are properly recognized as belonging to the one genus legislation because they are all ex- plicit declarations by competent legislative author- ity of rules which the courts must observe in the administration of justice. Moreover, these rules are, so far as the skill of the enacting bady can produce the desired result, explicitly and directly stated, in brief, clear, and accessible form, as abstract propo- sitions of law. Hence, the chances of uncertainty as to what the rule intended is, are slight compared with those involved in the derivation of a rule from decided eases. Yet even statutes raise difficult prob- lems of interpretation, so difficult as to caU for spe- cial treatment.*" 82. Reports — ^Nature. — ^From the point of view of the student the most important primary author- ities for law are the reports of decided cases. A report is in essence the recorded opinion of a court delivered in explanation of its decision of a case, and supplemented by such further information as will help in understanding the opinion. Not every law- suit results in a reported decision. Indeed the vast majority of suits do not. Most suits never come to a trial at all. The defendant usually has no defense and lets a judgment be taken against him by default; often also the plaintiff withdraws a suit, having suc- ceeded in getting a satisfactory settlement or having given up hope either of winning the suit or of get- 40 See subject, Interpretation op Statutes. THE USB OF STATUTES 125 ting anything out of Ms judgment. Again, if a trial is had it is quite likely that the decision depends on the determination of matters of fact in dispute, and when this dispute is settled the law which the trial judge is called on to apply is admitted or clear. If, however, the decision by the trial judge on the points of law involved is unsatisfactory to either party, pro- visions are made for its review ia a higher appellate tribunal where a bench of judges, after hearing ar- gument on the points of law and after deliberation and consultation, reach a decision on principle, which it is their practice to embody in an opinion read in cornet. This opinion, together with whatever ex- planatory matter from the record of the case is use- ful in making the decision clear, is what constitutes the report. 83. Reports — Ofi&cial and unofl&cial. — So useful to the profession are these reports as primary authorities as to the law that, in the form, either of rough notes such as are found in the Year Books or of more systematic accounts of the cases by indi- vidual lawyers or specially trained reporters, a series but little broken records the decisions deemed to be important in England and America from the time of Edward I to the present. In England this work has been continuously the work of private enterprise, although since 1865 a quasi-official association representative of the organ- ized legal prof ession have published the series known as The Law Eeports, and thus given them a special authority. In America from an early time the fed- eral and various state governments have established 171 126 LAW— ORIGIN AND DEVELOPMENT official reports of the decisions of at least the court of last resort in the respective jurisdictions, and these are published periodically in book form for each jurisdiction. Formerly these series were cited by the reporter's name, as GUman's Reports (Illi- nois) ; now they are cited by the name of the state, as Illinois Reports. A case is cited by giving the name of the case, the volume before and the page after the name of the report, e. g., Pierson v. Lane 60 Iowa 60. Unofficial series are also published, some contain- ing aU the decisions of the courts of last resort of either a single jurisdiction or a group of jurisdic- tions, and others containing cases selected as of im- portance, and annotated. Thus, the National Re- porter System has .combined the reports of several states in a niunber of reporters which are called respectively Northeastern (N. E.); Northwestern (N. W.); Southeastern (S. E.); Southwestern (S. W.); Southern (So.); Atlantic (Atl.); Pacific (Pac.) ; Supreme Court (Sup. Ct.) ; New York Sup- plement (N. Y. Supp.); and Federal (Fed.) Re- porters. Usually these reports are designated by the. abbreviations given in the parentheses. Other systems such, gs the Lawyer's Reports Annotated, abbreviated L. R. A. and L. R. A. (N. S.), the new series, contain only what are deemed important and leading cases of the various jurisdictions. Some of the reports, especially the state official reports and the National Reporter System, are issued in advance sheets from week to week, which offer the latest opinions on adjudicated cases. 172 THE USB OF STATUTES 127 Thus one is enabled to read the decisions of the courts almost as soon as they are rendered. 84. Eeports— Value— Decision and dicta."— To the lawyer the report is valuable because it embodies a precedent, that is, a general rule applicable to all cases similar in their essential features to the one reported. But this rule is not liecessarily foimd in the words of the report. It is in the reasoning which brought the court to its decision of the case. This is called the ratio decidendi (reason for deciding) or doctrine of the case. The opinion which consti- tutes the main element in the report may or may not foimulate this governing principle in words. It usually attempts to do so, and often with much suc- cess. But on the other hand the principle may be left implicit, or the language in which the court tries to frame it may be too broad or otherwise inaccurate. It is not what the court says in deciding the case, but the rule by which it actually decides it, which is the precedent. An opinion is likely to contain much more than this. In explaining or justifying its decision the court win be almost sure to use arguments, illustra- tions, analogies, and discussions of hypothetical cases differing in some particular from the one be- fore it; and in such discussion it may express many opinions illuminating the principle by which it de- cides the case but not essential to the decision itself. Such a part of the opinion is said to be spoken by " For full treatment of the subjects discussed in this and succeeding sections see an especially useful book by Professor E. Wambaugh, "The Study of Cases." 173 128 LAW— ORIGIN AND DEVELOPMENT the way (obiter dictum), and is generally called a dictum. Since these dicta are not part of the doc- trine of the case they are not of binding authority, but as they are the utterances of men of learning and ability they have the persuasive value of such expert opinion, especially if it can be shown that they were carefully considered by their authors. Dicta, in the strict sense of statements made by the way in the exposition of the ratio decidendi (grounds of decision) may be distinguished from the use, in stating this governing principle itself, of language either too broad or too narrow for the issues presented for decision. Here the real prin- ciple can be found only by construing the language of the opinion in the light of the special facts of the case under discussion, and in the light of other decisions making clear the exact limits of the doc- trine enunciated. It remains to be observed that though the court may not formulate the principle which dictated its decision, yet the rule for which the case stands must be one which was in the mind of the court. If the principle which might well have formed the basis of the decision was not raised or even thought of by the court, but the case was decided on entirely dif- ferent grounds, then the ease is not a precedent for that principle ; for the theory of the binding charac- ter of precedent rests upon the fact that the decision according to a general rule has been the result of deliberation upon the rule. 85. The study of reported cases. — The determina- tion of the doctrine for which a case is an authority, 374 THE USE OF STATUTES 129 and the determination of the value of that authority in its application to a particular legal problem, are the chief tasks which engage the student of the com- mon law. This study may well begin with an anal- ysis of the elements of the report, all of which are of importance both in arriving at the doctrine of law for which tbe case stands and in estimating its value as an authority. A report normally contains five parts: the title of the case, including the names of the par- ties, the court, and the date of the decision; the syl- labus or headnote, a brief abstract by the reporter of the proposition of law for which he considers the case to stand; the statement of the case, another brief statement by the reporter of such matters of fact and procedure as are necessary to show what questions of law are involved in the case; the opin- ion, or, sometimes, opinions if the court is not unan- imous; and finally a brief note of the disposition made of the case by the court. To these parts a sixth is sometimes added — ^namely, a brief summary of the arguments of counsel and citation of their authorities. The student will find it helpful to make his own summary of the case, paying particular at- tention to these cardinal points : who were the par- ties plaintiff and defendant; how did the case come before the present court; what were the essential facts in the case; what precisely was the question' or questions of law which the court was called on to answer; how did they answer them; what reasons did they give for their answer? 86. Comparison of cases. — In general the study of the case aims at stripping away the non-essential 175 130 LAW— ORIGIN AND DEVELOPMENT elements in the particular case and arriving, largely by a process of abstraction, at the rule which gov- erned the decision. This can rarely be done suc- cessfully without the comparison of cases with each other. A general doctrine, particular aspects of which are involved in different cases, emerges only when these cases are brought together, compared, and combined. One must hold one's judgment in suspense until the study of a sufficient number of allied decisions makes clear the limits of the essen- tial doctrine of them all. Thus if we find A held liable for an injury to B caused by B's falling over a barrow which C, employed by A as a gardener, had carelessly left on the street over night, we might conclude that an employer was liable for the neg- ligent tort of his employe. But when we find from another case that A is not liable for the negligence of a builder "g^hom he has employed to build a house for him and who has carelessly left his trestles on the street, ^/^e^nsLJ re-formulate the rule to run: if the employie is a servant and not an independent contractor the employer-master will be liable for his negligent tort. Even then we should find the rule needed qualification. For instance, if A's gardener injured B by running him down with A's automobile which he had undertaken to operate at the request of A's chauffeur, A would not be liable. The rule might now appear: a master is liable for the negli- gent torts of his servant while the servant is en- gaged in the employment for which the master hired him. The doctrine might be still further pursued, but perhaps enough has been said to show that the 176 THE USE OF STATUTES 131 process of eliminating non-essentials to arrive at an accurate statement of a rule of law is often a matter which requires a patient comparison of allied cases. 87. Books of authority. — ^While statutes and re- ports are the chief forms in which the law is .to be found, some treatises of long-tested value have an authority for the law of their period akin to that of statutes or decided cases. They may be cited and relied on as accurately stating the law in cases where judicial authority is not available. Of these the most noteworthy are : Glanvil's Treatise on the Laws of England, written in Henry II 's time; Bracton's Laws and Customs of England, written in Henry m's time; Littleton's Book of Tenures, of the time of Edward IV; and Coke's Institutes, of the time of Elizabeth and James I. Glanvil and Bracton are useful mainly in giving a picture of the early com- mon law; Littleton, with Coke's commentary on his book, is the great authority on the law of real prop- erty in the period when its outlines largely became fixed; Coke's Institutes cover the common law of his day. 88. Treatises and text-books. — To the work of extracting the principles of law from the primary authorities, bringing together those on related top- ics, and arranging them into a logical development of some branch of the law, many able and learned men have given great time and labor. Their trea- tises have value not only as making the law more accessible and intelligible but also as serving by criticism and suggestion to further its development. Text-books and treatises differ widely in usefulness 1-12 177 132 LAW— ORIGIN AND DEVELOPMENT and value, but good ones are indispensable aids to the student, and the considered opinions of great text writers have no inconsiderable weight with courts of law. To get the bes^t results from the use of a text-book in study, the student should preserve toward it an attitude of friendly criticism. He should test his understanding of its abstract state- ments by trying to invent concrete cases for their application, and should further test the soundness of the statement, when he is sure he understands it, by inquiring whether it will give what seems a just solution of the cases he has imagined. Where the language of the text is not grasped or seems un- sound, the student should refer to the cases cited in support of it, and examine them closely to see how far they bear out the rule stated. The danger of the exclusive use of text-books is that the student comes to rely on his text-book as authority, and ceases to think for himself. Such a habit is fatal to success in the legal profession. 89. Search-books — Digests — Citators. — The enor- mous accumulation of reported cases makes the task of finding the law on any given point a difficult one. It would be impossible without an elaborate and sys- tematic indexing of the contents of the reports. The initial step in this indexing is the syllabus or head- note found at the head of each reported case. The headnote is prepared usually by the reporter, but in some jurisdictions by the judge handing down the opinion reported. Catchwords prefixed to the para- graphs of the note serve to index the various propo- sitions, under a scheme of classification which groups 178 THE USE OF STATUTES 133 the subject-matter of the law in some logical or convenient form; and the material thus assorted is arranged alphabetically in an index-digest at the end of the volume. This material is also brought together from time to time in digests collecting in one alphabet the propositions of law from the cases decided in a state or group of states, and also in a digest which covers the whole of the United States. A system of subdivision of the field of law and an equally elaborate scheme of cross-referencing enable the digest-makers to arrange this vast mass of mate- rial in very accessible form. By use of these digests, which have now been prepared for all the leading common law jurisdictions, both American and Brit- ish, it is now possible to find all the reported decisions having bearing on any proposition of law. The best known digest system for comprehensive work is that termed the American Digest System, It consists of a "Century Digest" of all state and federal cases from 1658 to 1896, of a "Decennial Digest" of cases decided in the same jurisdictions from 1897 to 1906, of annual and semi-annual vol- umes of such cases, and of advance sheets delivered from month to month — enabling one, by the use of these various volumes, to locate old and current authorities on any adjudicated legal problem. 90. Encyclopedias. — ^Encyclopedias stand some- where between search-books and digests. They may be divided into two classes — one, represented by the American and English Encyclopedia of Law, and the Cyclopedia of Law and Procedure, attempts to cover the whole field of law by an alphabetically arranged 179 134 LAW— ORIGIN AND DEVELOPMENT series of articles on legal topics, stating briefly in the text the doctrines developed and furnishing full citations to the authorities in notes; the other, of which this work is typical, seeks to state concisely the fundamental principles of the various topics into which the law may be divided, without any detailed collection of authorities. The former class approxi- mates the search-book, the latter the text-book or treatise. 91. Text-books and citators. — ^A text-book itself furnishes in its cited authorities a very useful index to the primary authorities. The subsequent refer- ences in the decisions of the same jurisdiction to any decided case, showing in what later cases it has been approved, criticised, or rejected as authority, have been collected in what are eaUed citators, and mod- em volumes of reports also furnish an index of such matters for the cases they contain. A student should familiarize himself as rapidly as possible with the more or less mechanical but highly useful art of searching authorities. This fa- miliarity can come only by practice with the search books, which are the apparatus of his profession. But time and labor will be saved by a careful pre- liminary study of the plans on which these elab- orate indexes are built. The same suggestion ap- plies in the case of text-books. The first step in using any of the lawyer's tools is to acquaint oneself with its construction. 92. Conclusion. — Only by careful adherence to system both in his search for authority and in the arrangement of his acquisitions can the lawyer make 180 BIBLIOGRAPHY 135 his knowledge available in practice. The legal mind is essentially an orderly and systematic one, apt at. classifying and pigeon-holing the results of judicial thought and experiment and its supplementing by the activities of the legislature. No assiduity of practice to attain habits of system can be misspent. But system is after all only the anatomy of the law. Its life blood is reason; and patient study of the methods of thinking of its great expounders must be persisted in until the processes of legal reasoning become familiar and natural to the student. And an element of the legal mind even more fundamen- tally important is the constant recognition that the law is essentially a means to justice as an end. The soul of the law is justice. The task of the legal pro- fession, practitioner as well as judge, is to seek to realize, through the mechanism of the law, that ad- justment of human interests to the securing of social progress which is the constantly developing ideal of justice. BIBLIOGRAPHY. PART I. F. Pollock, A First Book of Jurisprudence (3rd ed., 1912) ; W. M. Geldart, Elements of English Law (1911) ; J. W. Salmond, Jurisprudence (3rd ed., 1910) ; T. E. Holland, Juris- prudence (11th ed., 1910) ; J. C. Gray, The Nature and Sources of the Law (1909). PART II. F. W. Maitland, Outlines of English Legal History, 560-1600 A. D., in Collected Papers, Vol. ii, pp. 417-496 (1911) ; E. Jenks, A Short History of English Law (1912) ; Select Essays in Anglo-American Legal History, 3 vols.; Pollock and Maitland, History of English Law to the Time of Edward I., 2 vols. (2nd ed., 1898) ; W. S. Holdsworth, A History of English Law, 3 vols. PART III. E. Wambaugh, Study of Cases (2nd ed., 1894) ; Brief Making (2nd ed., 1909) . 381 COURTS FEDERAL AND STATE BY ARTHUR LOOMIS SANBORN, LL.B.* CHAPTER I. GENERAL RULES APPLICABLE TO ALL COURTS. 1. Definition of court. — Courts are instituted for the administration of justice, the protection of right, and the restraint or redress of wrong. The term may mean the place where, or the person by whom, justice is judicially administered. The one common and essential feature in all courts is a judge or judges.^ There are said to be four essentials to the exercise of judicial power in such a way as to be binding: a place appointed by law, a time so ap- pointed, a person designated by law to administer justice at that place, and his presence at such time and plaee.^ These may be said to be conditions prece- dent to the existence of a court. In the broad sense *U. S. District Judge, Western District of Wisconsin. Formerly, Begister of Deeds, Walworth County, Wis.; member of I'aeulty, Wisconsin Uni- versity School of Law; member of Board of Examiners for Admission to the Bar, Wisconsin. Editor : Supplement to Wisconsin Statutes, 1883, Anno- tated Statutes, 1889, Wisconsin Statutes, 1898, Wisconsin Supplement, 1906. 1 Bouvier 's Law Dictionary, Court. 2 Dunn V. State, 2 Ark. 229, 252, 35 Am. Dec. 54. 183 2 COURTS— FEDERAL AND STATE any person or body of persons who are authorized to decide on rights, such as magistrates, executive and ministerial officers, boards, commissions, etc., except- ing only legislative officers or committees, are courts. These officers, however, are generally distinguished from courts, and are said to exercise quasi- judicial powers, Thus, officers who are given power to pass upon important and valuable rights of person or property, even without appeal, may exercise only ex- ecutive or administrative powers. Boards of spe- cial inquiry to pass upon the right of aliens to land in this country, or to expel or deport within three years after landing those who enter in violation of law, and the Secretary of Commerce and Labor, who is authorized to confirm or reverse their action, ex- ercise political, not judicial, power, and are not courts.^ So long as they act wiih due process of law the courts cannot in any way interfere.* Congress may, however, authorize the court to deport aliens, as in the case of the Chinese exclusion statutes, when United States Commissioners may exclude, subject to the right of appeal by the alien to the district court.® So the Interstate Commerce Commission" and state railroad commissions,'^ although exercising judicial powers of great importance, are classed as administrative bodies, not courts. 8 Pearson v. Williams, 202 U. S. 281, 26 Sup. Ct. 608, 50 L. Ed. 1029. 4 Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. a. 1016, 37 L. Ed. 905. ° Same. « Kentucky & I. Bridge Co. v. Louisville & N. E. Co., 37 Fed. 567, 2 L. R. A. 289. I Mississippi B. E. Com. v. Illinois Cent. E. Co., 203 U. S. 335, 27 Sup. 6t. 90, 51 L. Ed. 209. 184 GENERAL EULES 3 r 2. Courts of review.— Most courts are both those of original jurisdiction and review. The terms su- perior and inferior are applied to them, the review- ing court being superior to the one reviewed. The state courts of original jurisdiction are usually au- thorized to hear appeals from justices of the peace, commissioners in condemnation, and various boards and commissions. The United States Supreme Court has very important original as well as appellate powers,® but the United States Circuit Court of Ap- peals has no original jurisdiction whatever." 3. Superior and inferior courts. — Of the different kinds of courts the most important distinction is be- tween those exercising general jurisdiction, or su- perior courts, and those of special jurisdiction, or in- ferior courts. The precise line of division is diffi- cult to trace. In the technical sense inferior courts are those whose judgments, taken alone, are entirely disregarded when attempted to be used as evidence, and whose proceedings, to be of any validity, must show jurisdiction,^" The judgment of a superior court, on the other hand, is valid when collaterally attacked, even though the proceedings fail to show jurisdic- tion, if they do not expressly show the contrary. On direct attack, by appeal, writ of error, or certiorari, the judgment may be reversed, but on collateral at- tack the maxim omnia praesumuntur rite et solemni- ter esse acta (all things are presumed to be done in due form) is applied, and the judgment held binding. 8 U. S. Rev. Stats., § 687. Whitney v. Dick, 202 U. S. 132, 26 Sup. Ct. 584, 50 L. Ed. 963. 10 Kempe v. Kennedy, 5 Craich 173, 185 (U. S.), Marshall, 0. J. 185 4 COURTS— FEDERAL AND STATE Direct attack is an attempt to avoid a judicial pro- ceeding in some manner provided by law," as by ap- peal, error, prohibition, mandamus, bill of review, certiorari, etc. Collateral attack is an attempt to avoid it in some manner not provided by law,^^ as when it is offered in evidence and objected to in some other proceeding, to show title in ejectment, replevin, trover, trespass, or suit to quiet title. Presumption of regularity aids jurisdiction of su- perior court. The supreme tests of the validity of a judgment or decree, those which search the judicial record to the utmost, are collateral attack, the use of such judgment or decree as a former adjudication or res judicata, and the possible effect of the judg- ment or decree as a lien on property through con- structive notice. Since on appeal, error, certiorari, or other direct attack, a judicial determination may be reversed for error as well as for lack of jurisdic- tion, the test of the latter is the indirect attack re- ferred to.^^ 4. Effect of presumption.— The presumption of regularity in favor of the jurisdiction of superior courts only arises with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. When, therefore, a judicial record states the evidence or makes the averment respecting a jurisdictional fact, it will be understood to speak the truth on that point, "Van Fleet, Collateral Attack (1st ed.), § 2; see subjects, Pleading in Civil Actions; Practice; Extraordinary Eemedies. 12 Same, § 3. IS Van Fleet, Collateral Attack (1st ed.), §17. 186 GENBKAL RULES 5 and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.^* Quasi-jurisdictional omitted facts, and defective- pleadings, aided by presumption of regularity. Al- though the federal law limits the federal jurisdiction, in cases of diverse citizenship, to cases involving more than a certain sum of money, yet if the record does not show what amount was in question the judgment is not void, but erroneous only. Nor need diverse citizenship appear in order to protect the record against collateral attack/^ A similar rule applies to defects in the pleadings which would be bad on demurrer.^® 5. Cases in which a judicial record may be disre- garded as an estoppel, or as sustaining a lien by con- structive notice, or when offered in evidence in an- other suit (collateral attack). — The most which can be done here is to state in a few lines those things which so go to the foundation of a judicial record as to bring it within the maxim dehile fundamentum fallit opus (if the foundation is insufficient the whole falls). The fundamental matters here briefly re- ferred to would fill a volume if fully discussed. If the tribunal be organized by a revolutionary govem- 11 A substantial quotation from the leading case of Galpin y. Page, 18 WaU. 350, 365 (U. S.), 21 L. Ed. 959, 962, holding a decree for winding lip a partnership, based upon a service of summons by publication, defend- ant being a non-resident of the state and not voluntarily appearing, to be void when used as evidence in another suit to sustain a judicial sale. Cited with approval in Old Wayne Mutual L. Assn. v. McDonough, 204 U. S. 8, 27 Sup. a. 236, 51 L. Ed. 345. in MeCormick v. Sullivant, 10 Wheat. 192 (tJ. S.). 18 Spade V. Bruner, 72 Pa. St. 57; Strieb v. Cox, 111 Ind. 299, 12 N. E. 481; Wood v. Blythe, 46 Wis. 650. 187 6 COURTS— FEDERAL AND STATE ment which fails of success, all judicial acts against the true government will be void,^^ although decisions on private rights may be upheld.^* These decisions relate to the confederate courts of the Civil War. So a court created by an unconstitutional law, or one organized in opposition to express statute, is no court, and all its acts are void.^^ As a general rule, a judge whose office was created by an unconstitutional law is an officer de facto, whose acts are not wholly void.^" When jurisdiction is taken, assumed or usurped by misconstruction of statute, common law or constitu- tion, by the weight of authority, the judgment, de- cree, or final determination is wholly void.^^ As a general rule it may be stated that defects in juris- diction or statement of the case (the record being simply silent or defective) do not make the proceed- ings void, but merely voidable, the presumption of regularity applicable to courts of general jurisdic- tion being invoked. This point has been ruled other- wise in som^ of the code-states.*^ On the question of notice, or service of process, the final test of the validity of a judicial record is whether there was, in substance and effect, a hearing. Audi alteram partem (both sides are heard) is a maxim as old as the Book of P|:'overbs, where it is IT Dewing v. Perdicaries, 9G TJ. S. 193, 24 L. Ed. 654. 18 Van Epps v. Walsh, 1 Woods 598 (U. S. Circuit) ; Nelson v. Boynton, 54 Ala. 368. "MeClaughry v. Deming, 186 V. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049; Norton V. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. 20 Ball V. United States, 140 U. S. 118, 11 Sup. tt. 761, 35 L. Ed. 377; Manning v. Weeks, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264. 21 Van Fleet, Collateral Attack (Ist ed.), §§ 62-224. 22 Spade V. Bruner, 72 Pa. St. 57 ; Strieb v. Cox, 111 Ind. 299, 12 N. E. 481. IfiS GENERAL EULES 7 m substance found: no one is condemned unheard.^* If the record does not show service of process upon, or some notice to, the defendant, the judgment is not void, since the presumption of regularity aids it. Silence on a jurisdictional point is golden.^* If a service be shown, however, and it be on a defendant beyond the territorial jurisdiction of the court, the judgment (if there was no appearance by defendant) wiE be void as a personal one, though it may be valid as to any property within the jurisdiction which was actually or constructively seized.^^ Denial of a hear- ing by striking out the defendant's pleading or other- wise will render the proceedings coram non judice (no judge present) and void absolutely.^^ The con- stitutional right of due process of law absolutely re- quires a substantial hearing, adapted to the nature of the case, and where the person proceeded against has an opportunity to be heard, and to defend and en- force his rights,^^ In proceedings in rem, where the property is actually in the custody of the court, no- tice to the owner of any judicial action affecting it, though uniformly given, is not absolutely essential to preserve jurisdiction.^® A judgment as to a sub- ject matter from which the judicial power is excluded by constitution or statute is absolutely void; as, a 23 Murray v. Hoboken Land & Imp. Co., 18 How. 272 (U. S.), 15 L. Ed. 372, defining due process of law. 24 § 4. 25 Leading cases on these points are Pennoyer v. NefE, 95 U. S. 714, 24 h. Ed. 565, and Cooper v. Reynolds, 10 Wall. 308 (U. S.), 19 L. Ed. 931. 28 Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914. 27 Stuart V. Palmer, 74 N. Y. 183. 28 There is a conflict on this point ; contra, Earle v. McVeigh, 91 V. S. 503, 23 L. Ed. 398; HassaU v. Wilcox, 130 U. S. 493, 9 Sup. Ct. 690, 32 L. Ed. 1001. 189 8 COURTS— FEDERAL AND STATE decree restraining city officers from canvassing an election.^® Jurisdiction assumed over a person or his property by mistake of law or fact, or over an estate or status actually non-resident or non-existent, will sometimes result in a void and sometimes a void- able judgment. The most noted illustration of this class is administration of the estate of a living per- son supposed to be dead from long absence. Here the subject matter — ^the estate of a deceased person — is entirely wanting, and by the weight of authority the proceedings are utterly void.*" / 6. Fraud^CoUusion — ^Want of hearing. — ^When- ever it clearly appears that there was not a real con- test in the trial or hearing, either through fraud upon one of the parties entirely extrinsic to the trial, or collusion between the parties, the judgment is void even in a collateral proceeding. But it is well set- tled that judgments founded on fraudulent instru- ments or perjured evidence are voidable only,*^ be- cause this would be to contradict the record on a question of fact,^^ and allow repeated if not endless proceedings to open and disregard judicial records. Fraud in the cause of action may be reviewed on direct attack, but has no effect on the judgment when coUateraUy drawn in question.^* If defendant's at- torney corruptly admits judgment it is good on col- lateral attack.** An instance of fraud in the cause 20 Dickey v. Heed, 78 111. 261. 30 Scott V. McNeal, 1^4 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896. SI United States v. Throckmorton, 98 IT. S. 61. 32 Van Fleet, Collateral Attack (1st ed.), §550. S3 Same. 34 Young V. Watson, 155 Mass. 77, 28 N. E. 1135. 190 GENERAL RULES 9 of action is Bulkley v. Stewart,^^ where the owTier of a vessel, knowing it to be lost, procured insurance, and then submitted the claim to arbitration and ob- tained an award, which was paid. Learning of the fraud the insurer sued to recover back the money, but it was held that the award was binding on col- lateral attack. Collusion. Fraud and collusion stand on some- what different grounds. The former, if outside the cause of action, makes the judgment void, while the latter has no effect on it, so far as the parties are concerned, and may even prevent both from a direct attack upon it. The decisions are quite harmonious on this point.** But the rule is different as to strangers who are sought to be defrauded. A judg- ment procured by fraud of either party, or collusion of both, for the purpose of defrauding a third per- son in respect to a pre-existing right, is void as to such person.*^ Loss of jurisdiction "by refusing a substantial hear- ing. Refusal to consider the merits of a sufficient de- fense, by striking out an answer, and rendering judg- ment as by default,** makes the judgment absolutely void. 7. What courts are superior and what inferior. — It becomes quite important, therefore, to determine what courts are superior and what inferior, in order to know what judicial records are collaterally bind- 35 1 Day 130 (Conn.). 36 Van Fleet, CoUateral Attack (1st ed.), § 533. sr Michaels v. Post, 21 Wall. 398 (U. S.), 22 L. Ed. 520. ssHovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215; Wind- sor V. McVeigh, 93 U. S. 274, 23 L. Ed. 914. 191 10 COURTS— FEDEKAL AND STATE ing. The question is one of presumption only. Any judgment or decree, whether rendered by a superior or inferior court, is void in all courts and places if the judgment record itself actually shows want 6f jurisdiction, or the violation of some fundamental principle of justice, like the denial of a hearing.®® Everything is presumed in favor of the judgment of a superior court, nothing in favor of that of an in- ferior. While the authorities are not entirely uni- form, it is reasonable to say that any court having unlimited and final jurisdiction over a class of cases is a superior court, and that mere silence of its record on a jurisdictional point will not defeat its judgment as a former adjudication or on collateral attack, al- though it may cause a reversal on appeal or other direct review. All courts having full and complete jurisdiction, so far as authorized to act, are superior .*° 8. Instances of superior and inferior courts. — Superior courts are the ordinary state courts of gen- eral jurisdiction, and state probate courts, the for- mer circuit and present district courts of the United States, including referees in bankruptcy, the Court of Claims, the courts of general jurisdiction of the District of Columbia, the territorial courts of Alaska and Hawaii, the Commerce Court, the Court of Cus- toms Appeals, and the consular courts. Although the jurisdiction of all these federal courts is limited, they are stiU courts of general jurisdiction. If their so Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Hovey v. Elliott, 167 V. 8. 409, 17 Sup. a. 841, 42 L. Ed. 215. *o Van Fleet, Collateral Attack (Ist ed.), i 811. 192 GENERAL RULES 11 record is silent on a point of jurisdiction it is none the less good against collateral attack.*^ It is al- most universally held that probate courts are supe- rior.*^ Whether justices' courts -are superior or in- ferior is in conflict, the Supreme Court of the United States and the courts of most of the states taking the view that they are inferior.*^ In many states jus- tices of the peace are given exclusive jurisdiction of the action of forcible entry or unlawful detainer be- tween landlord and tenant and between persons forcibly taking possession of land and those ousted. To this extent a justice's court is clearly a superior one. Tribunals having power to pass on eases of a particular class, such as commissions, commission- ers, boards, councils, reviewing boards, assessment officers, fence viewers, boards of survey, condemna- tion commissioners, and the like** are inferior tribu- nals in the sense here referred to, although not courts in the ordinary sense. 9. General and special. — ^Another loose distinc- tion is that between courts of general jurisdiction, with power to entertain all sorts of causes, and those of limited or special jurisdiction, such as probate courts and United States courts. If the record of a cause in these courts does not expressly show juris- diction the proceedings are erroneous, and subject to review on appeal or error, but not void, nor sub- ject to collateral attack.*' TTnited States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ot. 663, 31 L. Ed. 591. 40 Spear, Federal Judiciary (1st ed.), p. 618. 41 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. 234 COURTS OF THE UNITED STATES 53 Judge Terry while the latter was assaulting Justice Field. Neagle having been arrested for this act was discharged by the Supreme Court. If a marshal is arrested for carrying out a federal court order he may be set free under this provision.** Detention in violation of the Constitution, law or treaty. This provision originated in the Act of 1867, and grew out of the war. It reaches the case of one held under state process for an alleged offense under state law ; as where a brewery agent was arrested for selling liquor, and alleged that the liquor was in interstate commerce, and so not subject to state law.*^ But the federal courts on habeas corpus will not construe state laws, as where a state court re- fused a writ of error to one convicted of murder.** If a fugitive offender against state law were extra- dited by the government under a treaty with a for- eign nation, and turned over to the state authorities, who should then proceed to try him for a different offense, not covered by the treaty, he might be re- leased by a federal habeas corpus.*^ Detention of alien for act authorised hy interna- tional law. The privilege of habeas corpus in this kind of a case depends on the Act of 1842,*® suggested by the celebrated McLeod case. The prisoner in that case was tried for murder in New York, for an act sanctioned by the British government. He was ac- quitted, so no serious international complication « Anderson t. Elliott, 101 Fed. 609, 41 C. C. A. 521. *s United States v. Fiseus, 42 Fed. 395. " Kohl V. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432. 45 Spear, Federal Judiciary (Ist ed.), p. 619. 48 5 Stats, at Large, p. 539 ; U. S. Eev. Stats., § 753. 235 54 COURTS— FEDERAL AND STATE arose. Congress thereupon provided a remedy if such occasion should arise. Habeas corpus ad testificandum. The federal courts were authorized by the Judiciary Act of 1789*^ to issue this writ when necessary to obtain the testimony of a prisoner in custody either of the state or federal authorities.** What federal courts may issue habeas corpus. All courts may issue this writ whenever necessary to the complete exercise of their jurisdiction.*^ In the Shipp case^** the prisoner was convicted of murder in the Tennessee criminal court, and the supreme court of that state allowed him an appeal. Fearing mob violence, he applied to the federal court for habeas corpus, which was denied, but allowing him an appeal to the federal Supreme Court. Shortly after he was taken from the jail by the mob and shot to death. Defendant Shipp was the sheriff, but made little effort to protect the prisoner. For this he was punished for contempt of the federal Supreme Court.^^ The circuit court of appeals has no power to issue the writ unless it be necessary to the exer- cise of its appellate jurisdiction. In Whitney v. Dick^^ defendant was convicted of introducing liquor into an Indian reservation, in the federal district court. He did not take the case to the court of appeals by writ of error, but made some preparation 4T U. S. Eev. Stats., § 753. is Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct, 297, 40 L. Ed. 406. Coughrp.n v. Bigelow, 164 U. S. 301, 17 Sup. Ct. 117, 41 L. Ed. 442. 10 United States v. Fourteen Packages, Gilp. 235 (U. S. Dist.), Fed. Cas. No. 15,151. "Parsons v. Bedford, 3 Pet. 433 (U. S.), 7 L. Ed. 732. 12 Howe Machine Co. v. Edwards, 15 Blatchf. 402 (U. S.). 13 Simmons v. Morrison, 13 App. Cas. 161 (Dist. Col.), Chicago, M. & St. P. E. Co. V. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099. 1* U. S. Eev. Stats., § 723, Judicial Code, § 267. I'Oelrichs v. Spain, 15 Wall. 211 (TJ. S.), 21 L. Ed. 43. 245 64 . COUKTS— FEDERAL AND STATE intended is the one existing at the date of the original judiciary act, and does not refer to reme- dies thereafter given in state courts." New equitable remedies created by the states may, however, be en- forced in the national courts if there is no adequate remedy at law. Thus, a suit to quiet title to land when neither party is in possession, given by state statute, may be in the federal court, but not if de- fendant is in possession, since ejectment is then an adequate remedy." The right to a jury trial is one which defendant may waive by not insisting on it before answering or pleading to the merits, subject to the power of the court to raise the objection if the case is plainly unsuitable for the exercise of equity jurisdiction. Thus,*an injunction restraining a rival patent claimant from injuring plaintiff's business by publishing matter stating that its com- puting scale was a false and dishonest one, is as suit- able a remedy as damages, if not more so.^* It is a theoretical inadequacy which is referred to, and not a practical inability to get results. The fact that mandamus to compel a tax levy to pay a judgment on county bonds was fruitless because the county officers would not qualify as such, did not authorize a suit in equity.^® i« McConihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. EC 932. "Frost V. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010; Jones V. Mutual Fidelity Co., 123 Fed. 506. 18 Toledo Computing Scale Co. v. Computing Scale Co., 142 Fed. 919, 74 C. C. A. 89. IS Thompson v. Allen Co., 115 U. S. 550, 6 Sup. Ct. 140, 29 L. Ed. 472. 246 CHAPTER ni. THE VARIOUS UNITED STATES COURTS AND THEIR JURISDICTION. 46. The Supreme Court.— As the one court cre- ated by the Constitution, and in view of its great powers, reasons for the prominence of this tribimal are not far to seek. A few men of genius, and many of great ability, have been connected with it. Speak- ing of the federal judiciary, Mr. Bryce says :^° "Yet one man was so singularly fitted for the of- fice of chief justice, and rendered such incomparable service in it, that the Americans have been wont to regard him as a special gift of favoring Providence. This was John Marshall, who presided over the Su- preme Court from 1801 till his death in 1835 at the age of seventy-seven, and whose fame overtops that of aU other American judges more than Papinian overtops the jurists of Rome or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the government as the living voice of the Constitution." In some f onji or other it has supervisory authority over all other federal courts, and may also review de- cisions of the state courts, so far as necessary to se- cure the supremacy of the national Constitution and laws over all state laws. It is also the final arbiter 2oBryee, American Commonwealth, p. 261. 247 66 COURTS— FEDERAL AND STATE of controversies between the states. While its au- thority has often been nullified in particular cases by the executive, and disregarded and denied by the states and their courts, its position has steadily ad- vanced. No such high and important, authority is possessed by any other tribunal in the world. 47, Organization of the Supreme Court. — The Supreme Court was created by the Constitution, and organized under the Judiciary Act of 1789, It con- sisted 6t one chief justice and five associate justices. The act also divided the country into judicial dis- tricts, authorizing the appointment in each of a dis- trict judge to hold the district court therein. Three circuits were also created, and it was provided that the circuit court should consist of two Supreme Court justices and the district judge previously provided for. Although circuits were created, no circuit judges were provided for. In 1801, however, Con- gress passed an act, which was repealed at the next session, authorizing the appointment of circuit judges, and who were actually appointed. It was not until 1869 that regular circuit judges were author- ized.'^^ The power of Congress to authorize the jus- tices of the Supreme Court to hold the circuit court was acquiesced in until 1803, when the question was raised in Stuart v. Laird.^^ It was held by the court that acquiescence for several years in the organiza- tion of the judicial system had fixed the construction of the Constitution by contemporary interpretation, which ought not then to be disturbed. 21 TJ. S. Kev. Stats., § 607. 22 1 Craneh 299, 2 L. Ed. 115. 248 VARIOUS UNITED STATES COURTS 67 Prior to the Act of 1891, creating the circuit court of appeals, it was required of the justices of the Su- preme Court that they should each hold circuit courts in the circuit assigned to them respectively at least once in two years. Accordingly they used to go out upon the circuit in May of each year and sit for a short time in the circuit court, either with the circuit judge or district judge, or alone. When any other judge sat with them their opinion prevailed in case of dispute. Since the creation of the circuit court of appeals this practice has been discontinued, and the law authorizing it was repealed by the Judicial Code, 48. Its original jurisdiction. — The Constitution^* gives the Supreme Court original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. By the Eleventh Amendment it was provided that the judicial power should not extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. The original Judiciary Act of 1789, followed by the Judi- cial Code, provided that the Supreme Court should have exclusive jurisdiction of all controversies of a civil nature where a state-is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, also that it should have such exclusive jurisdiction of suits or proceedings against ambassadors or other public ministers, or their do- mestics or domestic servants. It was further pro- vided that it should have original, but not exclusive, 23 Art. Ill, § 2. 249 68 COURTS— FEDERAL AND STATE jurisdiction of all controversies of a civil nature be- tween a state and its citizens, or between a state and either citizens of other states or aliens, and of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party .^* Further provision was made by the same act for the issue by the court of writs of prohibition,, mandamus, and all other writs necessary to the exercise of its jurisdiction.*® Writs of ne exeat and scire facias were also provided for,** The most usual exercise of the exclusive jurisdiction of the Supreme Court is the settlement of state boundaries in suits brought by one state against another.*'^ Suits against ambas- sadors or other public ministers are rare. In the case of In re Baiz** its jurisdiction was invoked by reason of an action against a person claiming to be ambas- sador, but who had no such authority. A number of suits by the United States against a state have been brought in the Supreme Court.*® The Supreme Court has also original, but not exclusive, jurisdiction of suits by states against citizens of other states or aliens. The object of this provision was to enable such controversies to be determined by a tribunal independent of either party, and so as to avoid sus- picion of partiality.*" Suits against states by citizens of other states hav- 2* Judicial Code, S 233. 25 Judicial Code, §§234, 262. 20 Judicial Code, §§ 261, 262. 2T § 24. 28 135 IT. 8. 403, 10 Sup. Ct. 854, 34 L. Ed. 222. 29 United States v. Texas, 143 U. S. 621, 12 Sup. Ct. 488, 36 L. Ed. 285. 30 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. 250 VARIOUS UNITED STATES COURTS 69 ing been prohibited by the Eleventh Amendment, it has been attempted by persons holding claims against states, which the latter did not recognize as valid or just, to assign their claims to another state, which would then bring suit upon such claims in the Su- preme Court. In one of these cases it was held that the assignment from the claimant to the plaintiff state must be such as to vest the entire interest in the state, and must not be merely for the purpose of suit, so that the plaintiff state really represents its own interest, and not the interest of the claimant.^^ It has been further held that the Supreme Court can- not take original jurisdiction of a suit by a state against corporations or citizens of other states where such a suit, though in the form of a civil action, is es- sentially one to enforce by injunction the criminal legislation of the state against intoxicating liquors.^* In Virginia v. West Yirginia^^ an equitable action to compel the payment of a just proportion of the bonded debt of Virginia, on account of the separation of West Virginia, was sustained. The case is still pending in the Supreme Court. Practice in the original jurisdiction. No rules of procedure have been made by statute or by Supreme Court rules. The practice is for a person desiring to bring suit to apply to the court for that purpose, the motion being ordinarily granted as a matter of 31 New Hampshire v. Louisiana, 108 TJ. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656; South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448. 32 Oklahoma v. Gulf, etc., Co., 220 U. S. 290, 31 Sup. Ct. 437, 55 L. Ed. 469. 33 220 U. S. 1, 31 Sup. Ct. 330, 55 L. Ed. 353. 251 70 COURTS— FEDERAL AND STATE course.^* The court is accustomed to regulate and mold the process in such manner as in its judgment wUl best promote the purposes of justice.** Process wiU issue as a matter of course, and in a suit against a state is required to be served on the governor and attorney-general,'® and it is returnable sixty daj'^s after service.*^ The most liberal principles of prac- tice and pleading are adopted, especially in suits be- tween states.*® 49. Appellate jurisdiction over state courts. — Although the Supreme Court was relieved of much of its power of review by the Appellate Courts Act of 1891, it has still a very large appellate jurisdic- tion. No federal court is beyond its supervisory power, to be exercised in some appropriate form, i'his may be by appeal or writ of error in certain cases, or by prohibition, mandamus, certiorari, or habeas corpus. Writs of error to state courts. The original Judici- ary Act of 1789,*^ which was re-enacted in the Re- vised Statutes and Judicial Code,"*" provides that a final judgment or decree in any suit of the highest court of the state, where there is drawn in question a federal treaty or statute, or any authority exercised under the United States, and the decision is against their validity; or where, if not drawn in question, the 34 Washington v. Northern Securities Co., 185 U. S. 254, 22 Sup. Ct. 623, 46 L. Ed. 897. 35 Kentucky v. Dennison, 24 How. 66, 98 (U. S.) , 16 L. Ed. 717. 38 New Jersey v. New York, 3 Pet. 461 (tJ. S.), 7 L. Ed. 741. 87 Same. 38 Rhode Island v. Massachusetts, 13 Pet. 23 (TJ. S.), 10 L. Ed. 41. 89 Act of 1789, §25. «0TT. S. Bev. Stats., § 709; Judicial Code, I 237. 2f>2 VARIOUS UNITED STATES COURTS 71 validity of a state statute or state authority is at- tacked, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed un- der the Federal Constitution, treaty, or statutes, or commission held or authority exercised under the United States, and the decision is against the same : such final judgment or decree may he re-examined, and reversed or affirmed, in the Supreme Court upon writ of error, and the Supreme Court may award ex- ecution, or send back the case to the court from which it came. In the early history of the government many attempts were made, especially during the in- cmnbency of Chief Justice Marshall, to modify or repeal this statute, but they all failed, and the statute exists to-day in almost the same form as it was orig- inally written. This provision was necessary in order to maintain the national supremacy over state governments. A multitude of decisions have been made construing and applying it. In order that the court may sustain a writ of error under this pro- vision it is essential that one of the questions men- tioned in the statute must have been raised and pre- sented to the state court, and must either have been decided by that court, or its decision must have been necessary to the judgment rendered.*^ It must further appear that there was no other matter or is- sue in the case before the state court which was suf- ficiently broad to maintain the judgment. In ex- ceptional cases, however, where the federal question ♦1 Murdock v. Memphis, 20 Wall. 590 (U. S.), 22 L. Ed. 429. 253 72 COURTS— FEDERAL AND STATE is of such a controlling character that its correct de- cision is necessary to any final judgment in the ease, then the Supreme Court may take jurisdic- tion.*^ The language of the statute requires that the validity of a federal law or authority must be drawn in question, or that any right, title, privilege, or im- munity claimed thereunder must be especially set up or claimed. A great number of cases attempted to be brought before the Supreme Court have been dis- missed under this provision. The rule is, with some rare exceptions, that the federal question must be relied on by one of the parties, and any right, title, or privilege thereunder must be especially set up or claimed. As a general rule the federal question, right, title, or immunity must be urged in the trial court, or called to the attention of, or expressly, or by necessary implication, decided by the state court, in order to give jurisdiction on writ of error.*^ Thus, where an application to remove a case from a state to a federal court is denied the question cannot be re- viewed in the Supreme Court, where there is nothing to indicate that the question of the right of removal was brought to the attention of the highest state court, and that court could not have considered the question, even if presented, at that stage of the case.** The federal question cannot be first raised in the federal Supreme Court.*® No question of the citizen- 42Murdr)ck V. Memphis, 20 "Wall. 590 (U. S.), 22 L. Ed. 429. 43 Cineinnati, etc., K. Co. v. Slade, 216 TJ. S. 78, 30 Sup. Ct. 230, 54 L. Ed. 390. ** Chesapeake, etc., E. Co. v. McDonald, 214 IT. S. 191, 29 Sup. Ct. 546, 53 L. Ed. 963. «5 Mailers v. Commercial L. & T. Co., 216 U. S. 613, 30 Sup. Ct 438, 54 li, Ed. 638. 254 VARIOUS UNITED STATES COURTS 73 ship or character of the parties, the amount in con- troversy, or any point other than those mentioned in the statute, is necessary to give jurisdiction.*® The jurisdiction of the Supreme Court will not be de- feated by any evasion. If the state court ostensibly puts a decision on grounds other than those men- tioned in the statute, but the decision really amounts to the denial of a right under the Federal. Constitu- tion or statute, a writ of error will lie. To hold otherwise would open an easy method of avoiding the . jurisdiction of this court.*'' Where a federal ques- tion has been repeatedly decided, so as to leave no room for real controversy, it is said to be foreclosed, and a similar question cannot be again brought be- fore the Supreme Court.*^ No valid action can be taken by the state court where the case is pending on writ of error in the Supreme Court.*® 50. Appellate jurisdiction over the district court. — Only a limited power of direct review now re- mains, which may be exercised either by appeal, writ of error, writ of prohibition, or writ of mandamus, in cases appropriate to such proceedings. Whenever the jurisdiction of the district court is in question, the case may in some instances be taken directly to the Supreme Court by appeal, if the case is an equit- able one, or writ of error, if it is at law, and any others may be taken either to the court of appeals « Barrington v. Missouri, 205 V. S. 483, 27 Sup. Ct. 582, 51 L. Ed. 890. *^ Terre Haute, etc., K. Co. v. Indiana, 194 U. S. 579, 24 Sup. Ct. 767, 48 L. Ed. 1124. "Leonard v. Vicksburg, etc., E. Co., 198 U. S. 416, 25 Sup. Ct. 750, 49 L. Ed. 1108. *9 Northern P. E. Co. v. North Dakota, 216 U. S. 579, 30 Sup. Ct. 423, 54 L. Ed. 624. 255 74 COURTS— FEDERAL AND STATE or to the Supreme Court. If the case is decided on the question of jurisdiction it can only be reviewed in the Supreme Court. Thus, a suit in admiralty, to establish a lien upon a ship for services rendered to the vessel while in drydock, which is dismissed by the district court for want of jurisdiction, must be taken directly to the Supreme Court by appeal.^" It is the federal jurisdiction which is reviewable, and not the general authority of the court to try the merits. A suit was brought in the federal court of Massachusetts to enforce the Employers' Liability Law of that state. This did not present a question of federal, but of general jurisdiction."^ The kind of jurisdiction meant is that arising through the stat- utes relating to diverse citizenship, amount in dis- pute, or federal questions. Thus, in a case removed from the state court it was claimed that the latter had no jurisdiction, therefore, the federal court had none ; but this was not a question of the jurisdiction of the federal court as such, and there was no right of direct appeal."^ A dismissal for want of jurisdic- tion in equity does not raise any question of federal jurisdiction. The same question arises in state courts."^ 51. Appellate jurisdiction on constitutional or treaty questions. — The Supreme Court has also the power of a direct review from the district court when 50 The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 1251, 17 Ann. Gas., p. 907. " Fore Eiver Shipbuilding Co. v. -Hagg, 219 U. S. 175, 31 Sup. Ct. 185, 55 L. Ed. 163. 52 Kansas N. W. E. Co. v. Zimmerman, 210 IT. S. 336, 28 Sup. Ct. 730, 62 L. Ed. 1084. 53 Courtney v. Pradt,- 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398. 256 VARIOUS UNITED STATES COURTS 75 a case involves the construction of tlie Constitution or a federal treaty. If the case involves only such a question, and no others arise, like those going to the merits, or the construction of a federal or state stat- ute, an appeal lies to the Supreme Court alone, and one taken to the court of appeals should be dismissed. An Indian brought a suit to determine his rights un- der a land patent issued under an Indian treaty, and no other question was involved. The court of ap- peals was without jurisdiction,®* Review of questions of jurisdiction, Constitution, and treaties hy the court of appeals. The Act of 1891 divided the appellate power in district court cases between the Supreme Court and the court of appeals. On jurisdictional, constitutional, -and treaty ques- tions standing alone it gives the Supreme Court the exclusive power of review, not only of such question, but of the whole case.®® Joined with other questions it gives the court of appeals such exclusive power.®* In MacFadden v. United States®'' there was a ques- tion of federal jurisdiction joined with others. He took the case to the court of appeals, and thereby lost the right of review in the Supreme Court. He had two courses open to him, either to take the case to the Supreme Court on the question of jurisdiction, and have that question as well as the other decided, or to the court of appeals on the whole case, in- cluding jurisdiction. He could not do both. The 54 Terry v. Bird, 129 Fed. 592, 64 C. C. A. 160. 55 Spreckles Sugar Eef . Co. v. McClain, 192 TJ. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496. 66 Chappell V. United States, 160 TJ. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510. 5T 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801. 1-17 257 76 COURTS— FEDERAL AND STATE admission or rejection of foreign-born persons is en- trusted to the Department of Commerce and Labor, and the courts cannot interfere unless a fair hearing is denied, in which case the matter may be reached by habeas corpus. A Chinaman was denied landing, and brought habeas corpus, alleging he was denied due process of law. The district court sustained its jurisdiction, and then went on to examine the merits, holding him to^be a citizen. The government ap- pealed to the circuit court of appeals, which held that he had been given a fair hearing, and that there was no jurisdiction. He then applied to the Supreme Court for certiorari, which was granted, and the ap- pellate court affirmed. It was held that although the question of jurisdiction was involved, the govern- ment properly took the whole case to the court of ap- peals.^* Summary of this section. When jurisdiction, the Constitution, or treaty law alone is decided, the Su- preme Court has the sole power of review by direct appeal or error, taken within two years. If other questions are also decided along with the former, the case may go either to the Supreme Court or court of appeals, but not to both. 52. Indirect review of district court by Supreme Court; mandamus. — ^Except in the cases mentioned in the preceding section there is no power of direct review of the district court in the Supreme Court, that power being vested in the circuit court of ap- peals. There are certain unusual eases, however, where the Supreme Court may directly interfere 58 Tang Tun v. Edsell, 223 TJ. S. 673, 32 Sup. Ct. 359, 56 L. Ed. 607. 258 VARIOUS UNITED STATES COURTS 77 when no other mode of review exists, but only in cases directly reviewable by it.®' If a district judge refuses or vacates a temporary injunction sus- pending the enforcement of a state statute on con- stitutional grounds, there is no appeal given, and mandamus may be issued by the Supreme Court to compel the restoration of the injunction.®" An ap- peal is given in such cases only from the action of three judges sitting together. The circuit court of appeals may likewise issue mandamus to the district court to proceed with a case when it improperly re- refuses to do so, and when such a writ is in aid of the appellate court's jurisdiction.®^ When there is an- other remedy by appeal or error the Supreme Court will not interfere. Although this has often been done, the rule is now settled in Ex parte Harding,®' reviewing the former decisions. In this case the cir- cuit (now district) court denied motions to remand the suit to the state court where it was begun, and also permitted an amendment to defendant's petition for removal, so as to ^allege that the plaintiff was a citizen of Illinois instead of California, as first al- leged. Prohibition. The statute expressly authorizes the Supreme Court to prohibit the district court sitting in admiralty from proceeding further in cases before them, or from taking jurisdiction.®^ The office of this writ is to prevent the unauthorized taking of BO Ex parte Glaser, 198 U. S. 171, 25 Sup. Ct. 653, 49 L. Ed. 1000. 80 Ex parte Metropolitan Water Co., 220 U. S. 539, 31 Sup. Ot 600, 55 L. Ed. 576. 81 This is explained in | 65. -62 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. E. A. 392. «3 Judicial Code, § 234. 259 78 COURTS— FEDERAL AND STATE jurisdiction, or excess of jurisdiction.** There is some question whether prohibition may be issued in non-admiralty cases, the statute seeming to limit the right to them.*® The question is a theoretical one, since mandamus to cease the exercise of jurisdiction would serve the same purpose. In any event prohibi- tion will not issue when there is another remedy.** Mandamus wholly ancillary. This writ from the Supreme Court can go only in cases where that court has either original or appellate jurisdiction by direct appeal or error from the court to which the man- damus is directed.*'^ Thus, the Supreme Court has original jurisdiction of suits between states, where a state is a party, against ambassadors, etc., and ap- pellate jurisdiction in case of jurisdictional, consti- tutional, and treaty questions, as shown in this chap- ter. Certain special statutes also give direct ap- peals in interstate commerce cases, granting or re- fusing injunctions against state officers by three judges, and others. As seen later, appeals are given from courts of appeals, territorial courts, and Dis- trict of Columbia courts. In all these cases the Su- preme Court may issue mandamus when there is no other efficient remedy, but its power is limited to the class here mentioned. In other words, it cannot com- pel the district court to proceed or desist unless the case involves jurisdiction, the Constitution, a treaty, or is an admiralty case.** 8* Ex parte Cooper, 143 V. S. 472, 12 Sup. Ct. 453, 36 L. Ed. 232. 85 Ex parte Joins, 191 TJ. S. 93, 24 Sup. Ct. 27, 48 L. Ed. 110. «e Ex parte Oklahoma, 220 U. S. 191, 31 Sup. Ct. 426, 55 L. Ed. 431. 87 In re Massachusetts, 197 U. S. 482, 25 Sup. Ct. 512, 49 L. Ed. 845. ss'Ex parte Glaser, 198 U. S. 171, 25 Sup. a. 653, 49 L. Ed. 1000. 260 VARIOUS UNITED STATES COURTS 79 53. Direct review of final decrees in prize cases. — Prize is property captured at sea under the laws of war, and the only prize court in this country is the District Court of the United States.®" There is a right of direct appeal from the district court to the Supreme Court in such cases.''" The subject of prize properly belongs under the head of admiralty and maritime jurisdiction or war. When property is seized as prize the district court of that district into which the property is brought has jurisdiction to forfeit or release the vessel. In case the vessel is destroyed any district court in which the proceed- ings are first brought has jurisdiction.''^ 54. Review of decisions of the circuit court of appeals by writ of error or appeal. — ^In certain cases the judgment of the circuit court of appeals in cases brought before it by appeal or writ of error is fijial, subject only to the power of the Supreme Court to require the case to be certified to it for hearing and decision. In certain other cases the judgment of the court of appeals is not final, and in these an appeal or writ of error lies to the Su- preme Court within one year after judgment, if the matter in dispute exceeds $1,000, Cases of the first class are those where the jtirisdiction of the district court in the case under review depended entirely upon the opposite parties to the suit being aliens and citizens of the United States, or citizens of dif- ferent states; also in all patent cases, copyright eo Gushing v. Laird, 107 U. S. 69, 2 Sup. Ct. 196, 27 L. Ed. 391. 70 Judicial Code, §238; The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. " Judicial Code, § 45. 261 80 COURTS— FEDERAL AND STATE cases, internal revenue, tariff, and postal cases, crim- inal cases and admiralty cases. In all others, such as those arising under a law of the United States, or where the United States is a party to the suit, the judgment is not final, and the Supreme Court may directly review.'^^ Depending entirely, etc. This language in the stat- ute cited means that in diverse citizenship cases, and between aliens and citizens, in order that the judg- ment shall be final, the jurisdiction of the court below must have depended alone upon such citizenship or status. If the jurisdiction of the district court. was invoked both on the question of citizenship or status, and because the case arose under a law of the United States, then the judgment is not fimal, and the Su- preme Court may review. 55. Review of decisions of the court of appeals by certiorari. — ^In every case decided or in process of decision in the circuit court of appeals, the Supreme Court has power to require the former court to cer- tify the case and all the papers and proceedings therein to the latter court for decision. This power is partly dependent upon special authority conferred by the Judicial Code, and also under the general power to issue all writs necessary to the exercise of the Supreme Court jurisdiction.''^ The first section cited provides for certiorari in any case, civil or criminal, in which the judgment of the court of ap- peals is made final. It is the practice of the Supreme Court to issue certiorari indiscriminately, whether T2 Judicial Code, §.§ 128, 241 ; Court of Appeals Act of 1891, § 6; 26 Stats, at Large, p. 828. ?3 Judicial Code, §§ 240, 262. 262 VARIOUS UNITED STATES COURTS 81 or not the judgment of the court of appeals is made final.''* Comparatively few eases are deemed of suf- ficient importance by the Supreme Court to warrant it in requiring a case to be certified. Cases of para- mount importance and those in which there is a con- flict of decision in the various courts of appeals on the same question, will generally be required to be sent up. 56. Certifying questions to the Supreme Court. — In any case within its appellate jurisdiction the court of appeals may certify any particular ques- tion or proposition of law concerning which it de- sires instruction for its proper decision. The Su- preme Court may either decide the questions or propositions so certified, or it may require the whole case be sent up, and may then decide the whole mat- ter, as if reviewed by error or appeal.''^ Questions of importance and gravity only should be so certi- fied.'^® Only questions of law, unmixed with ques- tions of fact, can be so certified.'^'' 57. Appeals from the court of claims. — ^All judg- ments of the court of claims adverse to the United States may be appealed to the Supreme Court within ninety days after judgment. The plaintiff also may so appeal from a judgment against him, where the amount in dispute exceeds $3,000; also where his claim is forfeited to the United States by the judg- ment of the court of claims for the reason that plain- tiff had corruptly practiced or attempted to prac- T^McClellan v. Garland, 217 U. S. 268, 30 Sup. Ct. 501, 54 L. Ed. 762. "i Judicial Code, § 239. 78 Forsyth v. Hammond, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095. " Cross V. Evans, 167 U. S. 60, 17 Sup. Ct. 733, 42 L. Ed. 77. 263 82 COURTS— FEDEKAL AND STATE tice a fraud against the United States, in the proof, statement, establishment, or allowance of the claimJ^ Where the United States appeals from a judgment against it for $3,000 or more, the claimant may also- appeal in order to avail himself of anything in the case properly showing that the judgment was not for too large a sum/^ The court of claims has no authority to render a pro forma judgment against the United States, so that the question may be re- viewed on appeal for the reason that the question is novel and will affect a large class.^" 58. Review over Porto Rico courts. — The Su- preme Court may review on appeal or error final judgments and decrees of the supreme and federal courts of Porto Rico in all cases where federal ques- tions are involved, also copyright cases, without re- gard to value. All other cases may be so reviewed where the matter in dispute exceeds $5,000. The ap- peal or writ of error may be taken out within two years after final judgment.®^ 59. Review over supreme and district courts of Hawaii Territory. — A direct appeal or writ of error may be taken from the federal district court of Ha- waii in cases of jurisdiction, constitutionality, treaty, or prize, in the same manner and to the same extent as in case of direct review from other district eourts.^^ Cases involving federal questions decided by the supreme court of Hawaii, without regard to 78 Judicial Code, §§ 242, 243. 79 United States v. Mosby, 133 U. S. 273, 10 Sup. Ct. 327, 33 L. Ed. 625. 80 United States v. Gleeson, 124 U. S. 255, 8 Sup. Ct. 502, 31 L. Ed. 421. 81 Judicial Code, I 244. 82 Judicial Code, I 238. 264 VARIOUS UNITED STATES COURTS 83 the amount in dispute, may be taken to the Supreme Court in the same manner and under the same regu- lations as cases from the highest court of a state.** In other cases a review is given where the amount involved, exclusive of costs, exceeds $5,000.** 60. Review over courts of Alaska; Territory. — From the federal district court of Alaska or any of its divisions an appeal or writ of error may be taken directly to the Supreme Court in prize cases and cases involving the construction or application of the Constitution, or where the constitutionality of any federal law or the validity of construction of any treaty is involved, or where the constitution or law of a state is claimed to be in contravention of the Constitution.*' By the Alaska code of 1900*« the district court is given general jurisdiction to the same extent as state courts, and also the jurisdiction exercised by the federal district courts. This court was created not under the constitutional grant of authority to create inferior federal courts, but under that provision giving Congress control of property in the territories of the United States. Review where a territory becomes state. Being admitted to statehood does not in any way interfere with the time or manner of taking out a writ of error or appeal from the court of any territory which might be reviewed by the Supreme Court if such change had not occurred.*^ 83 Judicial Code, §§ 128, 246; § 4 84 Judicial Code, § 246. 85 Judicial Code, § 247. 86 31 Stats, at Largo, p. 322. 87 Judicial Code, § 249. 265 84 COURTS— FEDERAL AND STATE 61. Review over District of Columbia courts. — The court of appeals of the District of Columbia for the purpose of review of its judgments by the Su- preme Court occupies substantially the double posi- tion of a federal district court and a federal cir- cuit court of appeals. The same right of appeal or error is given in the case of jurisdictional, prize, con- stitutional, and treaty questions, as in the case of a district court ; its judgment is made final in the same eases as that of the federal court of appeals, and the same review by writ of certiorari from the Supreme Court is also given.** 62. Review of bankruptcy cases. — The right of direct review from the district court as a court of bankruptcy is given in the same cases where a di- rect appeal or writ of error lies from the district court exercising its general jurisdiction. This in- cludes constitutional, jurisdictional, and treaty ques- tions, if any such arise in any bankruptcy proceed- ing. A like review is given from any court of bank- ruptcy not withia any organized circuit of the United States, and also from the.Siipreme Court of the Dis- trict of Columbia. Over circuit court of appeals. Ajxj final decision of the court of appeals allowing or rejecting a claim un- der the bankruptcy laws may be appealed to the Su- preme Court (1) where the amount involved exceeds $2,000 and there is a federal question raised which might have been taken on appeal or error from the highest court of the state ; (2) where a Supreme Court justice certifies that in his opinion the determination 88 Judicial Code, §§250, 251. 266 VAEIOUS UNITED STATES COURTS 85 of the question involved in the allowance or rejection of the claim is essential to a uniform construction of the bankruptcy laws. The court of appeals may also certify questions and the Supreme Court may issue writs of certiorari, as in other cases.*® 63. Review over court of commerce. — Final judgments or decrees of the commerce court may be appealed to the Supreme Court within sixty days ~ after their entry. The appeal is taken in the same manner as appeals from district courts to the Su- preme Court, and the original record instead of a copy may be sent up. If the commerce court grants or continues an injunction restraining the enforce- ment of an order of the interstate commerce com- mission an appeal may be taken within thirty days.®" The commerce court has been abolished. 64. Review under special statutes. — There is a considerable number of proceedings dependent upon special statutes which give a right of appeal under special conditions to the Supreme Court. For in- stance, if an injunction is applied for to suspend or restrain the enforcement, operation or execution of a state statute by restraining a state officer, or in the enforcement or execution of an order made by some administrative board or commission of the state, such injunction must be granted or denied by three fed- eral judges. If such injunction is either granted or denied an appeal may be taken direct to the Supreme Court." 88 Judicial Code, § 252. 90 Judicial Code, § 210. 01 Judicial Code, § 266, as amended by Act of March 4, 1913, 37 Stats, at Large, p. 1013. 267 86 COURTS— FEDERAL AND STATE The United States Circuit Court of Appeals. 65. Organization and general jurisdiction.— TMs court was organized to relieve the Supreme Court of the United States of the great pressure of busi- ness which had accumulated before that tribunal, and its ^object was to divide or distribute the appellate power between the Supreme Court and the circuit court of appeals. This was accomplished by the Act of March 3, 1891.*^ All the practice provisions of this act were codified in the Judicial Code of 1911.^^ The court is held by three circuit judges, by two cir- cuit judges and one district judge, or by one circuit judge and two district judges. Its decisions are re- ported in the Federal Reporter and the Circuit Court of Appeals Reports. There are nine of these courts, one in each circuit. The Act of 1891 aboKshed the ap- pellate jurisdiction of the then existing circuit court, and transferred that power of review partly to the court of appeals and partly to the Supreme Court. No district judge or circuit judge who has taken part in the trial in the court below can sit in the court of appeals in that particular case. This court has no original jurisdiction. It may, however, issue writs of mandamus, prohibition, and other vsrits when- ever necessary in the exercise of its appellate powers.®* It cannot issue a writ of certiorari or habeas corpus as an original or independent pro- ceeding where no appeal or writ of error in the ease has been taken.®'' 02 26 Stats, at Large, p. 826; 4 Fed. Stats. Ann. 395. 83 Judicial Code, §§ 116-135. »* Mcaellan v. Garland, 217 U. S. 268, 30 Sup. Ct. 501, 54 L. Ed. 762. 95 Whitney v. Dick, 202 XJ. S. 132, 26 Sup. Ct. 584, 50-L. Ed. 963. 268 VARIOUS UNITED STATES COURTS 87 66. Review over district courts. — Substantially every case decided by the district courts, including the district courts for Hawaii, Alaska, and the United States court for China, without regard to the amount in controversy, is subject to review by ap- peal, writ of error, or i;n some other form, by the circuit court of appeals.®* The court of appeals also has the power in any case pending before it or in which it has rendered a decision to issue writs of mandamus, prohibition, certiorari, habeas corpus, and scire facias (order to show cause) for the pur- pose of aiding or enforcing its appellate power.®'^ There are a few cases, however, in the district courts ' over which the power of review is given entirely to the Supreme Court. This is true of final decrees in prize cases and cases which turn exclusively upon the question of jurisdiction, constitutional law, or the construction or enforcement of a treaty. If no other question is involved the only appellate power is in the Supreme Court, and the circuit court of appeals has no jurisdiction whatever; but if other questions re- lating to the merits of the case are also determined along with such jurisdictional, constitutional, or treaty questions, then an appeal or writ of error will lie to the circuit court of appeals, whose duty it then is to decide the whole ease, including the questions last referred to.®* In such cases the court of ap- peals may certify such constitutional, treaty, or juris- dictional questions to the Supreme Court, or may go 08 Judicial Code, i§ 128-131, 134. 87 Judicial Code, § 262. »8 United states v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; MacFaddeu v. United States, 213 U. S. 288, 29 Sup. a. 490, 53 L. Ed. 801. 269 88 COURTS— FEDERAL AND STATE on and decide the whole case, including such special questions,®^ Review of habeas corpus cases. If a habeas corpus proceeding involves a question of jurisdiction or of constitutional or treaty law, not involved with other questions also at the same time decided, the right of review is wholly in the Supreme Court of the United States, and not in the court of appeals.^ Thifs, if the habeas corpus is issued on the ground that the prisoner is detained without due process of law an appeal can only be heard ia the Supreme Court.^ In the case of Tucker v. Alexandroff* the ques- tion of the construction of a treaty with Russia was involved, and the case instead of being taken to the Supreme Court was carried to the circuit court of appeals, and its ruling reversed on a writ of certio- rari in the Supreme Court. Whenever a petitioner in habeas corpus alleges that his imprisonment is in violation of the federal Constitution an appeal lies directly to the Supreme Court.* 67. "When decision final and when not. — ^In the case of decisions made final by the court of appeals act, no further review can be had as a matter of right, but the defeated party may always petition the Supreme Court for a writ of certiorari. On the other hand, in cases not made final a writ of error or appeal lies to the Supreme Court within one year 90 American Sugar Befining Co. v. New Orleans, 181 TJ. 8. 277, 21 Sup. Ct. 646, 45 L. Ed. 859. 1 Ex parte Lennon, 150 IJ. S. 393, 14 Sup. Ct. 123, 37 L. Ed. 1120. 2 Same. s 183 U. S. 424, 22 Sup. a. 195, 46 L. Ed. 264. * Dimmiek v. Tompkins, 194 V. S. 540, 24 Sup. Ct. 780, 48 L. Ed. 1110. 270 VARIOUS UNITED STATES COURTS 89 after final judgment, if the case involves $1,000 or more. The decisions of this court are made final in all cases where the jurisdiction is dependent entirely on diverse citizenship, cases between aliens and citi- zens, and patent, copyright, internal revenue, tariff, postal, criminal, and admiralty cases. In other cases the decision is not final, and is subject to review in the Supreme Court,, as already stated.® If the juris- diction of the district court under review in the court of appeals was invoked not only upon diverse citi- zenship or alienage and citizenship, but also on the ground of a federal question, the decision is not final.« 68. Appeals from injunction and receiver orders. — If a preliminary injunction in an equity case in the district court is granted, continued, refused, or dissolved, or an application to dissolve is refused, or an order appointing a receiver is made, an ap- peal may be taken to the court of appeals within thirty days, and the appellate court may either con- fine its attention to the propriety of granting or re- fusing the order appealed from, or decide the whole merits of the case in its discretion.'^ 69. Review over territorial courts. — ^It was pro- vided by § 15 of the Appellate Courts Act of March 3, 1891,* that the circuit court of appeals should have the same power of review over the judgments, orders, Judicial Code, § 128. aBagley v. General Fire Extinguisher Co., 212 V. 8. 477, 29 Sup. Ct. 341, 53 L. Ed. 605. f Judicial Code, § 129; Chapman v. Yellow Poplar Liunber Co., 143 Fed. 201, 74 G. C. A. 331. 8 26 Stats, at Large, p. 830. 271 90 COURTS— FEDERAL AND STATE and decrees of the supreme courts of tlie territories as they have over the judgments of the district courts. The only territory now existing having a supreme court is Hawaii, from whose supreme court writs of error and appeals lie directly to the Su- preme Court of the United States.® § 15 of the Ap- pellate Courts Act has not been expressly repealed, but seems to be impliedly superseded by the Judicial Code. 70. Review of proceedings in bankruptcy. — ^The court of appeals may entertain an appeal from the bankruptcy court in case of a judgment adjudging or refusing to adjudge the defendant a bankrupt, from a judgment granting or denying a discharge, and from a judgment allowing or rejecting a debt or claim of $500 or over. A like appeal lies to the Supreme Court of Hawaii from the court of bank- ruptcy there sitting. Appeal must be taken within ten days after judgment.^" This is the appellate, as distinguished from the revisory, power. Supervisory jurisdiction in bankruptcy. Any per- son aggrieved by a ruling on a matter of law aris- ing in a bankruptcy proceeding may file a petition in the proper circuit court of appeals, asking for a revision and correction of the matter. The court of appeals thereupon directs what notice shall be given the adverse parties, and what portion of the record in the bankruptcy court shall be certified to it for examination. The bankrupt act does not limit the time within which such petition is to be filed, but it » Judicial Code, § 246. 10 Bankruptcy Act, § 25a. 272 VARIOUS UNITED STATES COURTS 91 is generally held that it must be done within a rea- sonable time, which is from ten to thirty days." 71. Review over federal courts of China and Alaska.— By the Act of June 30, 1906,^^-the United States. court of China was established, as explained later in this chapter. Its judgments are subject to review by the circuit court of appeals of the ninth circuit, in the same manner as appeals, writs of error, and decisions from district courts. In like manner the decisions of the court of appeals in cases coming from China which are not made final are re- viewable in the Supreme Court, which may also is- sue writs of certiorari, in all cases, whether the decision of the court of appeals is, or is not, made final.^^ Review over Alaska district court. The circuit court of appeals of the ninth circuit is also given jurisdiction of appeals and writs of error from the district court of Alaska, to the same extent as courts of appeals may review the judgments and orders of other district courts. In cases of jurisdiction, con- stitutional law, or treaties, the Supreme Court has exclusive jurisdiction, as in other cases. The cir- cuit court of appeals may certify questions of law to the Supreme Court, and the latter may issue writs of certiorari in like manner as in other cases.^* The district court of Alaska is a legislative court, hav- ing the ordinary jurisdiction of a state court, and also that of a district court of the United States. 11 Collier, Bankruptcy (4tli ed.), p. 265. 12 34 Stats, at Large, p. 814. 13 34 Stats, at Large, p. 815; Judicial Code, § 131. i« Judicial Code, § 134. 1-18 273 92 COURTS— FEDERAL AND STATE The Court of Claims. 72, Organization and history. — The court of claims was created by the act of February 24, 1855, and originally had jurisdiction to hear and determine all claims founded upon any law of Congress or any regulation of an executive department, or upon any express or implied contract with the government; also all claims which might be referred to the court by either house of Congress.^® Its jurisdiction has been from time to time much enlarged. The two most important changes in its jurisdiction were made by the Bowman Act of March 3, 1883," and the Tucker Act of March 3, 1887." The Bowman Act provided for the investigation and determination of claims before any Congressional committee or before either house, and claims pending in any executive depart- ment. All such claims, with the papers, proofs, and documents pertaining thereto, may be sent by either house, or a committee or department, to the court of claims, whose duty it is to investigate, and report its conclusions. It has no power to enter any judg- ment on such claims. The Tucker Act extended the jurisdiction of the court to damages in cases other than tort, where the claimant jvould be entitled to redress against the government, either in a court of law, equity, or admiralty, if the United States were suable, excepting, however, war claims which had been previously rejected. It also provided for the hearing of set-offs, counterclaims, claims for dam- 15 10 Stats, at Large, p. 612. J« 22 Stats, at Large, p. 485. 17 24 stats, at Large, p. 505. 274 VARIOUS UNITED STATES COURTS 93 ages, or other demands of all kinds on the part of the government against the claimant. Another impor- tant provision was, that the district courts should have concurrent jurisdiction with the court of claims where the amount did not exceed $1,000, and the cir- cuit court, when the claim exceeded $1,00^ and did not exceed $10,000. This act also fixed the procedure of the court and government officers, and provided for the payment of judgments against the United States when Congress should make the necessary appropriations. 73. Jurisdiction of the court of claims. — The former acts relating to the court of claims have been revised by the Judicial Code. It has juris- diction over claims, except for pensions, founded upon the Constitution, federal law, or executive reg- ulations, upon any contract, express or implied, with the government, or in cases other than tort in re- spect to which the claimant would be entitled to redress against the government if the United States were suable, excepting war claims which have been rejected or adversely reported upon. It also has jurisdidtion of set-offs, counterclaims, claims for dam- ages, or other demands whatsoever on the part of the government against the claimant, but no suit against the government is to be brought by any officer for fees untU an accoimt thereof shall have been ren- dered, and finally acted upon and decided by law, imless the accounting officer fails to act within six months after the account is received in the office. It may also hear and decide claims of government dis- bursing officers for relief from responsibility on ac- 275 94 COURTS— FEDERAL AND STATE count of the loss by capture or otherwise while in the line of duty of government funds, vouchers, rec- ords, or papers. Under the Bowman Act as re- vised it still has jurisdiction to consider and re- port upon claims pending in Congress and the ex- ecutive depa»*ments. From the Tucker Act is taken a provision that either house may refer claims pre- sented by any bill, except for a pension, pending in either house providing for the payment of the claim, or for a grant, gift, or bounty, and the court shall report the facts of the case back to the respective houses.^® By a recent act" the court of claims may also hear and decide cases where the United States has used a patented invention without license of the owner, excluding, however, patents used by or in possession of the government before the act was passed, and excluding also claims of patentees who are government employees. In certain cases of claims against the government it is necessary to show the loyalty of the claimant. In such cases he must prove affirmatively that he did during the Civil War consistently adhere to the United States, and gave no aid or comfort to persons engaged in the Con- federate service.^" The court of claims was also given jurisdiction of French spoliation claims accru- ing prior to the year 1801, and also claims for dep- redations of friendly Indians. Although the time for filing claims under these acts has long since ex- pired, many claims of this class are still pending be- 18 Judicial Code, §§ 145-151. 10 June 25, 1910, 36 Stats, at Large, p. 851. 20 Judicial Code, § 161. 276 VARIOUS UNITED STATES COURTS 95 fore the court. These acts were not carried into the Judicial Code for the reason that they will become obsolete when pending cases are finally disposed of, 74. Concurrent jurisdiction of the district court. — Claims not exceeding $10,000 similar to those of which the court of claims is given jurisdiction to hear and render judgment may be sued for in any district court otherwise having jurisdiction.^^ This provision was contained in the Tucker Act, and was adopted as a matter of local convenience for claim- ants. The complaint or petition is required to be served upon the district attorney of the district where the suit is brought, and a copy must be mailed by registered letter to the Attorney General. The court must file a written opinion setting forth the specific findings of fact and conclusions of law. If judgment is rendered against the government the district attorney must transmit copies of all the papers and testimony to the Attorney G-eneral, who will then direct whether an appeal or writ of erroiL. shall be taken, which may be within six months after judgment. At each session of Congress the Attorney General makes a report of all suits so brought, and a statement of costs. The judgment is paid in the same manner as judgments of the court of claims, out of Congressional appropriations.^^ The Court of Customs Appeals. 75. Organization and jurisdiction. — This court was created by the Tariff Act of Agust 5, 1909, for 21 Judicial Code, § 24, Subdivision 20. 22 Tucker Act, 24 Stats, at Large, pp. 506, 507. 277 96 COURTS— FEDERAL AND STATE the purpose of relieving the circuit courts, territorial courts, district courts, and courts of appeal of the hearing of cases growing out of the collection of customs.^^ The court consists of five judges, any three of whom constitute a quorum. Its sessions are held in Washington, but may be in the several judi- cial circuits, as the court may designate. This court exercises appellate jurisdiction of final decisions of the board of general appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty im- posed thereon imder such classification, and the fees and charges connected therewith. It may also decide questions as to the jurisdiction of the board of gen- eral appraisers and as to laws and regulations gov- erning the collection of customs. Its judgments are final, no appeal being allowed to any other court. Appeals from the board of general appraisers to the court must be within sixty days after the decision, except that in Alaska and in insular possessions ninety days are allowed.^* The Commerce Court. (Abolished.) 76. Organization and jurisdiction. — This court was originally created by the Act of June 18, 1910,*^ which was adopted for the purpose of securing the prompt decision of certain questions arising under the interstate commerce act. It consists of five judges, designated as commerce court judges by the 23 6 stats, at Large, p. 105. It is reproduced in chapter 8 of the Judicial Code. 2* Judicial Code, §§ 188-199. 2B 36 Stats, at Large, p. 539. 278 VARIOUS UNITED STATES COURTS 97 chief justice of the Supreme Court from among the circuit judges, each to hold office as a commerce court judge for five years. Pour of the judges consti- tute a quorum, and three must concur in all deci- sions. In the exercise of jurisdiction the commerce court has the powers of a district court and of dis- trict judges, and it may issue all writs and process appropriate to the exercise of its jurisdiction and powers, and may adopt rules for its procedure. It has the same jurisdiction formerly possessed by cir- cuit courts over cases for the enforcement of any order of the interstate commerce commission, other than for the payment of money, except that it cannot hear actions for forfeitures or penalties, or inflict any criminal punishment. It may also hear and de- termine cases brought to enjoin, set aside, annul or suspend, in whole or in part, any orders of the com- merce commission, may hear petitions under §3 of the EUdns amendment to the interstate commerce act for preventing rebates or discriminations by in- terstate carriers, and may issue mandamus under the interstate commerce act compelling common carriers to comply with any provision of the interstate com- merce act or its amendments, and to compel the movement of traffic, the furnishing of cars and other facilities for transportation. The jurisdiction here given is exclusive.^* Pinal judgments or decrees of the commerce court are reviewable by the Supreme Court, on appeal taken within sixty days after en- try of the judgment or decree. Appeals are also allowed to the Supreme Court from any interloeu- 28 Judicial Code, I 207. 279 98 COURTS— FEDERAL AND STATE tory order or decree granting or continuing an in- junction which restrains the enforcement of an or- der of the commission.^'^ ' The Commerce Court was abolished by the Urgent Deficiency Act of October 22, 1913, and all its juris- diction distributed among those district courts which would have had jurisdiction if the Commerce Court Act had not been passed. All cases pending in the Commerce Court were transferred to the district courts of the proper districts, except those submitted for decision on or before October 22, 1913, and de- cided before December 1, 1913. The four remain- ing judges of the Commerce Court are continued as circuit judges and act as judges of any circuit court of appeals or district court to which they may be assigned by the chief justice of the Supreme Court. Upon the death, resignation, or removal of these judges their offices cease. The District Court. 77. Organization and history. — The district court was originally created by the Judiciary Act of 1789, which divided the country into thirteen districts, providing for a district judge in each one, also es- tablishing three circuits, the eastern, middle, and the southern. No circuit judges were provided for until April 10, 1869, the circuit courts being held at first by two Supreme Court justices and a district judge, later by one justice and a district judge, and finally by a district judge alone. It was the court of original criminal and admiralty jurisdiction, including seiz- 2T Judicial Code, § 210. 280 VARIOUS UNITED STATES COURTS 99 ures on land under the revenue, navigation and trade laws. It was also given jurisdiction of suits by aliens for torts against the law of nations or under a treaty, suits brought by the United States at common law, and suits against consuls and vice-consuls. Many acts were passed increasing or modifying its jurisdic- tion, and giving^the circuit court concurrent juris- diction with it in many cases. With the multiplicity of legislation it became quite difficult in some cases to determine the precise limits of the federal juris- diction as between the district and circuit courts, and Congress finally by the Judicial Code of 1911 abolished the circuit court, and conferred all its jurisdiction upon the district court, except such as belongs to the court of commerce and court of cus- toms appeals. 78. The former circuit court. — As already stated, three circuit courts were created by the Judiciary Act of 1789, held by the Supreme Court justices and a district judge, and in recent years by the district judge alone, or sitting with a circuit judge. Circuit judges were provided for and appointed under an act passed in 1801, which was, however, promptly re- pealed by the next Congress, and no other circuit judges were provided for until the passage of the Act of April 10, 1869.^^ Nine circuit judges, one for each circuit, were provided for by this act, who were given the same power and jurisdiction in their respective circuits as formerly exercised by the jus- tices of the Supreme Court, allotted to the respec- tive circuits and called the circuit justices. Upon 28 TJ. S. Eev. stats., § 007. 281 100 COURTS— FEDERAL AND STATE the adoption of the circuit court of appeals act of 1891 the circuit judges became judges of the court of appeals, and did not do much work in the cir- cuit court, which was thereafter held almost exclu- sively by a district judge. The chief business of the circuit court was the trial of cases which might be brought either in the state courts or in the circuit court, being suits where there was diverse citizen- ship, between citizens and aliens, suits by the United States, and suits arising luider the Constitution or a federal statute or a treaty. This court was also authorized to try criminal cases, which were usually begun in the district court and then transferred to the circuit. Some confusion resulted from the mul- tiplicity of statutes, which led to the abolition of the circuit court by the Judicial Code.*® All suits pend- ing in circuit courts were transferred to the district court sitting in the same district, and all statutes con- ferring powers on the circuit court are to be deemed to refer to the district court. 79. The district court jurisdiction. — ^As hereto- fore stated, the district court now exercises all of the jurisdiction and powers formerly exercised by it and by the circuit court. In the civil cases formerly tried in the circuit court the district court now has jurisdiction concurrent with the state courts. In many cases its jurisdiction is entirely exclusive of the state courts, over suits relating to patents, copy- rights, admiralty, prize, penalties and forfeitures, seizures under the government police laws relating to food, drugs, animals, plants and seeds. It has also 29 Judicial Code, |§ 289-292. 282 VAEIOUS UNITED STATES COURTS 101 exclusive cognizance of bankruptcy proceedings, fed- eral crimes and offenses, and suits against foreign consuls and vice consuls; but jurisdiction of suits against foreign ambassadors or other public min- isters in the country, and their domestic servants, is vested exclusively in the Supreme Court. 80. Civil suits brought by the United States or its officers. — ^Any civil suit at law or in equity brought by the United States, or by any officer thereof authorized by law to sue, may be brought in the district court, without regard to the amoimt in controversy, as well as in the state courts. The proper district for the bringing of such suit is the one where the defendant resides, but if brought in any other district where he is properly served or appears he may waive the objection that the suit is not brought in the proper district. Suits by the United States or its officers are almost imiversally brotlght in the district court, but the state courts have jurisdiction.^" 81. Civil suits between citizens of the same state claiming under diverse state land grants. — These actions are now quite infrequent, and may be brought in the district court without regard to the amount in controversy. The federal court was given juris- diction of such suits for the reason that a state court hearing such a dispute might not be entirely unbiased.^^ 30 This follows from the removal statutes, and from the fact that all of the former jurisdiction acts from 1789 to 1887 expressly gave the district or circuit court jurisdiction concurrent with the state courts of all suits brought by the United States. See also Claflin v. Houseman, 93 U. 8. 130, 23 L. Ed. 833. 81 Judicial Code, Subdivision of § 24. 283 102 COURTS— FEDERAL AND STATE 82. Civil suits arising under the federal Consti- tution, laws, or treaties. — ^When the matter in con- troversy, exclusive of interest and costs, exceeds $3,000, and a federal question is involved, the dis- trict courts are given jurisdiction. Suit should be brought in the district where the defendant resides,^* unless the defendant waives the objection. Suits against aliens arising under federal law may be brought in any district where the defendant can be f ound.^* Cases of this kind go to the court of appeals of the same circuit, and may be taken from that court to the Supreme Court by appeal or writ of error, where they involve more than $1,000. Suits ty or against federal corporations. A suit by or against a corporation organized or created by an act of Congress is one arising under the laws of the United States, and the district court has juris- diction of such suits, if more than $3,000 are in- volved, exclusive of interest and costs, without regard to the citizenship of the parties, and without regard to the citizenship of the individual party, if any.'* All the Pacific railroads, except the Union Pacific and Northern Pacific, are federal corporations, and come within this rule. The Northern Pacific com- pany was originally a federal corporation, but reor- ganized under the laws of Wisconsin in 1896. The reason of this rule is, that all the faculties and capa- cities of federal corporations are derived from their 32 Judicial Code, % 51. 83 Barrows S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Gt. 526, 42 L. Ed. 964. 3* Eoberts v. Northern P. E. Co., 158 TJ. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873. 284 VAKIOUS UNITED STATES COURTS 103 act of incorporation by Congress. All their doings arise out of those laws, and suits by or against them are therefore suits arising under the laws of the United States.^** The same rule applies to a state corporation consolidated with a federal corporation.^® This rule does not apply to national banks, which by act of Congress are made citizens of the state where located. Suits iy or against federal receivers. Such suits were formerly cognizable by the circuit or district court, on the ground that such receivers were ap- pointed under federal laws, and therefore such laws were drawn in question in any suit respecting their functions and powers. This rule has been changed, however, so that the mere fact of such federal ap- pointment does not give jurisdiction.*'' If, however, a construction of the powers of the receiver is re- quired to be made by the court in deciding the case, then the federal court has jurisdiction.** An action by or against a federal receiver of a federal corpora- tion is within the jurisdiction.*® 83. Civil suits between citizens of different states. • — The largest class of cases over which the district court has jurisdiction are cases of diverse citizen- ship, some of which are brought directly in the dis- trict court, and others removed to that court fi*om 35 Pacific Eailroad Eemoval Cases, 115 TJ. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319. 38 Ames V. Kansas, 111 U. S, 449, 4 Sup. Ct. 437, 28 L. Ed. 482. 37 Gableman v. Peoria, etc., E. Co., 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220. 38 Eouse V. Homsby, 161 U. S. 558, 16 Sup. Ct. 610, 40 L. Ed. 817. 39 Texas & P. E. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829. 285 104 COURTS— FEDERAL AND STATE the state courts. The case must involve more than $3,000, exclusive of interest and costs, and must be brought in the district of the residence of either the plaintiff or defendant, unless the objection is waived. The state courts have concurrent jurisdiction over such cases.*" All of the parties on each side must be citizens of different states. If one of the defend- ants, for instance, is a citizen of the same state as one of the plaintiffs the court has no jurisdiction.*^ The citizenship referred to relates to the state, and not to the United States. A person may be a citizen of the United States without being a citizen of any particular state. This is the condition of citizens residing in the District of Columbia and the terri- tories, or those who have taken up a residence abroad.*^ A state cannot be a citizen, though a cor- poration may be.** The words citizen and alien include corporations.** It was at first held by the Supreme Court that the jurisdiction over corporations depended upon the citizenship of their stockholders, so that if any stock- holder was a citizen of the same state as the plaintiff the federal court could not take jurisdiction. Later a fiction was adopted for the purpose of retaining jurisdiction over corporations, by which it was con- clusively presumed that aU the stockholders of a corporation were citizens of the state where the cor- 40 Judicial Code, § 24, Subdivision 1, and § 51. 41 Barney t. Latham, 103 U. S. 205, 26 L. Ed. 514. 42 Prentiss v. Brennan, 2 Blatchf. 162 (TJ. S.) ; 19 Fed. Gas., No. 11385. 43 Postal Telegraph Cable Co. v. Alabama, 155 IT. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231. 44 Barrow S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 I* Ed 964. 286 VARIOUS UNITED STATES COURTS 105 poration was organized.*" Perplexing questions have arisen where a corporation is first incorporated in one state and then in another, or if consolidated and merged into a single corporation under the laws of both states. A corporation first created in New Hampshire, and later in Massachusetts, is regarded as a corporation of the state of New Hampshire, and may bring suit against a citizen of Massachusetts ; *® but if the corporation is consolidated under the laws of two or more states it cannot be sued by a citizen of either of those states.*^ When a corporation is chartered in several states, and is sued in one of those states by a citizen thereof, it cannot claim that it is a citizen of another state. In Chicago & N. W. Ry. Co. V. Whitton*® a railroad company chartered in Illinois and Wisconsin was sued in Wisconsin by a citizen of Illuiois. It was held that the company could not defeat the federal jurisdiction by claiming that it was also a citizen of Illinois, the state of the plaintiff's residence. 84. Suits on assigned contracts. — ^In order to pre- vent the assignment of promissory notes, bUls of exchange and other contracts, so as to give juris- diction to the federal court, it is provided that such suits cannot be brought in the district court unless -the original parties were citizens of different states. The statute, however, does not apply to instruments *5 Baltimore & O. B. Co. v. Koontz, 104 TJ. S. 5, 26 L. Ed. 643; Barrow S. S. Co. V. Kane, 170 V. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. *8 Nashua & L. E. Co. v. Boston & L. E. Co., 136 TJ. S. 356, 10 Sup. Ct. 1004, 34 L. Ed. 363. « Home V. Boston & Maine E. Co., 18 Fed. 50. *8 13 Wall. 270 (U. S.), 20 L. Ed. 571. 287 106 COURTS— FEDERAL AND STATE payable to the bearer, nor does it apply to corpora- tion papers. Such suits must involve more than $3,000, exclusive of interest and eosts.*^ 85. Civil suits between alien states or citizens and state citizens. — ^A foreign state may sue a citizen of the state in the district court, and such a citizen may also sue a foreign state therein, in cases where the state is suable and submits to the jurisdiction. A state citizen may also bring suit against an alien, and, vice versa, an alien may bring suit against a citizen.^" All such suits must involve more than $3,000, exclusive of interest and costs. If a suit is brought against a state citizen it must be either in the district of the residence of the plaintiff or de- fendant, unless the objection be waived.^^ If a suit is brought against an alien it may be brought in any district where he can be found and served with process, or in which he voluntarily appears.^^ 86. Crimes and offenses under federal laws. — ^The district court is given exclusive jurisdiction of all crimes and offenses created by any federal statute. There are no common law crimes against the United States.^' 87. Admiralty and non-admiralty, seizures and prize. — The district court has always had exclusive jurisdiction of suits in admiralty brought for the purpose of seizing and condemning a vessel for the <9 Judicial Code, § 24, Subdivision 1. 50 Judicial Code, § 24, Subdivision 1. 51 Judicial Code, § 51. 52 Barrow S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. 63 United States v. Hudson, 7 Cranch 32, 3 L. Ed. 259. 288 VARIOUS UNITED STATES COURTS 107 purpose of paying liens growing out of seamen's wages, freight contracts, insurance contracts, col- lisions, and other contracts and wrongs of a mari- time character. Congress has also passed several acts relating to the limitation of liability of ship owners, under which the owner or charterer of a ves- *^el may at his option surrender the vessel to the district court to be condemned and sold for the pur- pose of paying all claims against it, and thus escape any personal liability for such claims. The state courts, however, as well as the district court in cases of diverse citizenship, have jurisdiction of common law actions relating to the conduct of vessels, such as claims for negligence of the ship officers, for the col- lection of liens for towage, damages by fire upon a vessel, injuries by the vessel to a wharf or bridge or other structure on shore, and suits to enforce mari- time contracts generally.^* Actions brought against a vessel for the purpose of procuring its condemna- tion and sale to pay claims against it are called suits in rem, because the vessel is regarded as the offend- ing thing liable for such claims, while suits against the owners or officers for contracts or torts growing out of the conduct of the vessel are known as suits in personam. Non-admiralty seizures. The district courts are given jurisdiction of a large class of cases of seizures of property on land or on waters which are not navigable. Many statutes relating to the revenue, tariff and police laws provide that property used imlawfuUy shall be forfeited to the United States, 0* 1 Fed. Eep. Digest, pp. 75-78. 1-19 289 108 COUETS— FEDERAL AND STATE or to the person who informs the government officers of the offense. There are also numerous police regu^ lations in relation to food, drugs, prohibited articles, animals, plants and seeds which contain like pro- visions. In such cases the condemnation of the prop- erty is secured through a seizure and suit commenced under the admiralty practice in a district court ; and of these cases that court has exclusive jurisdiction.^^ Prize cases. The district court has also exclusive jurisdiction of vessels captured as prize of war.^® Venue of actions. Admiralty cases in rem for the seizure and condemnation of a vessel on navigable water may be brought in any district where the ves- sel may be seized, or, if the vessel is lost, in any dis- trict where proceedings are first begun. Actions in personam may be brought wherever the defendant may be found and served with process, or where he voluntarily appears. Suits under the revenue, tariff and police statutes where the property is seized must be brought wherever the property can be found. Suits for condemnation of property as prize should be begun in the district into which the vessel is brought, or, if the vessel be lost, in any district where the proceedings can be first commenced.^'' The ob- jection that suit is not brought in the proper district, however, is always a matter of waiver, not going to the jurisdiction of the court.®® 88. Slave trade. — ^Exclusive jurisdiction over suits arising under any law relating to the slave 55 .Tudicial Code, § 24, Subdivision 3. 60 Same. 57 Judicial Code, §S 45-47. 58 In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 52 L. Ed. 904. 290 VARIOUS UNITED STATES COURTS lOD trade is vested in the district court."' The slave trade having been practically abolished; such suits are now almost unknown in this country. Early cases relat- ing to this trade are The Merino "" and The Slavers.®^ 89. Suits under revenue, customs, tonnage, and postallaws. — The term revenue law when used in con- nection with the jurisdiction of a federal court means a law imposing duties on imports or tonnage of ves- sels, or a law providing in terms for revenue. Thus, a statute requiring a district court clerk to account to the government for his receipts over a certain sum is not a revenue law.*^ All statutes relating to the receipts of the post-office or of the post-office depart- ment are revenue laws within this rule.®* The dis- trict court is given jurisdiction of all such suits.®* Seizures made in suits in the district court for for- feitures for a violation of the internal revenue or customs laws are in the exclusive jurisdiction of the district court,®" but the state courts have concurrent jurisdiction in cases arising under the postal laws.®® 90. Suits under patent, copyright and trade- mark laws. — The district courts have jurisdiction exclusive of the state courts of all suits in law or in equity arising under the patent and copyright laws.®^ Suits under the trade-mark laws may also be brought 59 Judicial Code, § 24, Subdivision 4. 80 9 Wheat. 391 (U. S.), 6 L. Ed. 118. 612 Wall. 383 (U. S.), 17 L. Ed. 911. 12 United States v. Hill, 123 U. S. 681, 8 Sup. Ct. 308, 31 L. Ed. 275. S3 See case in note 62 ; United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87. 6* Judicial Code, § 24, Subdivisions 5 and 6. 65 Coffey V. United States, 116 U. S. 247, 6 Sup. Ct. 432, 29 L. Ed. 681. '66 Lewis Pub. Co. v. Wyman, 152 Fed. 200. er Judicial Code, § 256. 291 110 COURTS— FEDERAL AND STATE in the state courts.*® The district court has no juris- diction of any patent case other than actions for infringement at law or in equity, and actions in equity for an injunction against the further use of a patent by the defendant, and for an accounting of profits made by such use. Suits relating to contracts and licenses under patents are not cognizable in the district court, unless they involve more than $3,000, and are between citizens of different states or a citi- zen and an alien.*® The United States may also sue to cancel a patent for an invention where fraud has been practiced in procuring it, but there is a strong presumption that the grant is valid.''" Venue in patent, copyright and trade-mark cases. The statute of 1897 ^^ provides that the district court shall have jurisdiction in law or in equity in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership or corporation, shall have com- mitted acts of infringement, and have a regular and established place of business. The district or dis- tricts referred to in this statute constitute the proper places for the bringing of suits, but the objection may be waived, as in other cases of venue.'^^ In copyright and trade-mark cases the defendant should be sued in the district of his residence,''^ but if 08 Judicial Code, § 256. «9 White V. Eankin, 144 U. S. 628, 12 Sup. Ct. 768, 30 L. Ed. 569. 70 United States v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, 32 L. Ed. 450; 167 U. S. 224, 17 Sup. Ct. 809, 42 L. Ed. 144. 71 29 Stats, at Large, p. 695. 72 General Electric Co. v. Wagner Electric Mfg. Co., 123 Fed. 101, 130 Fed. 772, 66 C. C. A. 82. 73 Judicial Code, § 51. 292 VAEIOUS UNITED STATES COURTS 111 the action is against an alien suit can be brought where he can be found and servedJ* 91. Interstate commerce suits. — The district courts are given jurisdiction of suits and proceedings arising under any law regulating commerce.''^ No statute makes this jurisdiction exclusive, but from the nature of the cases covered by the interstate commerce act and amendments it would probably be so decided. Instances of such suits are those brought by persons claiming to be damaged by re- bating or discrimination/® and petitions by the com- mission to require the attendance and testimony of witnesses, and the production of books and papers, in an investigation authorized by the interstate com- merce act.^^ 92. Penalties and forfeitures. — The district courts have exclusive jurisdiction of the multitude of suits authorized by federal statutes for the recov- ery of money penalties and fines, and the forfeiture of property for acts made penal by such statutes,''^ Where a fine or penalty is definite in amount the proper suit is a civil action of debt, but when the amount of the penalty or fine is uncertain the action may be either civil or criminal.''^ Seizures for for- feiture are always under the admiralty practice.*" T* Barrows S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. 75 Judicial Code, § 24, Subdivision 8. " Ex parte Lennon, 166 TJ. S. 548, 17 Sup. Ct. 658, 41 Ed. 1110. "T Interstate Commerce Commission v. Brimson, 154 U. S. 447, 155 U. S. 3, 14 Sup. a. 1125, 15 Sup. Ct. 19, 38 L. Ed. 1047, 39 L. Ed. 49. '8 Judicial Code, § 256. "United States v. aaflin, 97 U. S. 546, 24 L. Ed. 1082; Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. so The Caroline, 7 Cranch 496 (U. S.), 3 L. Ed. 417. 293 112 COURTS— FEDERAL AND STATE Where a criminal proceeding is brought it may gen- erally be by information, although an indictment by a grand jury may also be returned.®^ 93. Suits on customs debentures. — ^When mer- chandise is imported from a foreign country to be here manufactured, and to be exported, it is provided by statute that the collector of customs shall issue to the importer an instrmnent in writing, reciting that the importer or his assignee is entitled to repayment of iiinety-nine per cent of the duties paid upon the importation. This is called a debenture for draw- back of duties. Such debentures are made payable to the original importer whenever so requested in writing by the exporter, but not otherwise, and they are assignable by delivery and endorsement of the person receiving the same.*^ If the collector does not pay the debenture on demand, the holder may sue the person to whom the debenture was issued or any endorser, and he or the person who pays the holder may sue in the court of claims, or in the dis- trict court, if not more than $10,000 are involved, to recover the amount of the debenture.®^ The dis- trict court has jurisdiction concurrent with the state courts over such suits brought by the assignee of a debenture against the person to whom the debenture was originally issued, or against any endorser thereof.** When brought in the district court such 81 Criminal Code, § 335, 35 Stats, at Large, p. 1152, U. S. Comp. Stats.. 1911 Supp., p. 1687. 82 U. S. Bev. Stats., §§ 3038, 3040. 83 Campbell v. United States, 107 XJ. S. 407, 2 Sup. Ct. 759, 27 L. Ed. 592. 84 Judicial Code, i 24, Subdivision 10. 294 VARIOUS UNITED STATES COURTS 113 suits should be in the district where the defendant resides, subject to waiver as in other cases. ^® 94. Suits for damages against persons enforcing the revenue or civil rights laws. — ^When any federal officer or other person acts under the revenue or civil rights statutes, and any injjiry results to him or his property by reason thereof, he may bring suit either in the district court or in the state court to recover damages for such injury.®^ Thus, where a person was refused the right to vote at a national election for a member of the House of Representatives he had the right to sue in the district court for damages on account thereof .^'^ 95. Suits for damages under civil rights laws. — Where any person is injured in person or propei^ty, or deprived of any right or privilege as a citizen of the United States, on account of a conspiracy to prevent him from accepting any federal office or trust, or from discharging any of the duties thereof, or inducing a federal officer to leave the state or district where his duties require him to be, or injure him in any way, or to prevent him from attending court as a party or witness, or intimidating him as a voter, he may sue in the federal district court or the proper state court for damages occasioned by such unlawful act.** 96. National bank suits. — ^From the time of the passage of the national bank act, in 1863, down to 8= Judicial Code, § 51. 88 Judicial Code, § 24, Subdivision 11. 87 Swaflford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005. 88 Judicial Code, §24, Subdivisions 12 to 14; Civil Eights Cases, 109 IT. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835; Moyer v. Peabody, 212 U. S. 78, 29 Sup. Ct. 235, 53 L. Ed. 410. 295 114 COURTS— FEDERAL AND STATE 1882 suits by or against national banks could be brought either in the federal or state courts, by rea- son of the national character of the corporation. By the Act of July 12, 1882,^^ substantially re-enacted by the Act of 1887,^" it was provided that jurisdiction of suits by or against national banks, except suits between them and the United States or its officers and agents, should be the same as and not other than jurisdiction of suits by or against banks not organ- ized under any law of the United States, and that national banks should be deemed citizens of the state in which they are respectively located. These stat- utes do not apply to winding up suits against a bank.®^ Suits against national banks in any district or territorial court may be properly brought in the district where the bank is established, and in any state, county or municipal court in the county or state where it is located.®^ Suits in the district court to restrain the Comptroller from closing the bank may be in the district where it is located. Suits by or against national banks in the district court, where the citizenship is diverse, should be brought either in the district where the bank is located or where the other party to the suit resides.®^ As in other cases, these provisions as to the place of suit may be waived by the parties.^* Many national bank failures result in a suit against the directors of the bank for negli- gence. Such suits are brought either by the receiver 89 22 Stats, at Large, p. 162. 00 25 Stats, at Large, p. 436. 01 Same. 02 U. S. Kev. Stats., 5 5198. 08 Judicial Code, § 51. 0* In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 52 L. Ed. 904. 296 VARIOUS UNITED STATES COURTS 115 appointed by the Comptroller of the Currency or by the agent who may succeed him, elected by the stock- holders of the bank. All such suits arise under fed- eral law, and may be brought either in the state or federal district court.®^ They are properly brought in the district where one or more of the defendants reside, subject to waiver as in other cases, 97. Suits by aliens for torts against the law of nations. — ^A citizen or subject of a foreign state may sue either in the state court or in the federal district court, without regard to the amount, in controversy, for a wrong or tort which he claims to be in violation of the law of nations or of a treaty of th|e United States. For instance, a foreigner wrongfully re- fused admission to this country by the immigration ofl&cers may bring suit against the officer excluding him when he has a right to land here under the pro- visions of some treaty between his own government and that of the United States.®® Such suits should be brought in the district of the residence of the defendant, subject to waiver as in other cases.®'' 98. Suits between aliens. — ^It was formerly held that the Constitution did not permit Congress to confer upon the federal courts jurisdiction of suits between aliens.®^ Recently, however, the Supreme Court has sustained the jurisdiction of the federal district court of Porto Rico in suits between subjects of the King of Spain.®® »B Yates V. Jones Nat. Bank, 206 TJ. S. 158, 27 Sup. Ct. 638, 51 L. Ed. 1002. »« Judicial Ciode, § 24, Subdivision 17. "Judicial Code, 151. 88 Hodgson V. Bowerbank, 5 Craneh 303 (U. S.), 3 L. Ed. 108. »» Ortega v. Lara, 202 U. S. 339, 26 Sup. Ct. 707, 50. L. Ed. 1055. 297 116 COUETS— FEDERAL AND STATE 99. Suits against foreign consuls and vice-con- suls. — The Supreme Court is given original but not exclusive jurisdiction of suits in which a foreign consul or vice-consul is a party, either plaintiff or defendant,^ and the district court has jurisdiction, exclusive of the state courts, of all suits against con- suls or vice-consuls.^ Such suits if against an alien consul or vice-consul, as is generally the case, may be brought in the district where the defendant re- sides, there being no federal statute on the subject.* If such foreign consul or vice-consul is a citizen of the United States then the suit is properly brought in the district of his residence.* The district court also has jurisdiction of a suit between a citizen of the United States and an alien who is a consul of a foreign government.^ State courts have jurisdiction of proceedings against a person who has been re- moved from the office of consul before the proceed- ings were brought.® 100. Bankruptcy proceedings. — The district court has exclusive jurisdiction of bankruptcy proceed- ings against the persons mentioned in the bankrupt act, and such act supersedes all state laws in regard to assignments for the benefit of creditors and insol- vency proceedings generally, provided that a bank- ruptcy proceeding is instituted in the district court. If however, no such proceeding is brought, the state 1 Judicial Code, § 233. 2 Judicial Code, § 256, Subdivision 8. 3 Barrow S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. 4 Judicial Code, § 51. sBors V. Preston, 111 IT. S. 252, 4 Sup. Ct. 40?, 28 L. Ed. 419. 8 lasigi V. Van De Carr, 166 TJ. S. 391, 17 Sup. Ct. 595, 41 L. Ed. 1045. 298 VARIOUS UNITED STATES COURTS 117 t courts have jurisdiction under their system^ The bankrupt law does not extend to a municipal, rail- road, banking or insurance corporation, so state insolvent laws may be made to apply to them. Farmers and wage-earners may be voluntary, but not involuntary, bankrupts.® A partnership, how- ever, may be adjudged a bankrupt.^ The matter of suit by trustees in bankruptcy in the federal district court is somewhat complicated. If property belong- ing to a bankrupt estate is in the possession of a third person by some transfer -made prior to the filing of the bankruptcy petition, the trustee may bring suit for such property. If the bankrupt could have brought such a suit in the federal court then the trustee may do so, but if the bankrupt could have sued only in the state court then the trustee must bring suit there.^" If, however, the defendant does not object, certain suits for such property may be brought in the federal court." In order that the trustee may sue in the district court to set aside a preference or a fraudulent transfer, made within four months before the bankruptcy, the matter in dispute must exceed $3,000, exclusive of interest and costs, the bankrupt and the defendant must be citi- zens of different states, and suit must be brought in the district of the residence of either the trustee or the defendant, unless the proper venue is waived; or a federal question must be presented and a like T Sturges V. Crotrainshield, 4 Wheat. 122 (IT. 8.), 4 L. Ed. 629. 8 Bankruptcy Act, § 4b., as amended 1910. '> Bankruptcy Act, § 5. 10 Bankruptcy Act, | 23. >i Same. 299 118 COURTS— FEDERAL AND STATE t amount involved, and a suit should in that case be brought where the defendant resides, unless defend- ant waives the proper venue, or is an alien or an alien corporation.^* Cases in the district court in- volving liens or claims to property in the district where suit is brought against non-resident defend- ants are properly brought in that district, and the defendant may be served by publication or notice inserted in a newspaper in the district.^^ Suits for debt, specific performance, replevin, trover, and all suits other than those to avoid transfers, may be in the district court, if the defendant does not object.^* If consent cannot be obtained then they must be in the state courts, or in the district court in ease of diverse citizenship and sufficient sum in controversy. If a person or corporation holds property of the bankrupt for him as his agent, or by transfer made after the bankruptcy petition was filed, no such suit need be brought for such property, but the holder of the property may be cited into the bankruptcy court proper before the referee, and compelled to turn over the property to the trustee or a receiver appointed by the bankruptcy court. Bankruptcy proceedings proper are in the district court before either the judge or referee upon what is called the bankruptcy side of the court. Other suits, inde- pendent of the bankruptcy proceeding but in aid thereof, are upon what is called the circuit court side of the district court. 12 Bankruptcy Act § 23 ; Judicial Code, §§ 24, 51. 13 Bankruptcy Act, § 53. 14 Bankruptcy Act, § 23b. 300 VARIOUS UNITED STATES COURTS 119 101. Jurisdiction concurrent with the court of claims. — ^The jurisdiction of the court of claims has been already explained.^^ All claims against the gov- .ermnent not exceeding $10,000, founded on the Con- stitution or any law of Congress, or upon any regu- lation of an executive department, or upon any con- tract, express or implied, with the government, or for damages, liquidated or unliquidated, in cases other than tort, in respect to which a claimant would be entitled to redress against the IJnited States, either in a court of law, equity or admiralty, if the United States were suable, and aU set-offs, counter- claims, claims for damages, or other demands on the part of the government against the claimant, may be sued in the district court. This jurisdiction does not extend to war claims, fees, salaries or compensation of United States officers, or assignees or legal repre- sentatives thereof. Such claims may be brought in any district court, and are defended by the local dis- trict attorney.^* Such suits are triable by the court without a jury. 102. Unlawful enclosure of public lands.— The district coiu'ts are given exclusive jurisdiction, by injunction, to restrain violations of the United States laws to prevent unlawful enclosure of public lands. Suit must be brought in the district court where the land lies, and the original process, which is a writ of subpoena, may be served on any agent or employee having charge or control of the enclosure.^^ " § 73. 18 Judicial Code, § 24, Subdiyision 20. "Judicial Code, § 24, Subdivision 21. 301 120 COUETS— FEDERAL AND STATE 103. Habeas corpus and appeal in immigration and Chinese exclusion cases. — The district courts have a very limited jurisdiction in eases relating to aliens, except when proceedings are brought before a United States commissioner to deport Chinese. The matter of admitting foreigners to this country, and permitting them to remain after admission, is wholly an executive or political question, of which the executive departments have complete charge. If an alien is refused admission to this coimtry, or gains admission unlawfully, his exclusion is entrusted en- tirely to the Department of Commerce and Labor. If the immigration officer in refusing to admit a per- son, or the Department of Commerce and Labor in excluding him, once admitted, do not give him a sub- stantial hearing then the courts may interfere by writ of habeas corpus, as was done in the case of General Castro, who was refused admission at Ellis Island, but was discharged by the district court for the southern district of New York, on the ground that there was no law justifying his rejection.^^ The de- cision of the executive officers in such cases has been made final by Congress, subject only to the right of habeas corpus above explained.^® Chinese exclusion. Chinese found to be unlawfully in this country may be excluded, either by the execu- tive departmenlf or the judicial, at the election of the officers of the Department of Commerce and Labor. If excluded by the executive department, the pro- is United States ex rel. Castro v. Williams, 203 Fed. 155. 19 Nishimura Ekiu v. United States, 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146; Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct 1016, 37 Ll Ed. 905. 302 VARIOUS UNITED STATES COURTS 121 ceedings must be brought within: three years after the defendant landed in the United States. This is done under sections 20 and 21 of the immigration act of 1907, and no appeal is allowed in such a case, but the deportation must be confirmed by the Secretary of Commerce and Labor.^'* It is only within a recent date that Chinese labor- ers have been included within this power of deporta- tion by the executive department. Formerly they could only be deported through an order of a United States commissioner. If the Department of Com- merce and Labor now seeks their deportation in the same manner through the Department of Justice, then, in case the commissioner orders them deported, they have the right of appeal to the district court of the same district. The government, however, has no appeal if the commissioner decides in favor of the alleged alien.^^ 104. Suits under anti-trust laws. — ^Under the Sherman anti-trust law the district court may re- strain violations of the statute, make temporary re- straining orders, seize any property owned under contract or by any combination or pursuant to any conspiracy in violation of the statute, and enforce its forfeiture; also entertain suits by any person in- jured in his business or property by any violation of the act.^^ Such suits should be brought in the dis- trict where any plaintiff may reside,^** and summons may be served throughout the United States on other 20 34 stats, at Large, p. 904. 21 Judicial Code § 25; 33 Stats, at Large, p. 428. 22 26 Stats, at Large, p. 209. 23 Judicial Code, § 51. 303 122 COURTS— FEDERAL AND STATE parties.** Suits for seizures of property must be in the district where the property is situated or into which it is taken.*^ Damage suits should be brought in the district where the defendant resides or the cor- poration defendant is organized, subject to waiver as to the proper place of trial.** The district court may also restrain violations of the act against com- binations and conspiracies in respect to the trade in any property imported from a foreign country.*^ Property engaged in any such combination may be forfeited and condemned in the district court in the manner above described.** Any person injured in his business or property by any such combination may also sue in the district court as above indicated.*" 105. Suits relating to Indian allotment of land. — Under the Indian treaties and acts of Congress, persons of Indian blood or descent are entitled to allotments of land formerly belonging to the tribe, generalljK located on some Indian reservation. The district court has jurisdiction to entertain suits of ejectment and to quiet title ia respect to such allotted lands. Such suits may be brought in the district where the land is located, without respect to the amount in controversy.^" Such cases go on appeal to the proper court of appeals, and may be thence taken to the Supreme Court of the United States.*^ In 2*26 stats, at Large, p. 209. 25 Judicial Code, § 45. 28 Judicial Code, I 51 27 37 state, at Large, p. 657. 28 Same. 29 28 Stats, at Large, p. 570. so Judicial Code, § 24, Subdivision 24. SI Judicial Code, §| 128, 241. 304 VARIOUS UNITED STATES COURTS 123 all such trials between an Indian and a white person the burden of proof is on the latter. All suits af- fecting allotted lands in the eastern district of Okla- homa may be appealed from the circuit court of ap- peals of the eighth circuit to the Supreme Court.^^ 106. Partition suits where the United States is an owner in common. — Suits in equity may be brought in the district court by any tenant in com- mon or joint tenant for the partition of land where the United States is a co-tenant, without regard to the amount in controversy, and to be in the district where the land is situated.^* Such cases go on appeal to the court of appeals, and thence to the Supreme Court, where the property is worth more than $1,000.^* 107. Jurisdiction of Wyoming district court over Yellowstone Park. — The Yellowstone Park, situated within the states of Wyoming, Montana and Idaho, constitutes part of the judicial district of Wyoming, and the district court of that state has jurisdiction over offenses committed within the Yellowstone Park.*' Offenders in the Park are subject to the penal laws of Wyoming whenever no punishment is prescribed by the federal law.*® The protection of animals, birds, fish and objects of interest in the Park is under the jurisdiction of a United States com- missioner, from whom an appeal may be taken to the Wyoming district court.*^ 32 36 stats, at Large, p. 837. 33 Judicial Code, § 24, Subdivision 25. 34 Judicial Code, § 238. 35 28 Stats, at Large, p. 73; Judicial Code, §115. 38 28 Stats, at Large, p. 73. 37 Same. 1-20 305 124 COURTS— FEDERAL AND STATE 108. Jurisdiction over the Hot Springs reserva- tion, Arkansas. — This reservation is part of the eastern judicial district of Arkansas.^® Offenses in the reservation are punishable by the laws of the United States, unless they are silent, and in other cases under the municipal ordinances of the city of Hot Springs or the laws of Arkansas.^® United States commissioners are given jurisdiction in sub- stantially the same manner as in the case of the Yellowstone Park, with preliminary jurisdiction in criminal cases.*" 109. Suits against states. — ^By the Eleventh Amendment to the Constitution it is provided that the federal judicial power shall not be construed to extend to any suit at law or in equity commenced or prosecuted against one of the United States by citizens of another state, or by aliens. At common law a sovereignty could not be sued without its con- sent, and the states are sovereign within this prin- ciple.''^ The state may, however, waive the priv- ilege.*^ Suits between a state and the United States can be only in the Supreme Court,*^ and may be against the United States if it has consented to be sued.** Suits between states must be in the Supreme Court.*^ A common, instance of such suits is one to 38 33 stats, at Large, p. 187. 30 Same. *o Same. *i New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656. •12 Beers v. Arkansas, 20 How. 527 (U. S.), 15 L. Ed. 991. 43 United States v. North Carolina, 136 U. S. 211, 10 Sup. Ct. 920, 34 L. Ed. 336. ■i* Minnesota v. Hitchcock, 185 V. 8. 373, 22 Sup. Ct. 650, 46 L. Ed. 954. 40 U. S. Eev. Stats., § 687. Judicial Code, § 233. 306 VARIOUS UNITED STATES COURTS 125 determine disputed state boundaries." Suits be- tween states may also be maintained to enforce the contracts of the defendant state, even when such con- tracts have been assigned to the plaintiff by indi- viduals, if the assignment vests an absolute title.*^ , Exceedingly difficult questions have come up in suits against state officers,. and the decisions are not entirely harmonious or satisfactory. If a suit against a state officer is really one against the state, it is pro- hibited by the eleventh amendment. The perplexing question is when is such a suit against the state, and when not? There is no jurisdiction of suits against such an officer to enforce a state contract,*® to en- force a lien on state property by foreclosure and sale,*" or to recover the proceeds of property sold by a state.^" Where the suit is against an individual by name, the objection that a state is really the de- fendant is one going to the merits and not to the jurisdiction, and must be presented by plea or answer or it is waived.®^ The objection is also waived if an authorized state officer appears for his state, and submits its rights to decision.^* Upon the question as to when a suit against a state officer is a suit against the state itself, the decisions are reviewed by Mr. Justice Peckham and by the late Justice Harlan, *8 Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186. « See case in note 41. *8 Ex parte Ayers, 123 U. S. 43, 8 Sup. Ct. 164, 31 L. Ed. 216. <» Cunningham v. Macon & B. K. Co., 109 TJ. S. 446, 3 Sup. Ct. 292, 609, 27 L. Ed. 992. 50 Ex parte Madrazzo, 7 Pet. 627 (U. S.), 8 L. Ed. 808. BiOsborn v. Bank of United States, 9 Wheat. 738 (U. S.), 6 L. Ed. 204; ni. Cent. E. Co. v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410. 52 Gunter v. Atlantic Coast Line K. Co., 200 U. S. 273, 26 Sup. Ct. 252, 50 L. Ed. 477. 307 126 COURTS— FEDERAL AND STATE dissenting, in Ex parte Young,^^ The conclusion of the court is that a suit to enjoin the enforcement of an imconstitutional state statute is not against the state, but one against an individual wrongdoer. If a state officer who has no connection with the enforce- ment of a state statute is sued, the action is against the state, and unauthorized.^* An action against a state railroad commission, to restrain the enforce- ment of rates, is not one against the state; and this is true of other administrative bodies.^^ 110. Amount in controversy. — ^In certain cases suit in the district court is authorized only where more than $3,000 is involved, excluding interest and costs. The question of the value in dispute is a quasi- jurisdictional one, so that if the judgment record, or strict record, does not show this fact the judgment is nevertheless good on collateral attack, but not on appeal or writ of error.**** The presumption of regu- larity applying to superior courts supplies the de- fect.®'' The classes of suits depending on the sum in dispute are particularly defined in the judicial code.®* The term matter in controversy refers to the value of the claim presented by the record for decision, and not to neighborhood disputes, or the intentions or expectations of the parties.®® Claims for liquidated damages depend on the contract or 63 209 U. S. 123, 150, 183, 28 Sup. a. 441, 52 L. Ed. 714. 64 Same; Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535. 00 Beagan v. Farmers' L. & T. Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 U Ed. 1014. 06 §4. 07 Same. 58 Judicial Code, § 24. ooKanouse v. Martin, 15 How. 198 (TJ. S.), 14 L. Ed. 660. 308 VARIOUS UNITED STATES COURTS 12^7 writing fixing them,*" and for unliquidated damages on the amount claimed by plaintiff in his petition, dec- laration or complaint," unless the damages are fraud- ulently alleged to exceed $3,000.*^ Thus a claim for injury, although reaUy more than $3,000, may be sued in the state court for that sum or less, and cannot be removed to the federal court even though larger damages are given, unless plaintiff amends his pleading to demand a larger sum.®* Where the complaint claims the necessary amount, a recovery less than $3,000 does not affect the jurisdiction.®* When persons having common and undivided inter- ests join as plaintiffs, their individual interests are added in order to determine the sum in dispute.®^ But the rule is otherwise when the interests are dis- tinct, and the parties unite for convenience.®® Where the subject matter is not capable of being valued in money, as in habeas corpus, divorce, mandamus or prohibition, there is no jurisdiction unless author- ized on other grounds, as, that the proceeding is an- cillary, or the statute authorizes it without regard to the sum in dispute.®'^ 111. Ancillary jurisdiction. — The incidental power to issue writs in aid of a jurisdiction already 80 Building & Loan Ass'n. v. Price, 169 U. S. 45, 18 Sup. Ct. 251, 42 li. Ed. 655. «i Smithers v. Smith, 204 U. S. 632, 27 Sup. Ct. 297, 51 L. Ed. 656." 02 Same. 63 Northern P. E. Co. v. Austin, 135 U. 8. 315, 10 Sup. Ct. 758, 34 L. Ed. 218. e* Dickinson v. Union, etc., Co., 64 Fed. 895. 65 Wheless v. St. Louis, 180 U. S. 379, 21 Sup. Ct. 402, 45 L. Ed. 583. 68 Walter v. N. E. E. Co., 147 U. S. 370, 13 Sup. Ct. 348, 37 L. Ed. 206. er De La Eama v. De La Eama, 201 V. S. 303, 26 Sup. a. 485, 50 L. Ed. 765. 309 128 COURTS— FEDERAL AND STATE attached has been discussed.®^ Ancillary suits are those brought, in the court entertaining the original suit, to protect rights adjudged in the latter in re- spect to the subject matter here in litigation, in order to give effect to the decree, or some interlocutory order.*" Such ancillary suits may be brought re- gardless of the citizenship of the parties or value in disputeJ" Instances of such actions are cross biUs,^^ to enjoin judgments,''^ to enforce judgments,'^ to quiet a title determined by a federal judgment,'* to obtain relief from a wrongful seizure under federal process,''^ and suits in respect to property in the cus- tody of the courtJ* Even an ancillary suit against a state may be brought to make effective a decree in a former suit against the same state. The eleventh amendment does not apply.'''' Territorial and Insular Courts. 112. Nature and organization of territorial courts. — Territorial courts in the federal system are sui generis. Though created by Congress, they are not established, or their jurisdiction controlled, by the Constitution, vesting the judicial power in one supreme court, and such inferior courts as Congress 88 § 23. 80 Eaphael v. Trask, 194 U. S. 272, 24 Sup. Ct. 647, 48 L. Ed. 973. 70 Laeassagne v. Chapuis, 144 U. S. 119, 12 Sup. Ct. 659, 36 L. Ed. 268. 71 Jones V. Andrews, 10 Wall. 327 (U. S.), 19 L. Ed. 935. 72 Freeman v. Howe, 24 How. 450 (U. S.), 16 L. Ed. 749. 73 Railroad Companies v. Chamberlain, 6 Wall. 748 (U. S.), 18 L. Ed. 859. 74 Boot V. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123. 75 Gumbel v. Pitkin, 124 U. S. 131, 8 Sup. Ct. 379, 31 L. Ed. 374. 78 Bouse V. Letcher, 156 U. S. 47, 15 Sup. Ct. 266, 39 L. Ed. 341. 77 Gunter V. Atlantic Coast Line E. Co., 200 U. S. 273, 26 Sup. Ct. 252, 50 L. Ed. 477. 310 VARIOUS UNITED STATES COURTS 129 may create. In .their creation and powers they de- pend on the general right of sovereignty which ex- ists in the government, or by virtue of that clause of the Constitution which enables Congress to make all needful rules and regulations respecting the ter- ritory belonging to the United States.^* In estab- lishing the Territory of Florida Congress created a territorial legislature, and provided that its power should extend to all rightful subjects of legislation. That legislature created two superior courts, and vested, them with admiralty jurisdiction. In one of them a ship's cargo was seized and sold for salvage claims. The territorial act of Congress also pur- ported to invest the territorial superior courts with jurisdiction of cases arising under the laws of the United States. By a suit in the Florida district court the sale of the cargo under the decree of the superior court was attacked as without jurisdiction, thus raising the question whether Congress could vest admiralty jurisdiction in a territorial court, and whether it had done so by providing that the territo- rial superior court should have jurisdiction of cases arising under the laws of the United States. In other words, ''Does the Constitution follow the flag," and does the acquisition of tei-ritory by the United States make such territory an integral part thereof, so that Congress might vest admiralty jurisdiction in its courts? It was held that admiralty jurisdic- tion in the states can be exercised only in the federal district courts, but in the territories in such courts as Congress may establish, or such as the territorial leg- T8 American Ins. Co. v. Canter, 1 Pet. 511 (U. S.), 7 L. Ed. 242. 311 130 COURTS— FEDERAL AND STATE islature may lawfully create ; and that admiralty eases do not arise under federal laws, but long antedate them. Therefore the decree of sale in the territorial court was validJ® Territorial judges provided for by acts of Congress may be removed by the Presi- dent, but federal judges can only be removed by impeachment of the House and trial by the Senate of the United States.^" Congress may create a terri- torial district court, and give it the powers of a state court and of a federal district court, as in Alaska.*^ Organization. Congress has uniformly provided for a four years' term for territorial district judges, which it could not do if they were federal judges, who under the Constitution hold their offices during good behavior.^^ Judges of the supreme courts of the territories are usually designated in like manner, as in the case of Hawaii,** which has also two district court judges, appointed by the President for six years ; ®* but such supreme and district judges might be chosen by the people if Congress so enact-*® Their practice is not governed by the federal statutes, but by the territorial legislatures, and their own rules.*" A distinction has been made between "territory of the United States" and "territory belonging to the United States." Alaska is territory of the United 79 American Ins. Co. v. Canter, 1 Pet. 511 (U. S.), 7 L. Ed. 242. 80 McAllister v. United States, 141 IJ. S. 174, 11 Sup. Ct. 949, 35 L. Ed. 693. 81 Same; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244. 83 See case in note SO. 88 Hawaiian Code, § 82, 31 Stats, at Large, p. 157. 84 Hawaiian Code, § 86, 35 Stats, at Large, p. 838. 8B See case in note 80. 88 Hornbuekle v. Toombs, 18 Wall. 648 (U. S.), 21 L. Ed. 966. 312 VARIOUS UNITED STATES COURTS 131 States, and there must, in cases triable by jury, be a jury of twelve, and the verdict must be unanimoua.**^ But the Philippines and Porto Rico are territory belonging to the United States, and a majority ver- dict, if authorized by local law, is good.®* 113. Courts of Hawaii.— The Hawaiian Islands have a statutory district court similar to that court in the states, having like jurisdiction, including bank- ruptcy, patents, admiralty and copyrights,*® They have also territorial or congressional courts, estab- lished by the same statute, consisting of a supreme court, circuit courts, and such inferior courts as Con- gress or the territorial legislature may from time to time establish.®" The court of appeals of the ninth cir- cuit has the power of review over the Hawaiian dis- trict court,®^ except that a direct review of jurisdic- tional, constitutional, treaty and prize questions is had in the Supreme Court, as in other cases,®^ Pinal judg- ments and decrees of the supreme court of Hawaii are reviewable in the United States Supreme Court only in the same class of eases in which writs of error from the highest state court may be, if the amount involved exceeds $5,000.®^ The islands are not territory incorporated into the United States, but belong to it, in the sense referred to in the preceding sfRasmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862. 88 Hawaii v. Mankichi, 190 U. S. 197, 23 Sup. Ct. 787, 47 L. Ed. 1016; Dorr V. United States, 195 U. S. 138, 24 Sup. Ct. 808, 49 L. Ed. 128. 8» Territorial Act of Hawaii §86, 35 Stats, at Large, p. 838; Bank- ruptcy Act, § 2. 80 Hawaiian Code, §§81-83, 31 Stats, at Large, p. 157. 91 Judicial Code, § 128. 92 Judicial Code, § 238. 93 Judicial Code, § 246. 313 132 COURTS— FEDERAL AND STATE section. Local legislation prior to August 12, 1898, when the territory was organized, contrary to the Constitution, is of no force.^* 114." Courts of the Philippine Islands.— The court of ordinary jurisdiction is called the Court of First Instance, from its Spanish name, and the coun- try is divided into fourteen judicial districts. It has cognizance of cases such as arise in the federal dis- trict court, as well as the state courts. The proceed- ings are at present conducted in the Spanish lan- guage."® The jury system is unsuited to these ex- tensive islands, and it seems to be fortunate that it has been so decided.®® The territorial act by its terms does not permit the accused to be put twice in jeop- ardy, so that an acquittal by a judge cannot be re- versed on appeal by the government.®'' Appeals from the Supreme Court of the Philippines to the United States Supreme Court, involving $25,000, are pro- vided for,®* and this right extends to non-federal questions, like divorce and alimony.®® No distinct federal courts have been established in these islands, by reason of the feeling of Congress that they should be abandoned as soon as possible, or given some form of independent government. There is also a local court called the Court of Land Registration, which follows the Torrens system of land titles, and from which there is a review by 9* Ex parte Edwards, 13 Hawaii 32. 95 47 Am. Law Rev. 327. 88 47 Am. Law Eev. 331. «7 Trono v. United States, 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292. 88 Judicial Code, § 248. 88 De la Rama v. De la Rama, 201 TJ. 8. 303, 26 Sup. Ct. 485, 50 L. Ed. 765. 314 VARIOUS UNITED STATES COURTS 133 the local supreme court and the Supreme Court of the United States/ 115. The courts of Porto Rico. — A temporary civil government was provided for Porto Rico by the Act of April 12, 1900,^ which is still in force. This statute continued the pre-existing local courts, includ- ing the municipal and police courts established by the AmericEtn military government, and superseded the former military tribunal.* A district court was also established, with the same jurisdiction as the present federal district court. This court succeeded the United States provisional court established by military order,* The supreme and district courts may issue habeas corpus to the same extent as a fed- eral district court.** The Supreme Court of the United States may review the final judgments of both these courts in copyright cases, and those involving federal questions, and in other cases where the m,at- ter in dispute exceeds $5,000.® 116. Jurisdiction in Guam and the guano islands. — The Island of Guam is under the United States naval jurisdiction, but a court of first instance, with' an appeal to the Philippine Supreme Court at Manila, has been established by executive order.'' Any island, rock or key containing deposits of guano, and not under the lawful jurisdiction of any iCarino v. Insular Government, 212 U. 8. 449, 29 Sup. Ct. 334, 53 L. Ed. 594. 2 31 Stats, at Large, p. 77. s In re Vidal, 179 U. S. 126, 21 Sup. Ct. 48, 45 L. Ed. 118. * Porto Eico Code I 34, 31 Stats, at Large, p. 84. 5 Same, i 35. 8 Judicial Code, § 244. 7 47 Am. Law. Eev. 348. ,S15 134 COURTS— FEDERAL AND STATE other government, wMch. is discovered by any citizen of- the United States, may by presidential declara- tion be considered as appertaining to the United States.® The interest of the discoverer is not real estate, nor subject to dower of his widow,® but his rights are under protection of the military and naval forces of the government.^" Offenses in the guano islands, at the discretion of the President, may be considered as occurring on the high seas, on a United States merchant vessel, and are punishable accord- ingly." 117, The District of Oolumbia courts. — The Dis- trict of Columbia is a municipal corporation, having the right to sue and subject to be sued, and is subject to the ordinary rules of procedure governing actions between individuals.^^ It is a state in a particular sense, whose sovereign power is exercised by Congress, and for some purposes is a quasi-terri- tory." The circuit court of the District, consisttag of three judges, has jurisdiction of all civil cases not otherwise provided for, all powers formerly vested in the United States circuit courts, and general su- perintending power over all inferior courts, when no other remedy is expressly provided.^* It has also 8 IT. S. Bev. Stats., § 5570. » Duncan v. Navassa Phosphate Co., 137 V. 8. 647, 11 Sup. Ct. 242, 34 L. Ed. 825. 10 U. S. Eev. Stats., § 5577. "U. S. Eev. Stats., § 5576; Criminal Code, § 272, 35 Stats, at Large, p. 1142. 12 Metropolitan E. Co. v. District, 132 IT. S. 1, 10 Sup. Ct. 19, 33 I* Ed. 231. 13 Same. " Eevised Code, District of Columbia, pp. 322, 323. 316 VAEIOUS UNITED STATES COURTS 135 the power of review of final judgments of the crrni- inal court of the District." The Supreme Court of the District, consisting of a chief justice and four associate justices, has the same jurisdiction as the circuit court of the District, also the same powers and jurisdiction as the former circuit court of the United States, and has jurisdic- tion of all offenses committed in the District except those solely cognizable in the police court, of patent and copyright suits, of bankruptcy cases, divorce cases, and condemnation of land. It has no juris- diction of actions for debt or damages for $50 or less, such cases being triable before the municipal court, succeeding to the justices of the peace,^^ It formerly had appellate power over special term or- ders, the police court and justices of the peace, but this was transferred to the court of appeals created by the Act of February 9, 1893." The police court has exclusive jurisdiction of crimes against the government which are not infa- mous, such as assaults and misdemeanors not pun- ishable by imprisonment in the penitentiary, and of all offenses against the laws and ordinances of the District." It may act as an examining magistrate in all offenses triable before it or the Supreme Court, and may punish for contempts.^® Appeals may go to the court of appeals in all cases.^" 10 Eevised Code, District of Columbia, p. 324. i« V. S. Eev. Stats, relating to District of Columbia, p. 91, § 769. 17 37 Stats, at Large, p. 434. 18 U. S. Eev. Stats, relating to District of Columbia, p. 122, § 1049. 19 Same. 21) Same; 27 Stats, at Large, p. 435. 317 136 COUETS— FEDERAL AND STATE The municipal court has succeeded to the juris- diction of the former justices of the peace,^^ and exercises only the jurisdiction of the former justices' courts, including forcible entry and detainer, debt, damages or trespass for $100 or less, and slander. It has no criminal jurisdiction, except the issue of warrants.^^ A court of appeals of the District was created by the Act of February 9, 1893,^^ with three judges. It has appellate jurisdiction over the supreme court of the District, the appellate power of that court being abolished. It is also given jurisdiction of appeals from the decisions of the Commissioner of Patents, including interference cases in the patent office. Final decrees and judgments of this court are review- able by the Supreme Court in the cases in which it may review cases coming directly from the district court, and the Supreme Court may also issue a cer- tiorari in any case before the court of appeals. That court may certify questions of law to the Supreme Court for its direction.^* 118. ConEular courts. — Judicial authority has for a long time been conferred upon American ministers and consuls in eastern countries, over citizens of the United States residing or being therein, for the en- forcement of the treaties and federal laws which are applicable. When sitting as courts under such authority these diplomatic officers are known as con- sular courts. They exist in China, Japan, Korea, =135 Stats, at Large, p. 623. 22 Same ; TJ. S. Eev. Stats, relating to District of Columbia, p. 117, § 998. 23 27 stats, at Large, p. 434. 24 Judicial Code, §§ 250, 251. 318 VARIOUS UNITED STATES COURTS 137 Siam, Madagascar, Persia, Tripoli, Tunis, Morocco and Samoa, and may exist in any country with which the United States may negotiate treaties giving judi- cial authority to the American consul-general or con- g^j_25 rpj^gy are governed by the treaty, the laws of the United States, statutory and common, and the laws of the countries to which the consular officers are accredited respectively.^® In Turkey and Egypt the consular courts have been suspended by the Pres- ident, under an act of Congress giving such author- ity, when he should be satisfied that these foreign courts could afford satisfactory service to, the same extent as the consular courts.^'' Their jurisdiction. They may try and punish crimes by citizens of the United States in their re- spective countries, or on the sea, as well as offenses by seamen of any nationality on American vessels.^® Consuls sitting alone may try such cases when the fine does not exceed $500, or the imprisonment sixty days. Other offenses are triable by the minister,^" except those the facts of which are within the con- sul's knowledge or which he believes to be true, in which cases he may personally try them.^*" In cases where the fine exceeds $100, or the term sixty days, an appeal is given to the minister.*^ The latter may 23 U. S. Eev. stats., §§ 4083, 4111, 4125-7, 4129, as amended, 32 Stats, at Large, p. 87. 26 Same, § 4086; Dainese v. Hale, 91 U. S. 13, 23 L. Ed. 190, 2' 18 Stats, at Large, p. 23 ; 19 Stats, at Large, p. 652. 28 U. S. Bev. Stats., §§ 4083-4; In re Boss, 140 U. S. 453, 11 Sup. Ct. 897, 35 L. Ed. 581. 20 Same, § 4089. 30 Same, § 4087. 3x Same, § 4089. 319 138 COURTS— FEDERAL AND STATE decide the ease on tlie evidence below, or take new proofs.*^ Appeals might be taken from any final judgment of the minister in Japan or China in a criminal case to the former circuit court for Cali- fornia on a question of law,^^ but this has been changed as to China by the act creating the United States Court for China.^* Of civil cases the consul may hear such as the applicable treaty authorizes, and on contracts at the port where, or nearest to which, they were made or executed, and on other matters at the port where, or nearest to which, the controversy arose or the dam- age was sustained.^® Appeals in Japan go to the minister when the matter in dispute exceeds $500 and does not exceed $2,500, costs excluded.*® If it ex- ceeds $2,500 an appeal lies to the district court for California, and likewise from the minister's decisions in the exercise of his original jurisdiction, when the matter in dispute exceeds $2,500.*^ The jurisdiction of the minister in all civil cases is appellate only ex- cept when the consular officer is interested either as party or witness, when the minister has original juris- diction.'^ In murder and insurrection and felonies against the public peace, the minister has original jurisdiction, and in other criminal eases only the power of review.'® Ministers exercise the principal 52 U. S. Kev. stats., § 4091. 53 Same, § 4095. 84 34 Stats, at Large, p. 815. »s U. S. Rev. Stats., § 4055. seSame § 4092. SI Same, §i 4093-4. It is not clear whether appeals go to the Northern or Southern District; probably to either. s» Same, S 4109. SB Same. 320 VARIOUS UNITED STATES COURTS 139 diplomatic functions, and consuls those of the consul- general, vice-consul-general, consul or vice-consul.*" In certain cases consuls may summon associates to sit with them.*^ Consular courts in China. The Act of 1906, creat- ing the United States Court for China, transfers the jurisdiction of consuls except in civil cases not exceed- ing $500, and in criminal cases where the punishment cannot exceed $100 or sixty days' imprisonment; and appeals from all final judgments of the consular courts in China may be taken to this federal court.*^ 119. The United States Court for China.— The purpose of the Act of 1906*' creating this court was to give to American citizens charged with crime in China the benefit of a trial under the safeguards of the Constitution, the presumption of- innocence, ex- emption from self-incrimination, and confrontation with the witnesses.** The court holds sessions at Shanghai, Canton, Tientsin and Hankau, and may hold one at any United States consulate.*® Its juris- diction is similar to that of the consular courts as it existed prior to the statute, and it has appellate power from their final judgments in China and Korea. Consuls are required to file in this court an inventory of the property and debts of any citizen of the United States, or of any territory belonging thereto, who may die in China.** All final judgments *oU. S. Eev. stats., § 4130; In re Baiz, 135 U. S. 403. "Same, §§4106-7. <2 See next succeeding section. <3 34 stats, at Large, p. 814. " Biddle V. United States, 156 Fed. 759. «: 34 Stats, at Large, p. 814. 4» Same. 1-21 321 140 COURTS— FEDERAL AND STATE and decrees of this court may be reviewed by the court of appeals of the ninth circuit, and thence by the Supreme Court, as in other cases. Military and Naval Courts. 120. Military provisional courts. — The President, as commander in chief of the army and navy, has power to establish civil and criminal courts in terri- tory occupied by the military or naval forces, as was done in Porto Eico, the Philippines, and the Island of Guam ; *'' and Congress may provide for the trans- fer of cases in these courts to the succeeding terri- torial or federal courts.*® A court established by proclamation of the commanding general in military occupation of a city was presumed to have been authorized by^the President.*® Appellate courts of this kind may be created in the same manner.®" No review of the judgment of a provisional court can be had except in such an appellate court. 121. Courts martial. — The Revised Statutes pro- vide for courts martial for the trial of cadets at the West Point Military Academy.®^ They are convened by the superintendent, who executes the sentence, ex- cept for suspension or dismissal. In respect to mili- tary courts martial the Articles of War, which also apply to the regular army in time of peace, pro- vide a complete code of offenses and punishment.®^ 47 The Grapeshot, 9 Wall. 129 (U. S.), 39 L. Ed. 651. *8 Leitensdorfer v. Webb, 20 How. 176 (U. S.), 15 L. Ed. 891. 19 Burke V. Miltenberger, 19 Wall. 519 (U. S.), 22 L. Ed. 158. BO See case in note 48. 01 U. S. Eev. Stats., § 1326. 62 Same, § 1342. 322 VAEIOUS UNITED STATES COURTS 141 General courts martial consist of from five to thir- teen of&cers.^^ There are also regimental and garri- son courts martial, and field officers specially de- tailed, who may try offenses involving not more than one month's pay or imprisonment not exceeding one month.®* A court of inquiry, to examine into the nature of any transaction of or accusation or impu- tation against, any officer or soldier, may be ordered by the President, but not by a commanding officer unless upon demand of the accused.^® General and smnmary courts martial for the trial of naval of- fenses are also provided for in the Navy Articles, and their jurisdiction fixed.®® Courts of inquiry may also be ordered by the President, the Secretary of the Navy, or the commander of a fleet or squadron.®^ Courts martial are statutory courts, and must therefore be convened and constituted in complete conformity with the statute, otherwise they are with- out jurisdiction.®^ All persons in the military or naval service are amenable to trial in these courts, and have no right of trial in the civil courts.®* The jurisdiction of courts martial over crimes of violence is not exclusive of the civil courts in time of peace, nor in war time if the civil courts of loyal states are open, as in the case of Tennessee during the civil war.®° Sentences of courts martial must be approved 03 Articles of War, 75-79. "Same, 83. s-iSamey 115. =8 U. S. Eev. Stats., § 1624. "Articles of War, 55; U. S. Eev. Stats., § 1624. =6 Mcaaughry v. Deining, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049. "»FiX parte Milligan, 4 Wall. 2 (U. S.), 18 L. Ed. 281. 80 Coleman v. Tennessee, 97 V. S. 509, 24 h. Ed. 1118. 323 142 COURTS— FEDEKAL AND STATE before being executed. In some cases this approval must be by the President, in some by the officer or- dering the court, and in others by the commanding officer, unless the offender is pardoned by the President.*^ Removal of Cases from State Courts to the District Court. 122. History of removal acts. — ^As a large part of the jurisdiction of the district court, and for- merly of the circuit court, consists of cases in the concurrent state and federal jurisdiction, provision has always been made for the removal of such cases from state to federal courts. The judiciary act of 1789 provided that suits against aliens or by a citizen of the state in which the suit was brought against a citizen of another state, involving more than $500, exclusive of costs, might be removed to the circuit court. That act also provided for the removal of suits under diverse state land grants. The law re- mained in this condition until the Act of July 27, 1866, when it was somewhat modified and extended, but was still confined to the cases specified in the Act of 1789, and still confined the right of removal to the defendant.*^ By the judiciary act of March 3, 1875, the right of removal was very much extended, and both plaintiff and defendant were given the right of removal of suits in the concurrent jurisdiction involving more than $500, exclusive of costs. If there were several defendants, one or more of them might remove any controversy in a suit brought in a state «i Articles of War, 104-106. «2 14 stats, at Large, p. 306. 324 VARIOUS UNITED STATES COURTS 143 court if it were separable from the other parts Qf the suit. Earlier laws had made removable cases against federal corporations other than banks, or against members of a corporation for any alleged liability thereof,*'* and also suits arising under the civil rights legislation growing out of the war.*** An act of 1866 also provided for the removal of suits against officers acting under revenue laws, or per- sons acting under or by authority of any such officer, and also suits against any officer of the United States on account of acts done by him under the civil rights laws.*' The right of removal, however, was consid- erably restricted by the judiciary act of 1887."* This act confined the right of removal to the defendant, and generally made removable any suit in the concur- rent jurisdiction of which the federal courts were given jurisdiction by the act. Separable controver- sies were also made removable, as well as controver- sies between a citizen of the state where the suit was brought and a citizen of another state, in which it should be made to appear to the court that from prejudice or local influence defendant would not be able to obtain justice in the state court, or in any other state court to which the defendant might under the laws of the state remove the case. This act also for the first time provided that whenever a removed case should be remanded to the state court there should be no review of any kind from the remand- ing order, No substantial change has been made in 83 15 Stats, at Large, p. 227. 01 16 Stats, at Large, p. 144. OS 14 Stats, at Large, p. 27. 08 25 Stats, at Large, p. 433. 325 144 COURTS— FEDERAL AND STATE the law of removal since 1887, the judicial code merely re-enacting and clearing up the law as it stood before. 123. What cases now removable. — ^Any case of a civil nature in the concurrent jurisdiction of the state and federal courts, of which the district court is given jurisdiction by § 24,®'' may be removed by the defendant into the district court. Cases of separable controversies, prejudice or local influence, diverse state land grants and civil rights cases, and suits and prosecutions against revenue officers and other United States officers, are also provided for.®* 124. Separable controversies. — In order that a suit may be removed from the state to the district court on this ground it must appear that the suit embraces two or more controversies, and that one of them at least is entirely separable from the rest of the case, upon which a separate and distinct suit might properly have been brought and complete re- lief afforded, and all the parties to which on one side are citizens of different states from those on the other.®® The case must be one which can be fully determined as between the parties on each side of such separable controversy.'"' Thus, a suit was brought in the state court to quiet title to land. Two persons were admitted in the state court as parties defendant. They then filed a petition for removal on the ground that the three defendants owned and claimed separate and distinct portions of the land, <" Judicial Code. OS Judicial Code, §§ 28-33. «9 Fraaer v. Jennison, 106 tJ. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131. TO Judicial Code, § 28. 326 VARIOUS UNITED STATES COURTS 145 and the right of removal was upheld." If the con- troversy is joint and several there can be no removal on this ground.''^ Comparatively few cases in pro- portion to the number brought have been decided to cover separable controversies/* 125. Prejudice or local influence. — It is provided by the statute'^* that if a case brought in the state court involves more than $3,000, exclusive of interest and costs, in which there is a controversy between the defendant and a citizen of another state, any defend- ant being such citizen of another state may remove the suit to the district court at any time before the trial when it shall be made to appear to the district court that from prejudice or local influence he will not be able to obtain justice in the state court. It is further provided that when the case has been removed, if it shall appear that other defendants not affected by such prejudice or local influence can be properly heard in the state court, the district court may remand that part of the case. At any time be- fore the trial in the district court the latter is re- quired to examine into the truth of the affidavits showing prejudice or local influence, and unless it appears to the satisfaction of the court that the re- moving party will not be able to obtain justice in the state court, the case shall be remanded. As to what will amount to such prejudice or local influence as to justify the removal it is established by the decisions that there must be a prejudice in favor of 71 Connell v. Smiley, 156 U. 8. 335, 15 Sup. Ct. 353, 39 L. Ed. 443. '2 Louisville & N. E. Co. v. Ide, 114 U. 8. 52, 5 Sup. Ct. 735, 29 L. Ed. 63. 73 Anderson v. Appleton, 32 Fed. 855. '1 Judicial Code, § 28. 327 146 COURTS— FEDERAL AND STATE the plaintiff, or a local influence exercised by Mm. Prejudice or local influence between defendants is not sufficient/® The prejudice or influence must be personal, and not judicial. Thus, if it appears that the state court entertains such a view of the law that the defendant cannot succeed in that court, while the view entertained by the federal court is more favor- able, this is no ground of removal.''® 126. Removal of civil rights cases. — Civil suits or criminal prosecutions commenced in state courts may be removed by the defendant at any time before the trial when it appears that he cannot in such state court enforce any right secured to him under the civil rights laws. This right of removal also extends to any civil or military officer or other person who may be sued for having made any arrest or impris- onment, or other alleged trespass, when he was act- ing under any such civil rights law. If the state authorities refuse to remove the case it may never- theless be docketed in the district court, and new pleadings or copies of the record may be filed in the district court.^^ It is further provided that civil suits or criminal prosecutions against any revenue officer for acts done by him or under his authority may be also removed in like manner, except that the petition is filed in the district court and not in the state court. This right also extends to persons who are sued for acts under any civil rights law or reve- nue law, or under any other act of Congress.'^* 70 Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685. ToAdelbert College v. Toledo, etc., B. Co., 47 Fed. 836. 77 Judicial Code, § 31. 78 Judicial Code, § 33. 328 VAEIOUS UNITED STATES- COURTS 147 127. Removal of suits by aliens against federal officers. — Personal actions brought by aliens against any citizen of a state who is a federal officer, or was such at the time the action accrued, may be removed by the defendant if he is a non-resident of the state where the action is pending.''® 128. Effect of removal on state proceedings. — In all of the statutes authorizing removal it is pro- vided that after the case has been removed, that is, \ after the proper papers have been filed, the state court shall proceed no further in the particular case. It sometimes happens that in the opinion of the state court there is no right of removal, and that court proceeds with the cause. If it does so it cannot be compelled by any process issuable by the district court to let go its claim of jurisdiction and order the removal. The only remedy is by writ of error from the Supreme Court of the United States to the high- est state court after final judgment.®" The district court may also proceed, and if it turns out that the cause was properly removed its judgment is final." 129. Remanding cases improperly removed. — ^It was for the first time provided by §5 of the Judi- ciary Act of 1875®^ that if at any stage of the case in the district court, either commenced therein or removed from the state court, it should appear to the satisfaction of the court at any time after the '» Judicial Code, I 34. 80 Chesapeake & O. E. Co. v. White, 111 U. S. 134, 4 Sup. Ct. 353, 28 L. Ed. 378. 81 Kem V. Huidekoper, 103 U. S. 485, 26 L. Ed. 354. 82 18 Stats, at Large, p. 470. 329 148 COURTS— FEDERAL AND STATE suit was brought or removed that it did not really or substantially involve a suit or controversy properly within the jurisdiction of the court, or that the par- ties had been improperly or collusively made or joined to give jurisdiction, the ease should be re- manded, but with the right of review in the Supreme Court. This right of review was taken away by the Act of 1887. Under this provision the district court may take cognizance of the defective jurisdiction of its own motion, or the matter may be called to its at- tention by a party to the suit. It is the duty of the court under such circumstances to try the question of the right of removal, but it should be satisfied that the case is not removable or not properly brought, there being a strong presumption in favor of juris- diction. A motion to remand may also be made at any time by the party against whom the removal was made, and who has not waived his right to such re- mand. Such motions are presented upon verified petition or affidavit, and if a remand is made by the court it cannot be reviewed in any manner. 330 CHAPTEE IV. STATE COURTS AND COURTS OP SPECIAL AND STATUTORY JURISDICTION. 130. State courts of general jurisdiction. — The states have given their superior courts of original jurisdiction general cognizance of all civil and crim- inal cases except petty matters cognizable by justices of the peace, police and municipal courts, and the administration of the estates of deceased persons.** These courts of general jurisdiction in the state also have the power of review over justice's courts, pro- bate and mimicipal courts, and sometimes over state boards and commissions exercising quasi-judicial power.** They administer the common law, equity law and statute law of the respective states, and also federal law when the particular case requires it, as in the cases of land depending on whether the title has passed from the government,*® suits on the em- ployers' liability act, suits by the United States, and generally all suits in the concurrent jurisdiction aris- ing under the federal Constitution, law or treaty. Cases of diverse citizenship, and between citizens and aliens, generally present questions of state law only, whether brought in state or in federal courts.*® The Supreme Court of th^ United States may by 's Dow V. Johnson, 100 U. S. 158, 25 L. Ed. 632. 8* A list of all such courts is given in 11 Cyc. 801. 85 Wilcox V. Jackson, 13 Pet. 498 (U. S.), 10 L. Ed. 264. i« The relation of state and federal courts is discussed in Chapter 2 of cliis article. 150 COURTS— FEDEEAL AND STATE writ of error review final decisions of the highest state courts when the case depended for its decision upoij a federal question.®'^ 131. Probate courts. — There is a general uni- formity in the constitution and organization of pro- bate courts throughout the country, though some have more powers than others.^* In New York they are called surrogate's courts, and in Pennsylvania, Maryland and Virginia they are known as orphans' courts, and in some states as county courts. In Iowa the circuit courts have exclusive jurisdiction of the settlement of estates,** and in Louisiana the parish or county courts have like powers.®" Their jurisdiction. Being vested with exclusive power to prove wills, and generally to settle estates, subject only to the concurrent jurisdiction of courts of equity in suits against executors, administrators and guardians,*^ they are superior courts, whose de- crees are aided by the presumption of regularity if the proceedings fail to show jurisdiction.®^ This rule, however, in many of the states is not applied to special statutory proceedings in the probate courts, as for the sale of lands to pay debts.®^ Their general powers relate to the proof of wills, issuing letters testamentary and of administration, collection of effects of decedents, proof and payment of debts and legacies, assignment of dower and home- 8T § 49. 88 Griffith V. Frasier, 8 Cranch 9 (U. S.), 3 L. Ed. 471. 89 Clark V. Bever, 139 U. S. 96, 102, 11 Sup. Ct. 468, 35 L. Ed. 88. 90 Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054. 91 Payne v. Hook, 7 Wall. 425 (U. S.), 19 L. Ed. 260. 92 § 7. 9s Mohr V. Tulip, 40 Wis. 66, a guardian 'b sale. 332 STATE COURTS 151 steads, executors' and administrators' accounts, sale of lands to pay debts and support infants and luna- tics, allowances to families and distribution of es- tates, establishing heirships, adoption of children, appointment of guardians for infants, imbeciles and insane, and the execution of trusts imder wills."* In deciding on cases before them probate courts are gov- erned by the general rules and maxims of equity, but generally they have no distinct equitable jurisdiction except in the execution of testamentary trusts.®^ They may summon juries to try common law ques- tions, but generally sit without a jury,®^ and may also refer claims and accounts to masters, referees, or auditors.®'' They have the power to review and re- vise their orders and judgments, by proceedings an- alogous to new trial, rehearing, appeal^ coram nobis (before us), or bill of review, either during or after the judgment term, not to correct errors of law, but of fact, such as mistake and fraud.** Their decrees or final orders may be pleaded or used as conclusive evidence in other cases as res judicata (it stands finally adjudged) to the same extent as judgments of courts of general jurisdiction." 132. Justices of the peace and justices' courts. — The justices' court is a development of the office of conservator of the peace in England, which is more than six hundred years old. By Act of 1327^ such 0* 11 Qye. 791. 05 Same, 795. 98 Same, 798. 97 Common practice. 98 11 Cye. 799, 800. 99 24 Encyc. of Law, p. 721. 1 1 Edw. Ill, St. 2, c. 16. 333 152 COURTS— FEDERAL AND STATE conservators were appointed in each county, and a few years later judicial powers were conferred upon them, and they were authorized to try breaches of the peace. At the time of the Revolution they had no civil jurisdiction, which was later conferred where the sum in dispute was small.^ Justices' courts are now inferior courts of limited local jurisdiction, with power to bind over to keep the peace, examine of- fenders, hold to bail, and commit to jail for default thereof, take oaths and acknowledgments, solemnize marriages, and exercise the usual power of police magistrates. Under the federal statutes^ they may exercise the powers of United States commission- ers in examining offenders, holding to bail, and rec- ommend the removal of accused persons for trial from one district to another. Their jurisdiction is statutory, and expressly limited by the amount in- volved in civil cases, and generally to misdemeanors , ^ in criminal ones. Within the limit of $50 to $300 they may generally try suits on express and implied contracts, bonds and statutory penalties, and in tort cases, generally confined to injuries and property, including case, trover, and replevin; but assault, , , false imprisonment, libel, slander, seduction, ma- licious prosecution, and personal injuries by negli- gence are usually excluded, as well as suits involving land title. It is by reason of so limiting their powers that they are held to be inferior courts.* In regard to questions arising as to leases and estates at will 2 IS Eneyc. of Law, pp. 9, 10. 8 U. S. Eev. Stats., § 1014. « §§ 7, 8. 3.S4 STATE COURTS 153 and sufferance, including forcible entry and unlaw- ful detainer, they are often given exclusive jurisdic- tion.^ They generally have no equitable power or jurisdiction,** but they may apply equitable maxims in dealing with specific cases. Their territorial juris- diction is usually coextensive with the county.'' 133. Liability of justice of the peace. — This officer sustains substantially the same liability as other judicial officers, being liable when he acts with- out jurisdiction and for ministerial, but not judicial, acts.^ All acts requiring judgment and discretion, such as deciding cases and taxing costs, are judicial,® while those which he performs as clerk or magistrate, not involving judgment, are ministerial." He is not liable for rendering judgment in excess of his juris- diction." At the common law he is not liable to criminal prosecution in the absence of dishonesty, oppression, or corruption.^^ The judgments of justices' courts have the same effect as estoppels when pleaded and proved, or ad- mitted in evidence, in other cases, as courts of gen- eral jurisdiction.^* 134. Pleading and practice in justices' courts. — The pleadings are usually oral, but are required to be noted in the justice's record, called the docket. » §§ 7, 8. « 18 Encyc. of Law, p. 31. ' Sumner v. Finegan, ] 5 Mass. 280. 8 Thompson v. Jackson, 93 Iowa 376. 8 other instances are given in 18 Encyc. of Law, p. 45. 10 Same. "Anderson v. Eoberts, 35 S. W. 416 (Tex. Civ. App.). 12 People V. Norton, 7 Barb. 477 (N. Y.). 13 24 Encyc. of Law, p. 721. 335 154 COURTS— FEDERAL AND STATE This is generally true of both plaintiff's and defend- ant's pleadings, and the rule is quite liberal and in- formal." As in the code states in the circuit or dis- trict court, the pleadings are construed with liber- ality." Liberal power of amendment also exists.^' Cases of like character and between the same parties may be joined in one action.^'' Counterclaims and set-offs are allowed, but must be specially pleaded, either orally or in writing, or notice thereof season- ably given.^® 1^0 reply to a counterclaim or set-off, or any other new matter of defense, is required.^* Trials may be before the justice himself unless the statute provides for a jury, and in jury trials the jury is the judge of both law and f act.^" There is no power to award a new trial unless given by statute.^^ Appeals from justices' judgments are generally provided for, with the right to a new trial on the merits, as a matter of right, or on giving notice or filing a written demand.*^ 135. Municipal courts. — Municipal courts are created by the charter or governing statute of the city or village in which they are established, and their jurisdiction confined to the territorial limits of such municipality, except that in transitory actions * against non-residents any person in a civil suit who 1* 2 Encyclopedia of Pleading & Practice, p. 696. 16 Same, p. 697. 10 Same, p. 699. 17 Same, p. 718. 18 Same, p. 724. i» Same, p. 725. 20 Same, pp. 726-8. 21 Same, p. 746. 22 Same, pp. 755, 810, 811. 336 STATE COURTS 155 can be found and served with process within the mu- nicipal limits may be proceeded against.*' Their jurisdiction is generally about the same as that of justices' courts, but they are often given criminal powers almost or quite as extensive as courts of gen- eral jurisdiction.^* They are inferior courts within the rule that their records must show jurisdiction to protect it from collateral attack.^^ They are usually held by a municipal judge or judges elected by the voters of the mmiicipality, and justices of the peace may be called in to hold the court in case of their absence or disability. Appeals are usually given by statute to a superior court, but if no appeal is pro- vided their proceedings may be reviewed by certio- rari, mandamus, or prohibition.^® 136. Courts of the Indian tribes and nations. — In the so-called Indian country there are tribal courts organized and regulated by the customs of the particular tribe, usually presided over by the In- dian chief. The civilized Indian nations have na- tional councils for the enactment of laws giving civil and criminal remedies, enforceable by the national or tribal courts." This applies to the Five Nations, or five civilized tribes, in the former Indian Territory, now part of the state of Oklahoma. The Five Na- tions consist of the Choctaws, Cherokees, Creeks, Chickasaws, and Seminoles, who are concentrated in the Indian Territory from the South pursuant to zs 21 Eneyc. of Law, p. 1. 24 Same, p. 5. 25 Same, p. 2. ze Same, p. 6. 27 26 Stats, at Large, p. 96. 1-22 337 156 COURTS— FEDERAL AND STATE Indian treaties. Prior to the act of Congress of March 3, 1885,** the tribal courts had exclusive juris- diction of aU crimes by Indians against Indians com- mitted in their reservations.** By that statute crimes of violence committed within the reservations, whether by Indians against Indians, or committed by Indians against persons not Indians, were to be tried in the federal courts.^" By the later act of May 2, 1890,^^ it was enacted that the courts of the Indian nations should have exclusive cognizance of civil and criminal cases arising in the Indian coun- try to which members of the nation by nativity or adoption were the sole parties, that is, parties to the crime or civil liability, not the prosecution or suit.^* If in a murder case either the deceased or the accused is not a member of the nation the Indian court has no jurisdiction, but the case is triable in the local fed- eral district court.*^ By another act offenses against Indian agents, policemen, and marshals in the In- dian country are tried in the district court of the United States.^* In the states their courts have exclusive jurisdic- tion of crimes on Indian reservations within their borders, committed by persons other than Indians,*" and the federal district court has ex- 28 Stats, at Large, p. 385. 20 Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030. 30 United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228. 31 26 Stats, at Large, p. 93. 82Alberty v. TTnited States, 162 V. S. 499, 16 Sup. Ct. 864, 40 L. Ed. 1051. 33 Same. 8* Act June 9, 1888, 25 Stats, at Large, p. 178. 35 Draper v. United States, 164 U. S. 240, 17 Sup. Ct 107, 41 L. Ed. 419. 338 STATE COURTS 157 elusive jurisdiction over the offense of introducing liquor into the Indian country by any person, as well as that of selling or giving liquor to Indians who have not become citizens of the United States.^® 36 U. S. Bev. stats., § 2139, as amended by 27 Stats, at Large, p. 260. 339 CHAPTER V- THE COURTS OF THE BRITISH EMPIRE." 137. Definition and classification. — The original- meaning of the term "court" is "King's Palace." The original distinction between a court of record and one not of record depended upon the power of the former to fine and imprison. The latter class in- cluded those in which the proceedings were not ac- cording to the course of the common law. 138. Superior and inferior courts. — ^In England the superior courts are the House of Lords, the Su- preme Court of Judicature, including King's Bench, Exchequer, Chancery and other divisions. Judicial Committee of the Privy Council, the Chancery Courts of Lancaster and Durham counties, and the Court of Criminal Appeal. All others are inferior courts. It is a general rule that the judgment of an in- ferior court on questions of jurisdiction is not final, and that the plaintiff is liable for any injury caused by carrying out the process of the inferior court when acting beyond its jurisdiction; also the judge and officers of the court, having notice of the defect of jurisdiction, are thus liable. If the record of the suit in which the judgment was rendered actually shows the facts necessary to show jurisdiction, no other proof can be admitted, and the judgment is valid, S7 This chapter is mainly taken from Lord Halsbury 'a Laws of England, a large work in the form of a cyclopedia, written by prominent English lawyers and judges, and edited by Lord Halsbury. 340 COURTS OF THE BRITISH EMPIRE 159 and not subject to attack when used as evidence of some title or right depending upon it. Any judgment may, however, be set aside or reversed on direct at- tack, that is, by appeal or writ of error within the time limited, and properly taken according to law. If the record supporting the judgment of a superior court, on the other hand, does not show the jurisdic- tion of the court there is, nevertheless, a conclusive presumption that the court had jurisdiction when- ever the judgment is attacked otherwise than by di- rect appeal or writ of error.^^ 139. The English courts — ^The House of Lords. — This court has both original and appellate juris- diction. Its original jurisdiction extends to the trial of a peer or peeress for treason, felony, misprision of treason and misprision of felony; also the trials of the impeachment of either a peer or a commoner by the House of Commons; also the trials of bills of attainder, Irish divorce bills, claims to peerage, elections of peers of Scotland and Ireland, and con- tempts of the authority of the House of Lords. Only a few members take part in the hearing and decision of causes. 140. Appellate jurisdiction of the House of Lords. — An appeal lies from any judgment or order of the Court of Appeals and from the Scotch and Irish Courts, including the Court of Session, the Commis- sion of Teinds, and the Exchequer Court of Scot- land, and from the Supreme Court of Ireland. The House of Lords also has appellate jurisdiction from the English Court of Criminal Appeal upon certifi- 88 §4. 341 160 COURTS— FEDERAL AND STATE cate of the Attorney General in cases of exceptional public interest. 141. Judicial power of the House of Commons. — The House has judicial power in cases of bills of attainder and of pains and penalties, and divorce bills ; also for contempts of the House and proceed- ings against persons for breach of its privileges. 142. Lord High Steward's Court. — ^In case Par- liament is not in session the trial of a peer for trea- son or felony is had in this court. The court is com- posed of some peer commissioned to try the cause, who associates with him certain other peers in his discretion. This jurisdiction has not been exercised for more than two hundred years. 143. The Judicial Committee of the Privy Coun- cil. — This is the court of the Sovereign in Council. Most of its original jurisdiction has been transferred to the ordinary courts of law. The Judicial Commit- tee consists of the President of the Council, the Lord Keeper or First Lord Commissioner of the Great Seal of England, and all Privy Councillors who have held these offices or are or have been lords of appeal in ordinary, judges of the supreme courts of England or Ireland and the Court of Session in Scotland. Two other Privy Councillors may also be members of the committee on appointment by the Crown. Cer- tain judges in the provinces may also be members of this court. 144. Jurisdiction of the Privy Council. — This ex- tends to admiralty appeals, appeals from the ecclesi- astical courts, copyright licenses in certain cases, re- monstrances against endowments under the Endowed 342 COURTS OF THE BRITISH EMPIRE 161 Schools Act, and supreme jurisdiction over colonial appeals, that is, appeals in all civil and crinjiinal cases from the channel islands and the highest courts of each separate colony, province, state, or posses- sion. Certain cases of this nature have been surren- dered by the Crown, and in criminal matters the ju- risdiction is limited to cases of a disregard of the forms of legal process or where grave injustice has been done. This court has also jurisdiction upon pe- tition of individuals in the discretion of the commit- tee. In certain other cases the right of appeal to this committee has been created by treaty, grant, usage, or sufferance. 145. The Supreme Court of Judicature.— This court was constituted by act of Parliament in 1873, taking effect November 1, 1875. This act consoli- dated, the High Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bank- ruptcy. This court consists of His Majesty's High Court of Justice and His Majesty's Court of Appeal. 146. Its jurisdiction. — The jurisdiction of this court is both original and appellate. It includes all the original jurisdiction of the courts mentioned, ex- tending to all causes of action, and unlimited in amount, except the jurisdiction in lunacy of the Lord Chancellor or the Lords Justices of Appeal in Chan- cery, of the Lord Chancellor as to patents and com- missions, or as the visitor of any college or founda- tion, and of the Master of the Eolls as to records. 343 162 COUKTS— FEDERAL AND STATE Its civil jurisdiction extends tp all causes and mat- ters whatever except prize and lunacy, and except certain jurisdiction granted to a peer to hear certain cases, and extends also to Parliament and municipal election petitions, habeas corpus and disbarment pro- ceedings. 147. Criminal jurisdiction of the Court of Judica- ture. — The King's Bench Division and the Central Criminal Court have original jurisdiction of all crim- inal cases arising under the laws of England. This jurisdiction is exercised either in the King's Bench Division proper, or under the commissions of Oyer and Terminer and gaol delivery on circuit, or by the Central Criminal Court, or directed to special com- missioners. Crimes by public officers abroad are tried in King's Bench Division. This includes of- fenses by colonial governors, lieutenant governors, and justices. There is also a special commission which has jurisdiction at the election of the attor- ney general to proceed against public officers in India for offenses committed by them. The criminal juris- diction also extends to offenses in admiralty. Orig- inal and appellate jurisdiction in bankruptcy is also given to the Court of Judicature by the bankruptcy act of 1883. The admiralty division includes the original jurisdiction of the High Court of Admiralty. Additional admiralty jurisdiction has been conferred by statute, which could not be done in the United States, because the Constitution limits the jurisdic- tion to that of the admiralty courts existing in 1789. 148. Service beyond the jurisdiction. — ^As in this country, in certain cases, writs and notices of suit 344 COURTS OF THE BRITISH EMPIRE 163 may be served outside of the jurisdiction of the court. Rules governing this subject are made by the Su- preme Court of Judicature itself; and such service is limited to cases affecting property within the juris- diction, but includes cases on contract which should be performed within the jurisdiction imless defend- ant resides in Scotland or Ireland, injunctions as to anything to be done within the jurisdiction, or a nuis- ance there situated. And where a suit is properly brought, notice may be given to persons outside the territorial jurisdiction who are necessary or proper parties. 149. His Majesty's High Court of Justice.— The judges of the High Court of Justice are the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, and twenty-two other judges. 150. Appellate jurisdiction of the Supreme Court of Judicature. — ^Appellate jurisdiction is exercised by divisional courts of the various divisions, that is, King's Bench, probate, divorce, admiralty, etc. Ap- peals from inferior courts go to the divisional court of the King's Bench Division, as well as appeals from chamber orders in the King's Bench Division, deci- sions of masters and referees, and motions to set aside awards. The divisional court of Probate, Di- vorce, and Admiralty hears appeals from county courts in admiralty, probate cases, and cases under the Married Women's Act of 1895. This divisional court also hears appeals in shipping matters relat- ing to the tenure of oflSce of the master, mate, or en- 345 164- COURTS— FEDEEAL AND STATE gineer; also shipping casualties. Single judges in some of the divisions are empowered to hear revenue appeals, bankruptcy appeals, certain orders by court officers in probate, divorce and admiralty, and cer- tain appeals in patent cases. 151. The various divisions; Chancery Division.— The King's Bench, Common Pleas, and Exchequer divisions were consolidated into the King's Bench , Division by council order of July 16, 1880. There are seven justices of the Chancery Division, including the Lord High Chancellor. The court exercises sub- stantially the same jurisdiction as courts of equity in the United States, with some additional statutory powers. 152. The King's Bench Division. — The Lord Chief Justice and fifteen other justices are the judges of this court, which has the jurisdiction formerly exercised by Queen's Bench, Common Pleas and Ex- chequer, and certain additional jurisdiction in bank- ruptcy, and the winding up of corporations. This important court in addition to its general jurisdiction in actions between individuals and corporations has extensive jurisdiction on the revenue side and crown side, so-called. On the revenue side it has jurisdic- tion of Latin informations, so-called, which are brought in the name of the King in the right of the crown, the Duchy of Lancaster, or the Duke of Corn- wall, to recover moneys or other chattels, proceedings in rem to recover forfeited property claimed by the crown, proceedings in personam to remove intrud- ers upon crown lands, vsrits of extent brought by ar- rest of persons, lan^s, goods, or debts, to obtain sat- 346 COURTS OF THE BRITISH EMPIRE 165 isf action of debts due to the crown, scire facias to re- cover crown debts of record, that is, secured by judg- ment, bond or undertaking, summary proceedings for the recovery of duties, English informations in equity, generally founded upon ancient and obscure titles of the crown to lands, including the shores of the sea; and also for the recovery of money debts where a discovery and account are prayed. Forest courts, referred to later, have similar powers. 153. Actions against the Crown in the King's Bench. — ^Property, money, or damages may be re- covered from the crown either at law or ia equity by a process called a petition of right. This petition is based upon immemorial practice, and not on stat- ute, except in a few cases. Among the subjects in- cluded in this jurisdiction are the specific recovery of lands, chattels real, specific chattels and pecuniary claims, including claims for services, breach of cour tract, money paid to the crown by mistake, com- pensation for lands taken, pensions, and post-of&ce and naval claims. No petition can be filed for tort claims, but when it is doubtful whether the claim is for a tort or contract the petition has generally been allowed. No petition for infringement of a patent is allowed, this being regarded as a tort claim, but peti- tions against officers of the crown have sometimes been allowed. Under certain statutes actions are given against government departments and officials, brought in the King's Bench Division. This juris- diction on claims is similar to that exercised by the federal Court of Claims, and by the district court up to $10,000. 347 166 COURTS— FEDERAL AND STATE 154. The Crown side of the King's Bench Divi- sion. — This jurisdiction includes scire facias, escheat, habeas corpus, mandamus, quo warranto, prohibi- tion, and certiorari. These writs are used for much the same purposes as in this country. The writ of prohibition, which in England is generally a writ of right, runs to an ecclesiastical or inferior temporal court for excess or absence of jurisdiction, and also when the proceeding to be prohibited is unauthor- ized by statute or common law. -It lies against a judge of an inferior court where he is interested, or where he makes an unauthorized alteration of his judgment. This writ also extends to inferior court proceedings which are partly within and partly with- out its jurisdiction, in order to correct the excess of jurisdiction. Whenever an inferior court wrongly decides a fact on which its jurisdiction depends, this writ will go. 155. Probate, divorce, and admiralty division. — This court is held by two judges, and has cognizance of all eases formerly coming before the Court of Pro- bate and the Court for Divorce and Matrimonial Causes. 156. His Majesty's Court of Appeal. — The juris- diction of this court extends to that formerly pos- sessed by the Lord Chancellor and by the High Court of Appeal in Chancery, by the Exchequer Chamber, and to that formerly exercised by the Judicial Com- mittee of the Privy Council on appeals from the High Court of Admiralty, and from orders in lun- acy. In addition to this it has a very large jurisdic- tion by way of appeal from judges in chambers, from .348 COUKTS OF THE BRITISH EMPIRE 167 decisions of a divisional court, all orders and judg- ments of the High Court of Justice, motion for new trials, and in many other special cases. This court has two divisions, one hearing appeals from the King's Bench and Probate, Divorce and Admiralty Divisions, and the other from the Chancery Division. It may also sit in three divisions at the same time. The judges of this court are the Lord High Chan- cellor, who is president of the court, the Lord Chief Justice, Master of the Rolls, the president of the Pro- bate, Divorce and Admiralty Division, and five other judges called Lords Justices of Appeal. Ex-Lords Chancellors are ex-officio members of this court. 157. Officers of the courts. — These are official referees who act as arbitrators and much as masters in this country, examiners in court who take examina- tions under orders of the court in all of the divisions except admiralty. Special examiners may also be appointed to take evidence. There are also masters of the Supreme Court of Judicature, seven in the King's Bench Division, with two assistant masters, and whose jurisdiction it is to do judicial work in chambers in passing upon points of practice, includ- ing the reference of actions for inquiry and report, or for trial. The chancery division has twelve mas- ters, each having a staff of clerks. Their duties are considerably more extensive than in this country. In the Supreme Court of Judicature there is a cen- tral office, so-called, and it is divided into ten depart- ments, each division being in charge of clerks ap- pointed by the Lord Chancellor, the Lord Justice and the Master of the Rolls in rotation. One of these de- 349 168 COURTS— FEDERAL AND STATE partments is called the taxing office, at the head of which are eleven masters for the taxation of costs. 158. Other ofl&cers. — There are also district regis- trars having power to administer oaths and perform such duties as may be prescribed by rules of court, and who also have jurisdiction of defaults, taking ac- counts and producing books and documents. The registrars have the same authority as a master of the Supreme Court either of the King's Bench or Chancery Division. An appeal lies from the district registrar to a judge. In the Probate, Divorce and Admiralty Division there are four probate registrars with powers like those of masters of the Supreme Court and King's Bench Division. There is also an official solicitor of the Supreme Court, whose duties are to defend actions against poor persons when so directed, acting as guardian ad litem, conducting ju- dicial sales, making limacy investigations and re- ports, acting as judicial trustee, and assisting the court in other matters. In the Chancery Division there may be thirteen registrars, who attend the chancery judges both in the Chancery Division and the Court of Chancery Ap- peal, for the purpose of taking notes of orders and judgments given, and formulate the same, as well as to keep dockets. 159. The circuits. — Courts are held in every county of England except Middlesex, with certain specific jurisdiction. These judges may try civil and criminal cases in the various counties ; and their ju- risdiction is sometimes exercised by the King's Coim- sel. There are seven of these circuits. These judges 350 COUKTS OF THE BRITISH EMPIRE 169 while on the circuit may hold courts of assize, oyer and terminer and general gaol delivery, in aU places except Middlesex County, the City of London, and other counties and parts of counties which are within the district of the Central Criminal Court, which is described on a subsequent page. Courts of assize have both civil and criminal jurisdiction in aU the circuits. The principal officer of the assizes is a clerk of assize, who performs the functions of a master. He is assisted by a so-called clerk of arraigns, and other subordinate officers. 160. Criminal courts — Courts of summary juris- diction. — These courts are held by justices of the peace and other magistrates. Counties are divided into petty sessional divisions for the holding of these courts, and they consist of two or more justices, in- eluding the Lord Mayor and any alderman of Lon- don, and of metropolitan and borough police magis- trates. These courts are courts of record with a very extensive jurisdiction, including, some very impor- tant subjects, such as common assaults, copyrights and patents, explosives, factories and work-shops, husband and wife, lotteries, lunatics, public health, reformatory schools and town improvements. In certain cases they have jurisdiction over aH offenses other than homicide, with civil jurisdiction in bas- tardy, landlord and tenant, and master and servant. 161. Quarter and general sessions. — Quarter ses- sion courts are held by two justices of the peace. General sessions are not held except in London. These courts are inferior courts of record, with orig- inal jurisdiction of offenses committed within the 351 170 COURTS— FEDERAL AND STATE county. They have appellate jurisdiction from the courts of summary jurisdiction. They have also orig^ inal civil jurisdiction in many local causes relating tp licenses of business, and viewing and closing of highways. They may exercise also appellate civil jurisdiction in bastardy orders, pauper cases, high- way, licenses, and overseer cases. 162. Courts of special session. — These are meet- ings of justices for the purpose of executing statu- tory authority not exercisable by justices in quarter sessions. Their jurisdiction is wholly statutory, and relates to highways, and licenses for billiards and in- toxicating liquors. 163. The Central Criminal Court. — This was es- tablished in 1834, and superseded the court called the Old Bailey. Its jurisdiction extends to treason, murder, felony, a misdemeanor committed within the city of London, and county of Middlesex and county of London, and certain other territory in Essex county; also to offenses committed on the high seas or elsewhere in the admiralty jurisdiction, and of murders and manslaughters of persons in the mili- tary. The King's Bench Division may, by order, also give this court jurisdiction of any particular offense committed outside its jurisdiction. Its judges are the Lord Mayor of London, the Lord Chancellor, the Lord Keeper of the Great Seal, alT the judges of the King's Bench Division, the Dean of the Arches, the aldermen of the City of London, the Recorder, the Common Serjeant, the judges of the City of London Court, and any person who has been Lord Chancellor, Lord Keeper, or a judge of the 852 COURTS OP THE BRITISH EMPIRE 171 King's Bench Division, as well as other persons commissioned by the King. 164. The Court of Criminal Appeal. — This court was created in 1907, superseding the former court of Crown Cases Eeserved and of criminal proceedings in King's Bench on writs of error from courts of as- size or the Central Criminal Court. Its jurisdic- tion extends to appeals by the defendant on indict- ments, information, and in vagrant cases, but only on questions of law, mixed questions of law and fact, and other grounds which appear to the court to be sufficient, including the matter of the sentence passed on conviction, unless it is one fixed by law. Its ju- risdiction does not extend' to convictions of peers or peeresses, and it cannot order a new trial unless upon cases reserved for the opinion of the court. The Lord Chief Justice and other judges of the King's Bench Division are judges of this court. Not less than three may sit in two or more divisions. 165. The Court of the Admiral. — This court orig- inally had jurisdiction of crimes committed upon the seas and navigable rivers, including homicide on ships, treasons, piracies, felonies, and robberies. Since 1844, however, this court has had no session, concurrent jurisdiction having been given in 1835 to the Central Criminal Court, and in 1844 to the courts of oyer and terminer and gaol delivery. 166. English admiralty courts— Local courts. — Up to 1835 many of the seaport boroughs of England had in their charters a grant of a court of admiralty, but an act of that year deprived them of all admiralty jurisdiction. There are still existing, however, cer- 1-23 353 172 COURTS— FEDERAL AND STATE tain rights in the mayors of some of the ports, but no borough courts have been held since the date men- tioned. The sea-coast of England and Wales is also divided into nineteen vice-admiralty districts, and their jurisdiction has never been abolished, but there being now no outstanding appointments from the Crown this jurisdiction cannot be exercised. There are also Courts of Survey for ports or districts, the judge being either a wreck-commissioner, a police magistrate, judge of a county court, or other person approved by the Home Secretary, and the Board of Trade may also appoint wreck-commissioners. There are also two assessors of each such court. Courts of Survey may hear appeals by ship owners as to ves- sels detained as unsafe or not seaworthy, from a dec- laration of survey, of a passenger steamer, or appeals by the owners of emigrant ships seeking certificates of clearance. This court also has power to hear in- vestigations of shipping casualties. 167. Local and naval courts. — These courts have power to investigate seamen's complaints and other local matters relating to shipping at or near the place where they are located. They have quite extensive power in respect to seamen, including ship officers, wages, fines, forfeitures, and costs. These courts are located throughout the British Empire. 168. The Admiralty Division of the Supreme Court of Judicature. — This court has already been men- tioned as one of the courts created under the Judi- cature Act of 1873. It has jurisdiction of the chief subjects of admiralty, including possessory suits, common ownership, mortgages, bottomry, necessaries 354 COURTS OF THE BRITISH EMPIRE 173 and supplies, towage, wages, collisions, damages to cargo, limitation of liability, salvage, forfeiture and slave trade. Appeals lie from the Admiralty Divi- sion to the Court of Appeal and thence to the House of Lords. The jurisdiction, like the admiralty juris- diction of this country, extends to all ships of which it may take possession, whether foreign or domestic, and includes subjects which our courts cannot reach. 169. The Court of Admiralty of the Cinque Ports. — This is a court of the five ports of England which lie toward the coast of France. These ports are Hastings, Dover, Sandwich (including Winchelsea and Rye) , Hythe, and Romney. On account of their importance these towns were given admiralty juris- diction from an early date. The Court of the Five Ports was abolished by the 18 and 19 Viet., but was restored by the County Courts Admiralty Jurisdic- tion Act of 1869. The jurisdiction of this court is co-extensive with that of the Admiralty Division as to all cases arising within the boundaries of the five ports, and possesses also certain statutory jurisdic- tion as to salvage, and it has appellate jurisdiction on appeals from the County Court in Admiralty con- current with that of the Admiralty Division. The court sits at St. James Church, Dover. An appeal lies from this court to the King in Council, and such appeals are referred to the Judicial Committee of the Privy Council. Salvage commissioners are also ap- pointed, having jurisdiction over disputes as to sal- vage within the boundaries of the five ports. 170. The Liverpool Court of Passage. — This court has an admiralty jurisdiction similar to that of the 355 174 COURTS— FEDERAL AND STATE local county courts, and an appeal lies to a divi- sional court of the Admiralty Division. 171. Colonial courts of admiralty. — These courts have taken the place of the vice-admiralty courts abroad. All courts of law in any British possession^ having unlimited civil jurisdiction are Colonial Courts of Admiralty, as weU as all inferior courts upon which admiralty jurisdiction has been con- ferred. Their powers are similar to those exercised by the Admiralty Division. Appeals may be taken from these courts to the same courts to which ap- peals go in the particular local possession, and there is also an ultimate appeal to the King in Council and thence to the Judicial Committee. Vice-admiralty courts can also be established by the Lords Commis- sioners of the Admiralty in any British possession. 172. County courts having admiralty jurisdic- tion. — ^A limited admiralty jurisdiction is possessed by certain of the county courts of England, includ- ing the Court of the City of London, embracing sal- vage of life, of property not exceeding £1,000, or where the amount claimed does not exceed £300, and in all cases of salvage where the parties agree to the jurisdiction. Limited jurisdiction is also given in case of towage, necessaries and supplies, damages to cargo by collision or otherwise, and wages. 173. The English county courts. — These courts were created by the County Courts Act of 1846, as amended by the acts of 1888 and 1903, and they have also the jurisdiction possessed by the old county courts prior to those dates. County court districts are established by executive orders of the Council. 356 COURTS OF THE BRITISH EMPIRE 175 The City of London Court is also a county court. The judges are appointed by the Lord Chancellor except as to county courts in the Duchy of Lancas- ter, where the appointment is made by the Chancellor of the Duchy. There are sixty of these county courts in England, with one judge for each district, though the same person may be a judge of several districts, and two judges may be designated by the Lord Chan- cellor for any district. These courts have cognizance of all personal ac- tions, contract or tort, not exceeding £100, and re- plevin. They may also grant specific performance of contracts not exceeding the aforesaid limit, and may issue writs of mandamus and injunction in all cases within their general jurisdiction. They may also appoint a receiver, punish for contempt, . and entertain counterclaims and interpleaders. By consent of the parties they may entertain jurisdiction of any action assigned to them by the King 's Bench Division. Actions of ejectment, where the value of the land or rent does not exceed £100, may also be brought in these courts. They have also jurisdiction to try the action of forcible entry and detainer between land- lord and tenant. Actions within its jurisdiction com- menced in the High Court may be remitted to the county court, and others where the parties consent. 174. Equity jurisdiction of the county court. — In cases not exceeding £500 in value the county court has jurisdiction of suits by creditors, legatees, dev- isees, heirs at law or next of kin for an accounting of property belonging to ,the estate of the deceased. It may also execute trusts within the same limit of 357 176 COURTS— FEDERAL AND STATE value, foreclose mortgages, entertain specific per- formance, wind up partnerships, decide upon trusts, intestacy and legacies, and grant relief against fraud and mistake. 175. County court jurisdiction under Bills of Ex- change Act. — Judgment may be rendered by tbe county court on bills of exchange and promissory notes not exceeding £50. This is in addition to its ordinary jurisdiction above described, the Bills of Exchange Act providing for a special procedure. It has incidental jurisdiction of attachment, garnish- ment and contempt. 176. Appeals from county courts. — An appeal is given to a divisional court of the King's Bench Divi- sion on all questions of law or of the admission or re- jection of evidence, but not on a pure question of fact, whenever the amount claimed exceeds £20. The judg- ment of a divisional court on appeal is final, unless special leave to appeal to the Court of Appeal is given, and from that court an appeal lies to the House of Lords. ■The High Court of Justice may also remove a case from the county court by writ of certiorari when it is deemed desirable that the action shall be tried in the High Court. When the county court acts without jurisdiction, or in excess of its jurisdic- tion, a writ of prohibition may issue also from the High Court. The county court may be compelled to act by mandamus issuing from the same court. 177. County court jurisdiction under special statutes. — A large number of special statutes have been passed giving county courts jurisdiction of par- 358 COURTS OF THE BRITISH EMPIRE 177 ticular local matters, including arbitrations between landlord and tenant under the Agricultural Hold- ings Act of 1908, elections, building associations, charitable trusts, conunons, probate, employers and workmen, factories and work-shops, fines and recov- eries, infants, road engines, housing of laborers, en- closure of lands, distress, licenses, local loans, lu- nacies, married women, partition, pharmacy, and many other subjects of quasi-public nature. 178. Courts of escheat. — These courts are held by a commissioner or commissioners appointed by the Crown to hold inquests in respect to lands sup- posed to have escheated to the Crown. These cases are tried by a jury, and any person claiming title to the property may intervene and be heard. Verdicts may be rendered by a majority of the jury. 179. Forest courts. — Certain special courts have power to enforce particular laws for the protection of certain forests belonging to the Crown. There are four of these courts : the Forty Days Court, the Re- gard of Survey of Dogs Court, the Swainmote Court, and the Eyre of Justice Seat Court. Three Crown forests are still in existence. The matters heard be- fore these courts relate to deer, trees, underwood, shrubs, and coverts for game. The Court of Eegard has been obsolete for centu- ries, and no Justice Seat Court has been held since 1662. They may still be revived by royal writ. 180. ~The Court of Chivalry.— The duties of this court relate to armorial ensigns and bearings. It is practically obsolete, although never abolished by statute. 859 178 COURTS— FEDERAL AND STATE 181. The Court of Claims. — ^In addition to the claims jurisdiction of the King's Bench Division, there is a special court of claims, which sits only on the occasion of a coronation, when the Sovereign is- sues a commission to certain high officers of state, peers, and judges, to hear petitions and claims re- lating to services at the coronation, in regard to the tenure of manors and lands held by tenure direct from the King, otherwise called the tenure of ser- jeanty. The Sovereign, however, may withdraw a claim from the commission and transfer it to some other court. A court of this kind was held at the coronation of King Edward in 1901, 182. The sheriff's court.— A sherifE's court may be held in respect to an election, for the due execu- tion of some writ, appraisal of the value of goods de- tained, and for ascertaining the compensation pay- able to owners of lands taken for public purposes. ' 183. The palatine courts. — These are the courts of the Duchy of Lancaster, the Chancery Court of the County Palatine of Lancaster, and the Chancery Court of the County Palatine of Durham. The first is presided over by the Vice Chancellor of the Duchy and County Palatine of Lancaster. The Chancery Court of Lancaster has the same jurisdiction as the High Court of Justice in the Chancery Division, lim- ited to the County of Lancaster. The Court of the Duchy of Lancaster has jurisdiction in respect to lands held from the king, but has not held any ses- sions for a long period of time, though never abol- ished. An appeal lies from the Chancery Court to the Court of Appeal and thence to the House of Lords. 360 COURTS OF THE BRITISH EMPIRE 179 184. The Chancery Court of the County Pala- tine of Durham. — This court has jurisdiction un- limited in amount within the County of Durham, and possibly extends to other districts. It possesses the same jurisdiction as the Chancery Division. The court is held by the Chancellor of the County Pala- tine of Durham, There is an appeal to the Court of Appeal and thence to the House of Lords. ' 185. Criminal courts of the Cinque Ports. — The Crown has the power to appoint justices for the five ports, who have certain criminal jurisdiction. These courts are distinct from the Admiralty Court of the Cinque Ports. 186. Borough and local courts of record. — A large number of local courts have been established in ad- dition to county courts, either by the King's charter, or by local acts of Parliament, or by prescription. Forty-two of these courts were abolished in 1883, but one hundred and seventy-two of them still exist, although many of them have not been held for many years. Mandamus may be issued, however, to com- pel them to act. Their jurisdiction depends upon the charters or acts creating them. Appeals are taken from all these courts to a divisional court of the King's Bench Division. 187. Hundred and manorial courts. — The Hun- dred Courts have civil jurisdiction in actions for less than forty shillings where the county court is with- out jurisdiction. The Manorial Courts are Court Leet, Court Baron, the Customary Court, and the Courts of Ancient Demesne. The jurisdiction of these courts is practically obsolete. 361 180 COURTS— FEDERAL AND STATE 188. The judicial commissions. — These are the Railway and Canal Commission, Land Tax Commis- sion, the Income Tax Commission, Commission of Sewers, and the Board of Agriculture and Fisheries. Their jurisdiction and duties are indicated by the titles applied to them. 189. The British prize courts. — ^These courts ex- ercise jurisdiction over all matters of captures aris- ing on the iigh seas, and this power is exercised by the Admiralty Division of the High Court of Justice in England, the prize courts in the British posses- sions, and the Privy Council. In the British pos- sessions this jurisdiction is vested in the Colonial Court of Admiralty or the Vice-Admiralty Court commissioned by the King. The Judicial Committee of the Privy Council has jurisdiction by appeal from any order or decree of a British prize court. The subjects of jurisdiction are captures, joint captures, prize salvage, prize bounty, and ransom. 190. Lunacy courts. — Jurisdiction in cases of lunacy was formerly vested in the Lord Chancellor, and may be still exercised by him, with an appeal to the Court of Appeal and thence to the House of Lords. Commissions of inquiry are issued by the Lord Chancellor. The jurisdiction may also be ex- ercised by any one or more of the judges of the Su- preme Court of Judicature specially designated. Those now acting are the Lords Justices of the Court of Appeal. Masters in Lunacy are also appointed to try inquisitions in lunacy, either with or without a jury. 362 LAW OF CONTRACTS BY WILLIAM CHARLES WERMUTH, M.S., LL.B.* PART I INTRODUCTORY TOPICS CHAPTER I. DEFINITION AND HISTORY OF GONTBACT. 1. Rights and obligations. — ^A right consists of the power or capacity one has to influence the action of another. It may be derived from the moral senti- ment of the community, when it is called a moral right. If derived from the government and enforced by the court, it becomes a legal right. In addition to moral and legal rights, there exist physical rights, which are based on might. Obligations are of two sorts: delictual and con- tractual. A delictual obligation arises from the vio- lation of a preexisting right. It does not depend for its creation upon any desire of or attempt by the parties concerned to create it, but arises by virtue of one's place as an individual of society. Thus, A owes B a duty not to assault him. B enjoys a preexisting * Lecturer, Northwestern University Law School; of the Chicago Bar. Assistant Editor: "Modern American Law." Contributor to legal and medical periodicals. 363 2 LAW OF CONTRACTS right from which a new right arises when the first is violated, entitling him to damages. The right of B is said to be a right in rem, that is, against the world at large. Such rights are to be found in the law of torts. Contractual obligations arise between the parties by means of their acts. They depend on no rights that the parties have had. Thus, when A and B enter into a contract, new rights and duties are created by A and B which did not previously exist. This right is one in personam, that is, against deter- minate persons. The determination of the rights and duties created by contract furnish the scope of this article. 2. Contract defined. — A contract is an agreement between two parties, resulting in an obligation or legal tie, by reason of which one party is entitled to have certain stipulated acts performed or forborne by the other. There are many definitions of a con- tract. Blaekstone states that "A contract is an agreement, upon sufficient consideration, to do a par- ticular thing. "^ In Sturges v. Crowninshield it is said that "A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. "^ A contract is also said to be an agreement enforcible at law, made between two or more per- sons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others.® According to the etymology of the word, 1 2 Blaekstone, Commentaries, p. 446. 2 Marshall, C. J., in 4 Wheat. 122 (IT. S.). s Anson, Contracts (English ed.), p. 9. 364 DEFINITION AND HISTORY 3 from contraho, a contract is a drawing together of the minds of the parties until they meet in agreement.* 3. Essentials of the definition. — There are four things which are necessary to make a contract: (1) the offer and acceptance, called the agreement; (2) the form or the consideration; (3) the parties; (4) the subject matter." Briefly, (1) the agreement, consisting of the offer and acceptance, is the assent given by each party to the other with reference to the subject matter, the parties being of the same mind and intention con- cerning the matter agreed upon. (2) The form is that which the law requires to give the agreement legal recognition. Thus, a deed must be under seal, and the court will not enforce it unless it is. Or, if a contract is not under seal, it must have a considera- tion. Consideration means a forbearance, or a detri- ment, or a giving up of something one is not bound to give. Thus, to make a promise one is not bound to make is a consideration for another promise.® Furthermore, to enforce a promise, a writing may be necessary. (3) The parties must consist of two or more persons, for no one can make a contract with himself.'' Finally, (4) the subject matter is the thing concerning which the contract is made. It may be as varied as the necessities of human life. The only limitations on what may be the subject matter of contracts are impossible subjects and those disallowed for reasons to be mentioned. «MeNulty v. Prentice, 25 Barb. 204 (N. Y.). B Fuller V. Kemp, 138 N. Y. 231. « See Chap. III. » Faulkner v. Lowe, 2 Ex. 595 (Eng.). . 365 4 LAW OF CONTRACTS Suppose A promises to enter B's service for one year, and B promises to pay A $1,000 for his work. The agreement consists of the meeting of minds of A and B as to the terms of the contract. The consid- eration consists of the mutual promises. The par- ties, of course, are A and B, and the subject matter consists of the services to be rendered. 4. Use of term "contract." — ^The term "contract" is used to designate every description of agreement or obligation, whether verbal or written, with or without seal, by which one party is bound to another to perform or omit to perform a stipulated act. It denotes that one person is bound to another to do or render something, and that a duty is imposed as well as a right conferred, though "obligation," "agree- ment," "covenant," and "promise" are sometimes used in the same sense. In the Roman civil law, "obligation" was the term used to designate all the rights and liabilities which are termed "rights in personam," or the rights which one person has to acts or forbearances from others. When one inquires whether it is the agreement that constitutes the contract, or the obligation resulting from the contract, at once one finds that the word "contract" is used in various senses. Sometimes it denotes the fact of agreement, and sometimes the nature of agreement. Again, it may refer to the written instrument which contains the agreement. Sometimes it denotes the obligation resulting from the agreement. The terms ' * void contracts ' ' and * * ille- gal contracts" have been adopted although there is no obligation whatever in such situations. 366 DEFINITION AND HISTORY 5 The contractual obKgations whicli the common law recognized were enforced, and are still enforced, not because those obligations are the result of agreement, but because certain procedure afforded remedies for certain wrongs. 5. Classification of contracts. — The subject of contracts has been variously classified. With respect to form, contracts are: (1) Formal contracts; (2) Quasi-formal contracts; and (3) Simple contracts.* (1) Formal contracts. These obligations are de- pendent for their validity upon their form, and may be divided into contracts of record and contracts under seal. An example of a contract of record is a judgment of a court, or a recognizance. These are not true contracts, however, for the obligation is im- posed by law, and not by the agreement of the parties. A contract under seal, also called a specialty, is a written promise or obligation which derives its valid- ity, at common law, from its form alone, to-wit, the presence of a seal. Thus where A executes an instrument by which he agrees to work for B for a year, and the word "Seal" appears after his signature, the contract is a specialty. (2) Quasi-formal. Quasi-formal contracts are those which are partly dependent on form and partly on consideration. They are more commonly included under the term simple contracts. An example is a bill of exchange. (3) Simple contracts. All other contracts are simple contracts, whether they be oral or in writing.^ » See § 6. » There is no distinction as to validity, whether a contract be unwritten or in writing, unless the Statute of Frauds applies. See Chap. VI. 367 6 LAW OF CONTRACTS Other terms applied to this class are informal con- tracts, and parol contracts. Thus where A orally agrees to sell B his horse for $100, the contract is simple. Similarly, if he agrees in writing to sell the horse, it is a simple contract, provided there is no seal. 6. Same subject — Express, implied, and quasi- contracts. — Contracts are further divided into ex- press and implied contracts. The latter class often is made to include what are more properly termed quasi-contracts.^" Express contracts are so stated, either by word or in writing, that the terms and the promises are fully known to each of the contracting parties. Where A agrees to sell B a horse for $100, and B agrees to buy the horse for that sum, the terms of the con- tract are fuUy expressed. An implied contract arises where the parties have not so fully stated the terms, but have actually made a contract. In such cases the terms of the contract are determined by the conduct of the parties and the inferences properly deducible from the attending circumstances. In short, the parties are actually con- tracting but not expressly and fully. This idea is important, because it distinguishes such 'implied con- tracts from another class, sometimes called implied- contracts, or contracts implied in law, but in modern jurisprudence termed quasi-contracts.^^ If A works for B under such circumstances that no reasonable man would conclude that A meant to 10 Highway CommiBsioners v. Bloomington, 253 ni 164, LuASiNa Illub- TEATivE Cases. " Harris 'v. Smith, 79 Mich. 54, Leading Illustrative Cases. 368 DEFINITION AND HISTORY 7 work without compensation, B is liable to A for the fair value of such services. Although nothing was mentioned as to the amount of the salary, from B's conduct it is implied that as a matter of fact he expected to pay A. This example illustrates a con- tract implied in fact. There is a contract, but its expressed terms are incomplete and other terms must be implied from the fact that B employed A.*^ But, if A, in making change, by mistake gives B ten dollars instead of five dollars, it is clearly unjust ,that B retain the extra five dollars. There is, how- ever, no contract, express or implied, between A and B for the return of that money. Neither from the circumstances nor in any other way can any sort of contract be found. But now the Taw steps in and imposes an obligation on B to return the five dollars, for he is unjustly enriched at the expense of A. This doctrine of unjust enrichment is the fundamental basis of the subject of quasi-contracts, and illustrates the differences between that subject and contracts implied in fact. In this text the term "implied contracts" is used to mean contracts made by the parties, but not ex- pressed, and the term "quasi-contracts," to cover those obligations not necessarily intended by the parties, but which the law imposes." The general distinction between express and im- plied contracts is in the mode of proof. An express contract is proved by evidence of the words used or 12 Fogg V. Portsmouth Athenaeum, 44 N. H. 115, Leading Illustbativb Cases. IS See subject, Quasi-contracts ; Highway Commissioners v. Blooming- ton, 25^ 111. 164, Leading Iixustkative Cases. 1-24 369 8 LAW OF CONTRACTS writing executed. In implied contracts the intention of the parties is determined by proving the facts and circmnstances surrounding them. But when a con- tract is established in either of these ways, it is of the same validity and effect, and the consequences of a breach of the contract are the same." There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.^^ This rule only applies, however, where the two contracts relate to the same subject matter, and where the provisions of the express contract would supersede those of the other. 7, Same subject — Executed and executory con- tracts. — A contract that is fully performed by the parties is known as an executed contract. Thus if A agrees to sell B his horse for $100, and B actually purchases and receives th-e horse and pays over the money, the contract has been per- formed and is executed. If performance is incom- plete, the contract is executory. If B in the case just given has not received the horse nor paid the purchase price, and neither side has performed, the contract is executory. Conse- quently, a contract which has been performed by A, but not by B, is executed as to A and executory as to B." 8. Same subject — Bilateral and imilateral con- tracts. — ^A bilateral contract is one where there are reciprocal promises, so that there is something to be " Harris v. Smith, 79 Mich. 54, Leading Illustrative Cases. 1= Walker v. Brown, 28 111. 378. 10 2 Blackstone, Commentaries, p. 443 ; Fletcher v. Peck, 6 Cranch 87, 136 (U.S.). 370 DEFINITION AND HISTORY 9 done or forborne on both sides. Such a contract con- sists of mutual executory promises. Thus where A promises to sell B his horse for $100, and B promises to purchase the horse for that figure, there is a bilat- eral contract. A unilateral contract is one in which there is a promise on one side only. Thus where the considera- tion is executed on one side and executory on the other, the contract is unilateral. B promises to pay A a dollar if he wUl deliver a package to B, There is no obligation upon A to deliver the package, but if A delivers the package to B, he obtains the promise of B to pay the dollar. The contract is executed as to A and executory as to B. Examples of unilateral contracts are promissory notes." 9. Contracts in civil law. — ITie term "commuta- tive contract" is used in the civil law to designate a contract in which each of the contracting parties gives and receives an equivalent.^^ In Louisiana,^' commutative contracts are declared to be "those in which what is done, given or promised by one party, is considered as equivalent to, or a consideration for, what is done, given or promised by the other." ^^ 10. Terminology. — There are certain terms which require special attention because they are frequently used with insufficient precision and because they sig- nify very real differences in the rights arising out of contract. These terms are: void, voidable and unenforcible. i^Langdell, Summary of Contracts, §§ 183-187. 18 Burrill, Law Dictionary. IB Civil law state. 20 Louisiana, Civil Code, art. 1768. 371 10 LAW OP CONTRACTS (1) Void contracts. Such contracts are of no legal effect whatsoever, as an agreement to commit a crime. They can create no legal rights. (2) Voidable contracts. Such contracts a party may affirm or reject. In short, the contract has a flaw, but it may be enforced if the party so desires, or he may reject the contract. An example is the contract of a minor for something other than necessaries. (3) Unenforcible contracts. The difference be- tween what is voidable and what is unenforcible is mainly a difference between substance and procedure. A contract may exist, but may be incapable of proof because the Statute of Limitations, for instance, has run against it. Or, the Statute of Frauds may require the contract to be in writing, as for the sale of land. If it is not in writing, the contract may not be proved. In these cases, the contracts are neither void nor voidable, but merely unenforcible. 11. History of contract. — The idea of contractual obligation has not always existed in English juris- prudence. The development of the doctrines under- lying the subject of contracts is interwoven with the history of procedure. Only recently has his- torical research indicated the progress of the steps in thought from the early law to the modern con- ception of contracts. In the early English law, the trial of a law suit did not involve a judicial determination of the merits of the case upon the evidence offered by the parties. It was merely a proceeding between the parties, car- ried on publicly under forms which the community 372 DEFINITION AND HISTORY 11 oversaw.*^ The old forms of trial were not based on modem ideas of jm^isprudence, and have been treated in the article on Law, Its Nature, Origin and Development.*^ Justice in the King's Court was administered by- means of the royal writ, directing the sheriff to sum- mon the defendant to appear before the court. In modern times, the idea prevails that, if a man has a legal right, he must have a legal remedy to enforce that right. In early days, however, a man's rights in the king's courts were limited by these writs which he could get from chancery, whence the writs were issued. These were few in number, and their history and nature will be briefly discussed. 12. Same subject^Forms of action. — ^Actions ex contractu have been as follows : Debt. The action of debt was brought on an ascer- tained or liquidated claim. At early common law it was a specific sum of money or a fixed amount of chattels due from the debtor to the creditor. To-day the term is applied only where money is due. The thing from the receipt of which a debt arose came to be termed quid pro quo, which was always some benefit rendered by the creditor to the debtor. Covenant. The writ of covenant was the common- law action on a sealed instrument or specialty, and was used to enforce a covenant or promise. The rule requiring a seal to every covenant prevented the writ of covenant from becoming a general remedy for the enforcement of contracts. 21 5 Harvard Law Review 46. 22 See also Bigelow, History of Procedure, p. 308. 373 12 LAW OF CONTRACTS Account. The writ -of account was used to compel a factor or bailiff to account for moneys received by him on behalf of his employers. This action has been more or less modified by statute and encroached upon by the chancery courts who took jurisdiction of intri- cate accounts.^* Trespass on the case. On account of the limited number of king's writs, there were many wrongs for which no remedies existed. Consequently, a statute was passed which provided that where there was a wrong, which was not within the scope of the writs in common use, the chancery clerks might issue a writ adapted to the circmnstanees of the particular case. This led to the introduction of writs of trespass on the case, which gave a remedy where damage had resulted from the defendant's conduct, even if there was no forcible contact, the requisite of the writ of trespass proper. But it was necessary to allege and prove an undertaking on the part of the defendant before he could be held for negligence. Prom this requirement of alleging an undertaking, or assump- sit, the writs were known as writs of trespass on the case in assumpsit. In the course of time it came to be held that the defendant's negligence and not his undertaking was the gist of the action, so the assump- sit was finally omitted. Special assumpsit. In actions for deceit for the breach of a parol promise, in the fifteenth century, the courts finally permitted the plaintiff to recover damages where he had parted with money or prop- erty on the strength of the defendant's promise. The 23 Ames, 8 Harvard Law Eeview 253. 374 DEFINITION AND HISTORY 13 doctrine was later extended so that the action might be brought whenever the plaintiff had incurred any detriment by acting on the defendant's promise. The action for breach of a parol promise then came to be regarded as an action ex contractu, and developed into the action of special assumpsit.** To-day, the action of special assumpsit may be brought on any express contract. Indebitatus assumpsit. The action of indebitatus assumpsit is brought on contracts implied in fact and on obligations imposed by law. It originated about the sixteenth century in cases where there was a debt due from defendant to the plaintiff and a promise by the defendant to pay the debt. Now, although it is usually alleged, the promise is unnecessary to main- tain the action. ^* 2 Harvard Law Beview 10. 375 PART II THE FORMATION OF CONTRACTS CHAPTER II. OFFER AND ACCEPTANCE. 13. Agreement. — ^As indicated in a prior section,*^ the essential elements of a contract are the offer and acceptance (constituting the agreement), the consid- eration or the seal, the parties and the subject mat- ter. The presence of all of these elements creates a valid contract. If one is absent, there is no contract. The term "agreement," in its most general sense, means the concurring of two minds in the same opin- ion or purpose. At least two parties are required to constitute an agreement. But the agreement which enters into the formation of a contract must be some- thing more than a mere concurrence of the minds of A and B to some opinion, such as: "Clark Street runs east and west. ' ' In short, there must be a prom- ise. A and B must also assent to a promise or to promises. When A says to B, "I will promise to work for you for three months if you will promise to pay me $15 a week for three months," and B assents, there is an agreement which may become 25 See § 3. 376 OFFER AND ACCEPTANCE 15 an element of a contract. In short, the promise must be enforcible at law; otherwise the agreement is not an element of a contract. A joking promise, whereby A agrees to roll a peanut down the street if B promises to buy him a dinner, would not be an ele- ment of a contract, because such an agreement is not enforcible at law.^® 14. Nature of the agreement. — ^In general, this agreement or assent of the parties must bie a mutual willingness to enter upon and be bound by an under- stood bargain. There is no contract unless the parties so assent to the same thing and in the same sense. But this does not necessitate a union of the secret thoughts and intentions of the parties. Similarly, the motives which induce the parties to enter into a contract are as a rule not material. All that is neces- sary is the outward assent of both sides of the con- tract to the same thing and in the same general sense.^'' This assent or agreement originates from an offer and an acceptance. A says to B, '*I will sell you my horse for $50. ' ' B replies, ' ' I accept. ' ' By this offer and acceptance there is an agreement. 15. What is an offer. — ^An offer that may be ac- cepted and create a contract must possess certain characteristics: First, an offer must be communicated to the offeree (the person to whom the offer is made) and from the offerer (the one who makes the offer). Necessarily, it is not possible for one to assent to something of 28 Keller v. Holdeman, 11 Mich. 248, Leading Illustrative Cases. 27WilliamB v. Carwardine, 4 B. & A. 621 (Eng.), Leading Illustrative Cases. 377 16 LAW OF CONTRACTS which he is ignorant. Therefore, the offeree must be informed that an offer exists. The communication of the offer may be in whatsoever mode the offerer chooses. Thus A may offer to sell B a bushel of pota- toes. That offer must be communicated to B in order that it may be acted upon. But A may make his offer either by teUing it to B orally, or by posting it, or by sending it by messenger, or by telephoniag or telegraphing his proposition. The variety of modes for making an offer is unlimited. Second, the offer as communicated must be com- 'plete. If B, in answer to A's offer, must add further terms, then A's offer is not complete. Instead, B is then making the offer.^® Thus if A offers B a bushel of potatoes for sale, without mentioning a price, and B writes back, "I take your bushel for ninety cents," B is making a new offer and is not accepting A's offer. Cousequently, there is as yet no meeting of minds, for A had never agreed with B as to a price. Third, the offer must be intended seriouslv. A mere joke, which no one would reasonably consider a serious offer, may not be accepted for the purposes of contract. But, even if the offer were not intended seriously, a contract may arise by estoppel.^® Thus, if a reasonable man would be justified in treating the offer seriously, and the offeree acted on the offer to his injury, the offerer would be bound. The question 28 Anson, Contracts (Huffeut's 2d ed.), P- 19. 28 Where A, relying on what B has allowed to appear as the truth of a fact, acts on the appearance, and suffers damage thereby because the appear- ance was untrue, B is said to be estopped from denying the truth of that fact; Nyulasy v. Bowan, 17 Victorian Law Rep. 663 (Victoria). See subject. Estoppel. 378 OFFER AND ACCEPTANCE 17 is one of fact. Where a person whose horse was stolen exclaimed, "I will give $100 to anyone who will find out the thief," it was held not to be an offer to pay a reward, but merely an explosion of wrath against the thief.*" Yet, had the evidence proved that the offerer intended his offer to be accepted, then there would have been a serious offer. 16. Duration of offers — ^Reasonable time. — The offerer may withdraw his offer at any time before acceptance, but he is irrevocably bound after accept- ance. If there is no acceptance and no revocation, the offer is open for a reasonable length of time. The determination of what is a reasonable length of time depends upon the circiunstances of the particular case. In fact, a reasonable time may vary from a few minutes in some cases to a much longer time in other situations. Furthermore, where there are many deci- sions involving like situations, what is a reasonable time may become a matter of law rather than a ques- tion of fact. Then it is determined by the judge and not by the jury.*^ In the case of Minnesota Linseed Oil Co. v. Collier White Lead Co.,^^ A offered to sell B linseed oil. The offer was by wire and sent at 9 :15 p. m. on Saturday night, July 31st, B received the telegram on Mon- day, August 2nd, between 8 and 9 a. m. He sent a telegram of acceptance on Tuesday, August 3rd, at about 9 a. m. A refused to recognize the acceptance. The court held that the offer had terminated by lapse 80 Higgins v. Lessig, 49 111. App. 459. 81 Loring v. Boston, 7 Mete. 409 (Mass.) ; Ferrier v. Storer, 63 la. 484. 32 4 Dm. 431 (U. S.). 379 18 LAW OF CONTRACTS of time, taking into consideration the fact that the article was at that time fluctuating rapidly in value. Twenty-four hours' delay was held to be an unrea- sonable delay in this case. Similarly, an offer sent by telegram but accepted by mail would not comply with the implied terms of the offer, requiring a speedy answer. The offer would have terminated. 17. Same subject — Options. — ^A contract to keep an offer open for a certain length of time is called an option. Thus, A pays B a consideration of five dol- lars to keep open until January 1st B's offer to sell to him his horse. A may accept B's offer at any time up to January 1st, and B may not revoke the offer before January 1st. Suppose that A makes an offer in writing, and further states that he wiU keep the offer open for 15 days. Instead of receiving a con- sideration he places a seal after his name. Most juris- dictions hold that this is a contract, and that the offer is irrevocable for the time mentioned in the writing. Other jurisdictions hold that in the absence of consideration (as one dollar) the offer may be revoked. Care should be exercised in distinguishing between the contract to keep open the offer and the contract which is formed when that offer is accepted. When A accepts B's offer, which is held open by contract, to buy his horse, there is then a further contract for the sale of a horse.^* 18. Same subject — Time fixed. — An offer termi- nates when the time fixed in its terms for acceptance as Crandall v. Willig, 166 111. 233, Leading Illustrative Cases; Mans- field V. Hodgdon, 147 Mass. 304. 380 OFFER AND ACCEPTANCE 19 has passed without any acceptance by the offeree. When A offers to sell B his law books if B will accept in 24 hours, the offer terminates of itself at the end of the 24 hours. Moreover, A may revoke the offer at any time before the 24 hours have passed, imless there is a contract, as an option, to keep the offer open.^* 19. Same subject — ^Death — ^Insanity. — The death of either the offerer or offeree terminates the offer. This is said to be by operation of law. The rule is properly based on the theory that an offer cannot exist unless there is a person whose mind is meeting that of the person who accepts. Similarly, since the offer is made to a specific person and not to the public, the death of the offeree destroysthe offer. In general, insanity wiU terminate the offer.^^ If, however, performance has been completed so that the parties cannot be put back in their original posi- tion, the contract will stand.** 20. Same subject — ^Acceptance not in terms of offer. — ^Where the offeree does not accept in the man- ner provided for by the offer, it is terminated. A sent a letter to B by a wagon. The letter offered flour for sale, and notified B to answer in a letter to be returned by the wagon. Instead, B posted his letter of acceptance, in order that it would reach. A sooner. The failure to accept in the manner pre- scribed by the offerer, namely, by wagon, was con- sidered a refusal of the terms of the offer as made, s4 0fford V. Davies, 12 C. B. (N. S.) 748 (Eng.). 85 Frith V. Lawrence, 1 Paige 434 (N. Y.) ; Pratt v. Trustees, 93 111. 475, Leading Illustrative Cases. 36 Beach v. M. E. Church, 96 111. 177. 381 20 LAW OF CONTRACTS and the rejected offer was thereby terminated. There was, therefore, no contract created.*^ 21. Revocation of offers. — Termination and revo- cation are different things. Every case of revocation requires an act on the part of the offerer, whereas, as indicated, a termination occurs without the act of the offerer. To revoke an offer, the revocation must be communicated to or brought to the knowledge of the offeree.^® But there are authorities supporting a modification of this rule. They hold that if the offeree acquires the knowledge that the offerer re- voked the offer, the revocation is to be recognized. In whatever way the knowledge was acquired, whether directly from the offerer, or indirectly from a third party, the revocation is held by those authori- ties to be sufficient, provided always that the offeree did not accept before that knowledge reached him,^® Thus, if A on Monday morning offers to sell B his horse, and on Monday afternoon changes his mind, A must notify B that he has revoked his offer. Other- wise, if B accepts on Monday before the knowledge of the revocation reaches him, A is bound by his offer and B 's acceptance. But if B, while on the way to accept A's offer, met C, who informs him that A had revoked his offer to B, some authorities, as indicated, hold that this indirect means of communicating the revocation is sufficient. sTEliason v. Henshaw, 4 Wheat. 225 (U. S.), Leading Illustrative Cases ; Minneapolis & St. Louis Ey. Co. v. Columbus EoUing Mill, 119 U. S. 149, Leading Illustrative Cases. as Brauer v. Shaw, 168 Mass. 198, Leading Illustkative Cases. 38 McCanley v. Coe, 150 111. 311. 382 OFFER AND ACCEPTANCE 21 It nrast be Boted, however, that inasmuch as the offerer may make his offer in such terms as he pleases, he may reserve the right to revoke without notice. Generally, also an offer made by an advertisement may be revoked by advertising such revocation as extensively as the offer had been advertised.*** Consequently, in the case of Sears v. Eastern R. R. Co.,*^ a recovery was allowed because the change of notice in train time was not advertised as extensively as the original time table had been advertised. Of course, if an offer has been accepted before revo- cation, it may not be revoked. Nor, as has been in- dicated, may an offer be revoked which is kept open by a contract.*^ 22. Continuing offers. — Offers may be so made as to be capable of several acceptances, either by the same party or by different parties. These are called continuing offers, and there is a new contract upon each new acceptance of the offer. But the offer may be revoked before there is a subsequent further acceptance. This situation is illustrated by the case of Offord V. Davies.*^ Messrs. Davies made a written offer to Offord, the plaintiff, that if Offord would dis- count bills for the "C" firm, Messrs. Davies would guarantee the payment of such bills to the extent of £600 during a period of twelve calendar months. Some bills were discounted by Offord, and duly paid, 40 Shuey v. United States, 92 TJ. S. 73. *il4 Allen 433 (Mass.). *2 § 17 ; Brauer v. Shaw, 168 Mass. 198, Leading Illustrative Cases ; DiebinBon v. Dodds, L. E. 2 Oh. D. 463 (Eng.), Leading Illusteativb Cases. 43 12 C. B. (N. S.) 748 (Eng.). 383 22 LAW OF CONTRACTS but before the twelve months had expired Messrs. Davies revoked their offer and announced that they would guarantee no more bills. Offord, however, continued to discount bills, some of which were not paid, and then sued Messrs. Davies on the guaranty for bills discounted after the notice of revocation had been given. It was held that the revocation was a good defense to this action. The alleged guarantee was in effect a continuing offer, extendijig over a year, of promises for acts, and of guarantees for discounts. Each act of discoimt turned the offer into a promise; but, nevertheless, the entire offer could at any time be revoked, except as to discounts which had been made before notice of revocation had been given. 23. Counter offer — ^Inquiry — Quotation. — ^A coun- ter offer may be accepted by the party whose offer is re j ected. But a mere inquiry may not be accepted and become a contract. Thus, A offers by a letter to sell B his horse and wagon for $500. B writes that he wiU buy A's wagon alone for $100. A writes back accepting B's offer for the wagon. This is a counter offer by B. When A accepts this counter offer a contract is created. The original offer of A, how- ever, has been terminated.** In the case of Hyde v. Wrench,*^ A offered to sell a farm to X for £1,000. X said he would give £950. A refused, and X then said he would give £1,000. When A declined to adhere to his original offer, X tried to obtain specific performance of the alleged '* Pratt V. Trustees, 93 111. 475, Leading Illustkativb Cases. See § 18. *0 3 Beav. 334 (Eng.). 384 OFFER AND ACCEPTANCE 23 contract. The court h^ld that an offer to buy at £350, in response to an offer to sell for £1,000, was a- refusal of the original offer, and a counter . off er. Conse- quently, the original offer terminated.** But suppose A offers to sell B his horse and wagon for $500. B writes back, "Will you also sell the har- ness for $25 more-l" A writes, "Take the wagon, horse and harness for $525." Thus far no contract has been created, for B's letter was merely one of inquiry, and did not offer to buy the harness for $25, nor to buy the horse and wagon for $500, nor to buy all three for $525. In short, there was no counter offer which A may accept, as in the example given in the preceding paragraph.*'^ Similarly, a quotation is not an offer. "We quote you San Francisco bonds at 90," is not an offer that may be accepted.*® 24. Offers at auction. — The bidder, and not the auctioneer, is the one who makes the offer in an auc- tion. The auctioneer merely solicits the bids.** The bids made are simply offers, are not binding, and may be withdrawn at any time before acceptance. The acceptance is announced by letting fall the hammer and knocking the article off to the bidder. Then a contract is created, and of course the bid or offer is no longer revocable. 25. Orders for goods; — An order sent by a person *« Minneapolis, etc., Ey. Co. v. Columbus Rolling MiU, 119 U. S. .149; Anson, Contracts (Huff cut's 2d ed.), § 57. *T Asking for an extension of time is not a counter offer, but an inquiry. Stevenson et al. v. McLean, 5 Q. B. 346 (Eng.). \ *8 Johnson Bros. v. Ropers Bros., 30 Ont. 150 (Can.). 48 Payne v. Cave, 3 Term. E. 148 (Eng.) ; Langdell, Summary of Con- tracts, 8 19; Fisher v. Seltzer, 23 Pa. St. 308, Leading Illttstrativk Cases. 1-25 385 24 LAW OF CONTRACTS to a dealer for: goods is an offer to buy, and does not become a contract until it is accepted by the dealer, or some act is done on the faith of it, as the shipment or delivery of the goods.^" It is a contract as of the state of acceptance.®^ 26. Knowledge of terms of offer. — If an offer con- tains on its face the terms of a complete contract, the acceptor will not be bound by any other terms intended to be included in it, unless it appear that he knew of those terms, or had their existence brought to his knowledge and was capable of informing him- self of their nature. Cases which illustrate this rule arise when a contract has been made with a railway company for the safe carriage of the plaintiff, or of his luggage; or for the deposit or bailment of bag- gage in a cloak room. In each case the document or ticket delivered to the plaintiff contained terms modifying the liability of the defendant, the offerer, as carrier or bailee; ia each case the plaintiff, as ac- ceptor, alleged that the terms were not brought to his notice so as to form part of the offer which he accepted. Where the person who received the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions. This was the deci- sion in Henderson v. Stevenson,®^ where the plaintiff bought a ticket for transportation by steamer from Dublin to Whitehaven. On the face of the ticket were only the words "Dublin to Whitehaven." On 50 Dent V. Steamship Co., 49 N. Y. 390 ; Crook v. Cowan, 64 N. C. 743. 51 Dunlop V. Higgins, 1 H. L. Gas. 381 (Eng.) ; see subject, Conflict or Laws. SSL. E. 2 H. L. Sc. App. 470 (Eng.). 386 OFFER AND ACCEPTANCJE 25 the back of the same there was a statement exempting the company from liability with reference to bag- gage. The vessel was lost. The House of Lords held that the steamship company must pay for the. lost baggage, because the plaintiff did not know of the statements on the back of the ticket, and consequently could not have assented thereto. But, if a writing appears on the ticket, and, in the opinion of the jury, reasonable notice is thereby given that it contains conditions, the plaintiff is then pre- sumed to have assented to the terms. This, of course, is not a true meeting of the minds of the offerer and offeree.^* If the purchaser knew there was a writing, and knew or believed that the writing contained con- ditions, then he is bound by those conditions.^* 27. Agreements made by post. — An offer com- municated by a letter is construed as being made dur- ing every instant of time until it has reached the person addressed, and a reasonable time has been given in which to accept or reject that offer. Like any offer, it may be withdrawn by the sender at any time before acceptance. But the notice of withdrawal must reach or be communicated to the offeree in order to make it effective, because the acceptance of an offer by post is complete when the letter of acceptance is duly posted, properly ad- dressed and postage prepaid. There is a complete agreement when this occurs, although the letter of withdrawal has been posted. The rule is that while the letter of revocation must reach the offeree in 53 Anson, Contracts (Huffeut's 2a ed.), p. 16; Parker v. Ey., 2 C. P. D. 416 (Eng.). 54 Harris v. G. W. Ey. Co., 1 Q. B. D> 515 (Eng.). 387 26 LAW OF CONTRACTS order to render it effective, the letter of acceptance completes a contract when it is duly mailed. It does not matter if the letter of acceptance fails to reach the offerer. The offerer may, however, provide in the terms of his offer that the acceptance must be received before a contract shall be consimunated. In that event, the letter from the offeree must reach the offerer.^^ 28. Same subject — Cases considered. — The lead- ing case on this subject is Adams v. LindseU.^® There was an offer to sell wool to the plaintiff, made by a letter dated September 2nd. The letter was mis- directed, and did not reach the plaintiff until Sep- tember 5th. It was then accepted by a letter properly posted. But in the meantime the defendant sold the wool elsewhere. The plaintiff sued for the non- delivery of the wool. The defendant contended that the contract was not complete until the letter of acceptance reached him. As indicated, the court held that there was a contract when the letter of accept- ance was mailed. The opinion intimates that the post of&ce is made the agent for the offerer, and that the delivery of the letter to the post office is a delivery to the offerer's agent. In the case of Byrne v. Van Tienhoven,^'' an offer was sent by post on October 1st to the plaintiff at New York. The offer suggested a reply by cable. On October 11th the plaintiff received the letter, and at once 'accepted by cable. On October 8th a letter was posted withdrawing the offer. Although the 55 Lewis V. Browning, 130 Mass. 173. 50 1 B. & A. 681 (Eng.), Leading Illttstrative Cases. "5 C. P. D. 344 (Eng.). . 388 OFFER AND ACCEPTANCE 27 letter of revocation was posted before the cable of acceptance was received, the plaintiff was not notified of the revocation before he accepted. Consequently, the court found that a contract existed as of the date of the cable of acceptance. If the acceptor has the power under the postal reg- ulations to withdraw the letter before it leaves the town, it has been held that then the post office is not the agent of the offerer, but of the acceptor, and that then the letter of acceptance must reach the offerer before a contract is made. But in McDonald v. Chemical Nat'l Bank,^^ the court holds that such power of the sender to reclaim the letter does not operate to change the general rule.®® The holding of the case of McDonald v. Chemical Nat'l Bank (above) is further supported by the case of Henthorn v. Fraser.®" Here, the offer was made to the offeree personally. Next day the acceptance was sent through the mail. Meanwhile, a letter of revoca- tion was sent, but not received, until after the letter of acceptance was mailed. The court found that there was a contract. This decision in large measure does away with the idea that the post office is the agent either of the offerer or the offeree. As a matter of fact, in these cases the offerer did not use the post office to transmit the offer, so it cannot be said that the post office was his agent to receive the acceptance. Nor was the post office the offeree's agent, because then every acceptance by mail would have to be trans- mitted and delivered to the offerer. It would seem, 58 174 U. S. 610. 59 Ex parte Cote, L. E. 9 Ch. App. 27 (Eng.). so 2 Ch. Hep. 27 (Eng.). 389 28 LAW OF CONTRACTS therefore, that, regardless of the sort of means used to eonununicate the offer, the acceptance made by mail is complete when duly posted.*^ It is well settled, both in the United States and England, that the rules applicable to communications by post, govern communications by telegraph.®^ 29. Meeting of minds. — The great essential of every true contract is the meeting of the minds of the parties, the consensus ad idem (consent to the same thing). This, meeting of minds occurs in the steps of offer and acceptance. Does B's acceptance coincide with A's offer? The affirmative answer to this question determines that there is such an accept- ance of A's offer as will create a contract. If the acceptance does not cover the offer, but varies in some term, there is no contract, for it is the meeting of the minds of the parties that creates a true contract.®^ While this is the usual statement of the law, it cannot be taken too literally. To act fairly, the court" may construe a situation to be a contract although there is no actual meeting of minds; for example, the case of a contract where the acceptance by mail of A's offer is sent after the revocation by A but before knowledge of the revocation is received by B. 81 AmeTiean cases are uniformly agreed that the rule as stated is the law: that if the acceptor is expressly or impliedly invited to use the post, the acceptance is complete when the letter of acceptance is mailed. Tayloe v. Merchants' Fire Ins. Co., 9 How. 390 (U. S.), Leading Illustrative Cases. In Massachusetts, however, the law is that an acceptance by post only takes effect when it reaches the proposer. McCulloch v. Ins. Co., 1 Pick. 278 (Mass.). «2 Contracts by Telegraph, 14 American Law Eegister, 401 ; Trevof v. Wood, 36 N. Y. 307; Minn. Linseed Oil Co. v. Collier White Lead Co., 4 DiU. 431 (U. S. C. C), Leading Illusteative Cases. «s Putnam v. Grace, 161 Mass. 237, Leading Illustrative Cases. 390 OFFER AND ACCEPTANCE 29 30. Rewards. — The general rule is that to be accepted the offer must be known. But there is a peculiar line of cases relating to the question of rewards which requires comment. Generally, where A offers a reward for the return of his stolen auto- mobile, and B, who finds it, has no knowledge of the reward, B may not recover the reward.®* Similarly, where B gives information of the whereabouts of the automobile, knowing of the reward, it seems that B may not recover.*® But there are cases contrary to these rules. Under their decisions the reward need not be known in order to recover upon the offer when the party furnishes the desired information.*® In Williams v. Carward- ine,®'' the plaintiff, when near death, gave informa- tion for which a reward was offered. She told for the purpose of revenge, and not to receive the reward, , but recovery was allowed. 31. How acceptance may be made. — An accept- ance of an offer must be an act which is manifested externally, so that others may know or realize that there is an acceptance. In short, merely deciding within one's own mind that one will accept an offer is not sufficient.®^ The acceptance of an offer may be by express words 8* Fitch V. Snedaker, 38 N. Y. 248, Leading Illustrative Cases. es Vitty v. Eley, 51 N. Y. App. Div. 44; Hewitt v. Anderson, 56 Cal. 476. eoDawkins v. Sappington, 26 Ind. 199, Leading Illustrative Cases; Auditor v. Ballard, 9 Bush 572 (Ky.) ; Gibbon v. Proctor, 64 Law Times, (N. S.) 594 (En?.). 87,4 B. & A. 621 (Eng.), Leading Illustrative Cases. 88 See Anson, Contracts (Hufifout's 2d ed.), §29; Williams v. West Chi- cago St. Ey., 191 111. 610; Hobbs v. Massasoit Whip Co., 158 Mass. 194, Leading Illustrative Cases. 391 30 LAW OP CONTRACTS or by conduct. Where an offer is made and neither accepted nor rejected expressly, but the party to whom the offer is made proceeds in the matter and derives profit or benefit from it, or asserts rights over the thing in regard to which the offer is made, here the offer is held to be impliedly accepted. Or, if some particular thing is to mark the acceptance, a doing of this thing completes the contract. A letter asked if goods would be supplied at a certain price, and stated that if they would, the first cargo was to be shipped on receipt of the letter. A shipment of the cargo was held to complete the contract.®" Thus, the acceptance may be made by making a promise in the terms of the offer, which will create a bilateral contract; or it may be made by doing an act in the terms of the offer, which will create a unilateral contract. 32. Same subject — Silence. — Silence does not constitute consent unless there has been such a course of dealings between the parties as to render silence equivalent to consent and acceptance.'^" This, rule does not, however, permit one to frame his offer so as to impose upon the offeree the duty to speak or act. If A writes B, "We shall send you a carload of potatoes in a week unless we hear from you," and there have been no previous negotiations, the failure of B to refuse the offer will not constitute an acceptance.''^ «9 storm V. United States, 94 V. S. 76. 70 Anson, Contracts (English ed.), P- 34; Boyal Insurance Co. v. Beatty, 119 Pa. St. 6; White v. Corlios, 46 N. Y. 467, Leading Illusteative Cases. 71 Grice v. Noble, 59 Mich. 515; Boyal Insurance Co. v. Beatty, 119 Pa. St. 6, Leading Illustrative Cases. 392 OFFER- AND ACCEPTANCE 31 33. "Who may accept offer. — Only the person to whom an offer is made may accept the offer. If A offers B his horse for $100, A is not bound by C's acceptance. Where A orders ice from B, which is furnished by C, who bought B 's business unknown to A, C cannot recover on a contract. C is making him- self A's creditor without his consent. Such ofi&cious- ness on C's part the law does not favor.'^^ But if an offer is made generally, any one who complies with its terms, knowing of the offer, may become the other party to the contract. The common example is a reward which is generally advertised. '^^ A public offer to do work at fixed terms is impliedly assented to by one having work done. 34. Advertisements as offers. — Not every adver- tisement setting forth the wares of a merchant is an .offer. Ordinarily, such displays are regarded as soliciting trade. The merchant is not bound to sell the advertised articles. Similar are the cases of hand-bills and circulars which merely seek to induce an offer on the part of the prospective purchaser. The theory underlying these advertisements is anal- ogous to the situation of the auctioneer.'^* But a circular may actually make an offer, and in such an event there will be a contract when its terms are accepted. Where a company offered a reward if anyone contracted influenza after using its remedy for a certain period of time, it was bound to pay that reward to the plaintiff, who had complied with the' 72 Boston Ice Co. v. Potter, 123 Mass. 28, Leading Illustrative Cases. 73 Anson, Contracts (English ed.), p. 54. See § 30. 7* See § 24; Moulton v. Kershaw, 59 Wis. 316. 393 32 LAW OF CONTRACTS terms of the circular .^^ The eompaiiy had placed the amount of the reward in a bank, and the court re- garded that act as indicating that the circular was an offer. 35. Cross offers. — ^If offers cross, there is no con- tract. A writes to B on November 1st, offering to sell him his law books for $100, and at the same hour B writes to A offering to buy A's law books for $100. Since neither A nor B knew of the other's offer, there is no contract. Although the terms of each offer are the same, yet since both A and B only meant them for offers, the court may not make one of them an ac- ceptance. To do that would take away the right of either party to revoke his offer. Such situations are called "cross offers," and it is said that two like offers are not the same as an offer and acceptance. Blackburn, J., in Pearson v. Commercial,'^® says: "The promise or offer being made on each side in ignorance of the promise or the offer made on the other side, neither of them can be construed as an acceptance of the other." 36. Rule as to written draft. — Generally, where the intention of the parties after a series of negotia- tions is to reduce the terms of the proposed agree- ment to writing, there is no contract until the writing is made.'''^ Similarly, where the parties come to a complete understanding, but contemplate the privi- lege of withdrawal until the contract is reduced to a final writing, there is no contract until the instru- 7= Carim V. Carbolic Smoke Ball Co., L. E. (1893), 1 Q. B. 256 (Eng.), Leading Illustkative Cases. 78 35 L. T. 445 (Eng.). 77 Edge Moor Bridge Works v. Bristol, 170 Mass. 528. 394 OFFER AND ACCEPTANCE 33 ment is signed/* But if the parties do come to a complete imderstanding by their correspondence, a contract is created.^® This is called a contract by incorporation by reference.*" 78 Donnelly v. Currie Co., 66 N. J. L. 388. ■"> Sherry v. Proal, 100 N. E. 421 (N. Y.). so Sanders v. Pottlitzer Co., 144 N. T. 209. 395 CHAPTER III. REALITY OP CONSENT. 37. Reality of consent. — The next question to be considered in the formation of a contract is genuine- ness or reality o;f consent. Where such reality of consent is lacking, there is no contract. There may be various causes for unreality of con- sent: (1) The parties may not-have meant the same thing ; or one or both, while meaning the same thing, may have formed imtrue conclusions as to the subject matter of the agreement. This is called Mistake. (2) One of the parties may have formed incorrect con- clusions respecting the subject matter of the con- tract, because the other party made certain statements or withheld certain facts. If this situation arises in- nocently, it is called Misrepresentation. (3) But if the incorrect and untrue conclusions of the one party to the contract are the result of iiitentional misrepre- sentations or active concealment of facts by the other party, there exists what is called Fraud. - (4) "Where the consent of one of the parties is extorted from him by actual or threatened violence, there is Duress. (5) Finally, the unusual influence, mental or moral, of one party on the other, causing no real expression of intention on the party affected, is termed Undue Influence. 38. Mistake. — The present discussion is con- cerned with the mistake of intention, and not mistake 396 EEALITY OF CONSENT 35 of expression. For instance, the parties may be genu- inely agreed on the terms of the contract, but the terms may, by mistake, be so expressed as not to convey their meaning. In these cases they may be permitted to explain the contract, or the mistake may be corrected. This is mistake of expression, and per- tains to the interpretation of contracts.*^ But where the parties have not meant the same thing, or one or both may, though meaning the same thing, have, formed untrue conclusions as to the subject matter of the agreement, it is a mistake of intention.*^ There are several instances of mistake which will be considered in this connection. Mistake as to the nature of the transaction. Cases involving this sort of mistake arise in the execution of written instruments, and almost of necessity arise from some misrepresentation or deceit on the part of a third party.** Thus where a man who is illiterate, or blind, or ignorant of the language, executes a deed Qonveying his property to another, which deed is mis- read or misdescribed to him, it is void when, in fact, the deed is a different instrument from that which he was led to believe it to be.** But if a man can read and does not read the docu- ment which he signs, or if, being unable to read, he signs without having it read to him, he will not be permitted to say the contract was void.*^ "If, what- ever a man's real intention may be, he so conducts 81 See Chap. XTl". 82 Anson, Contracts (Huffcut's 2A ed.), § 176. 83 Thoroughgoofl 's Case, 2 Coke 9 (Eng.). 84 Foster v. MacKinnon, 4 C. P. 704 (Eng.). 85 Mullet V. Kelly, 116 Fed. 545; Walker v. Ebert, 29 Wis. 194, Leading lUiUSTKATiyB Cases. 397 36 LAW OF CONTRACTS himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms."®® Mistake as to the subject matter of a contract. This mistake occurs in three cases: (1) Mistake as to the existence of the subject matter; (2) Mistake as to the identity of the subject matter; and (3) Mistake as to the nature and essential qualities of the subject matter. (1) If the agreement is in respect to a thing which, unknown to both parties, does not exist when the contract is made, this goes to the very root of the matter and avoids the contract. This rule is further based on the ground that the existence of the subject matter is an essential element of a contract. In Couturier v. Hastie?'' there was a sale of a cargo of corn which was supposed by the parties at the date of the sale to be in voyage from Salonica to England. The corn had been, as a matter of fact, unloaded and sold prior to the date of the agreement because it had heated and was about to spoil. The contract of sale was held to be void, because the intention of the parties was that there was something to be sold, and something to be purchased at the time, when in fact the object contemplated had ceased to exist.®® 88 Blackburn, J., in Smith v. Hughes, L. B. 6 Q. B. 597 (Eng.). See Anson, Contracts (Huffcut's 2cl ed.), §| 186-190. 57 5 H. L. C. 673 (Eng.). 58 See Gibson v. Pelkie, 37 Mich. 380; Brick Co. v. Pond, 38 Ohio St. 65. 398 REALITY OF CONSENT 37 (2) A mistake as to the identity of the subject matter may avoid an agreement. Thus, A agreed to buy a cargo which was to arrive via the ship "Peer- less" from Bombay. But later it developed that there were two ships of that name, but sailing at ilifferent dates. The buyer meant one, and the seller had in mind the other. It was held that there was no contract, for there was no meeting of the minds.^® (3) Where the mistake occurs as to the nature and essential qualities of the subject matter, the fact that the subject matter of the contract possessed, or failed to possess, qualities which the parties both believed or did not believe it to possess, is immaterial. That is to say, the motives which induced the assent do not affect the validity of assent when once given. Where A sold to a jeweler, B, an uncut stone for one dollar, both being ignorant of the nature of the stone, and it turned out to be a diamond worth $1,000, it was nevertheless a binding contract.^" But the law will not allow one party to accept a promise which he knows the other party understands in a different sense from that in which he under- stands it. If the mistake or misunderstanding is so known, the contract is voidable. In the case of Smith V. Hughes,®^ the defendant was sued for refusing to accept oats which he had bought of the plaintiff. His defense was that he intended and had agreed to buy old oats; whereas the oats delivered were new. The court held that it was not enough to excuse the 89 BafBes v. Wichelhaus, 2 H. & C. 906 (Eng.) ; Kyle v. Kavanagh, 103 Mass. 356, Leading Illustrative Cases. 80 Wood V. Boynton, 64 Wis. 265. "L. B. 6Q. B. 597 (Eng.). 3P9 -• 38 LAW OF CONTRACTS defendant that the plaintiff knew that the defendant intended and thought he was buying old oats, -but to avoid the sale, the plaintiff must have known that the defendant thought he was being promised old oats. It was said that if the plaintiff knew that the defendant was contracting on the assumption of get- ting old oats, "he is deprived of the right to insist that the defendant shall be bound by that which was the apparent, and not the real bargain."®^ The question is not what the parties thought, but what they said and did. A sells to X, and X believes that he is buying "this bar of gold," "this barrel of oysters," "this case of champagne." The bar turns out to be brass, the barrel to contain oatmeal, and the case to contain sherry wine. The parties are honestly mistaken as to the subject matter of the contract, but their mistake has nothing to do with their respective rights. These depend on the answer to the question : Did A sell to X^ bar of metal or a bar of gold ; a case of wine or a case of champagne; a barrel of pro- visions or a barrel of oysters 1 A contract for a bar of gold is not performed by the delivery of a bar of brass. A contract for a bar of metal leaves each party to take his chance as to the quality of the thing contracted to be sold, but this again would not be performed by the delivery of a bar of wood painted to look like metal. Such a failure to deliver the article sold, or the delivering of one of a different character, is not mistake of intention, but merely failure of consideration: — failure to perform the »2 Anson, Contracts (Huffcut's 2a ed.), §§ 132-134; Shelton & Co; v. Ellis, 70 Ga. 297, Leading Illustrative Cases. • 400 REALITY OF CONSENT 39 terms of the contract. The contract exists, but is broken ; but where there is mistake of intention, there is no contract created. Mistake as to the identity of parties. Such a mis- take arises where A contracts with B, believing him to be C. Here, whether the mistake arises through B's false representation that he is C, or whether B merely accepts A's offer which was meant for C, there is no agreement. When a person intends to contract with another he cannot be compelled to accept a third person as the other party to the contract. "Every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent.""^ If A has no definite person in mind, as where he makes a general offer in the case of a reward, this question does not arise. Nor does it apply to the case of a contract with an agent of an undisclosed principal, because of the principles of the law of principal and agent. 39. Mistake of one party only. — A mistake of one party only, not known to the other, is generally no ground for avoiding the contract. The test is to de- termine whether or not the mistake is as to the sub- stance of the whole consideration, and going to the very root of the matter, and not only to some point, although material, which does not affect the sub- stance of the whole consideration. If the mistake is as to the former, then there is in reality a failure of consideration, which is a defense to the contract. If it is the latter, the contract is valid. Unless there 93 Arkansas Valley Smelting Co. v. Belden Mining Co., 127 V. S. 387. 1-26 401 40 LAW OF CONTRACTS is a mutual mistake, or the presence of undue in- fluence or fraud, there is usually little or no groxmd for avoiding the contract for mistake. In Brown v. Levy,** A made an offer to B to erect a building for a certain amount. B accepted the offer, and although A had made a mistake in adding up the items of his estimates to the extent of ten thousand dollars, it being no fault of B, the contract was held to be binding. 40. Mistake in motive. — Similarly, a mistake in the motive or inducement which led A to enter into the contract is no ground for avoiding the agreement. If he leases a tract of land under the mistaken belief that there is a vein of coal in it, he is nevertheless bound by the lease, although later he finds no such coal."^ If one orders a greater quantity of an article than he requires, although the mistake was reason- able and justifiable, this is no ground to compel the vendor to give up his rights under the contract.®® Shrewd business transactions are not restricted by the courts, unless there are elements of fraud or mis- representation. 'Where A purchases land from B at $25 per acre, knowing that valuable minerals have been found on adjoining farms, B cannot complain of the bargain. B's mistake, if there is'^one, is not sufficient to avoid the contract. Whether or not A owes B a duty to disclose such facts is another ques- tion to be considered later under the topic of mis- representation. 84 69 S. W. 255. 95 Jeffreys v. Pairs, 4 Ch. D. 448 (Eng.). »B J. A. Coates & Sons v. Buck, 93 Wis. 128. 402 REALITY OP CONSENT 41 41. Mistake of law. — ^It is generally said that a mistake, in order to affect the enforcement of a con- tract, must be one of fact. A mere mistake of law will not disturb the status of the agreement. Such a mistake occurs where a person knows the facts of the case, but is ignorant of the legal consequences.®'' Certain exceptions appear to this general rule. Thus, while it is presumed that everyone knows the general rules of law, this presumption, it is urged, should not apply to private rights.'® Such matters should be regarded as questions of fact. It is settled, moreover, that what is the law of a sister state or foreign country is a question of fact.®' In general, however, a statement by A to B, as to what the law is-, will be regarded as a matter of opinion, upon which the other party relies at his peril.^ 42. Effects of mistake. — The effect of a mistake is to avoid the contract. If the contract is executory, the party may repudiate it and set up the mistake as a defense to an action upon the contract. If money has been paid, or services rendered, an action in quasi-contract will lie to recover such money or the value of the services.^ 43. Misrepresentation. — Misrepresentation means an innocent misstatement or non-disclosure of facts. It should be distinguished from fraud, which consists in making representations known to be false. The »r Mowatt v. Wright, 1 Wend. 355 (N. Y.). 08 Cooper v. Phibbs, L. E. 2 H. L. 149 (Eng.). 98 Norton v. Harden, 15 Me. 45. 1 nsh T. aeland, 33 HI. 237. 2 See subject, Quasi-Conteacts. Equity furnishes further remedies. See subject, Eqtjitt. 403 42 LAW OP CONTRACTS practical test of fraud as opposed to mere misrep- resentation is that fraud gives rise to an action for deceit, while innocent misrepresentation does not. Misrepresentations made by one party to another, or innocent non-disclosure of facts, only affect the validity of certain contracts in which the greatest of good faith between the contracting parties is re- quired. Examples are contracts of insurance, sales of land, and purchase of shares in companies.^ As a rule, subject to the exceptions noticed, misrepresenta- tion does not affect the validity of the contract. "The strong tendency of the courts has been to bring, if possible, every statement, which, from its importance, could affect consent,-' into the terms of the contract. If a representation cannot be shown to have had so material a part in determining con- sent as to have formed, if not the basis of the con- tract, at any rate an integral part of its terms, such a representation is set aside altogether."* The contracts which are affected in their formation by misrepresentation or non-disclosure are of a nature that one of the parties must rely upon infor- mation furnished by the other, and more confidence must of necessity be placed in the party making the disclosures. Such contracts are said to be uberrimae fidei; that is, of the most abundant good faith.® Marine insurance. In McLanahan v. Universal Ins.' Co.,' the court, speaking of marine insurance, s Anson, Contracts (English ed.); P- 137. ♦ Anson, Contracts (English ed.), p. 139. See Wilcox v. The Iowa Wes- leyan University, 32 la. 367, Leading Illustrative Cases. 5 Walden v. La. Irs. Co., 12 La. 134, Leading Illustkativb Cases. «1 Pet. 170 (U. S.). 404 REALITY OF CONSENT 43 holds that "the contract of insurance is one of mutual good faith ; and the principles which govern it are those of enlightened moral policy. The underwriter must be presumed to act upon the belief that the party procuring insurance is not, at the time, in possession of any fact material to the risk, which he does not disclose." Every fact which would influence the ac- ceptance or rejection of the risk by the imderwriter, is material, and must be communicated. Any con- cealment, although resulting from accident or mis- take, will, when material, avoid the policy.'' Fire insurance. In the contract of fire insurance the description of the premises is a representation on the truth of which the validity of the contract depends.^ But it is said that not so high a degree of good faith and diligence is required in fire insurance as in marine insurance, and the rule of marine in- surance that the insured is bound, without inquiry, to disclose every fact within his knowledge material to the risk, does not apply to its full extent.® Now,, where applicants for insurance fill out the in- quiries submitted, in writing, an innocent failure to communicate facts about which the insured was not asked, will not avoid the policy of insurance.^" Life insurance. The contract of life insurance differs from those of marine'and fire insurance in this respect: untruth in the representations made to the insurer as to the life insured will not affect the val- I Lexington Ins. Co. v. Paver, 16 Ohio St. 324; see subject, Insurance. 8 Anson, Contracts (Huffcut's 2d ed.), §212. » Wood, Fire Insurance, § 196, note. 10 Washington Mills Co. v. Weymouth Ins. Co., 135 Mass. 505; Browning V. Home Ins. Co., 71 N. Y. 508. See subject, Insubance. 405 44 LAW OJ' CONTRACTS idity of the contract, unless they be made fraudu- lently, or unless their truth be made an express con- dition of the contract. But in Vose v. Eagle Life & Health Ins. Co.," it is said: "An untrue allega- tion of a material fact will avoid the policy, though such allegation or concealment be the result of acci- dent or negligence or design." The rule seems to be that if the representations were material to the risk and falsely made, they avoid the policy." Sale of land. In agreements of this nature a mis- description of the premises sold or the terms to which they are subject, though made without any fraudu- lent intention, will vitiate the contract.^^ In this situation the- contract is not strictly uberrima^ fidei, (of greatest good faith) ; although latent defects in the title should be disclosed by the vendor, yet if the vendor has said or done nothing to throw the pur- chaser off his guard or to conceal a patent defect, there is no fraudulent concealment on the part of the vendor. The purchaser has an opportunity of in- specting and judging for himself; and the principle of caveat emptor (let the buyer beware) applies." Purchase of shares in companies. Those who issue a prospectus holding out to the public the great ad- vantage which will accrue to persons who will take shares in a proposed undertaking, and inviting them to take shares on the faith of the representations "6 Cush. 42 (Mass.). 12 Campbell v. New Eng. Mutual Life Ins. Co., 98 Mass. 396. See sub- ject, Insurance. Phoenix Mutual Life Ins. Co. v. Baddin, 120 U. S. 183, Leading Illustrative Cases. 13 Anson, Contracts (Hufifeut's 2d ed.), §214. "Addison, Contracts, vol. II, p. 914. 406 REALITY OF CONSENT 45 therein contained, are bound to state everything with strict and scrupulous accuracy, and not only to ab- stain from stating as fact that which is not so, but, to omit no one fact within their knowledge the existence of which might in any degree affect the nature, ex- tent and quality of the privileges and advantages which the prospectus holds out as inducements to take shares/^ 44. Expressions of opinion. — Generally, the rep- resentation must be a representation of fact. An expression of an opinion is not such a representation. Thus, commendatory expressions as are ordinarily used to induce purchasers to buy are not treated as fatal representations, although occurring in the special contracts just mentioned, and more extrav- agant than correct.^® But a statement of opinion in regard to facts peculiarly within the knowledge of the party making the statement may amount to a representation that the party making the statement knows facts which justify his opinion.^'' 45. Representations of law. — ^A representation as to what is the law ordinarily does not affect the con- tract.^^ But a statement of fact which involves a conclusion of law is nevertheless a statement of fact." Ordinarily, A is not justified in relying upon B's representation in regard to the law. If B occupies a fiduciary position with reference to A, or if from 15 Per Kindersley, V. C. in New Brunswick & Canada By., etc., Co. v. Muggeridge, 1 Drew & S. 363. 18 Anson, Contracts (Huffcut's 2d ed.), §§ 208, 209. IT French v. Eyan, 104 Mieh. 625. 18 Pish V. Cleland, 33 111. 237, Leading Illustrative Cases. i» Motherway v. Wall, 168 Mass. 333. 407 46 LAW OF CONTRACTS B's superior means of information, A is reasonably entitled to accept the former's statements in regard to the law, the representation has the same effect as in the case of a statement of fact.^" The law of a foreign jurisdiction being a question of fact, a rep- resentation thereunto would be a representation of fact." 46. Misrepresentation — Conditions — ^Warranties. — ^If a representation is a part of the contract itself, and does not merely affect the formation of the con- tract, it becomes a condition or a warranty. In such event, the fact that the representation is false operates either to discharge the injured party from his obligation, or to- give to him a right of action based on the contract for loss sustained by reason of the untruth of the statement. The statement, in such a case, has become a term of the contract it- self.^^ ** Properly speaking, a representation is a state- ment or assertion, made by one party to the other, , before or at the time of the contract, of some matter or circumstance relating to it. Though it is some- times contained in the written instrument, it is not an integral part of the contract, and consequently the contract is not broken, though the representation proves to be untrue. * * * ^ question, however, may arise whether a descriptive statement in the written instrument is a niere representation, or whether it is a substantiv3 part of the contract. This 20 Ross V. Drinkard's Adm'r, 35 Ala. 434, Leading Illtjsteative Cases; aims V. Ferrill, 45 Ga. 585. 21 Wood V. Eoeder, 50 Neb. 476. 22 See §166, Chap. XIII. 408 REALITY OF CONSENT 47 is a question of construction, which the court, and not the jury, must determine."^' 47. Representation must be acted upon.— The party to whom the representation is made must be induced thereby to enter into the contract. That is, he must be ignorant of the facts, must believe the representation, and must enter into the contract as a result thereof. It is sufficient if the misrepresenta- tion is the material inducement.^* The party acting on the misrepresentation must have been justified in so acting; that is, the repre- sentation must have been made either -^o him per- sonally, or to a third person to be communicated to hitn. Thus, a report to the Secretary of State of the affairs of a corporation, filed as required by. law, is not a representation upon which anyone is justified to act, because it is not made to anyone except the state and because it is made by compulsion.^^ /But a representation to a commercial agency is in- tended to be acted on by the public.^* 48. Care by party. — ^Not only must the represen- ^ tationbe acted upon within a reasonable time after it is made,^'' but some courts further require a person to use reasonable diligence to discover for himself facts obvious to an ordinary observer. This is true especially where the means of knowledge are equally available to both parties. If he fails to do this he 23 Williams, J., in Behn v. Burness, 3 B. & S. 751 (Eng.) ; see Condi- tions, Chap. XIV. 24 Buff V. Jarrett, 94 Ul. 475. 25 Hunnewell v. Duxbury, 154 Mass. 286. 28 Butterfield v. Barber, 20 B. I. 99. 27 Sharplesa v. Gummey, 166 Pa. St. 199. 409 48 LAW OF CONTRACTS cannot set up that he has been misled by the other party,^® Thus, if A, able to read, signs a contract without reading it, he cannot have it set aside for misrepresentation by the other party as to its con- tents.^® But many courts are adopting the more ra- tional rule that if A has deceived B, the former has no right to say, "You ought not to have trusted me," if B has actually relied on his misrepresentations.^" 49, Eifect of misrepresentation. — Mere represen- tation, although it be false and material, if not know- ingly false so as to constitute fraud, will not generally support an action for damages."^ In contracts uber- rimae fidei, in which innocent misrepresentation avoids the contract, such a misrepresentation may be set up as a defense to an action at law on the contract. Furthermore, it may be ground for rescission or reformation in equity. 50. Fraud. — ^Where untrue conclusions have been induced by representations of one party, made with a knowledge of their untruth, and with the intention of deceiving, it is fraud.'* To constitute fraud in law, there must be a false representation of fact. Furthermore, the falsity must be known. A false representation made reck- lessly and without regard to its truth or falsity may satisfy this requirement. But it must be made with the intention that it should be acted upon by the 28 Slaughter's Adm'r v. Gerson, 13 Wall. 379 (U. S.). zoKimmell v. S'kelly, 62 P. 1067 (Cal.). 8» Bigelow, Fraud, p. 524. 81 Wakeman v. Dalley, 51 N. T. 27. 82 Fish V. Cleland, 33 1\\. 237, Leading Illustrative Cases; Anson, Con- tracts (Huffcut's 2d ed.), §§ 196, 220. 410 REALITY OF CONSENT 49 feomplainiHg party. Lastly, tlie party must act upon the false representation. (a) False representation of fact.^ A mere in- nocent non-disclosure does not constitute fraud. There must be some active attempt to deceive, either by a statement which is false, or by a representation, true as far as it goes, but accompanied with such a suppression of facts as to make it convey a false im- pression. Or, there must be a concealment of facts which a party is under a duty to disclose to another party. • In Ward v. Hobbs,^^ the defendant sent pigs to a public market knowing that they were suffering from a contagious disease. They were sold "with all faults" to the plaintiff. A large nmnber of them died from the disease, and other pigs of the plaintiff were infected with the disease. It was claimed for the plaintiff that the placing of the pigs in the market for sale amounted to a representation that they were free of disease of a contagious nature. In the Court of Appeals it was held that the facts did not authorize the jury to find that the defendant represented the pigs as free from infectious disease.^* So it was held that where the defendant rented a house which he knew was desired for immediate oc- cupation, and knew that it was in an unfit and danger- ous state, but did not disclose this fact tathe plaintiff, the action for fraud would not lie. This was so be- cause there was no representation or warranty, ex- pressed or implied, that the house was fit for occu- rs 3 Q. B. D. 150 (Eng.). 34 Anson, Contracts (Hufeeut's 2a ed.), §i 221, 222. 411 50 LAW OF CONTRACTS pation.'" But it is also held to be the duty of the landlord to inform the tenant of the existence of any nuisance on a premise which may be prejudicial to life or health, and if this information is not given an action for fraud or deceit will lie.^® It must be a representation of fact, and not a mere expression of opinion or intention, if it is to con- stitute fraud. A representation by the seller that an article is worth a given sum, is a mere expression of opinion and not a representation of fact.^^ So, state- ments as to the cost of an article are treated as mere opinions unless made under such circumstances as justify the buyer in relying on them as statements of fact.'« As regards intention, it is to be observed that while a statement of future intention is not a statement of fact, a false expression of present intention is such a fraud as invalidates the contract. For example, the purchase of goods with the intention not to pay for them is held to be a fraudulent misrepresentation.** But mere insolvency or lack of reasonable expectation to pay is insufficient. (b) Made with hnowledge of its falsehood or in reckless disregard of its truth or falsity. A state- ment made with knowledge of its falsehood, or in reckless disregard of its truth or falsity, is an ele- ment of fraud. If a representation is made without knowledge of its being false, and without such reck- 86 Keates v. Cadogan, 10 C. B. 591 (Eng.). 3« Cesar v. Karutz, 60 N. T. 229. 8T Noetling V. Wright, 72 HI. 390. »8 Cooper V. Lovering, 106 Mass. 77. as Donaldson v. Farwell, 93 TJ. S. 631. 412 REALITY OP CONSENT 51 lessness of statement as constitutes bad faith, the party injured has no right of action.*" It is not necessary that a dishonest motive be present to constitute fraud. Representations in fact false, though believed or hoped to be true, if not justified by the knowledge of the party making them, will constitute fraud.* ^ (c) Made with intention to he acted upon by the complaining party. This does not require that the statement be made to the injured party, for if dam- age results from the false statement as a direct con- sequence, the party guilty of the fraud is responsible to the party injured. In Langridge v. Levy,*^ a gun was sold to the father of the plaintiff upon the representation that the gun had been made by "Nock" and was "a good, safe and secure gun." The plaintiff used the gun, it ex- ploded, and injured him to such an extent that his hand had to be amputated. The representations made by the seller of the gun were proven to be untrue, and the court held that he was liable upon them although made to the father and not to the plaintiff. Where a druggist negligently labels poison so that it appears as a harmless medicine and sells it to dealers in medicines, he is liable to any one who buys it and is injured by its use, provided there is no negligence on the part of the retailers.*^ 40 Cole V. Cassidy, 138 Mass. 437; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, Leading Illustkative Cases. *iPolhiIl V. Walter, 3 B. & A. 114' (Eng.) ; Anson, Contracts (Huffcut's 2d ed.), § 223. « 2 M. & W. 519 (Eng.). *8 Davidson v. Nichols, 11 Allen 514 (Mass.). 413 52 LAW OF CONTRACTS 50, it is held that representations made to commer- cial agencies by business firms as to their financial standing and responsibility for the purpose of secur- ing credit and a rating, if untrue, wiU form the basis of an action for deceit by a person dealing with the firms on the strength of the representations.** (d) The representation must induce the party to act. Necessarily, unless the party to whom the rep- resentation was made acted upon it, he is not injured and cannot complain. The plaintiff cannot establish a title to relief simply by showing that the defendant has made a fraudulent statement. He must also show that he was deceived by the statement and acted upon it to his prejudice.*^ 51. The effect of fraud.— The effect of fraud upon the contract is to be distinguished from the right given the injured party, both at common law and in equity, to recover from the injuring party the loss occasioned by the fraud. The perpetration of a fraud gives the injured party a right to recover indepen- dent of contract, and also affects the rights of the parties under the contract. It is the effect which fraud has on the contract that is now considered. The party to the contract who has been injured by the fraud of the other party, has a two-fold right: he may, on discovery of the fraud, afi&rm the con- tract, retain the article or goods sold, and sue for the damage sustained because of the fraud; or, he may elect to rescind the contract, and may then resist an action brought upon it at common law, or for ** Lewis V. Jewell, 151 Mass. 345, Leading Illusteative Cases. *0MarsHalI v. Hubbard, 117 XT. S. 415; Bartlett v. Blaine, 83 111. 25. 414 EEALITY OF CONSENT 53 specific performance in equity, or lie may then ob- tain a judicial avoidance of it in equity. The contract, until the injured party has elected his remedy, is voidable, and not void. The right is limited in this, that it must be exercised before ac- cepting a benefit with knowledge of the fraud, and before dealing with the subject matter of the con- tract so that the position of the parties cannot be re- stored, and also before innocent third parties have acquired an interest for value under the contract.*" 52. Duress. — ^Where the contract is entered into by one of the parties by reason of his being coerced by actual or threatened violence, the contract may be avoided on the ground of duress. The contract is voidable, not void; that is, the party under duress may stand by the contract or seek to have it made unenforcible.*'^ The older cases limited duress to cases involving bodily harm or imprisonment, or threats thereof. Modern cases are enlarging its scope so as to make it include all cases of unlawful interference with the person-or property of another in order to compel him to make a contract.** Today, duress consists in the actual or threatened unlawful exercise of power pos- sessed, or believed to be possessed by one party oyer 'the person or property of another, from which the latter has no other means of immediate relief than entering into the contract.*® *6 Cochran v. Stewart, 21 Minn. 435. 47 Miller v. Minor Lumber Co., 98 Mich. 163 ; United Shoe Machinery Co. V. La Chapelle, 99 N. B. 289 (111.), Leading Illustrative Cases. 48Harriman, Contracts (2d ed.), §445. 49Badich v. Hutchins, 95 V. S. 210; Morse v. Woodworth, 155 Mass. 233, Leading Illttstrative Cases. 415 54 LAW. OF CONTRACTS Threats by A to bring a civil abtion against B if B does not enter into a proposed contract do not constitute duress. Neither is it duress to threaten to take possession of property by means of a judicial writ, unless there is an attempt to abuse the process of the court.®" On the other hand, threats of criminal prosecution made for the purpose of compelling an- other to enter into a contract constitute duress.®^ But if A, who has been arrested on a bastardy charge, marries the prosecutrix B to avoid imprisonment, this will not constitute duress so as to annxd the marriage. The offense for which arrest is threatened should be specified, and there must be some present means of executing the threat.®^ Although the rule is usually said to require that the threatened imprison- ment must be unlawful, nevertheless, to take advan- tage of a lawful imprisonment to further one's private ends may constitute duress.®^ Grenerally, the duress must affect the promisor and not some third party. But a husband may avoid a contract for duress to his wife, and a wife for duress to her husband.®* Similarly, a parent may avoid for duress to his child ; a child for duress to his parent ; aiid a sister for duress to her brother.®® 53. Undue influence. — Circumstances may render one of the parties of a contract mentally or morally 60 Davis T. Eice, 88 Ala. 388. 61 Thompson v. Niggley, 53 Kan. 664. 62 Galusha v. Sherman, 105 Wis. 263. 63 Morse v. Woodworth, 155 Mass. 233. 6* City National Bank v. Kusworm, 88 Wis. 188. 65 Bryant v. Peck & Whipple Co., 154 Mass. 460; Schultz v. Catlin, 78 Wis. 611. 410 REALITY OP CONSENT 55 incapable of resisting the will of the other, so that his consent is not real. This is undue influence. The line between duress and undue influence is frequently difficult to ascertain. The growth of equitable doc- trines in the conunon law courts, and the confusion of legal and equitable procedure in many states, have left the line between duress and undue influence very shadowy. Undue influence is a sort of fraud which does not include deceit or circumvention. It means an un- conscientious use of the power arising out of the cir- cumstances and conditions of the parties. When from the relative positions of the parties the pre- smnption of undue influence arises, the contract can- not stand unless the party claiming the benefit of it can show that it is fair, just and reasonable.'^® The presumption of the presence of undue in- fluence in contract may arise from circumstances as well as from the relations of the parties. Anson mentions the following as arising from the circum- stances, "that equity will not enforce a gratuitous promise even though it be under seal; that the ac- ceptance of a voluntary donation throws upon the person who accepts it the necessity of proving 'that the transaction is righteous'; that inadequacy of consideration is regarded as an element in raising the presumption of undue influence or. fraud, but does not amount to proof of either."®^ Of the relations between the parties which will raise the presumption of undue influence, the follow- so Earl V. Morris, 8 Ch. 490 (Eng.). BT Anson, Contracts (Huffcut's 2d ed.), §232. 1-27, 417 56 LAW 0F CONTRACTS ing are examples: The parental relations, as be- tween uncle and niece; the confidential relations, as between attorney and client, doctor and patient; and the relation between a person and his spiritual adviser. Beyond these special relations of confi- dence or trust existing between parties, the courts are further inclined to hold that any influence, how- ever gained, may raise the presumption that there has been unfair dealing. In Smith v. Kay,^^ the influence exerted by a man advanced in years over a young person who had just obtained his majority, though neither spiritual, par- ental or fiduciary, entitled the young man to relief from the court. It was said that while in the special relations the influence was presumed, in the outside cases it had to be proved extrinsically. But when proved, the remedy was granted just as freely in one case as in the other. So the courts have guarded persons against those who would take advantage of their improvidence, their moral weakness, or their ignorance and un- protected situation. Thus, expectant heirs at the common law are protected from extortionate rates of interest, and parties dealing with uneducated persons or with those under pressure will be re- quired by the equity courts to show fairness and honesty on -their part.'® In the case of the sale of the equity of redemption by the mortgagor to the mortgagee, the courts wUl scrutinize the transaction, and if there has been 08 7 H. L. C. 750 (Eng.). 59 1 Story, Equity 336. 418 REALITY OF CONSENT 57 undue influence, refuse to carry out the express agreements of the parties when it would be a gross injustice to the one party to enforce them.®" 54. Right to rescind for undue influence. — ^In gen- eral, the right to avoid a contract for undue influence is the same as in the case of fraud, with this excep- tion, that while an affirmation of the contract after knowledge of fraud binds the party, in the ease of undue influence he will not be bound by such affirma- tion unless it is clear that the influence or difficulty under which he labored is entirely removed.®^ 55. Rescission. — ^Rescission may take place when the party entitled to rescind puts an end to the con- tract out of court, as where the buyer of an article who has been deceived by the seller tenders back the article. Or, the rescission may occur when the party entitled to rescind sets up in his plea the facts justi- fying the rescission. Again, the courts may rescind the contract, as in the case of undue influence.®^ The election to rescind may be made expressly or by acts evidencing an intention not to treat the con- tract as binding. Furthermore, a party must exer- cise his right to rescind within a reasonable time after he is aware of the facts. Moreover, if the party defrauded takes any benefit under the contract or does any act implying an intention to abide by the contract, he loses his right to rescind. Thus, if A, who is the defrauded party, sues on the contract, he affirms it and rescission is barred. 80 Dorrill v. Eaton, 35 Mich. 302. «i Anson, Contracts (Huffeut's 2d ed.), §234. •^Harriman, Contracts (2d ed.), chap. 24. 419 58 LAW OF CONTRACTS A contract may be rescinded only where it is pos- sible to place the parties in statu quo, that is, in their original position and with their original rights. More- over, it must be rescinded wholly, and not in part. A party may not affirm a contract in part and repudiate it in part. The rescinding party must also restore the consideration which he has received under the contract. Thus where A has been induced by fraud to buy goods, in order to avoid the contract upon the discovery of the fraud, he must return the goods. Consequently, after consuming the goods wholly or in part the buyer may not avoid the contract. But where the thing is utterly worthless, as a forged note, the party defrauded need' not return it. Another rule adopted by some modem cases is to credit that which was received, rather than to require its re- turn. This doctrine has arisen because a strict ob- servance of the restoration rule frequently protects the party guilty of fraud.*^ 03 O'Brien v. Chicago, etc., E. Co., 89 la. 644; Chicago, etc., E. Co. v. Lewis, 109 111. 120. 420 CHAPTER rV. CONTBACTS UNDER SEAL. 56. History of sealed instruments. — ^Historically, the earliest forms of contract depended for their val- idity entirely upon their form. It was necessary to attach a seal to an agreement in order to make it binding. Later, through the influence and efforts of courts of equity, the doctrine of consideration arose. There were then two methods of creating a contract: one was to attach a seal, the other was to furnish a consideration.** Through modem legislation and de- cisions, courts have forgotten the history of the law of contracts and now state the rule to be that every con- tract requires a consideration, and that a seal is suffi- cient because it imports a consideration. This is an incorrect statement, for seals existed before the doc- trine of consideration arose. Moreover, in equity proceedings, the chancellor will not enforce a con- tract under seal, unless there is a consideration. This demonstrates the inconsistency of the statement that a seal imports a consideration, for if it does, then the specialty should be euforced. It is sufficient to say that in a court of common law, a seal requires no con- sideration.®^ 57. Seals. — Seals are of two kinds, public and private. Public or official seals are those used by «*2 Pollock & Maitland, History of English Law, 184-233; Ames, History of Assumpsit, 2 Harvard Law Eeview 53. 95 McMillan v. Ames, 33 Minn. 257, Leading Illustbativk Cases. 421 60 LAW OF CONTRACTS public officers for the authentication of public docu- ments. Private seals are those used by individuals in the execution of personal or private contracts. Any contract may be under seal, if the parties so elect; and there are some contracts which are invalid without a seal, as a deed for the conveyance of real estate. At common law there must be an impression to constitute a seal. But by statutes, a seal may be either of wax, or of ink, or a wafer. It may be in print, or it may be a scrawl. Seals are made in va- rious ways, the most common forms being "(L.S.)" or "(Seal)." One seal may do for any munber of parties signing a deed, if each one adopts it as his own. Naturally, as a practical matter, it is advisable to have a sepa- rate seal for each signature.®® 58. Contracts under seal and specialties. — A con- tract under seal, or a specialty, may be sued upon in a court of conunon law, regardless of the passing of a consideration. One may make a gift in writing and if he places his seal thereon he is liable in damages if he refuses to abide by his writing. It is the pres- ence of the seal that makes a specialty enforcible at common law, and this is true regardless of the question of consideration. There are two cases under the old common law which require that contracts be under seal. The one, as indicated, is where the contract has no consideration; the second is where the contract was made by a corporation. The latter rule is generally repudiated in the United States, The old common law did not, however, require a 88 Walker, American Law, pp. 463-464; Pickens v. Eymer, 90 N. C, 282. 422 CONTRACTS UNDER SEAL 61 conveyance of land to be by deed and under seal, but this has become necessary in most jurisdictions.^^ At common law, the presence of a seal precluded the denial of the recitals of the contract. Statements made in a deed under seal were absolutely conclusive against the parties.®^ Furthermore, a contract under seal, being of a higher nature, superseded a simple contract upon the same subject matter. This is the doctrine of merger.®' Similarly, a debt due under a sealed contract was entitled to a priority out of the assets of the deceased, before debts due upon con- tracts not under seal. But this doctrine has been generally eliminated by statutes of distribution.'^'' Quite generally a right of action arising upon a simple contract is barred by the Statutes of Limita- tions in less time than an action arising from a con- tract under seal.''^ 59. Same subject — ^Deeds, bonds, records. — (1) Deeds. The term "deed" is appKcable to aU con- tracts under seal, but it is now most frequently used in a limited sense to denote an instrument for the conveyance or incumbrance of real estate. Its execu- tion consists in its being "signed, sealed and deliv- ered," and it is then conclusive between the parties. Its form and requisites will be f uUy discussed imder the subject. Real Property, in a subsequent vol- mne of this series. Formerly there was a distinction between instru- 87 See snbject, Eeal Propektt; Clark, Contracts (2d ed.), § 64. 88 2 Kent, Commentaries, p. 464 ; Sage v. Jones, 47 Ind. 122. «9 Banorgee v. Hovey, 5 Mass. 11. '* Walker, American Law, p. 465. 71 See "Limitations of Actions" in state statutes. 423 62 LAW OP CONTRACTS ments termed deed poll and indenture. A deed poll was a deed made by one party, and the parchment on which it was written had a smooth edge. An indenture was made by two parties. The matter was copied for each party on the same parchment, and the copies were then cut apart with indented edges. The parts could be identified by fitting them together. This distinction is no longer of importance except to designate the origin of the terms, deed poll and inden- ture, which are still used to designate instruments of one and of two or more parties, respectively. (2) Bonds. A bond is an instrument under seal acknowledging the existence of a debt. It differs from a covenant in that the latter is always an execu- tory contract for something future, though each is called a "writing obligatory." Bonds are of two kinds, single bonds and penal bonds. A single bond, frequently called a single bill, is a simple acknowl- edgment of indebtedness without any condition of qualification ; as if A, under hand and seal, acknowl- edges himself indebted to B for a given sum. A penal bond is an acknowledgment of indebtedness, accom- panied by a condition, upon compliance with which such acknowledgment is to be void. The sum here made as a debt is called a penalty, because it is in- serted merely to secure the performance of the con- dition, which is the principal thing. It is held that an action will not lie to recover a penalty, unless it be under a seal.''^ (3) Records. Specialties of record are obligations of indebtedness evidenced by judicial records. The 72 Walker, American Law, pp. 466, 467. 424 CONTRACTS UNDER SEAL 63 records form the highest evidence, and the only ques- tion that can be controverted is, whether the records exist. So specialties of record are the highest form of specialties. They are of two kinds : recognizances, and judgments or decrees. A recognizance is an ac- knowledgment of indebtedness madei before a court or authorized officer, with a condition making it void on the happening of certain things mentioned in it, and the whple forming part of the record of the case. A judgment or decree is the final decision of a court upon a matter submitted to it, and being entered of record forms the highest kind of a specialty, as its terms admit of no dispute, but are proved by the pro- duction of the record. It merges the previous rights, and gives the judgment creditor convenient remedies not before his, as the right to issue execution, the crea- tion of a lien, and the like.''* 60. Same subject — ^Delivery and form. — The spe- cialty mUst not only be sealed, but it must be deliv- ered, in order to make it binding. This delivery is sometimes made by giving the instrument to a person not a party thereto, to be delivered to the other party ■upon the happening of an event. Such a delivery is called an escrow. But merely to part with the posses- sion of the specialty is not sufficient, unless it is intended thereby to render it effective.'* Furthermore, to constitute a sufficient delivery, it is generally held in the United States that there must be an acceptance by the other party.'" But it seems n Anson, Contracts (Huffcut's 2d ed.), §76. "Hoberts v. Security Co. (3897), 1. Q. B. Ill (Eng.). 's Meigs V. Dexter, 172 Mass. 217, 52 N. E. 75, This is not the mle in England. 425 64 LAW OP CONTRACTS that where the instrument is clearly beneficial to the other party, its acceptance will be presumed.''* This is especially true where the other party is an infant. Of course no such presumption arises, even if bene- ficial, where the acceptance is in fact refused.'" As the delivery is the act making the specialty operative, its date is the date of delivery, regardless of the date of the instrmnent. Ordinarily, however, untn otherwise proved, the date of the instrument is presumed to be the date of delivery.'^* No particular form of words is necessary in order to constitute a sealed instrument. But as a general rule, a written agreement cannot be said to be a com- pleted contract until it is signed by all the parties.''® The parties may, however, adopt it without signing, if the intention is clear that there is to be no signa- ture.*" The signature may appear anywhere on the instrument. A deed which is sealed and delivered, but which omits a material part, is called a deed executed in blank. Such an instrument is void, and cannot be made good by subsequently filling in the blank with- out a new execution.*^ 61. Same subject — Statutory changes. — Statutes have modified or abolished the use of seals in many states. There exist three classes of states with refer- ence to such legislation. The first class permits the 78 Peavey v. TUton, 18 N. H. 151. 77 Butler and Baker's Case, 3 Coke 25a (Eng.). 78 Faulkner v. Adams, 126 Ind. 459; 26 N. E. 170. 79 Mattoon v. Barnes, 112 Mass. 463. 8« Dillon V. Anderson, 43 N. Y. 231. 81 Powell V. DuiBf, 3 Camp. 181 (Eng.). 426 CONTRACTS UNDER SEAL 65 use of the seal and generally follows the rules of the common law in the enforcibility of sealed instru- ments. Here, the absence of consideration in a sealed contract may not be proved.®* These are usually the common-law states. The second class permits the use of the seal, but will allow evidence of the absence of a consideration.®^ The third class has abolished the use of seals. Here, every contract must have a consideration.®* Other changes have modified the pules respecting specialties. The action of assmnpsit, in place of cove- nant, on a specialty is permitted even in common-law states.®** Similarly, the rule that a specialty could be destroyed or modified only by an instrument of like dignity, i. e., a sealed instrument, has been changed. Now, such a contract may be rescinded orally or modified by a subsequent agreement.®" 82 niinois is an example. 83 AUer V. AUer, 40 N. J. L. 446. 8* Code states snch as California, Kentucky, Ohio, Indiana, Iowa, Kansas; Stimson, American Statute Law, p. 455. 88 Illinois. 88 Bishop, Contracts, § 130. 427 CHAPTER V. CONSIDERATION. 62. I>efimtionof consideration. — ^The law requires that every simple contract be based upon what it con- siders a valuable consideration. Consideration is that which moves from the promisee to the promisor, at the latter 's request, in return for his promise.®'' Anson defines consideration to be *' something done, forborne or suffered, or promised to be done, forborne or suf- fered, by the promisee in respect of the promise."®* It is said that where there is a benefit to the prom- isor, and a detriment to the promisee, there is a consideration. The modem conception of the principles of consid- eration declares that the real test of a sufficient con- sideration is whether or not there is a detriment to the promisee, and that the presence of a benefit to the promisor is unnecessary. Thus, in Devecmon V. Shaw,*® the plaintiff went on a pleasure trip to Europe when his uncle told him that he would pay his expenses. Later, the uncle refused to pay. The 87 In any action on a contract the promisor is the party who makes the promise. He is the party sued, and is called the defendant. The promisee is the party who sues, and he is called the plaintiff. Were the defendant in the first action to sue the plaintiff of the first action, in a counter suit on the contract, then the party who was originally the promisor (defendant) will become the promisee and the plaintiff in the counter action. The party who was the promisee (plaintiff) in the original action would become the promisor (defendant) in the counter action. 8« Anson, Contracts (Huffcut's 2d ed.), §118. ■88 69 Md. 199. 428, CONSIDERATION 67 nephew was allowed to recover in an action for breach of contract on the ground that he did something he was not going to do, nor was bound to do ; namely, to go to Europe. The court held that was a considera- tion, "It was a burden incurred at the request of the other party." In another case, Hamer v. Sid- way ,**• the uncle promised to give his nephew $5,000 on his twenty-first birthday, if he did not drink liquor, use tobacco, swear or gamble before he was twenty- one years of age. The nephew fulfilled the terms of the offer. In an action for breach of contract, this forbearance was held to be a consideration, for the nephew gave up what he had a right to do. In neither of the two cases cited was the uncle benefited, but in both did the plaintiff do or give up something he was not bound to do or give up.*^ Thus, even the giving of an oath would be sufficient to support a promise to pay a siun of money .®^ To do something one is not bound to do, as to give a promise, to do an act, or to pay money, constitutes a sufficient consideration. A legal detriment, and not a benefit, is the necessary element of a consideration.®^ An agreement, not under seal, and without a con- sideration, is known as a nudum pactum (naked agreement), and is unenforcible; for example, A's promise to support B during his lifetime without any promise by B. 63. Consideration distinguished from motive. — Parties have personal reasons for entering into con- so 124 N. Y. 538, Leading Illustrative Cases. 91 Cook V. Bradley, 7 CoDn. 57, Leading Iixustkative Cases. 92 Brooks V. Ball, 18 Johns. 337 (N. Y.). »s White V. Bluett, 23 L. J., Ex. 36 (Eng.). 429 68 LAW OF CONTRACTS tracts. These reasons form the basis of the motive for the agreement. But the motive is by no means the consideration. The latter is an element deter- mining the enforcibility of the contract, and is the thing given or done by the party in reliance of the promise. The former is the cause back of the trans- action. The distinction between motive and consid- eration is readily illustrated. A, to provide for his wife's welfare after his death, requested C, who was to be his executor, to rent to the wife a certain house, for which A agreed to pay £1 ' per year. Later, C refused to perform. The plaintiff was permitted to recover, for the court held that whUe the motive was to carry out the wishes of the deceased husband, it was the £1 a year which A promised to pay that supported the promise.®* This was the consideration. 64. Valuable consideration. — A valuable con- sideration consists of the detriment which has been indicated. It is "such as money, marriage, or the like, which the law esteems an equivalent given for the grant."*" It need not be money nor a thing of pecuniary value. Thus, a promise by C to pay his divorced wife, D, an annuity if she wiU conduct her- self in a virtuous manner, is a detriment to D. This constitutes a consideration, for D is under no obliga- tion to her husband to remain virtuous.*® On the other hand, a promise (not under seal) to make a gift lacks a valuable consideration and is unenforcible.*^ »« Thomas ▼. Thomas, 2 Q. B. 851 (Eng.). »» 2 Blackstone, ■ Commentaries, p. 297. »« Dunton v. Dunton, 18 Vict. L. Hep. 114 (Victoria). 97 Williams t. Forbes, 114 HI. 167, 28 N. E. 463. 430 CONSIDERATION 69 A full and valuable consideration is one whicli is a just equivalent for what is given or promised. Where A pays B the full value of a horse is an example. A valuable consideration is sufficient in law, and as between the parties can only be attacked for such gross inequity as amounts to fraud, or constitutes a fraud as against the creditors of the contracting par- ties. If the consideration is full and valiuable, it cannot be attacked in equity by antecedent creditors, unless the contract was made with knowledge of their claims and is void for want of good faith. 65. Valuable consideration need not be adequate. — ^If a consideration is valuable it need .not be adequate. The court does not require that the con- sideration and the thing to be done shall be in exact proportion as to values. A party is permitted to drive a good bargain, so long as he does it without deceit or fraud. But, however small it be, the con- sideration must have some real value. Thus, A may agree to sell B his horse, wo^ $200, for $50, and the bargain wiU stand. If, however, the owner was induced to make the promise on account of false representations or undue influence, the inade- quacy of the price would be evidence of fraud. But note that mere inadequacy of consideration does not of itself constitute fraud. Moreover, courts hesitate to disturb contracts for such inadequacy unless the agreement is highly unconscionable. 66. Executory and executed considerations. — An executory consideration refers to a future act ; thus, a promise for a promise constitutes a contract upon executory considerations. Either may perform, or 431 70 LAW OF CONTRACTS offer to perform, and thus bind the other to fulfill or compensate for the breach. An executed consideration arises where one of two parties has, either in the act which amounts to a pro- posal or the act which amounts to an acceptance, done aU that he is bound to do under the contract, leaving an outstanding liability on the other party only.®^ If a thing is done at the time a promise is given the consideration is executed ; if there is only a prom- ise to do it in return for another promise, the consid- eration on both sides is executory."* A contract with an executed consideration is unilateral ; if there are two promises, each being the consideration for the other, the contract is bUateral.^ 67. Good consideration. — ^A good consideration is founded on "motives of generosity, prudence and nat- ural duty."^ It is the consideration of blood rela- tionship and resembles such a consideration as would be f oimded on moral laws.^ It was once held that a person might make a binding promise to an- other to do something for the other's son or daughter, and that the promise would be enforcible because of the relationship. Generally, this rule has been abol- ished. Blood or natural affection is no longer con- sidered such a consideration as will support a prom- »8 The student should take notice that the terms, ' ' executed and execu- tory," are not used in the same sense by all legal writers; thus "Walker uses "executed" in the sense of "past" (American Law, p. 439), as do a number of other writers. Bishop, Contracts, § 440 ; 1 Parsons, Contracts, p. 468. »» Anson, Contracts (HufFcut's 2d ed.), § 124. iFarrington v. Tenn., 95 U. 8. 679, 683. zBlackstone^ Commentaries, p. 297. s Anson, Contr-acts (Eng. ed.), p. 78. 432 CONSIDERATION 71 ise. There must be a legal detriment to the promisee.* Ab agreement supported only by a good considera- tion is a nudum pactum^ (naked agreement). 68. Moral consideration. — Similar to a good con- sideration is that which is called a moral considera- tion. The latter enters into moral obligations, which derive their sanction from moral laws. Such obliga- tions arise from benefits received in the past and from rules of honor, duty and conscience. The law, however, does not regard a moral consideration as sufficient to support a promise. Thus, a man may in honor be bound to pay money lost in a wager, but he is not in law. If A calls a doctor to attend to an unconscious injured man, B, there is a moral obliga- tion on the part of B to repay to A the amount of the doctor's bill A paid for services, but it is doubtful if there is a legal obligation. So, where services have been rendered without request, and without expecta- tion of payment, a subsequent promise to pay lacks a legal consideration.® There exist what appear to be exceptions to the rule that a moral consideration will not support a promise. Thus, where A is indebted to B and receives a dis- charge in bankruptcy, if he afterwards promises to pay B the amount of the debt, B may recover. But *See §68; Fink v. Cox, 18 Johns. 145 (N. Y.), Leading Illusteatiye Cases. 5 Carefully distinguish between the terms good consideration and valuable consideration. Many writers speak of good considerations when they mean valuable or sufiScient considerations, to-wit, those which make the agreement enforcible. See § 68. « Bartholomew v. Jackson, 20 Johns. 28 (N. T.). The ease of Eastwood v. Kenyon, 11 A. & E. 438 (Eng.), abolished any possible use of a moral consideration. See Hart v. Strong, 183 111. 349. 1-28 433 72 LAW OF CONTRACTS it is not the moral consideration that A should pay which supports the promise. It is the consideration which arises from A's promise to do what he is not bound to do, namely, to pay a debt discharged in bank- ruptcy/ Analogous to this case are contracts by which parties agree to pay debts which have been barred by the Statutes of Limitations.® Many statutes pro- vide by their terms that a written promise to pay extends the time in which the debt will be barred.® 69. Unreal considerations. — A consideration which is impossible or so vague in terms as to be practically impossible will be treated as unreal. As regards vagueness, the principle is id certum est quod certum reddi potest (that which can be made cer- tain", is certain). Thus, a contract to sell all the straw one has to spare, not exceeding three tons, is not void for uncertainty, as the quantity to be sold can be determiaed.^" But where A agreed to work for B for such remuneration as B deemed right, the court refused to enforce the contract because of its indefiniteness. " 70. Mutuality of obligation. — There are many agreements in which one party has become bound but the other has not. Such engagements lack what is called mutuality, more properly termed mutuality of obligation.^'' In such a case there is an unenforcible agreement. Thus, where an apprentice agreed to I Dnsenbury v. Hoyt, 53 N. T. 521. B Kent V. Band, 64 N. H. 45. 8 See state statutes. 10 White V. Hermann, 51 111. 243. "Taylor v. Brewer, 1 M. & S. 290 (Eng.). 12 To distinguish from mutuality of remedy, a question for equity juris- pmdence. See subject. Equity. 434 CONSIDERATION 73 remain a certain length of time, but the master did not promise to instruct him, the agreement lacked mutuality. The most frequent example of a want of mutuality is the case where A promises to sell B such goods as he may "desire" or "wish" during a certain period of time. Here, B has bound himself to nothing, for he is not required to desire any goods ; whereas, if he does desire some goods, A should furnish them. There is therefore no consideration, for B has incurred no legal liability. Consequently, it is said that an en- forcible contract requires mutuality of obligation.** The correct view is that there is no agreement, but simply an offer which may be accepted by giving an order Tintil such time as the offer is actually with- drawn or until it expires by lapse of time. On the other hand, where A's offer is to supply B with all the coal he may "require" or "need" during a certain period of time, B is bound to the extent of having to purchase such coal from A. It may be that he will purchase no coal, but if he purchases any, it must be from A. Otherwise, he will be liable to A in an action on the contract." In short, where B agreed to purchasetwhat he "desired," he might pur- chase from anoTOer than A; where he agreed to purchase what he "needed," he bound himself to purchase from A. An option contract whereby, for example. A, for a consideration of $1, agrees to keep open for ten days IS Minn. Lumber Co. v. Whitebreast Coal Co., 160 111. 85, 43 N. E. 774; Joliet Bottling Co. v. Joliet Citizens Brewing Co., 254 111. 215, 98 N. E. 263, Leading Illdsteativb Cases. i*Nat'l Furnace Co. v. Keystone Mfg. Co., 110 111. 427. 435 74 LAW OP CONTRACTS an offer to sell B his house, binds A to sell the house if B accepts, but does not bind B to purchase. Such op- tions are enforcible in law courts, and where there is a consideration, equity will usually grant specific per- formance. But in some cases it is said the option lacks mutuality. As a matter of reasoning, however, the option is a contract to keep an offer open in consid- eration of $1, This, in fact, is the situation in any unilateral contract, wherein the consideration is ex- ecuted on one side. B has performed his part of the agreement by paying the dollar. A is to perform by keeping the offer open. Thus there is mutuality, for both have bound themselves. Courts sometimes confuse the option with the contract which is made when the offer, kept open by the option, is accepted and a contract for the sale of land is created. Then there "is a promise to buy and one to sell. This sec- ond contract also possesses mutuality of obligation." 71. Forbearance to sue. — The promise not to press or to bring suit on a claim may constitute a sufficient consideration. Such cases are generally divisible into one of three classes: (1) Where the claim is well founded. In this event, the promise to forbear is a sufficient considera- tion to support a contract. In fact, the early English cases and a few American states recognized no other forbearance as a consideration. This situation consti- tutes a consideration in all jurisdictions.^® (2) Where the claim is doubtful. If the claim is doubtful, either in law or in fact, forbearance to press 15 See 2 Illinois Law Beview 463. 16 Harris v. Cassady, 107 Ind. 158, 8 N. E. 29. 436 CONSIDERATION 75 that claim is a sufficient consideration in most juris- dictions. Up to the time of an actual decision by the court as to the validity of the claim, forbearance is a consideration. But after a decision has been ren- dered whereby B must pay A, then a promise by B to pay A if he will not press the judgment is not a consideration, because B is promising to do wha/t he is legally bound to do, namely, to pay." In the case of Alliance Bank v. Broom,^^ A was pressing B for the payment of a claim which was due. B offered A certain securities if he would not sue on the claim. Later, A sued B on this promise. It was held that as A did actually forbear suit in reliance upon B's promise to furnish the securities, he could recover. Although A need not have sued, yet his forbearance did constitutie a consideration. (3) Where the claim is unfounded. If the claim is not only doubtful, but without foundation, two situ- ations arise. If A knows that his claim is without foundation, his forbearance is not a consideration. But if he believes that he has an enforcible claim, and this belief is reasonable, the forbearance is a con- sideration. This ease approaches that of (2) above. If his belief, although honest, is unreasonable as to the validity of his claim, the forbearance is probably not a consideration.^® The waiver of a right or forbearance to sue a third person is a valid consideration for the promise of the promisor. A's agreement not to sue B is a considera- 1' Simmons v. American Legion of Honor, 178 N. T. 263. "2 Drew & 8. 289 (Eng.). 18 Anson, Contracts (Huflfcut's 2d ed.), §131; Pennsylvania Coal Co. v. Blake, 85 N. Y. 226, Lbadinq Illusteativb CiSES. 437 76 LAW OF CONTRACTS tion for C's promise to pay B's debt to A.^" Mere forbearance to sue without any promise to, forbear is not always a consideration. Especially is this true where it is clear that the parties intended that a prom- ise be made. In Strong v. Sheffield,^* A promised that if B would guarantee C's debt to him, he would not sue until he needed the money. The fact that A had in fact forborne in reliance on the promise, did not constitute a consideration. He should have given the promise, as intended. Mutual promises to forbear are always sufficient to support each other.^* Moreover, it is no objection to the validity of the agreement that no particular time was specified as the period for forbearance. This will be held to be a reasonable time. 72. Compromise. — ^A common form in which a forbearance appears as the consideration for a prom- ise is in the settlement or compromise of a disputed claim. Where A claims that B owes him sixty doUars for groceries, and B claims it is fifty doUars, both being sincere in their dispute, A's promise to com- promise for fifty-five dollars is a consideration for the contract to forbear to sue. But to forbear to do what one may not legally do, as to agree not to sue on a gambling debt in return for B's promise to pay, is not a consideration,** In respect to coiinpromises, the rule is general that the promisee must in any event believe in his claim. But, as indicated in the section on forbearance, not ?o Howe V. Taggart, 133 Mass. 284. 21 144 N. Y. 392. 22 Howe V. Taggart, 133 Mass. 284. 2S Everingham v. Meigjan, 55 Wis. 354, 13 N. W. 269. 438 CONSIDERATION 77 every sincere claim will support a consideration. In Gunning v. Royal," A engaged from B a horse and a driver who was B's employee. The driver was in- competent, and as a result of his negligence the horse was killed. But B demanded that A pay for the horse. A actually gave a note to settle, the claim. When hb was sued on the note, he defended on the ground that there was no consideration for his promise to pay an unfounded claim. The court held with him. The lo^ being due to B|s own servant, and the claim therefore being of no validity, the mere existence of the dis- pute was not permitted to be a consideration for the settlement. Where a claim is well founded, a compromise con- stitutes a consideration. Suppose that A is injured by B's automobile, which at the time of the accident, and as a cause of the accident, was exceeding the speed limit, as provided by the state laws. Assume that the statute involved provided that excessive speed made a prima facie case of negligence. A promise by A to forbear suit, and to give a complete release for his injuries for the sum of one thousand dollars, would constitute a sufficient consideration to uphold the compromise agreement. Similarly, if the claim is doubtful, as in the case of a forbearance, the compromise will be supported by a sufficient con- sideration; thus, where A, a brakeman, is injured by B, a laborer, who is unloading a car on a different train, it is not certain whether or not A and B are feUow servants, and whether the railroad company is liable to A. A compromise by which the raUroad " 59 Miss. 45. 439 78 LAW OP CONTRACTS company pays A a sum for a release would be sup- ported by the consideration paid, although the claim is doubtful, for both the company and A are doing what they need not do : the one to pay, the other to release. Payment of a less sum. A promise to pay, or a payment of less than the whole amount of a certain sum due, which is not disputed, is not a sufficient consideration to discharge the debt. For instance, if A agrees to release B from a judgment entered for $100 if B pays $75, B is promising to do what he is bound to do. Wherefore, although B pays A $75, A may nevertheless recover the additional $25 in a later action.^® Similarly, a payment of a less amount is no consideration for an extension of time in which to pay the balance.^^ Something different must be given, as a "horse, a hawk or a robe."" This rule is limited to its precise import, and every opportunity is taken to avoid it. Thus, if the pay- ment of the less sum is made before the debt is due, that wiU constitute a consideration for a release of the debt. If A agrees to pay at a place other than the one stipulated, he promises to do that which he is not bound to do, and a consideration arises therefrom.^* Thus, in the case where a contract has been broken, and A promises to forego the right of action arising from the breach, this will constitute a consideration 25 Williams v. Carrington, 1 Hilton 515 (N. Y. C. P.), Leading Illus- TBATiVE Cases. 20 Day V. Gardner, 42 N. J. Eq. 199. 2» Anson, Contracts (Huffcut's 2d ed.), 1 140. *8 Jaffray v. Davis, 124 N. Y. 164. 440 CONSIDERATION 79 for a compromise of the breach. Two situations may arise. On the one hand, if the right to damages is not disputed, the amount may or may not be certain. If certain, then the consideration must be something other than money, for A is admitting his debt. But if the amount is unliquidated, the payment of a cer- tain sum will be a consideration for the compromise. On the other hand, if the right is uncertain, the suit may also be compromised and there will be a con- sideration.^^ The practice in discounting liquidated and ascer- tained debts is to execute a contract wherein it is recited that "in consideration of the dispute between A and B with reference to the sum due from B to A, the parties agree in compromise thereof that B shall pay A the sum of ten dollars in full settlement of his claim." Thus, although there is no question but that B owes A fifteen dollars, the above, writing is entered into in order to set up an apparent defense, should A attempt to avail himself of the rule that the payment of a less sum is not a consideration for the release of the whole sum admitted to be due. In that manner, the burden is thrown on A to show that there was no dispute. 73. Accord and satisfaction. — ^Whether the sum due is certain or uncertain, the consideration for the promise to forego the residue of the debt must be executed. It is not enough that the parties have agreed to forego. To bar any rights on the original cause of action, the agreement must have been per- formed before any action is brought. If it has been 29 Puller V. Kemp, 138 N. Y. 231. 441 80 LAW OP CONTEACTS carried out, there are an accord and satisfaction. If the agreement has not been performed, there is an accord. This, as explained, is an executory contract for the doing of that which if done is to be accepted as satisfaction of the original cause of action.^" An accord alone is not a bar. There must be accord and satisfaction. 74. Legal duties as consideration. — ^Where a party is under a duty imposed by law, a promise to perform that duty cannot be a consideration. If a police ofi&cer does something in the general line of his work, as to arrest a criminal, he may not recover on a reward offered for such arrest. The policeman is doing what he is bound to do.*^ But where A offered $1000 to anyone who would bring his wife's body out of a burning hotel, B, a fireman, entered the building and carried out the body. A refused, upon demand, to pay the reward. B was permitted to recover the $1000 in an action on contract. The court held that it was not a part of his duties to risk his life for such a purpose. There- fore, his act was a consideration for the promise.*^ Similar duties, which a promise to perform would not constitute a consideration, exist in the wife's promise to perform her marital duties; the ward's promise to obey his guardian; and the promise of a mother to support her illegitimate child.^* 90 Lynn v. Bruce, 2 H. Bl. 317 (Eng.). 31 Pool V. Boston, 5 Gush. 219 (Mass.) ; Smith v. Whildin, 10 Penn. St. 39, Leading Illtjsteative Cases. 82 Eeil V. Paige, 55 Wis. 496 ; see Harris v. More, 70 Calif. 502. Com- pare with § 15, as to the intent to make a serious offer. 88 See cases collected in 9 Cyclopedia Law & Procedure, 348. 442 CONSIDERATION 81 75. Contractual obligations as consideration.— The promise to perform an existing contract is not a consideration. There is no legal detriment, and the promisor agrees to do what he is bound to do by virtue of the existing contract.** This is the weight of American authority. A different case is said to arise where A abandons a contract, because, for instance, he is losing money on its performance. B then promises to pay A an extra sum if he will perform the contract. It would seem that when A performs, he is only doing what he is bound to do under the first contract, and that his promise to perform is no consideration. But some courts hold that since A can actually abandon the contract, and not perform (although he is liable in damages) , to give up this power to abandon is a con- sideration for a promise for extra compensation.*® In Bowman v. Wright,*® a tenant was about to abandon certain premises which he held under a lease. He expected to pay rent, however, for the unexpired term. In order to save his insurance policy, because of a provision limiting liability in case the premises were vacated, the landlord agreed to lower the rent if the tenant would remain in occupancy. It was held that, although the lease called for a higher rent, this promise to remain (an act the tenant was not bound to do) was a consideration for the lower rent. In personal service contracts, to constitute a new consideration for another agreement, there must also 34 Phoenix Ins. Co. v. Eink, 110 111. 538. 85 King V. Ey., 61 Minn. 482. 38 65 Nebr. 661. 443 82 LAW OF CONTRACTS be some act wMcli B is not bound to do by virtue of his contract. Where a seaman was promised extra wages to remain with a ship, which part of the crew deserted, he could not recover for the extra compen- sation, because it was his duty under the original eon- tract to assist in working the vessel home.^'^ But had he agreed to do something in addition to his original contract, he could have recovered. Thus, in Turner v. Owen,** the master offered the crew additional wages to remain on an imseaworthy vessel. This, the court held, they were not bound to do under their contract for service, and the plaintiff was thereby permitted to recover. The considera- tion was sufficient. 76. Promises to third persons. — There is a divi- sion of the authorities as to whether or not a promise by a party of a contract to a third person to per- form the contract is a consideration for the prom- ise of the third person. Where A agrees with C, for the sum of $100, to perform his abandoned con- tract with B, there is said to be a consideration. Although A is bound by a contract with B, and a promise to B to perform would not be a consideration, yet where A promises C to do something he is not bound to do by any obligation to C (although it be an obligation to B), there may be a consideration.'® In Shadwell v. Shadwell,*" A wrote to C, his uncle, announcing his engagement to B. C wrote: "As I promised you I will pay you £500 a year until your 87 Stilk V. Myrick, 2 Camp. 317 (Eng.). 38 3 F. & F. 176 (Eng.)- 3» See 12 Harvard Law Eeview 520. 40 SOL. J. C. P. 145 (Can.). 444 CONSIDERATION 83 income as a chancery solicitor reaches that sum." After A married he sued C on the annuity promise. He was permitted to recover, although he had merely carried out the contract of marriage he had pre- viously made with B. 77. Mutual promises. — ^It is said that mutual promises constitute a consideration for each other. This is true in so far as the promises, if carried out, will result in a legal detriment. If A promises B $250, if B will promise to release his entire claim af $275, there is an exchange of promises, but the agree- ment is not binding, since A's promise when com- pleted would merely be an act which he was already bound to perform. But if A promised to deliver B a table in return for B's promise of a release, there would be a consideration, for in the delivery of the table A is promising to do what he is not bound to do. This is a legal detriment. 78. Compositions with creditors. — An exception to the rule that all contracts must be supported by a consideration exists in the agreement of a debtor, who is in financial difficulty, to pay his creditors less than the full sum due in full satisfaction of their claims. The general rule, it will be remembered, would not regard a promise to accept less than the whole sum as a consideration, because the debtor promises to do what he is already bound to do — namely, to pay. But in the case of a composition with creditors, the agreement of all of the creditors to accept less than the full amount of the debts, and the promise to pay by the debtor, are said to con- stitute a contract. This view is based on the theory 445 84 LAW OF CONTRACTS that the consideration is the undertaking by the debtor to obtain the consent of all of the creditors to the composition. Some courts regard the mutual agreements of the creditors with each other for the benefit of the debtor as the consideration.*^ Bank- ruptcy act discharges are based upon the express pro- visions of law, and not upon contract; hence, the question, of consideration is not involved. 79, Present and past considerations. — The con- sideration must be present. It must be some detri- ment to the promisee at the time of and in exchange for the promise of the promisor. Something done or given or forborne in the past will not suf&ce. The law declares that a past consideration will not sup- port a promise.*^ *'A past consideration is some act or forbearance in time past by which a man has benefited without thereby incurring any legal liability. If afterwards, whether from good feeling or interested motives, he makes a promise to the person by whose act or for- bearance he has benefited, and that promise is made upon no other consideration than the past benefit, it is gratuitous and cannot be enforced; it is based upon motive, and not upon consideration."*^ In Roscorla v. Thomas,** A contracted to sell B a horse. Later, B refused to accept the horse unless A warranted its age and disposition. A promised ac- cordingly, and B sued upon that promise. There " Anson, Contracts '(Huff cut's 2d ed.), p. 120, note. 42 Anson, Contracts (Huffcut's 2d ed.), §148; Osier v. Hobbs, 33 Ark. 215; Ludlow v. Hardy, 38 Mich. 690. 48 Mills V. Wyman, 3 Pick. 207 (Mass.), Leading Illustrative Cases. "3 Q. B. 234 (Eng.). 446 CONSIDBEATION 85 could be no recovery, for there was no consideration for A's promise. The purchase price could not serve for the new promise, because it was previously given and only for A's promise to sell the horse. To the general rule thus laid down, certain excep- tions are said to exist. Pirst, it is said that a past consideration will support a subsequent promise, if the consideration was given at the request of the promisor. This is really no exception. Such cases are those where a request is made which is in sub- stance an offer of a promise upon terms to be after- wards ascertained. The services are rendered in pursuance of such request, and the subsequent prom- ise to pay a fixed sum is really a part of the same transaction, or else evidence to the jury to determine what would be a reasonable sum. These cases usually indicate an original intention to pay. Thus, A, at B's request, made a journey to obtain a king's pardon for B. Later, B promised to pay a sum of money for these acts. A was permitted to recover. This case is explained on the theory that inasmuch as B re- quested A to perform services for him under circum- stances that indicated an intention on his part to pay, an action would lie, regardless of the express promise, on an implied in fact contract.*^ Often the situation wiU give rise to a quasi-contract action.** The second alleged exception is said to exist where a person has voluntarily done what another was legally bound to do. This, although a past con- *5 Lampleigh ■v. Brathwait, Hobart 105 (K. B., Eng.) ; Kennedy v. Broun, 13 C. B. (N. S.) 677 (Eng.)- 4« See subject, Quasi-Conteacts. 447 86 LAW OF CONTRACTS sideration, is sufficient to uphold an express promise to recompense sucli voluntary act. This exception is said to be founded upon the rule that a subsequent ratification of a voluntary act amounts to a previous authority/'' Anson concludes, however, that the authorities usually cited for this rule fail to support it." There is considerable doubt as to the foundation for the rule, unless there is a preexisting quasi-con- tractual obligation as in the first exception above. The third alleged exception consists in the rule "that where the consideration was originally bene- ficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may re- nounce the benefit of that law ; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it."*" Illustrations of this exception are the ratification of voidable contracts by an infant upon his attaimnent of majority,®" the subsequent promise made by a bankrupt discharged from debts, to satisfy those debts,®^ and the promise to pay a debt which has been barred by the Statute of Limitations.''^ Each of these promises is really a present legal detriment, and a promise to do what one is not bound to do. 80. Subscription agreements. — ^Agreements of this kind are usually divided into those for chari- *i Gleason v. Dyke, 22 Pick. 390 (Mass.). *8 Anson, Contracts (Huffcut's 2d ed.), §150. <» Parke, B., in Earle v. Oliver, 2 Ex. 71 (Eng.). coBeed v. Batchelder, 1 Met. 559 (Mass.). See S 95. 01 Lawrence v. Harrington, 122 N. Y. 408. B2 Keener v. CruU, 19 IlL 189. 448 CONSIDERATION 87 table purposes and those for business purposes." Cases involving the latter rarely furnish a problem in the law of consideration, for there is usually a valuable consideration moving to the subscriber, and so the agreement is upheld.?* Charitable agreements furnish difficulties in the questions of consideration, and consequently of the enforcibility of the subscription contract. The de- ; cisions may be divided into three classes, for there is no uniformity by any means. (a) If, on the faith of the subscription, the work " for which the subscription was made has been done, as to secure additional subscriptions ; or if liability has been incurred in regard to such work,, as actually starting to build a churcH, there is a sufficient con- sideration.^^ But if no act be done or liability incurred on the faith of the subscription, it may be revoked, and it is revoked by the death of the subscriber.^* (b) Some jurisdictions hold that the promise of each subscriber is supported by the promises of the others.^^ Two difficulties arise in this theory: First,. as the subscriptions were not all taken at the same time, it is difficult to see how the act of A in signing can be a consideration for B's promise who signs later. Again, the promises are made not to the church, for instance, but to the subscribers. . BS Stovall V. McCutcheon, 1P7 Ky. 577; Martin v. Meles, 179 Mass. 114. 64 Merchants Imp. Co. v. Exchange Bldg. Co., 210 111. 26. B5 Beatty v Western College, 177 111. 280. »» Pratt V. Trustees, 93 111. 475. °7 Higbert t. Indiana Ashbury University, 53 Ind. 326 ; Christian College •. Hendley, 49 Cal. 347. 1-29 449 88 LAW OP CONTRACTS (c) It is held in other jurisdictions that the ac- ceptance of the subscription by the trustees of the charity implies a promise on their part to execute the work contemplated, and this supports the subscrip- tion.'* In England, a charitable subscription is not binding. In the presence of a strong moral influence, courts have thus constructed theories of consideration in these cases of subscriptions, which scarcely apply to ordinary contracts. 81. Failure of consideration. — ^Where the con- sideration is void only in part, but is entire in char- acter and inseparable, then the whole contract fails. But where the consideration is separable, or where there are several considerations, and one is frivolous or fails, but is not illegal, the contract may stand because of the rest, so long as the remaining con- siderations are sufficient. If any part of a consideration, whether entire or separate, be illegal, the promise will fail because it is against public policy to enforce a promise obtained by an illegal act. Thus where a promissory note was given in payment of an account, some of whose items were for groceries, and others for liquors sold in vio- lation of the statute, it was held that the note was void entirely.'® In Jamieson v. Renwick,^° A agreed to pay B a certain sum every year, provided B would not reside in the town of S, or visit or annoy A, or claim any »8 Martin v. Meles, 179 Mass. 114. »» Widoe V. Webb, 20 Ohio St. 431. «o 17 Vict. L. E. 124 (Victoria). 450 CONSIDERATION 89 interest in A's land. The promise not to annoy is not a consideration, for B has no right to annoy A, but the other promises are considerations, for B gives np his right to live in S and to claim A's land. These considerations will support the contract. If only a part of the consideration fails, and it does not go to the essence of the contract, the partial failure will not avoid the contract. Thus, in Palmer V. Meriden Britannia Co.,®^ by the provisions of a lease A was required to do certain building on the land, and was to pay $1000 rent per year for ten years. At the end of the period A was to receive $5000. B refused to pay because the cement furnished was not as specified. The court held that this failure of consideration did not go to the essence of the contract. It could be compensated for by an amoimt to be deducted from the $5000, but the whole contract could not be avoided by this breach. Some contracts are by their nature and intent not to be avoided by reason of a slight or immaterial varia- tion or failure in the consideration, as in the sale of lands where a definite number of acres are called for, followed by the words "more or less." But if the consideration wholly fails the contract is unenforcible. If A sells B a business for $1000, and he has no business to sell, naturally A may not maintain an action against B. 82. Presumption of consideration. — Bills of ex- change, promissory notes and negotiable instruments are by the law merchant deemed to have been issued for a valuable consideration. That is to say, the pre- 81 188 m. 508. 451 90 LAW OF CONTRACTS sumption is that there is a consideration, and it is necessary to show that there is none/^ Similarly, some state statutes have provided that aU written instruments shaU be presumptive evidence of a consideration.®* 82 See subject, Negotiable Instruments. 63 statutes in California, Indiana, Iowa, Kansas. 452 CHAPTER VI. STATUTE OF FRAUDS AND PEBJURIES. 83. Provisions of fourth section of Statute of Frauds. — The Statute of Frauds and Perjuries was passed in the twenty-ninth year of the reign of Charles 11, A. D. 1677. Among other remedies, it was aimed to prevent the perpetration of fraud and •the temptation to commit perjury in testifying as to the making of contracts. The fourth section of that Statute has been substantially adopted in practically all of the United States. The seventeenth section relating to the sales of goods has not been so widely copied. The provisions of the fourth section are as f oUows : *'No action shall he brought (1) whereby to charge any executor or administra- tor upon any special promise to answer damages out of his own estate ; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; (3) or to charge any person upon any agreement made in consideration of marriage ; (4) or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; 453 92 LAW OF CONTRACTS (5) or upon any agreement that is not to be per- formed within the space of one year from the mak- ing thereof ; unless the agreement upon which such action shall be brought, or some memorandmn or note thereof shall be in writing, and sighed by the party to be charged therewith or some other person thereunto by him lawfully authorized."'* 84. Construction of the fourth section of the Statute of Frauds. — The operation of the Statute of Frauds upon a contract within its terms is to prevent the enforcement of that contract unless the require- ments of the Statute are satisfied. Some authorities ' regard the Statute as prescribing a rule of evidence. That is to say, the contract may not be proved be- cause it does not satisfy the Statute.*' This prin-- ciple is supported by the rule that unless the Statute of Frauds is specially pleaded, the oral contract may be proved.'® In short, there is a contract, but no action may be brought upon it because, the Statute being pleaded, there is no writing to prove the con- tract. Where, however, the Statute provides that the contract shall be void instead of providing merely that no action shall be brought upon it, the contract may never be proved, for it is void. Compliance with the form required by the Statute of Frauds does not constitute the contract. The Statute always presupposes an existing lawful con- tract If there is no contract, the question of the <» St. 29 Car. II., e. 3. •5 Browne, Statute of Frauds (5th ed.), § 115a. »• Anson, Contracts (Huflfcut's 2d ed.), § 107, note. 454 STATUTE OF FRAUDS AND PERJURIES 93 necessity for a writing does not enter the problem.*'' It is evident, therefore, that the Statute of Frauds affects only the remedy that may be brought on a contract, and not its inherent validity.*® 85. Nature of the contracts in the fourth section — Clause (1) Executor. — ^An executor or adminis- trator of a deceased person's estate is not bound by his promise to pay out his own money for that estate unless his promise is in writing. These promises appear to be a part of that body of contracts known as guaranties, and are more fully discussed in the next section. ' ' There would be no distinction between them, but for the circumstance that the executor or administrator, being the legal representative of the party originally liable, is already, in that capacity, under a liability to pay to the extent of the property which comes to his hands. The Statute, therefore, is confined to his special promise to pay out of his own estate."*® 86. Same subject — Clause (2) Any special prom- ise to answer for the debt, default or miscarriage of another person. — This is a promise of guaranty or suretyship. "Deal with X, and if he does not pay you, I will," indicates the agreement.'^'* X is the person primarily liable and I am secondarily liable. My promise in such a case must be in writ- ing, before an action may be maintained against me. «T Lcronx v. Brown, 12 C. B. 801 (Eng.) ; Pritchard v. Norton, 106 XI. 8. 124; Crane v. Powell, 139 N. Y. 379. 88 Anson, Contracts (Huffcut's 2d ed.), §108, note. See §10 on use of void, voidable and unenforcible. 8» Browne, Statute of Frauds (5th ed.), §1.53; McKeany v. Black, 117 Cal. 587. 70 Mallory t. Gillett, 21 N. Y. 412. 455 94 LAW OP CONTRACTS It is not always easy to determine what promises are within the Statute, and a iew general propositions should be carefully observed.^ ^ An indemnity is not in the Statute and need not be in writing, for in such a case one party is primarily liable whether or not the other party makes a de- fault.''^ It is an original promise and depends on no other. Similarly, where A owes B a sum of money, and he is about to be sued for the debt, a promise by C to pay B if he will not sue A is not within the Statute, for there is a new contract whereby, for the consideration of B's promise not to sue, C agrees to pay. C's promise need not be in writing, for he has created for himself an original liability and he is liable in every event to B. His promise is not collateral to any primary liability. It is the col- lateral promise that falls within the scope of the Statute of Frauds." Where a promise is original, it need not be in writing; where collateral, it must be in writing in order to maintain an action thereon.. Thus guaran- ties, which must be in writing, require at least three parties, and have a primary or original liability for which the third party promises to answer. When A and B go into a store and A says to the storekeeper, "Sell B these goods ; if he does not pay you, I wUl," the primary liability is on B to pay for the goods. A's promise, on the other hand, is collateral or sec- ondary to B's liability and so must be in writing. '1 See May v. WUliams, 61 Miss. 125, Leadino Illustrative Cases. 7= Anson, Contracts (Huffcnt's 2d ed.), 8 97. Ts Meyer v. Hartman, 72 111. 442. 456 STATUTE OF FRAUDS AND PERJURIES 95 But if A should say, "Let B have the goods, I will see you paid," A's promise is original, for there is no liability of B to wMch A's promise can be collateral." This original promise of A need not be in writingJ^ If A says to X," Give M a receipt in. full for his debt to you, and I will pay the amount," this origi- nal promise would not fall within the Statute.'^^ 87. Same subject — Clause (3) — ^lilarriage. — This section has been most frequently applied to marriage settlements.''® It would seem that the Statute ex- tends to any agreement to undertake any duty or of&ce in consideration of another's contracting a mar- riage, whether -with the promisor or with a third person.'^'' But mutual promises to marry are not cov- ered by the Statute and need not be in writing, unless they are not to be performed within a year.''* A (fis- tinction should be noted between agreements in con- sideration of marriage and agreements which are merely in expectation or contemplation of marriage. It is the former only which require a writing.''* 88. Same subject — Clause (4) — Contract or sale of lands, — This section deals with the agreements to sell land and with the sale of lands. "Lands, tene- ments, or hereditaments, or any interest in or con^ ceming them" is the wording of the clause. Such interests include both legal and equitable interests. T4BirkmTT v. Darnell, 1 Sm. L. C. 289 (Eng.). TR Goodman v. Chaso, 1 B. & A. 297 (Eng.). This section is treated more fully in !the subject of Suretyship. ■to 6 Illinois Law Review 503. T7 Prenner T. Prenner, 48 Ind. 262. T8 Hunt V. Hunt, 171 N. Y. 396 ; see S 89. loTtiley v. Biley, 25 Conn. 154; Browne, Statute ot Frauds (Sth ed.), I 215b. 457 96 LAW OF CONTRACTS Thus, an agreement to cancel a written contract for the sale of land must be in writing to give it effect, because the contract for the, sale gave an equitable interest, by the rules of equity, to one party, which interest, by the cancellation, is transferred back to the first party.*" The Statute extends to dower, rents and the assign- ments of leases.®^ The interest in the land, however, must be a substantial interest, and not merely ar- rangements preliminary to the acquisition of inter- est, for, example, the contract for an abstract of title.*'' Such contracts require no writing. Interesting questions arise in the determination of the necessity for writings for contracts referring to crops, trees, etc. Such products are divided into two classes. One is termed "fructus industrials " (products of cultivation), and the other is called "fructus naturales" (products of nature) . The first class includes those crops, such as grain, com, and wheat, which are produced by man to be severed. They are not considered as interests in land, but as personalty or chattels, and any contract relating to them need not be in writing because of the provisions of the fourth section of the Statute of Frauds. They may, however, fall under the provisions of the sev- enteenth section with reference to the sale of goods.*' The second class is interests in land,^nd includes 80 Hnghes v. Moore, 7 Craneh 176 (V. S.) ; Browne, Statute of Frauds (5th ed.), S 229. 81 Ijenfers v. Honke, 73 111. 405 ; Brown v. Brown, 33 N. J. Eq. 650, S2 Heyn v. Philips, 37 Cal. 529. 88 Brownie, Statute of Frauds (5th ed.), §236; see subject, SikXES; see §92. 458 STATUTE OF FRAUDS AND PERJURIES 97 things such as trees and timber. These articles are planted for a permanent purpose and a contract for their sale, must be in writing in order to satisfy the fourth section. But if the contract is to sever trees and to sell, they become chattels and the agreement need not be in writing.®* In general, there are four kinds of contracts con- cerning interests in land. First, there may be a con- tract merely to sell land. This agreement must be in writing.** Second, the contract may be one to sever and sell. ' That is, A contracts with B to sever timber and to sell it to B. This is not in the fourth section, for the timber is then regarded as chattel property, and not as realty.*® Third, a contract giv- ing the vendee possession to sever the timber would be in the Statute, for the vendee would acquire an interest in the land, namely, possession. Fourth, the contract may give a license to enter and cut, but not possession. ' This contract would not be in the Statute.*^ In boundary line cases, the rules may be well illus- trated. Suppose that the line between two adjoining pieces of property, called X and Y, is uncertain and that the parties orally agree to make the boundary a certain line. This contract is not in the Statute, for no interest in land is transferred. The boundary is merely ascertained and made definite. No one can say whether the owner of X receives a part of Y, or 8* See subjects, Seal Pkopeett, Sales. 85 Hirth T. Graham, 50 Ohio St. 57, Leading Illustrative Cases ; Laverj V. Purssell, 39 Ch. Div. 508 (Eng.). 88 Long y. White, 42 Ohio St. 59. 87. City of Berwyn v. Berglund, 99 N. B. 705 (111.), Leadino Illustkattvb Cases. 459 98 LAW OP CONTRACTS vice versa.*^ But suppose that the dividing line is definite, but the parties agree to make a creek instead of the former line as the boundary. This creek winds about the former line. Such a contract must be in writing, for it transfers interests in land. In some places the owner of X would acquire what had belonged to the owner of Y, and the owner of Y would acquire land that had belonged imder the old boundary arrangement to the owner of X.®" 89. Same subject — Clause (5) — Agreement not to be performed within the space of one year from the making thereof. — ^A contract does not fall under this section of the Statute unless it cannot possibly be performed within a year. The fact that it may not be performed is not enough to require the contract to be in writing, so long as it might be performed within a year.®" In a railroad case,®^ the company agreed orally to place and maintain as long as needed a switch oppo- site A's mill, if he would furnish the ties and grade the ground. The company failed to perform its agreement, and A sued on the contract. The Statute of Frauds was pleaded as a defense. The court held that the oral contract did not fall under the fifth clause of the section because the contract could be performed within a year. It is of no importance that the time is uncertain. But if the agreement had been by express terms to maintain the switch beyond one year, the statute would have applied. 88 Cavanaugh v. Jackson, 91 Cal. 580. 89 Nathan v. Diersson, 134 Cal. 282. »o A«son, Contracts (HufPcut's 2a ed.), § 100. 91 Warner v. Texas, etc., Ey., 164 U. S. 418. 460 STATUTE OF FEAUDS AND PERJURIES 99 If the contract depends on a contingency, the question which arises is when can that contingency happen. Thus, where A agrees to maintain a child during life, the oral contract is not within the statute, for the child may die within a year, and the contract would thereby have been performed."^ Similarly, a promise by A not to go into a certain business for five years is not in the Statute because A may die within a year. Thereby, the terms of the oral agree- ment would be fulfilled within the year."* But where A orally engages the services of B for three ' ' years, although B may die within a year, yet the con- tract is not performed. A would not have the serv- ices of B for three years. Hence, such a contract cannot be performed within a year. It must, there- fore, be in writing. Likewise, mutual promises to marry, if not to be performed within a year, must be in writing."* 90. Executed contracts — ^Part performance. — If an oral contract has been completely executed on both sides, the rights, duties and obligations of the parties resulting from such performance stand unaffected by the Statute."® It is the executory contract which falls within the Statute of Frauds, never the executed contract."" If a contract has not been completely executed on both sides, but only one side has performed, either in 02 Souch V. Strawbridge, 2 C. B. 808 (Eng.) ; Carr v. McCarthy, 70 Mich. 258. 03 Doyle V. Dixon, 97 Mass. 208. o^XIlbnan v. Meyer, 10. Fed. 241; Browne, Statute of Frauds (5th ed.), §272. »5Bibb V. Allen, 149 U. S. 481; Stone v. Dennison, 13 Pick. 1 (Mass.)i 06 Browne, Statute of Frauds (5th ed.), § 116. 461 100 LAW OF CONTEACTS whole or in part, the contract falls within the require- ments of the Statute if the action is at law. But if the Statute is concerned in an oral contract in a pro- ceeding in equity, a different rule is sometimes fol- lowed. Generally, that rule is applied only to oral land contracts. For instance, if, in reliance upon an oral contract to sell him a tract of land, A builds a house on the land and pays B the purchase price, a court of equity would not permit B to set up the Statute of Frauds as a defense, but would compel B to deed the land to A." But not every part perform- ance will take a contract out of the Statute even in equity. For further discussion of the rights in equity, the reader will consult the article on Equity.^* If there has been part performance, and the other side refuses to perform, the party who has partly per- formed has an action in quasi-contract to recover for the services he may have rendered, the materials fur- nished, or the purchase price paid, as the case may be.®* Should A, however, who has paid the purchase price under an oral contract, attempt to recover the same, when B is willing to perform, the Statute will not enter into the question,' and A cannot recover. In short, as B in such a case would be the party to be charged, A having performed, the Statute would not apply, for it is only the party who is to be charged who may set up the Statute of Frauds as a defense. o^Leavitt v. Stern, 159 HI. 526; Browne, Statute of Frana»-(5th ei.), §447. 08 See Glass v. Hiilbert, 102 Mass. 24 ; Anderson v. Manners, 243 HI. 405. »o See subject, Quasi-Contracts ; Bichards v. Allen, 17 Me. 296. 462 STATUTE OF FRAUDS AND PERJURIES 101 A could not sue even in quasi-contract to recover the purchase price. He must permit the performance of the contract or lose/ The same rule applies to personal service con- tracts. If A orally agrees to work two years for B, and volimtarily quits after six months, he may not recover for services rendered, so long as he has no excuse for stopping and so long as B is ready to have him work.* 91. Provisions of the seventeenth section. — ^The seventeenth section of the Statute of Frauds relates to the sale of goods. It has been copied substantially into the statute law of most of the states. Instead of "10 pounds sterling," the amount is usually "$50 or upwards." The provisions of this section are as follows: "That no contract for the sale of any goods, wares, and merchandise for the price of 10 pounds sterling or upwards shall be allowed to be good, except: (1) the buyer shall accept part of the goods so sold and actually receive the same ; (2) or give something in earnest to bind the bar- gain, or in part of payment; (3) or that some note or memorandmn in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents there- imto authorized. " ' 92. Construction of the seventeenth section. — There are, therefore, three methods to enforce, a 1 Thomas v. Brown, L. E. 1 Q. B. 714 (Eng.). 2 Philbrook v. Belknap, 6 Vt. 383. 3 See subject, Sales ; Bird v. Munroe, 66 Me. 337, Leading Illusteattvk Cases. • 463 102 LAW OE CONTRACTS contract for the sale of goods in order to take it out of the Statute. The first is to accept and receive a part of the goods ; the second, to give part payment ; and the third to write a memorandum.* The greatest difficulty which arises -under this sec- tion of the Statute is to determine what executory contracts for the sale of goods, wares or merchan- dise fall within its requirements. There are three lines of decisions called the English, the New York, and the Massachusetts rules, respectively. English doctrine. This rule holds that all con- tracts which have as their purpose the sale of goods, whether those goods are made or in existence, or are to come into existence, fall within the scope of the Statute and must satisfy its requirements. This is the case even if the work and the labor in the mak- ing of the chattel are of the most importance.^ Thus, a contract for the manufacture of a special kind of carriage would be within the terms of the Statute. - New York doctrine. This rule holds that only such contracts as are made for the sale of goods which are in existence when the contract is made are within the Statute.* Here, a contract to manufacture a spe- cial carriage would not be in the Statute. Massachusetts doctrine. Here the rule is stated that "a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a con- * Browne, Statute of Frauds (5th ed.), chap. XIV. oLee V. Griffin, 1 B. & S. 272 (Ena;.) ; Brown v. Sanborn, 21 Minn. 402. 8 Cooke V. Millard, 65 N. Y. 352; Parsons v. Loucks, 48 N. T. 17; Meincke V. Falk, 55 Wis. 427. • 464 STATUTE OP FRAUDS AND PERJURIES 103 tract for the sale of goods, to wMch the Statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general mar- ket, the case is not within the Statute." '' Here, the special order would not be in the Statute. But an order to make a carriage usually manufactured would be in the Statute. In England choses in action are not in the Statute. But it is generally held otherwise in the United States. Even the sale of stocks, promissory notes, bonds and the like are regarded as sales of goods, wares and merchandise and fall within the Statute.^ 93. Satisfaction of the requirements of the Stat- ute of Frauds — Memorandum. — To create a mem- orandum which will satisfy the Statute of Frauds, either for the fourth or the seventeenth section, and thus make the contract enforeible, the parties, the subject matter, and usually the consideration must appear.® If the writing is under seal, for the piur- poses of a court of law, the consideration need not appear." Moreover, where the memorandum is of a contract for the sale of goods, the consideration heed not appear.^ ^ The memorandum must be signed by the party to be charged or his agent authorized to sign for him. 7 Goddard v. Binney, 115 Mass. 450; see subject, Sales. < Tisdale v. Harris, 20 Pick. 9 (Mass.) ; Greenwood v. Law, 55 N. J. L. 168. 9 Grafton v. Cummings, 99 U. S. 100. 10 This rule is further changed by statutes. In Illinois, for instance, the consideration need not appear in any case. Stimsoh, American Law, §§4140-4142. 11 Wood V. Davis, 82 111. 311. 1-30 465 104 LAW OF CONTRACTS Furthermore, the subject matter should be so de- scribed in the memorandum that it can be identified. Parol evidence is admissible, however, to assist in determining what is meant by any particular expres- sion in the description of the subject matter/^ A letter beginning with the word "Sir" and signed by the party to be charged but not containing the name of the person to whom it is addressed is not a sufficient memorandum for the purposes of the Stat- ute. It fails to state the name of the other party to the contract. But if^ for instance, ' the envelope in which the letter came can be produced and it contains the name of the other party, as addressee, the letter and the envelope will be regarded as one document, and thus the Statute would be satisfied with refer- ence to the rule that the parties must appear in the memorandum.^® This combination of papers is called "incorporation by reference." The mem- orandum may consist of various letters, papers and documents, but they must be connected and complete. Likewise, extrinsic evidence is admissible to explain what is there, but never to supply what is not present in the collected papers constituting the memorandum.^* The memorandum may be made at any time subse- quent to the formation of the contract and before any action is brought." One state, Illinois, seems to have held otherwise.^® 12 Anson, Contracts (Huffcut's 2d ed.), § 105. J3Pearce v. Gardner (1897), 1 Q. B. 688 (Eng.). "Beckwith v. Talbot, 95 TJ. S. 289; see subject, Evibencb. "Browne, Statute of Frauds (5th ed.), § 352a. isEichardson v. Eichardson, 148 111. 563. 466 STATUTE OF FRAUDS AND PERJURIES 105 As stated, the memorandum must be signed by the party to be charged or his duly authorized agent, but one party to the contract may not act as the agent of the other party for the purpose of signing.^'' Auc- tioneers and brokers, however, may be agents of both parties for this purpose.^* The authority given to the agent to sign need not be in writing under the En- glish Statute.^® This rule has been changed in some states by legislation, which requires the authority of the agent to be in writing.^" Moreover, the rule imder the English Statute must be distinguished from the rule that to execute a deed under seal the authority of the agent to execute must be under seal and hence, in writing.*^ It is only the authority of the agent to sign the contract, and not the authority to con- vey, about which the Statute is concerned, and which, under the English Statute, need not be in writing. The signature need not be an actual subscription of the party's name. It may be a mark, or be printed or stamped, if such nlark or printing is intended as a signature. Furthermore, the signature may appear at any place on the memorandum.*^ There are two lines of authorities with referehce to the necessity for the delivery of the memorandmn. One requires that there be a delivery; the other IT McElroy v. Seerey, 61 Md. 389. 18 Wright V. Dannah, 2 Camp. 203 (Eag.). 18 Horton v. MeCarty, 53 Me. 394. 20 Illinois. 21 Statutory changes. Although substantially adopted by most jurisdictions, states have modified and amended the Statute of Frauds in different particu- lars. See also subject, Aoency. 22 Clason V. Bailey, 14 Johns. 484 (N. Y.). 467 106 LAW OF CONTRACTS takes the view that the literal requirements of the Statute are satisfied by the mere existence of the memorandum.^* 28 See 20 Cyclopedia Law & Procedure, p. 277. 468 CHAPTER VII. CAPACITY OP PARTIES. 94. In general. — ^As contract results from agree- ment, and agreement requires two or more assenting minds, it follows that there must be at least two parties to every contract. The parties to a contract may be individuals, or aggregations of persons, as corporations, partnerships, and the like; they may act for themselves, or represent others as their agents, attorneys, servants and the like; and they may act jointly or severally. For the purpose of the formation of a valid con- tract there must be parties capable of contracting, and it is the purpose of this chapter to indicate who are thus capable, and to find out who are incapable. All persons are presumed competent to contract, and dis- ability, where it exists, must be set up when relied upon as a defense to a contract. Some persons, by the policy of the law, and for their own benefit, are incapacitated from binding themselves by contract. The incapacity may be entire or partial, and arises from a variety of causes, as infancy, coverture, imbe- cility, political status, and the like. 95. Infancy. — ^A person under the»age of ma 3 ority , which was twenty-one at common law, was regarded as an infant or a minor. Statutes frequently regu- late this question, and have in many cases fixed the 469 108 LAW OF CONTRACTS age of eighteen as the majority of a woman. The common law did not as a rule regard fractions of a day and, therefore, an infant comes of age at the beginning of the day before his or her twenty-first or eighteenth birthday, as the case may be.^* Voidable contracts. In general, an infant's con- tracts are voidable. According to the early English common law, as well as a few American decisions, contracts of infants which were manifestly to their prejudice were declared void, and not merely void- able. An example is the case of a gratuitous con- veyance of land by an infant. Such a grant was void. But this rule of interest became difficult to apply. Consequently, the general law declared that an infant's contracts are merely voidable. One excep- tion continues to exist, however: an infant cannot appoint an agent or attorney. Such an appointment and all acts and contracts made by the .alleged agent are void.^® But the scope of this exception is narrow- ing to cases where the infant gives a warrant of at- torney to confess judgment or to execute a deed. The courts tend to leave the question to the infant himself to determine upon his coming of age whether he will abide by his agreement or not. At this time, he may ratify or repudiate the contract, as he thinks best. Necessarily, the other party to the contract may not repudiate it, but is bound if the infanf desires to hold him to performance. Valid contracts. Certain contracts are binding upon an infant, and he may not avoid them. Such 2* Bardwell v. Purrington, 107 Mass. 419. 25 Armitage v. Widoe, 36 Mich. 124. 470 CAPACITY OF PARTIES 109 are contracts authorized or required by law, and express and implied contracts for necessaries. An infant's contract entered into under the au- thority of or by the direction of a statute or the com- mon law, are binding upon him. Thus, where A, an infant, executes a bond to secure his appearance in a court in answer to a criminal charge, he is bound by the bond and may not avoid it because of his infancy. Similarly, because of the sovereign right and power of the state to enlist soldiers and sailors in its serv- ice, the enlistment contracts 6f minors are binding."* An infant is liable for contracts for necessaries. He is bound to pay the reasonable value of such neces- saries, and generally may not be held on an express contract to pay more than such a reasonable value. Consequently, the basis of the obligation to pay for necessaries is not strictly contractual, but quasi-con- tractual in its nature."^ An infant is liable to pay for necessaries furnished him in order that he may obtain food, clothing, shel- ter, and education. Otherwise, if such obligations were voidable, tradesmen would not care ta extend him credit. What are necessaries varies in different cases, and depends upon circmnstances. The term includes whatever is reasonably needed for the sub- sistence, health, comfort, and education of the infant. These in turn depend upon his age and station in life. Necessarily, some things would never be neces- saries. Thus, an airship would not be considered such, whereas a watch might be under certain circum- 28 In re Morrissey, 137 U. S. 157. "" See subject, Qdasi-Contracts. 471 no LAW OP CONTRACTS stances. Geinerally, the articles furnished must con- cern the personof the infant and not his estate. The articles, mifst be for use and not merely for ornament. Thus, liquors, tobacco, and firearms are not necessa- ries. Furthermore, although an article be a neces- sity, it may not be extravagant in quantity or quality. Ordinary school books are necessaries, but a rare edi- tion of Shakespeare's plays would not be. Nor is an infant liable where, he is sufficiently supplied with articles and then purchases a larger supply. This is true even in the case of clothing. The person who deals. with an infant acts at his peril. An infant is not answerable for money borrowed, although it is expended by him for necessaries. Nor is he liable for money borrowed to buy necessaries, unless the lender sees that it is actually expended for necessaries.^* In such event an action may be main- tained against the infant. Ratification and disaffirmance. If the contract is voidable, an infant may ratify it when he becomes of age. He is then bound and an action may be main- tained against him on the contract.. Ratification may be expresg andjmplied. If A, while under age, prom- ises to sell his hof se, he is bound by the agreement if, after he is of age, he expressly indicates his desire to perform. Similarly, if an infant accepts, after com- ing of age, the consideration of a contract made dur- ing infancy, his conduct will constitute an implied ratification.^' Disaffirmance is as necessary in some cases to pre- siBandall v. Sweet, 1 Denio 460 (N. Y.). ssBoyden t. Boyden, 9 Met. 519 (Mass.). 472 CAPACITY OF PARTIES 111 vent an implied ratification as express ratification is necessary in other cases to make the contract binding. Thus, where an infant acquires an interest in perma- nent property, or enters into a contract which creates continuous rights, liabilities and benefits, he may become bound unless he expressly disaffirms. An infant who has purchased land and gone into posses- sion will be held to have ratified the transaction if he does not disaffirm it within a reasonable time after coming of age. Similarly, an infant who leases prop- erty and continues to occupy the premises after at- taining full age, is liable for arrears of rent which accrued during his minority. Moreover, where an infant has conveyed, land, it is held that he can only defeat his grantee's title by a direct disaffirmance of the deed made, within a reasonable time after reach- ing his majority. • At one time it was necessary that the disaffirming act be of as high and solemn a character as the act disaffirmed. In modern law, the act need take no par- ticular form or expression. An unequivocal intent to repudiate the binding force and effect of the con- tract as disclosed by acts and declarations is sufficient. Necessarily, the ratification or disaffirmance must be of the entire contract. He cannot ratify as to part and repudiate as to the balance of the contract. More- over, in the event of his disaffirmance, he must return any consideration which he has received.*" 96. Married women. — ^At common law, except as to their equitable separate estate, married women were unable to make a valid contract either to bind 80 Chandler v. Simmons, 97 Mass. 508 ; see subject, Persons. 473 112 LAW OF CONTRACTS themselves or to acquire rights thereby. This dis- ability is now removed by statutes in the several states, and with a few exceptions married women may contract as though single. 97. Persons mentally deficient. — ^Idiots, lunatics and imbeciles cannot make binding contracts. This follows from the nature of a contract. Persons hav- ing no mind cannot contract, for an act of mind is required. But as there are many degrees of mental unsoundness, varying from mere weakness of intel- lect to entire incapacity, it is sometimes difficult to say just what cases are void for lack of mental capacity. In general, to invalidate the contract there must be such a mental disability as from its character and intensity disables the person from understanding the nature and effect of his acts. So mere mental weak- ness or disability from old age, if not to the extent- just stated, will not invalidate a contract entered into by a party so affected. And even an insane adult may become liable for necessaries.^^ The insanity, to avoid the contract, must exist at the time of entering into it, and though the party afterwards recover his mind, he may repudiate a contract made while insane. Though the mental inca- pacity be caused by the party's own fault, as by his drunkenness, he may still avoid the contract unless his intoxication was part of a scheme to defraud. A lunatic is a person once of sound mind, but who has lost his mental capacity through sickness or acci- BiHovey v. Hobson, 53 Me. 451; Bichardeon v. StrOng, 35 N. C. 106; see subjects, Persons, Quasi-Contracts. 474 CAPACITY OF PARTIES 113 dent. He may avoid all Ms contracts save those bona fide made for necessaries. The term "necessaries" here means the same as in the case of infants ;.that is, all proper things as well as indispensables. His con- tracts, ezcept those for necessaries, may be avoided by his guardian or other representative if he were actually insane at the time of making the contract, though he was seemingly sane and no unjust advan- tage was sought to be taken of him. The law aims to protect insane persons or those mentally incapable of caring for themselves, but not those who are merely ignorant or careless.' So one who, lacking ordinary intelligence or shrewdness, makes a bad or foolish bargain, may not avoid it on the ground of his incapacity.^* Persons incapable by reason of extreme prodigality to preserve their property may be put under guar- dianship, and thus lose the right to make contracts. These are called spendthrifts. The same is true of , habitual drunkards. Seamen are protected by law from their own care- lessness both as regards their person and rights. The United States Revised Statutes contain many provi- sions for their protection and benefit. And an agree- ment by a seaman to shipping articles which do not contain the general rights and privileges prescribed for such articles is void. 98. Aliens. — ^An alien is a person bom out of the jurisdiction of a country in which he lives, and not naturalized therein. By a rule of law and construc- tion the children of ambassadors, ministers, etc., 32 Clark, Contracts (2d ed.), § 117. 475 114 LAW OF CONTRACTS though bom out of the jurisdiction of their country, are yet citizens. Furthermore, children born to citi- zens while temporarily sojourning in a foreign coun- try are citizens of their parents' country, but they may elect to become citizens of the country where bom. Aliens at common law could not hold real property, and their right to personal property was precarious. The rights of aliens to hold real property are regu- lated by the statutes of the several states, and, with a few exceptions, where they have been limited as to the aniount they might acquire in each county, they have the same right to acquire and hold property as citizens. The Congress of the United States has the power to confiscate the goods and properties of alien enemies, and in time of war may give the subjects of the power with whom the United States is at war a stated time to remove from our territory. Until so ordered out, aliens may sue and be sued in our courts, both in peace and war; but they must obey the laws and are amenable to all laws of the juris- diction in which they live.^^ During the war of the rebellion, the inhabitants of the Northern and Southern states were enemies, and all contracts made between them during the continu- ance of hostilities were void.'* Contracts existing before the war were not ended or void, but the remedy was suspended until peace was restored.'" ssaarke v. Morey, 10 Johns. 68 (N. Y.); Brooke v. PDer, 35 Ind. 402; McVeigh v. U. S., 11 Wall. 259 (TJ. S.). 3* Masterson v. Howard, 18 Wall. 99 (U. S.) ; Mutual Ben. Life Ins. Ca. V. Hillyard, 37 N. J. L. 444. S5 University v. Finch, 18 Wall. 106 (TJ. S.) ; Cohen v. New York Mutual Life Ins. Co., 50 N. Y. 610. 476 CAPACITY OF PARTIES 115 99. Professions. — The early English cominon law prevented barristers and physicians from suing for their services. These disabilities were never recog- nized in the United States, except in a regulative manner. Thus, statutes require physicians, attor- neys, and brokers to be licensed before they may sue for services.^® 100. Convicts.-^In the absence of statutory pro-' visions, a convict may enter into contracts and sue or be sued thereon. But if a state statute suspends civil rights of convicts, his contract would be void. He may be sued by creditors, for although his civil rights are suspended, the rights of his creditors continue.*'^ 101. Corporations. — ^A corporation is said to be an artificial or fictitious person. More properly, it is said to be ah aggregation of individuals who are treated in law as one person. The corporation has the capacity to contract, even if the legislature has not expressly granted that power. But the corporate powers being limited, certain contracts are beyond its charter powers. Such are called ultra vires contracts. The enforcibihty of such contracts is discussed in the article on corporations. 102. Power of a state to contract. — The power of the United States and the various states to enter into contracts within their respective f mictions is an inci- dent to the general right of sovereignty. Thus, where the proper officers of the United States Treasury Department had taken from an agent a voluntary 88 Clark, Contracts (23 ed.), § 90. 3T Clark, Contracts (2d ed.), §89. 477 116 LAW OF CONTRACTS bond for the faithful performance of his duties, it was held to be a binding contract between him and his sureties and the United States, even if there was no positive law requiring such a bond.^^ "Upon full consideration of this subject," recites the opinion in the case cited, "we are of opinion that the United States have such capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohihited by law, and appropriate to the just exercise of those powers." The same rule applies to contracts by state governments.** The United States and the states have the same power to sue and to maintain actions on contracts made with them that an individual has. But neither the United States nor a state may be sued without its consent.*" The rule is the same as to foreign states or sovereigns.*^ 38 United States v. Tlngey, 5 Pet. 115 (XJ. 8.). •i» Danolds v. State, 89 N. Y. 36. '"'Michigan State Bank v. Hastings, 1 Doug. 225 (Micb.). *i MigheU V. Sultan of Johore (1894), 1 Q. B. D. 149 (Eng.). 478 CHAPTER VIII. LEGALITY OF THE SUBJECT MATTER. 103. The subject matter as an element in a valid contract. — In general, the parties may contract about whatever they choose. This freedom of contract is limited, however, to this extent: certain objects are illegal (1) either by statute or (2) by common law, or (3) they are forbidden because of public policy. Although all of the other requisites of a valid contract are present, if the parties have in mind one of these prohibited objects, the contract will not be enforced.*^ But if the contract can be performed in two ways, one legal and the other illegal, the law presmnes, in the absence of proof to the contrary, that the legal method was intended, and this presumption will be adopted. The three-fold classification given above is mainly for the sake of convenience. Objects cannot be placed with certainty into any one of the three classes, for a particular object may be illegal by statute in one state and by the common law in another jurisdiction. Whether an object is expressly forbidden by statute, or violates a positive rule of the common law, or is merely against the policy of the law in any particular state, depends to a great extentupon the way in which public sentiment has expressed itself in that state. Much of the common law has become so by an adapta- ■•2 Hunt V. Knickerbacker, 5 Johns. 327 (N. Y.), Leading Illustrative Cases; McMullen t. Hoffman, 174 U. S. 639. 479 118 LAW OF CONTRACTS tion of old statutes, and in many instances the courts have shown a disposition to legislate by interpreting the law and moulding it in accordance with public sentiment.*^ 104. Contracts illegal by common law and by statute. — Practically all of the states and also the federal government have statutes regulating the con- duct of certain lines of business. Provisions as to weights and measures, as to dealing in certain com- modities, as to the proper handling of drugs and explosives, as to the non-adulteration of foods, as to the employment of children in factories, and as to the guarding of machinery, are invariably upheld imder the police power of the state, although they clearly interfere with the right of freedom to con- tract.** Contracts in violation of such provisions are void, although in all other respects valid. In the same class are statutes regulating the sale of liquors. Thus, in Eaton v. Kegan,*® a merchant was not per- mitted to recover for meal sold by the bag instead of by the bushel as prescribed Tij statute. Similarly, a sale of fertilizer not properly inspected was held illegal.*' Where a statute forbids the employment of children, a father may not recover for the services of the employed child.*^ There may be no recovery for the value of liquor sold on Sunday in violation of a statute.** *3 Miller v. Ammon, 145 V. S. 421, Leading Illustrative Cases. ** See subject, CoNSTrruTioNAL Law. «s 114 Mass. 433. 4« Pacific Guano Co. v. Mullen, 66 Ala. 582. 4' Birkett v. Chatterton, 13 E. I. 299. 4»Melclioir v. McCarty, 31 Wis. 252; Miller v. Ammon, 145 U. S. 421, Leabino Illustrative Cases. 480 LEGALITY OF THE SUBJECT MATTER 119 Sunday contracts. Some states expressly forbid the making of contracts on Sunday. Others forbid the doing of any labor or business on Sunday. Under either of such statutes, a contract made on Sunday is invalid.*® In some jurisdictions, work is prohibited, but only as to one's ordinary calling. On Simday, A may agree to sell a horse, and on Monday refuse to abide by his promise. But acts of religious worship, or anything which is intended to preserve life or prop- erty, are excepted. Such acts must not be performed merely f o"!r the purpose of saving time, however, for in that event they would be illegal.^" If a transaction is started on Sunday, it will be legal if completed on another day; but there is a conflict of authority as to whether a Sunday contract may be later ratified."^ 105. Same subject — Wagers. — ^A wager is defined as a promise to give money or its equivalent upon the determination or ascertainment of an uncertain event. The consideration for such a promise is either some- thingv given by the other party to abide the event or a promise to give upon the event determining in a particular way.'* This definition illustrates the difference between a wager and a premium or reward. The latter is an offer made with no condition as to the way in which the event determines and therefore is not illegal.'* 49 Smith V. C. M. St. P. Ey., 83 Wis. 271 ; see Bryan v. Watson, 127 Ind. 42. BO Aldrich v. Blackstone, 128 Mass. 148. Bi McKinnis v. Estes, 81 la. 749; Grant v. McGrath, 56 Conn. 333; Eussell V. Murdock, 79 la. 101. B2 Anson, Contracts (HufEcut's 2d ed.), § 240; Love v. Harvey, 114 Mass. 80, Leading Illustrative Cases. 03 Porter v. Day, 71 Wis. 296; see subject, Sales, to distinguish wager and conditional promise. 1-31 481 120 LAW OF CONTRACTS Wagers were originally legal at common law in England and even in some 0(f our states.®* But the Statute of 16 Car. 11, chapter 7, and 9 Anne, chapter 14, prohibited them, and there are similar statutes in most of the states. In a number of jurisdictions, these English statutes are considered as a part of the common law. Contracts of insurance are really wagers. They are enforeible, however, as being within the policy of the law, for they result in positive good to the individual, and it has been clearly proven ihat they can be profitable to the insurer. The law carefully examines such contracts, however, and no one is allowed to be a party to them unless he has an insur- able interest in the object insured, whether that be a person or property. This interest must be great enough to prevent the policy-holder from destroying the subject insured.®" Another example of a 'wagering contract is a sale of stock or grain where delivery is not intended.®® The distinction between such an agreement and an agreement for future sale or delivery, which is not illegal, is that in the former, delivery is never intended, whereas in the latter, actual delivery is in- tended.®'' But where one of the parties has an honest intention to deliver, the contract will be upheld.®^ In Illinois, the statute would seem to cover any contract 0* Campbell v. Eichardson, 10 Johns. 406 (N. Y.) ; Cothran t. Ellis, 125 ni. 496. B5 See subject, Insukancb. OS Sucli contracts are usually made on the stock exchange or board of trade. 67 Harvey v. Merrill, 150 Mass. 1. 68 See subject, Sales. 482 LEGALITY OP THE SUBJECT MATTER 121 for future delivery, even where an actual delivery is contemplated.''® Lotteries are the distribution of prizes by lot or chance. They are another form of wagering contracts and are illegal. But where there is a mere distribu- tion of prizes and no consideration is paid directly or indirectly for the right to participate, it is not a lottery.^" 10&. Same subject — Usury. — ^Practically aU of the states have a rate of interest for the loan of money, beyond which it is not legal to exact interest. Laws dealing with this subject are usually termed usury laws. A contract which violates the provisions of such a statute is said to be usurious. In order to make the contract usurious, there must be an actual borrowing or lendinlg of money.®^ Thus, it is per- missible to place a penalty of a certain amount in a contract, in case of a default by one party. Where A agrees to convey Blackacre to B, and B promises to pay A $5,000 by January 1st, or pay an additional sum of $50 a day for each day of delay, such a contract is not usurious. But where A loans B $100, and it is agreed that B shall pay twelve per cent, interest, the contract is bad if the legal rate of in- terest is about seven per cent. Various penalties are attached by statutes to such usurious contracts. Some provide that neither the principal nor the interest may be recovered; others allow the recovery of the principal, but not of the interest. There is a conflict »9 Schneider v. Turner, 130 111. 28. 80 People V. Gillson, 109 N. Y. 389 ; Cross v. People, 18 Colo. 321. siStruthers v. Drexel, 122 TJ. S. 487; Drury v. Wolfe, 134 111. 294. 483 122 LAW OF CONTRACTS of authority as to whether interest on overdue inter- est is usury.** 107. Agreements contrary to public policy. — While freedom of contract is a constitutional right which ought not to be interfered with except for good cause, individuals cannot be permitted to do or fail to do anything the performance or omission of which is in any degree clearly injurious to the public.** There are various classes of such agreements which will be considered more in detail. Agreements affecting the public service. Agree- ments which tend in any way to affect the public service are illegal. Within this class are agreements for the sale of a public office or its salary or emolu- ments. Similar are promises to use personal influ- ence, in distinction from purely professional services, to secure the nomination, election or appointment of a person to an office. An agreement to procure legis- lation or the favorable action of a public servant is illegal." Where A, a land-owner, agreed to use his influence for a public improvement, it was decided that he could not be held to his promise.*" So, a quasi-public corporation** cannot make an agreement with an indi- vidual which will affect or limit public rights. For 82 Young V. Hill, 67 N. Y. 162. 83 W. Va. Transportation Co. v. Ohio, etc., Co., 22 W. Va. 600. «* Schneider v. Local Union No. 60, 316 La. 270, Leading Illustrative Cases. 66 Doane v. Chicago City Ey. Co., 160 111. 22, Leading Illustrative Cases. 88 A quasi-public corporation is one which deals in a commodity which the public cannot well do without and in which the public consequently has an interest. It is to be distinguished from a public corporation which is con- ducted by the public. See subject. Corporations. 484 LEGALITY OF THE SUBJECT MATTER 123 instance, an agreement as to the location of a railroad station may be invalid for this reason. . The rights of the public govern; consequently, if the contract is fair to the public, it will be upheld.^'' Agreements obstructing justice. The law will not uphold any agreement which perverts or obstructs justice. There are several illustrations which should be considered. Champerty is the making of an agreement to carry on another person's suit in consideration of the receipt of a part of the amount to be recovered. Main- tenance arises when a person maintains a suit or quar- rel to the disturbance or hindrance of a right. Both of these were crimes under the old English common law. But in the United States, the rules have been modified and are not very definitely settled. In some states, they have been discarded entirely, whereas, in others, they exist only by virtue of statutes.^* Main- tenance, where recognized, is confined to an ipaproper and intentional stirring up of strife.*® While the policy of the law is in favor of the settle- ment of litigation, individuals cannot be permitted to dispose of matters in which the people of the whole state have a vital interest. Hence, courts wiU dis- regard any agreements to compound a crime or to stifle a prosecution. The private injury involved in the matter may be settled if there is no agreement to forbear prosecution.'''' Some authorities permit the making of an agreement between the parties in case 87 Beasley v. T. & P. By. Co., 191 U. S. 492. ssAckert v. Barker, 131 Mass. 436, Leading Illustrative Casks. 89 Ferine v. Dunn, 3 Johns. 508 (N. Y.). '0 Sloan V. Davies, 105 la. 97; Barrett v. Weber, 125 N. Y, 18. 485 124 LAW OF CONTRACTS of slight misdemeanors. In any event, it must appear that the crime had been committed or that the prose- cution was actually pending at the time the agree- ment was made, in order to make the agreement invalid.''^ Agreements to procure, give or suppress evidence are void.'^^ Anything inconsistent with the impartial course of justice will not be upheld even if the intent of the parties is not fraudulent, and although no evil resulted." A contract whereby the defendant is to pay the plaintiff a certain compensation if he is suc- cessful in detecting acts of larceny by the employees of the defendant's manufacturing plant is illegal. Inasmuch as it tends to induce the plaintiff to make charges in order to earn the money, the agreement will not be upheld by the courts. "It is the contingent nature of the compensation and its tendency to induce false charges and all the fraud and trickery of the private detective business that prima facie stamps this contract with illegality. "''* Similarly, promises to submit to arbitration are regarded by the courts as attempts to oust them from their jurisdiction. While it is legal to make as a condition of a contract that disputes arising therefrom shall be referred to arbi- tration before any right of action may arise, it has been held illegal to agree to refer all matters to ar- bitrators and to them alone, for the latter agree- ment attempts to prevent any action being brought 71 Schultz V. Catlin, 78 Wis. 611 ; Columbia Lodge v. Manning, 57 N. J. Eq. 338. 72Langclon v. Conlin, 67 Nebr. 243. T3 Willemin v. Bateson, 63 Mich. 309. 74 Manufactuiers Bureau \. Everwear Hosiery, 138 N. W. 624 (Wis.). 486 LEGALITY OF THE SUBJECT MATTER 125 at all.''^ Statutes have modified this common-law rule, and arbitration agreements are very generally upheld. To permit an employer to enter into an agreement with his employee, as part of the contract of employ- ment, whereby the employee deprives himself of rights which he would ordinarily possess under the common law or by statute would be an obvious ob- struction of justice. Thus, a contract by A and B, wherein A agrees not to sue his employer, B, for any injuries he may sustain while in the master's employ, would be invalid. Likewise, a common carrier may not exempt itself from liability to its passengers either for its own or its employees' negligence. But a common carrier may exempt itself from liability as an insurer of the safety of the passengers.''® Some authorities hold that a telegraph company may not exempt itself from loss on account of the delay in the transmission of a message, while others hold that it may.'''' Still other jurisdictions take a middle course and permit such an exemption unless the de- lay is due to defective instruments or to want of skill or ordinary care on the part of the operatives. Agreements contrary to good morals. Agreements which are contra honos mores (against good morals) are those contrary to ethical principles and estab- lished rules of decency. For instance, a contract involving sexual intercourse and illicit cohabitation, although it is not punishable criminally unless such "s Clark, Contracts (2d ed.), p. 243; Edwards v. Insurance Society, 1 Q. B. D. 563 (Eug.) ; Niagara Tire Insurance Co. v. Bishop, 154 111. 9. '"Davis V. Cent. Vermont E. E. Co., 29 Atl. 313. 7' W. U. Telegraph Co. v. Blanchard, Williams & Co., 08 Ga. 299. 487 126 LAW OF CONTRACTS cohabitation is open and notorious, is an illegal con- tracts* Even though an agreement be an innocent one of itself, if one of the parties intends to perform for an immoral purpose, it is illegal. . Thus, it is per- fectly permissible to hire a cab or to rent a flat, but it is not permissible if done with the intention of violating good morals.''* 108. Contracts in restraint of trade. — Contracts in restraint of trade are of two kinds: (1) those between individuals for the benefit of one at the other's expense; and (2) combinations for mutual benefit. Originally, any contract in restraint of trade was invalid, but with the growth of trade, partial restraint was allowed as to time or as to place, so long as it was not as to both. Later, the case of Maxim-Norden- feldt Guns & Ammunition Co; v. Nordenf eldt ®° established the correct test, namely, whether the restraint is reasonably necessary between the parties for the protection of their business and is not in- jurious to the public.*^ Under this rule, a promise not to divulge a trade secret may be rightfully up- held although the agreement is unlimited both as to time and place.^* This rule also permits the pro- tection of a holder of a patent, although a monopoly is thereby created. But a patent is in reality a monopoly which has been authorized by the govem- 78 Edmonds v. Hughes, 115 Ky. 561 ; Boigneres v. Boulon, 54 Cal. 146, Leading Illustrative Cases. 7» Ernest v. Crosby, 140 N. Y. 364; Graves v. Johnson, 156 Mass. 211. 80 1894, 1 Ch. C. A. 630 (Eng.) ; Bishop v. Palmer, 146 Mass, 469, Leading Illustrative Cases. 81 Wood V. Whitehead Bros. Co., 165 N. Y. 545. 82 Martin v. Murphy, 129 Ind. 464. 488 LEGALITY OF THE SUBJECT MATTER 127 ment and is, therefore, presumably not prejudicial to the pubUc.** Attempts by dealers to control prices are contrary to public policy if the commodity is a necessity.** Certain combinations will be permitted, however, where the purpose is to prevent ruinous competition. The test again is whether the restraint is reasonable and not prejudicial to the public interest. Thus, a comer of a necessity of life is not only illegal but criminal as well.*° Even owners of patented articles have no right to combine for the purpose of restrain- ing competition.^^ The same rule applies to an unpat- ented product of a patented machine.*^ The Sherman Act, called the anti-trust law, was passed by Congress in 1890. Its provisions forbid any combination in restraint of trade. Under this act, various monopolies have been prosecuted. This law has been construed by the Supreme Court of the United States to permit a reasonable restraint of trade. Many of the large railroads and corporations have been forced to dissolve by virtue of its scope.** It is thought by some that agreements among work- men to control the price of their labor should be held illegal. The weight of authority, however, regards such combinations as legal so long as imlawful means are not used to gain their ends. The courts seem to feel that the workingman needs greater protection 83 Good V. Daland, 121 N. Y. 1. 84 Samuels v. Oliver, 130 111. 73 ; Leonard v. Poole, 114 N. Y. 371. 80 Wright V. Cudahy, 168 111. 86. 86 Vulcan Powder Co. v. Powder Co., 96 Cal. 510. 87 Standard Mfg. Co. v. United States, 33 Sup. Ct. 9. 88 Northern Securities Co. v. United States, 193 U. 8. 197; United States V. American Tobacco Co., 221 U. S. 106 ; see subject, Trusts & Monopolies. 489 128 LAW OF CONTRACTS than the capitalist in order that his skill may be developed and in order that he may not be subjected to the dangers of too keen competition. The true test is to determine from the circumstances of each case whether the restraint is reasonably necessary to the parties and is not prejudicial to the interests of the public.^* Any concerted attempts to interfere with trade which comes under the head of interstate com- merce is a violation of the Sherman Act.®** Certain agreements are illegal because they tend to prejudice interstate or international relations. A contract by a citizen of one state with subjects of a belligerent state (one at war) is illegal.®^ Similarly, an agreement which contemplates action hostile to a friendly, nation or its laws is void.®'* 109. Contracts restraining marriage. — Agree- ments Jiarmf ul to the marriage relation are illegal. The policy of the law is against any harm to the free- dom or security of marriage. So, a promise, although there was a consideration, to marry no one but the proihisee, was, held to be void in Lowe v. Peers.®' Similarly, the court held illegal a wager that one would not marry for five years.®* Attempts to make pecuniary gain from marriage are illegal, and imder this rule faU. the operations of the marriage hu- so Kemp V. Division No. 241, 255 HI. 213; 7 Ul. Law Eeview 320; Hey v. WUson, 16 li. B. A. (N. S.) 85, note, so Lowe V. Taylor, 208 tJ. S. 274. 91 Montgomery v. United States, 15 Wall. 395 (IT. S.). 02 Graves v. Johnson, 156 Mass. 211; Corbin v. Houlehan, 100 Me. 246, Leading Illosteativb Cases. 03 4 Burrows 2225 (Eng.). »* Hartley v. Eiee, 10 East. 22 (Eng.) ; Sterling v. Sinnickson, 5 N, J. L. 756, LEAsma IixusraAnvE Cases. 490 LEGALITY OF THE SUBJECT MATTER 129 reaus.*" Thus, in the case of Li re Grobe's Estate,®' the plaintiff was to receive a fee for information con- cemiag a woman whom the defendant desired to marry. The suit to recover the fee failed, for the agreement was held to be analogous to a nlarriage broker's illegal contract. On the other hand, agree- ments not to marry a person under a certain age, or in a certain degree of relationship, or in a certain family, or not to marry a second time, are valid.®^ These decisions find their basis in the public policy which favors a limited restriction of marriage along certain lines, as infancy, relationship, and good morals. Agreements providing for separation in the future are invalid because they tend to make the marriage relationship unstable. But where separation has taken place or has been decided upon, they are en- forcible, as the best way out of a difficulty which already exists.®® But any collusion between the par- ties in regard to a divorce is LUegal.*" Moreover, an agreement to pay a consideration for the perform^ ance of marriage duties is void. The law assumes that the parties will perform their marital obliga- tions without inducement.^ 110. Fiduciary relations.— A contract which at- tempts to corrupt one who occupies a fiduciary rela- tion with reference to others is illegal. Thus any 80 Duval V. Wellman, 124 N. T. 156. OS 127 Iowa 121. 97 Hogan V. Curtin, 88 N. Y. 162 ; Siddons v. Cockrell, 131 m. 653. osLuttrell v. Boggs, 168 111. 361; Baun v. Baun, 109 Wis. 47. solrvin v. Irvin, 169 Pa. 529; Beard v. Beard, 65 Gal. 354. 1 Michigan Trust Co. v. Chapin, 106 Mich. 384; Miller v. Miller, 78 Iowa l77. 491 130 LAW OF CONTRACTS agreement which tends to place a person under such influences or temptations as will affect the rights of third persons or cause him to violate a confidence placed in him are opposed to public policy. A good illustration is a promise to give another a position if the promisor becomes an officer of a 'corporation through the promisee's influence.^ 111. Effect of illegality— In general.— Thus far, the different classes of objects which are illegal have been considered. As far as the validity of the con- tract is concerned, the law makes no distinction between acts malum in se, which are inherently bad or immoral, and acts malum prohibitum, which are merely forbidden acts. If the object is illegal, the contract is invalid.* But this distinction as to in- herent badness is of considerable value in determin- ing the relief which will be granted to the parties and especially in considering the rights of third par- ties. In no event may an illegal contract, known by the parties to be so, be enforced as between the parties.* Neither will the law, as a rule, aid the promisee ia recovering his consideration.^ The courts will not assist a party who must disclose and rely upon an illegal transaction as the ground of his claim. Some cases hold, however, that where a party shows an intention of abandoning the contract, if he does so in time, the amount expended may be recovered. It is 2 West V. Camden, 135 V. 8. 507; Greenhood, Public Policy, pp. 292-326. 3 United States v. Owens, 2 Peters 527 (U. S.). * Brady v. Huber, 197 111. 291, Leading Illusteativk Cases; Szlauzis v. Szlauzis, 255 111. 314, Leading Illustkative Cases. oMcNulta V. Corn Belt Bank, 164 HI. 427; Stewart v. Thayer, 170 Mass. 560. 492 LEGALITY OP THE SUBJECT MATTER 131 considered that there is a locus penitentiae, or place to repent, and if the party grasps his opportunity, he will be aided. Thus where A repents of his bet and demands the return of the money which is still in the hands of the stakeholder, A may recover the money he placed with the stakeholder at any time before it has been paid over to B. The* reason for this rule lies in the policy of the law to discourage executed illegal acts. The recovery is based on the theory of quasi- contract, however.® But to invoke this rule the object of the contract must not be malum in se (inherently bad).^ Similarly, where the parties are not equally in the wrong, that is, not ia pari delicto, the one who is the least guilty may recover what he has parted with in those cases where the law was made for the protec- tion of the one seeking relief. An example is to be foimd in the remedies afforded to those paying usu- rious interest, and to those who have been unduly influenced to enter into an illegal agreement.® 112. Effect of promises made regarding past illegal transactions. — ^Where a promise is made for the payment of money due or to become due on a past transaction, the validity of the promise depends upon the determination of whether the past trans- action is illegal or merely void. If the object of the past transaction is an act malum in se (inherently bad), it is illegal in the strict sense of the term; but if it is malum prohibitum (a prohibited evil) it is e See subject, QnASi-CoNTSACTS ; Tyler v. Carlisle, 79 Me. 210, Leading Illustrative Cases. 7 Peters v. Grim, 149 Pa. St. 163; Taylor v. Bowers, 1 Q. B. D. 291 (Eng.). 8 Croseley v. Moore, 40 N. J. L. 27; Duval v. Wellman, 124 N. Y. 156. 493 132 .LAW OP. CONTRACTS merely void. Wliere the transaction is sttictly illegal, the promise is void, whether under seal or not,® unless it is in the form of a negotiable instrument when it may be enforced only by purch^-sers for value in good faith without knowledge of its illegal taint.^" This rule is weU established and appears to be a reason- able one, but statutes in some states forbid this exception from being made. Those states apparently are not desirous of having any one possess rights founded on a violation of the law, even if he be an innocent holder of negotiable paper. Where the transaction is merely void, the promise is invalid. If it is under seal, it will be enforced, for in such an event no consideration is necessary. But in a sipaple contract a promise to pay an unlawful debt is not a consideration which the law will recognize. Hence, the simple agreement must fail. Thus, where A and B have illicitly cohabited, a promise based on such past cohabitation would have no consideration. But if the promise is under seal, the specialty will be enforced. These rules do not apply to those states where the seal has been abolished.^^ 113. Effect of intention. — Ordinarily, the inten- tion of the parties is immaterial since if a contract is illegal, it is so whether the parties knew it or not. But if the contract admits of being performed in a legal way not contemplated, it will be enforced.*'' Where one of the parties does not know that the other is violating the law, he may enforce the con- 9 Luetchford v. Lord, 132 N. Y. 465. 10 Sondheim v. Gilbert, 117 Ind. 71. 11 Drennan v. Douglas, 102 ni. 341. 12 Fox V. Sogers, 171 Mass. 546. 494 LEGALITY OF THE SUBJECT MATTER 133 tract. Although ignorance of the law excuses no one, ignorance of fact does. For instance, an actor who does not know that his producer is operating without a license, may recover for breach of his contract, even if the producer may not have known that a license was required.^* The object of the contract may be imaocent, but if the intention of the parties is unlawful, the agree- ment is void unless the unlawful transaction has taken place.^* The law, then, is not concerned with preventing the carrying out of the unlawful inten- tion. Where only one of the parties has an unlawful intention, the fact that the other knows of the one's intention, does not render the agreement illegal unless the other does some act in furtherance of the unlaw- ful design.^" An exception exists where the unlawful intention amounts to a felony or is of a heinous nature.^* If A is ignorant of B's unlawful inten- tion, A is entitled to full benefit of the agreement or he may rescind it. 114. Partial illegality. — ^If the agreement is good in part, that part will be enforced if it is separable.^^ That is, if a promise is made along with other prom- ises but it has a separate consideration and may be enforced by itself, the law wiU enforce it. But the i» Eoys ▼. JohnBon, 7 Gray 162 (Mass.) ; Miller v. Hirschberg, 37 Pae. 85 (Ore.). 1* Sherman v. Wilder, 106 Mass. 537 ; Armstrong v. Bank, 133 V. S. 433. iBBryson v. Haley, 68 N. H. 337; Corbin et al. v. Honlehan, 100 Me. 246, Leading Illustrative Cases. The English rule considers Imowledge of the other's unlawful intention sufScient to avoid the contract. See Pearce v. Brookes, L. E. 1 Exch. 213 (Eng.). i«Hanauer v. Doane, 12 Wall. 342 (IT. 8.). 17 Band v. Mather, 11 Cush. 1 (Mass.). 495 134 LAW OF CONTRACTS law will not sustain a promise based on a considera- tion partly bad and partly valid.^® 115. Effect on illegality of change of time or place. — ^A contract valid in one state is valid every- where unless injurious to the state in which it is sought to be enforced, or to the citizens thereof. So contracts against good morals, or tending to promote vice or crime, or against the settled public policy of the state will not be enforced, although they may be valid by the law of the place where made.^' If a contract is invalid in one state, it is invalid every- where. There is a clause in the Constitution of the United States which requires that each state give fuU faith and credit to the laws of every other state. Under this provision each state is compelled to recog- nize the statutes of its sister states.^" A coiitract illegal when made, may not be made legal by subsequent legislation.^^ Nor may changes in the law make a contract illegal if legal when made; although they may operate as a discharge by making performance impossible.*'* 18 Eicketts v. Harvey, 106 Ind. 564. 19 Swann v. Swann, 21 Fed. 299 ; Corbin et al. v. Houlehan, 100 Me. 246, liEADiNO Illustrative Cases. 20 See subject, Conflict of Laws. 21 Hughes V. Boone, 102 N. C. 137. 22Eichardson v. Campbell, 34 Nebr. 181 496 PAKT III THE OPERATION OF CONTRACT CHAPTER IX. LIMITS OF CONTRACTUAL OBLIGATION. 116. Scope of contractual obligation. — After a contract has been created, it is necessary to deter- mine to whom the obligation extends. The pur- pose of Part Three of this treatise is ta ascertain who have rights and liabilities under a contract. In general, it may be said that no one but the parties to a contract can be bound by it or be entitled to rights under it. But under certain circumstances the rights and liabilities created by a contract may pass to a person or to persons other than the original parties, either by the act of the parties themselves, or by rules of law operating in certain events.^* A discussion of these general principles will be the subject of the present chapter. 117. A contract may not impose liability on a third party. — ^A contract acts upon the parties, and is founded upon their assent to its terms. It follows that one not a party, and not assenting to its terms, may not be made to assume its obligation. So it is 2S Anson, Contracts (Huffcut's 2d ed.), §276. 1-32 497 136 LAW OF CONTEACTS said that "a man cannot, of his own mil, pay an- other man's debt without his consent, and thereby convert himself into a creditor."^* Where A contracts with B to furnish him services, although A may under some circmnstances procure C to do the work, A may not confer upon C the right to require payment of B. Nor will the law impose an obligation upon B because of the acceptance of the services, where there was no intention on B's part to enter into legal relations with C. Thus, A took ice from the B company. Disgusted with B's service, A took ice from the C company. Later, without notice to A, B bought out C, and con- tinued to furnish A with ice. When A learned of this fact he refused to pay for the ice. The court held that he need not pay, because B was making itself A's creditor without his consent.^^ 118. Same subject— Apparent exceptions. — ^Al- though one person may not, as a rule, by contract, impose liabilities on a third person, not a party, the doctrines of agency seem to violate this rule. The acts of an agent are done on behalf and usually in the name of his principal. But a contract by an agent binds the principal by force of a previous authority or subsequent ratification, which is really the assent of the principal to be bound. Wherefore, the contract which binds the principal is practically his con- tract. Thus, the liabilities are not imposed upon the principal.^® 2* Durnford v. Messlter, 5 M. & S. 446 (Eng.) ; Borden v. Boardman, 157 Mass. 410, Leading Illustkative Cases. »5 Boston Ice Co. v. Potter, 123 Mass. 28, Leading Illusteative Cases. 28 See subject, Agency ; see also subject, Trusts. 498 LIMITS OF CONTRACTUAL OBLIGATION : 137 Similarly, where Jolm Doe assigns Ms rights, in a contract with Richard Roe, to John Styles, the latter becomes, in a sense, a party to the contract. The rtdes of assignment wUl be considered in a later sec- tion." 119. Duty of third parties. — ^While a contraet may not impose the burdens of an obligation upon one who is not a party to it, yet a duty rests upon persons, who are not parties to the contract, not to interfere with its performance. Thus, an action in tort will lie against a third person who induces a party to the contract to break it.^* This is now the rule, regardless of malicious intention.^® In Lumley v. Gye,®" A induced a singer, B, to break his contract with C, the manager of an opera house. C sued A for maliciously procuring the breach of contract, and A was held liable. This rule has been generally followed, although some jurisdictions con- fine the action to contracts of master and servant.^^ But where A induces B not to enter into a contract, there is no actionable wrong. This case is to be dis- tinguished from the inducement to break a contract. But a conspiracy by more than one person to induce another not to make a contract may be actionable.*- 120. Rights of a third person — English rule. — ^At early common law in England, although there is some dispute, it was said that if A and B made a contract 2TSee §125. 28 Anson, Contracts (Huffcut's 2a ed.), §279; Walker v. Cronin, 107 Mass. 555, Leadino Illustrative Cases. aoQuinn v. Leathern (1901), A. C. 495 (Eng.). 30 2 El. &B1. 216 (Eng.). SI Clark, Contracts (2d ed.), p. 350. a^Vegelahn v. Gunter, 167 Mass. 92; 18 Harvard Law Eeview 423. 499 138 LAWS OP CONTRACTS for the benefit of C, who was nearly related to the promisee, a right of action on such contract would vest in C. But later, any such doctrine was over- ruled by the case of Tweddle v. Atkinson,^^ wherein the court held that no stranger to the consideration may take advantage of a contract, although made for his benefit. This is the English rule today, which holds that a third party, the beneficiary, has no right of action on such a contract, although executed for his benefit. This rule has been adopted by the Massa- chusetts courts, and a few other states.'* 121. Same subject — New York rule. — ^In New York, and most states, the courts have refused to recognize the doctrine that C, for whose benefit A and B have made a contract, may not sue the promisor. The leading case for this doctrine is Lawrence v. Fox.*^ Therein, A loaned B a sum of money, in consideration of which B agreed to pay the same amount to C at a later date. C was a creditor of A. C sued B, and by a division of the court, four to seven, it was held that C might maintain the action. The broad rule was stated to be, that where a promise is "made to one for the benefit of another, he for whose benefit it is made may bring an action for its breach." In many cases, the rule has been repeated in these broad terms.*® 88 1 B. & S. 393 (Eng.)- 84 Exchange Bank v. Bice, 107 Mass. 37 ; Wheeler v. Stewart, 94 Mich. 445, 54 N. W. 172. By statutes, a beneficiary of an insurance policy may sue. Wright v. Vermont Life Ins. Co., 164 Mass. 302. 86 20 N. Y. 268, Leading Illustkative Cases. The modifying decisions are admirably annotated in 2 N. Y. Dig. 909. 88 Bassett v. Hughes, 43 Wis. 319 ; Wood iv. Moriarty, 15 E. I. 518, 9 .Atl. 427. I 500 LIMITS OF CONTRACTUAL OBLIGATION 139 Various theories are advanced to support this departure from the common law. One is that the beneficiary should have the right to sue because he is the sole person who is injured when the contract is broken. Another is that it is a rule of conven- ience and procedure, because it keeps out nominal parties.*^ This theory arises from provisions of code states, which state that the "real party in inter- est" may sue.^* 122. Same subject — Limitations to the New York rule. — By the weight of authority, there must be something more than a mere incidental benefit to the third person. The contract must have been entered into for his benefit, and he must have some legal or equitable interest in its performance.'^ Thus, where A mortgages his land to C, then conveys that land to B, who in turn assumes the mortgage, C may sue B on the contract whereby B agreed with A to pay the mortgage to C.*" But suppose that X owns land, which he mortgages to A. X then conveys to Y, who does not assume the mortgage. Y conveys to Z, who assumes the mortgage. It is held in such a case that A cannot sue Z.*^ In Davis v. Clinton Works,*'' the water works com- pany agreed with the city for a certain compensation to supply water for public purposes. This included the extinguishment of fires. A, who was a resident of the city, had his house destroyed by fire because 3T Dean v. Walker, 107 111. 540. 38 9 Cyclopedia Law and Procedure, p. 380. 39 Durnherr v. Eau, 135 N. Y. 219. *o Bay V. Williams, 112 111. 91. *i Vrooman v. Turner, 69 N. Y. 280. 42 54 la. 59. 501 140 LAW OF CONTRACTS the water company failed to supply the water accord- ing to its contract. A sued the company to recover for his loss, claiming that he was the beneficiary of the contract. It was held that he could not recover, since the contract was not made for his benefit. The apparent result, at least in New York, is that such agreements will be enf orcible by a third person, only where the promisee was under a duty to provide for the third person and the contract is made to fulfill that duty. 123. Same subj ect — ^Release. — ^It is generally held that the promisee may release the promisor from his obligation, if it is done before the third party, who is the beneficiary, has accepted or acted upon the promise,** but not afterwards. But if the promisor has a good defense against the promisee, it will be good against the third party. Thus, where A agrees with B to pay C, if A's promise was induced by the fraud of B, this may be proved in an action by C. 124. Same subject — Sealed contracts. — The rule of Lawrence v. Fox applies only to simple contracts. Where the contract is under seal, at common law the third party may not sue. But this rule has been modi- fied by statutes, and decisions thereunder, which per- mit the beneficiary to sue on the sealed instrument.** Where the third party may sue on the sealed instru- ment, the question arises as to whether the defend- ant is limited to the defenses of an action of covenant, or may make use of those of assumpsit.*" «3 Kelly V. Eoberts, 40 N. Y. 432. 44 Anson, Contracts (Huffcut's 2d ed.), li 284, 290; Webster v. rieming, 178 ni. 140, 52 N. E. 975. 45 See subject. Pleading. 502 CHAPTER X. THE ASSIGNMENT OF CONTRACTS. 125. Assignment. — ^A contract ordinarily affects only the parties to it. But these parties may, either by their ovm acts or by operation of law, be replaced by others, who then assiune their rights and obliga- tions. The operation by which such a change takes place is called the assignment of the contract.** 126. Liabilities may not be assigned. — ^A person may not assign his liabilities or debts. This rule is based on sense and convenience. When A owes B fifty doUars for a horse, A may not assign his debt to C without B's consent. If B consents, there is, in reality, a new contract. The converse of the rule that a promisor may not assign his liabilities under a con- tract, is that a promisee cannot be compelled by the promisor or by a third party to accept performance of the contract from any but the promisor.*^ A party contracts with reference to the character, credit and substance of a particular person, and could this 'person place someone else in his place to make good his liability, there would be no safety in contract. In Robson v. Drummond,*^ A let a carriage to B at a yearly rent for five years. He agreed to paint it every year and keep it in repair. C was a partner *8 Heaton v. Angier, 7 N. H. 397, Leading Illusteative Cases. " Cannon v. Kreije, 14 Kans. 324. *8 2 B. & A. 303 (Eng.). 503 142 LAW OF CONTRACTS of A, but B contracted with A alone. Aiter three years A retired from business. B was informed that C was thenceforth answerable for the repair of the carriage and would receive the payments. B refused to deal with C, and returned the carriage. It was held that he was entitled to do so. The rule is modified where the contract engages a party to do work which requires no special skill. If it does not appear that A has been selected with ref- erence to any personal qualification, X cannot com- plain if A gets the work done by an equally com- petent person, B. But A is liable for B's poor work. In the United States A may assign to B the right to payment.*® Where an interest in land is transferred, Kabilities attaching to its enjoyment pass with it.®" 127. Assignment of rights. — ^Passing from the question of assignment of liabilities to those of rights, the rule at common law was that rights arising out of a contract may not be assigned, so as to enable the assignee to sue in his own name. An exception existed in the case of negotiable instruments by the rule of law merchant. The general rule is sometimes ex- pressed by the phrase "a chose in action is not assignable." But an assignment of rights in a contract creates rights in a court of equity, and the law has taken cognizance of these equitable rights. Wherefore, the assignee is at least permitted to sue in the name of the assignor.^^ « Devlin v. New York, 63 N. Y. 8. 00 See subject, Ebal Property. 51 Anson, Contracts (Huffcut's 2d ed.), §295. 504 THE ASSIGNMENT OF CONTRACTS 143 The assignee has acquired further rights by stat- utes. These give him the power to sue in his own name. When this statutory right does not exist, he , is said to possess a power of attorney, by virtue of the assignment from the assignor, to sue in the as- signee's name."^ 128. Novation. — Strictly speaking, the only method by which rights under a contract may be transferred, is not by an assignment but by a sub- stituted agreement, termed a novation. Thus, if A owes B $100, and B owes C $100, an agreement between the three whereby A pays C $100, constitutes a new contract. The consideration for A's promise is the discharge of B ; the consideration for B's discharge of A is the extinguishment of his debt to C; the consideration of C's promise is the substitution of A's liability for that of B.°* Further- more, there must be ascertained sums due from A to B and B to C, and the agreement must be definite.^* 129. Assignments in equity. — ^As indicated, courts of equity permit the assignment of contractual rights, whether those rights were legal or equitable rights. If they were equitable, the assignee might sue in his own name ; if legal, equity would enable the assignee to sue, if there was any difficulty at law. But an assignment cannot be enforced in equity if the assignee can proceed at law, unless the remedy would be incomplete or inadequate.^" To enforce an assign- ment it is said that there must be a consideration 02 Glenn v. Marbury, 145 V. S. 499. ssHeaton v. Angier, 7 N. H. 397. "AnBon, Contracts (Hufifcut's 2d ed.), §297. "> Carter v. United Ins. Co., 1 Johns. Cli. 463 (N. Y.) ; see subject, Equity. 505 144 LAW OP CONTRACTS given by the assignee.^® Purtliermore, the person who is liable must receive notice of the assignment before it is effectual. Thus, if A assigns to B his right against C, and C pays A before notice of the assignment is given to him, C is discharged from his debt. But if he pays A after B has served him with notice, C is still liable to B. But as between the assignor, A, and the assignee, B, the assignment is always enforcible.^'^ The rule is thus expounded by Turner, L. J., in Stocks V. Dobson:^® "The debtor is liable at law to the assignor of the debt, and at law must pay the assignor if the assignor sues in respect of it. If so, it follows that he may pay without suit. The pay- ment of the debtor to the assignor discharges the debt dt law. The assignee has no legal right, and can only sue in the assignor's name. How can he sue if the debt has been paid? If a court of equity laid down the rule that the debtor is a trustee for the assignee, without having any notice of the assignment, it would be impossible for a debtor safely to pay a debt to his creditor. The law of the court has, therefore, required notice to be given to the debtor of the assign- ment in order to perfect the title of the assignee." 130. Defenses. — ^In addition to the rules discussed the assignee takes subject to all defenses and equities that the debtor may have set up against the assignor. Thus, where A assigns to B his right against C, if A 68 Anson, CJontracts (Huffcut's 2d ed.), §302. But usually the debtor cannot defend against the assignment on this ground. BTHeermans v. Ellsworth, 64 N. Y. 159; Littlefield v. Storey, 3 Johns. 425 (N. Y.). 08 4 Be G. M. & G. 11 (Eng.). .506 THE ASSIGNMENT OF CONTRACTS 145 has no right of action against C, the latter may in a suit by B so defend. The general rule, both at law and in equity, is that no person may acquire title to a chose in action or any other property, from one who has himself no title to it. The assignee must take care to ascertain the exact nature and extent of the rights he is acquiring, for he cannot take more than his assignor can give.^' 131. What is assignable. — Generally, anything which directly or indirectly involves a right of prop- erty is assignable. There is no doubt about the right to assign mere money demands. Where A owes B, B may assign his claim to C, who may then sue A, after notice, and according to the procedure enforced. But if the case is one wherein A agrees to sell something to B, who agrees to pay on a certain day, a problem arises whether or not A, who assigns his right of pay- ment to C, may also transfer his liability to perform. Generally, he may not. The assignor remains liable to perform under the general rule as to assignment of liabilities, discussed in a previous section. But the argument is made that since the assignor remains liable on the contract, the assignment should be good, since the seller may still look to him.®^ 132. Same subject — Personal service contrapts. — Personal service contracts are not assignable. A per- son who has made a contract to render personal serv- ices, may not assign his right to render such services, but he may assign his right to receive pay for them after they have been rendered by him. The reason 09 Anson, Contracts (Huffcut's 2a ed.), §304. «o Arkansas Co. v. Belden Co., 127 U. S. 379. 507 146 LAW OF CONTRACTS for the non-assignability of such contracts is that they do no.t survive the death of either party.®^ Al- though the death of a party to most contracts passes all rights of action for breach of contract, and all liabilities, to his representatives, contracts of per- sonal service are obviously not of this class. Thus, where A was employed by B to work as a farm hand for one year, and B died within the year, it is not feasible nor possible for the administrator to carry out the contract.®'* This rule is even more obvious where the contract involves personal skill. If A agrees with B to paint his carriage, it is presumed B engaged A because of his skill and ability as a painter, and the services of another, however skillful, could not take the place of A."" 133. Form. — There is no particular form pre- scribed in which to execute an assignment. An assignment may be made orally or in writing, pro- vided always that the assignor clearly expresses his intention to make an assignment.®* Statutes, however, frequently require an assign- ment to be written. In such an event if it is not in writing, it is only an equitable assignment. If suit be brought in the assignee's name, it must be in equity; if at law, it must be in the assignor's name.®* If the clauh is assigned in writing, the surrender of the writing to th€ assignee would be the usual method. 81 Tolhnrst y. ABs'n, L. E. (1902), 2 K B. 660 (Eng.). 82 Lacy V. Getman, 119 N. Y. 309. 8sBob8on V. Drummond, 2 B. & A. 303 (Eng.). 84Eow V. Dawson, 1 Ves. Sr. 331 (Eng.); Eisley v. Phoenix Bank, 83 N. Y. 318. 80 dark, Contracts (2d ed.), p. 367. 508 THE ASSIGNMENT OF CONTRACTS 147 The operative words of an assignment which are generally used are "sell, assign and transfer," or "sell, assign, and set over." 134. Assignment of future earnings. — ^As indi- cated, a sum due from A to C for services rendered, may be assigned to B. The problem then arises, may C assign his future earnings to B. The cases have been divided into two classes. If there is an existing contract of employment, and the rule seems to cover any eidsting employment, C may assign his future earnings as to that employment.®* Thus, C is working for the A firm. To B he assigns his last week's salary. This assignment is valid. To D he assigns his next week's salary. This assign- ment is also valid. But if the A firm discharges C this week, or if C terminates his employment with the A firm, and begins work with another company, the assignment of next week's earnings is not valid as to any earnings due from the new company. A new assignment would be necessary, executed after he had a contract with his new employer. The basis of the rule is that one may not assign future earnings not based upon an existing contract. Such earnings constitute a mere expectancy. This rule applies even where the assignment uses such gen- eral terms as "A hereby assigns his wages due and to fall due from any and all present and future employments. " *■' 135. Contracts and claims non-assignable. — ^A and B may agree by the terms of their contract that it «8 Carter v. Nichols, 58 Vt. 553, Leading Illustrative Cases. S7 Allen V. Pickett, 61 N. H. 641 ; Adams v. Willimantie Linen Co., 46 Conn. 320 J O'Keefe v. Allen, 20 E. I. 414. 509 148 LAW OF CONTRACTS shall not be assignable. Such an agreement renders any assignment made without the consent of A and B inoperative."^ Moreover, assignments of salaries by public of&- cersj as well as pensions, are inoperative not only by the general weight of authority, but by statutory enactments as well.*® The rule is based on motives of public policy. For instance, the validity of an assignment of a pension would defeat the purpose of granting pensions. In general, tort rights are not assignable. If the right of action arising from the tortious act will, upon the death of the injured person, survive to his per- sonal representatives, it is assignable; otherwise, it is nof" Thus, a right of action for a purely personal tort, such as slander, breach of promise, assault and battery, and false imprisonment would not be assign- able. The damages in such cases are based entirely upon personal suffering, and must be recovered by the injured party. ^^ Some authorities permit an assignment of a right of action arising from a tort to property, such as trespass. There is a similar division of authorities as to the action for deceit, and as to an assignment of a judgment rendered for a tort.'^^ 136. Partial assignments. — ^Inasmuch as a debtor has a right to pay his debt as a whole, he may not be subjected without his consent to separate actions by 88 See cases collected in 4 Cyclopedia Law and Procedure, p. 21. 89 Bowery Nat'l Bank v. Wilson, 122 N. Y. 478. 'oStebljins v. Dean, 82 Mich. 385. 71 North Chicaeo St. Ey. Co. v. Ackley, 171 Ul. 100. 72 See cases collected in 4 Cyclopedia Law and Procedure, pp. 24-26. 510 THE ASSIGNMENT OP CONTRACTS 149 different persons. If A owes B $500, B may not assign to C a claim against A for $100, to D for$200, and to E for $200. Otherwise, the burden would be on the debtor to determine the relative rights of the substituted parties.". But B may consent to the par- tial assignment, and then the assignee may recover in an action at law.''* In equity, a partial assignment will be upheld if notice has been served. While B is not bound to pay a partial assignment at law, he is bound, in equity, to retain in his hands the amount represented by the partial assignment when he settles with A, the origi- nal creditor. This rule is supported by the argument that since in an action in equity both the assignor and the debtor may be joined as parties, the whole con- troversy can be determined in one suit.''® 137. Priority of assignments. — ^Where A assigns to B his claim against C, and then, later, assigns the same claim to Y, the authorities are divided on the question as to whether B's rights are superior or inferior to Y. In England, in the United States Supreme Court, and in a number of states, it is held that the assignee who first serves notice on the debtor has the prior right. Thus Y, by serving notice first, would prevail over B. On the pther hand, many states hold that the rights are determined by the priority in time of assignment, regardless of notice.' Thus, in such a case, B would prevail over YJ^ 78 Carter v. Nichols, 58 Vt. 553. '* James v. Newton, 142 Mass. 366. T6 Field V. City of New York, 6 N. T. 179; Clark, Contracts (2d ed.), p. 366. T8 aark. Contracts (2d ed.), p. 370. 5U 150 LAW OP CONTRACTS 138. Assignment and negotiability distinguished. — In the case of certain contracts, like promissory notes, by the law merchant a right analogous to that of assignment arises. Thus, a promissory note is said to be negotiable. There are essential differences between assignment and negotiability, which will be noted briefly. Kegotiation means a transfer in the form and manner prescribed by the law merchant.''^ Its effect is to transfer the legal title of the instrument by A to B, so that B may sue in his own name. Moreover, if B gives a consideration for the instrmnent, buys it before it falls due, and has no notice of any defenses between the maker of the instnunent and A, the maker cannot defend in a suit against himself by B. Notice of the transfer to B need not be given. These features, it will be remembered, are not true of assignments, where defenses may be made, where a legal title is not transferred, and where notice is necessary.''* 139. Assignments by statute. — Choses in action or rights arising from contracts are made assignable by statute in the several states, but the statutes are not uniform in their terms or construction. The statutes usually give the assignee the right to bring the action in his own name. The rules applicable to assignments in equity apply largely to the cases of statutory assignments. Every right of property which was assignable in equity and "See subject, Negotiable Instruments; Anson, Contracts (HufEcnt's 2a ed.), §§306-317. 78 Hoyt V. Thompson, 5 N. Y. 320. 512 THE ASSIGNMEliJT OF CONTRACTS 151 survives to the personal representatives of tlie owner, is assignable under the statutes.'^® The right and duty to render personal service, however, may not be assi^ed.*" The right of action for a tort is not generally assignable, except such actions for torts as survive ^o the personal representatives.®^ The assignment may be conditional or for security. No- tice to the debtor is not necessary as between the parties to the assignment, but should be given by the assignee if he wishes to protect himself from sub- sequent assignments by the assignor, or from pay- ment being made to the assignor by the debtor.*" The assignee takes subject to equities in favor of the debtor at the time of the assignment.** 140. Assignment by operation of law. — ^Independ- ent of the acts of parties, rights and liabilities in con- tract may be transferred from one person to another. Rights arising from contract are transferred by operation of law to others in the case of interests in realty which run with the land, and when by the death or bankruptcy of a party his representatives acquire his rights and liabilities for certain purposes. Thus, agreements or covenants in a lease which "touch and concern the thing demised," as to repair, pass to the assignee of the lessee, whether or not ex- pressed to have been made with the lessee and as- signs.** 'sChapin v. Longworth, 31 Ohio St. 421; Palo Pinto Co. v. Gano, 60 Tex. 249. 80 Hayes v. Willio, 4 Daly 259 (N. Y. C. P.), Leading Illusteative Cases. 81 Stewart v. H. & T. C. Kailway Co., 62 Tex. ^246. azFraley's Appeal, 76 Pa. St. 42. 83 Spinning v. Sullivan, 48 Mich. 5 ; Kleeman v. Prisbie, 63 Ul. 482. 8* Leppla V. Mackey, 31 Minn. 75. 1-33 513 152 LAW OF CONTRACTS The death of a party passes to his personal repre- sentative all his personal estate, all rights in action affecting it, and all liabilities chargeable upon it. Covenants affecting freehold pass to the heir or devisee of the realty. The exception to this rule is that contracts of personal service expire with either of the parties to them, and performance of contracts which depend upon personal skill or service may not be demanded of the personal representative. Kor does a breach of a contract which involves a purely personal loss, as a breach of promise to marry, give a right of action to the executors.^" The assignee of a bankrupt is appointed for the purpose of collecting the assets and settling the' lia- bilities of the estate. The same principles which apply to personal representatives apply largely to hitn. 85 Chamterlain v. Williamson, 2 M. & S. 408 (Eng.). 514 CHAPTER XI. JOINT CONTRACTS^JOINT AND SEVERAL CONTRACTS —SEVERAL CONTRACTS. 141. Classification. — ^A contract may have more than one person on each side, to-wit, there may be more than one promisor or promisee. Thus : (l) A may make an agreement with B ; (2) A may contract with B and C, or more persons; (3) A and X (or more) may contract with B alone; (4) A and X (or more) may contract with B and C (or more). The problem is to determine the respective rights and obligations of A, B, C, and X. The first case is the normal case of one promisor and one promisee and does not concern this inquiry. The second case has one promisor and two promisees. The third situation contains two promisors and one promisee; and the fourth possesses two promisors and two promisees. 142. Promisors and promisees. — Promisors may be joint, or joint and several, or several. At com- mon law, whenever an obligation was undertaken by two or more promisors, as in (2), the obligation was joint.*® Thus, where a note is executed by A, B, and C in these terms: "We promise to pay," the obliga- tion is joint. To create a joint and several obligation, or a several obligation, at common law there must be words of severance. Thus, if A, B, and C signed 88 Alpaugh T. Wood, 53 N. J. L. 638. 515 154 LAW OF CONTRACTS this note instead of the above: "I promise' to pay," the note would be joint and several. If the language of the contract is ambiguous, 'the court wUl consider the nature of the agreement and who received the consideration to determine whether the obligation of the promisors is joint or otherwise. But statutes have modified these rules so that the presumption is that contracts having more than one promisor shall be joint and several unless there is an express intention that they shall be joint. *^ Promisees may only be joint or several. They may not be joint and several.** If the language of the promise is at all open to construction, and the inter- est of the promisees is joint the right of action is joint. But if the interest is construed to be several, the right of action is several. 143. Joint contracts. — In a joint obligation, there is but one cause of action against the promisors. Where A, B and C are jointly liable to X, the latter must sue A, B and C in one and the same action. If A dies, the liability survives to B and C.*® At com- mon law, A's estate would not be liable to such a joint obligation. This is the doctrine of survivorship, but it has been modified by statutes in many states, whereby the deceased obligor's estate is made liable.®" But in any case, the estate of the last survivor is liable to the promisee.®^ 8T Stimson, American Statute Law, § 4113. 88 Anson, Contracts (HufEcut's 2d ed.), §329. 89 Sundberg V. Gear, 92 Minn. 143; Anson, Contracts (Huffcnt's 2d ed.), f § 324, 325, 326. »o Stimson, American Statute Law, §§ 4113 and 5015. siNeal's Exrs. v. Gilmore, 79 Pa. St. 421. 516 JOINT CONTRACTS— SEVERAL CONTRACTS 155 If a judgment is obtained against one joint obligor, it bars an action against another or against all jointly, except where one obligor was outside the jurisdiction when the original suit w^s filed.** These rulings have also been changed by statutes. At conunon law, if X releases A, the result in a joint obligation is to release A, B and C. A volun- tary release of one joint obligor is a release of all.®' To avoid this effect, it is customary where X desires to release A but not B and C to execute what is known as a contract or covenant not to sue A. Thus, X promises A, for a consideration, not to sue him. This does not act as a technical release, but it is effective. Thereby X sues all of the parties but must refrain from seizing A's goods, or render himself liable in damages on his contract not to sue.** Wherever pos- sible the courts will treat a release as a covenant not to sue.** Moreover, statutory enactments provide in some states that a release of one will not release all of the joint obligors. In the event one of the joint parties pays the entire obligation, he is entitled to contribution from the others.*® The rules so far discussed in this section apply to joint promisors. Turning to a consideration of the characteristics of joint promisees, the law requires that all surviving joint promisees join in the action.*^ If one dies, the right of action is in the survivors, 02 Mason v. Eldred, 6 Wall. 231 (U. S.) ; Cox v. Maddux, 72 Ind. 206. »s Hale T. Spaulding, 145 Mass. 482. »* Parmelee v. Lawrence, 44 III. 405. 95 Owen V. Homan, 4 H. L. Gas. 997 (Eng.). »6 Anson, Contracts (Huffcut's 2d ed.), §326. 87 Sweigart v. Berk, 8 Serg. & E. 308 (Pa.). 517 156 LAW OP CONTRACTS and they alone may sue. The representative of the deceased may not sue or join with them. This is analogous to the survivorship of liability in the case of joint promisors.®* Similarly, upon the death of the last survivor the right of action goes to his rep- resentative or executor.®' Moreover, where A and B are joint promisees and C, the promisor, if A releases C, the action is barred and B may not sue. unless there is fraud or collusion on A's part.^ 144. Several contracts. — If A and B bind them- selves severally to C, the latter may claim the debt or performance agaiast A and B separately. In such cases, G must sue either A or B, or he may sue A in one action and B in another, but he may not sue A and B in the same action.^ The same rule applies to several promisees. If A and B are several promisees and X and Y are several promisors, A or B may sue X or Y, but A and B may sue neither. They may not be joined in an action.® Where the promisors are severally liable, a judg- ment against A alone does not discharge B imtil the judgment is paid and satisfied.* Furthermore, the doctrine of survivorship does not apply to several contracts. 145. Joint and several contracts. — ^Where A, B and C promise X "jointly and severally," it is said that a joint and several contract has been created. The characteristics of such agreements differ greatly 08 Donnell v. Manson, 109 Mass. 576. »» Stowell's Aclmr. v. Drake, 23 N. J. L. 310. 1 Osbom V. Martha 's Vineyard, 140 Mass. 549. i aark. Contracts (2d ed.), p. 383. » Anson, Contracts (Hnffcut's 2d ed.), §329. * Ward V. Johnson, 13 Mass. 148. 518 JOINT CONTRACTS— SEVERAL CONTRACTS 157 from those of joint obligations. Thus X may sue A or B or C separately or he may sue A and B and C jointly. But he may not sue A in one action, and B and C in another. X must sue each promisor sepa- rately or all together.^ The doctrine of survivorship applies only in a limited sense to joint and several contracts. Thus, if A dies, it is said that the joint liability rests on B and C ; but the separate liability of the deceased may be enforced against his estate by filing a claim. The executor may not, however, be joined with the sur- vivors in an action.^ A judgment, if unsatisfied, against one of the joint and several promisors is not a bar to an action against another.'' Courts differ on the right to proceed against each creditor separately where a joint judg- ment has been obtained against all. The courts that deny the right take the view that having elected to proceed jointly, the creditor may not thus sue sev- erally.^ Other courts take the broad view that as long as the creditor remains unpaid, he may pro- ceed against each promisor severally.® A release of one joint and several promisor is a release of all, as in the case of a joint promisor. Courts, however, will not regard a contract not to sue as a technical release, and such a contract is the ef- fective method of relieving the desired promisors from liability.^" 5 Cummings v. People, 50 ni. 132. Costigan, Performance of Contracts, pp. 7, 8. TiHarriman, Contracts (2d ed.),,§§315, 318. 539 178 LAW OF CONTRACTS torically, they have been treated as conditions, it is difficult to depart from that method. Thus, express conditions and conditions implied in fact are true conditions. They apply to unilateral as well as bilateral contracts. Conditions implied by law apply only to bilateral contracts. 161, Performance of express and implied condi- tions. — ^In the mode of performance, conditions ex- pressed and implied in fact require strict perform- ance. But a condition implied in law need only be performed substantially. Only a material breach of such a condition by one party to the contract will excuse performance by the other. Consequently, being more just, where doubt exists as to what a condition should be deemed, it is to be regarded as a condition implied in law rather than as one implied in fact.''* 162. Precedent conditions. — ^A condition prece- dent is an act or event which must be performed by one party or exist before any obligation arises upon the other party to perform. Any fact or event which is capable of being a condition of any kind may be a condition precedent, but generally the fact or event consists of some act to be done by the promisee. Where A agrees to perform work for B, for which B is not to pay until A completes his service, per- formance by A is necessary before he may claim any payment under the contract. B may not be called upon to fulfill his promise until the condition pre- cedent, i. e., the performance of the work, is com- pleted. The promise of A is independent and abso- TzCostigan, Performance of Contracts, p. 10. 540 PROMISES AND CONDITIONS 179 lute, whereas the promise of B is dependent on and subject to a condition precedent. The distinction between conditions expressed, im- plied in fact, and implied by law applies to precedent conditions. 163. Conditions concurrent. — Conditions are con- current where the liability to perform on one side is dependent upon the simultaneous performance on the other side. Such conditions are also known as mutually dependent conditions." The act which must precede liability on each side is tender of perform- ance on the other side. If A agrees to sell B a horse and B agrees to pay $100 for the animal, and if A desires performance, he must tender the horse to B. If B desires performance, he must tender the money to A. There are two things to be done, each is a con- dition of the other, and they must be performed concurrently.^* Concurrent conditions may be express, implied in fact, or implied by law. The greater number of such conditions are of the last class, for wherever possible concurrent conditions are implied by law upon the general ground that the performance on one side of the contract is intended to be in exchange for the performance on the other. Concurrent conditions protect both parties, for they '3 Langdell, Summary of Contracts, § 105. I* Som§ writers take the view that conditions concurrent are only a species of condition precedent, since "an offer to perform the act called a condition concurrent ' ' is necessary to put the other party in default. See Harriman, Contracts (2d ed.), §303; 14 Yale Law Journal 424. In condi- tions precedent, however, actual performance must be proved, whereas in conditions concurrent, tender of performance is suflScient. It is convenient to separate such cases. 541 180 LAW OF CONTRACTS do not require either party to trust tlie other. There are certain requirements, however, which must be satisfied before such conditions are possible and ap- propriate. Thus, the promise of each party must be capable of performance in a moment of time; otherwise, it would not be possible for them to be performed concurrently. Secondly, the object of the promises must be the exchange of some property or right for some other property or right. Thirdly, this exchange must be between the parties ; otherwise, in legal contemplation it cannot be made in an instant of time. Thus, mutual promises between A and B that A shaU give to B and B shall give to C wiU Jiot be made mutual covenants, unless by express arrange- mient. In the fourth place, the promises must be capable of performance at the same time ; otherwise, they wiU violate the first rule,'''' 164. Conditions subsequent. — ^A condition is sub- sequent where an existing liability to perform is to be determined or put an end to by some act or event. Here the liability has already accrued, but is dis- charged by the performance of a condition subse- quent, which is any fact or event that will relieve the promisor from a default under the contract. In a bond, if A promises to pay B $1,000, and it is pro- vided that if A faithfully performs his services then the bond is to be void, A is under an existing liability to pay a sum to B. But upon his faithful perform- ance of the duties the liability is determined. In short, the fact of A's faithful performance relieves 76 Langdell, Summary of Contracts, § 133. 542 PROMISES AND CONDITIONS 181 him from the cause of action on the bond. This is the condition subsequent. In the law of contracts, but not in the law of real property, courts imply, wherever possible, conditions concurrent as between conditions concurrent and pre- cedent; and conditions precedent as between condi- tions precedent and subsequent.'^" Subsequent conditions that are really such are rarely found. The way to test a condition subsequent in form to see if it is subsequent in reality is to try to put it in precedent or concurrent form. If this can be done, and the intention of the parties can nevertheless be fulfilled, the condition is not a genu- ine condition subsequent. The rule is generally stated to be that subsequent conditions may only be express conditions.'''^ But in the case where a contract provides for payment by instalments, due at different times, the instalments may be successively sued on as they become payable. Each action, however, should include every instal- ment due.''^ At each breach a cause of action arises, but in order that the party in default may not be vexed by unnecessary separate actions the law an- nexes to each cause of action, as it comes into exis- tence, a condition to the effect that if a subsequent cause of action for a breach of the same contract arises and is prosecuted to judgment in an action in which the earlier cause of action, not previously sued '8 In the case of certain contracts, however, such as fire insurance policies, the courts favor treating the conditions as subsequent. Costigan, Perform- ance of Contracts, p. 26. 77 Anson, Contracts (Huffcut's 2d ed.),.§382. T8 Seed V. Johnston, 63 N. Y. App. Div." 340, 343. 543 182 LAW OF CONTRACTS upon, is not joined, the earlier cause of action shall thereupon terminated® Thus, A agrees to buy of and pay B for an order of goods as follows: $500 on February 1st, $800 on AprU 1st, and $1,000 on June 1st. A defaults on the first payment. B may sue at once for $500 or he may wait imtil the AprU payment is also in default and sue for $1,300. But if B sues for $800 without previously having sued for the $500 instalment, the cause of action for the latter will terminate. It is this condition of combining prior instalments which is believed to be subsequent. 165. Pleading and proof.— In pleading the plain- tiff must allege actual performance of a condition precedent. Moreover, he must prove that allegation at the trial. Thus, where A agrees to write an article for B before he is to receive payment therefor, he must allege in his claim and prove at the trial that he actually wrote and tendered the article before he may obtain a judgment against B for the contract price.®" Where there are concurrent conditions, the plain- tiff must plead an offer to perform and a refusal by the other party. He must show his readiness and ability to perform. In the contract between A and B for the sale and purchase of a horse, if A is suing B, he must allege that he offered the horse to B, and is willing and ready to sell the animal before he may recover. If B sues A, he must allege that he offered '3 Costigan, Performance of Contracts, p. 19. snLangdell, Summary of Contracts, §30; Harriman, Contracts (2d ed.), §337. 544 PROMISES AND CONDITIONS 183 the money to A, and is willing and ready to pay for the horse.®^ In conditions subsequent, the burden is generally on the defendant and he must plead and prove actual performance. In the case of a bond with a condi- tion, whereby A promises to pay B $1,000 subject to the condition that if A does certain work faithfully the bond is void, if B sues A, then to defeat the action A must allege and prove that he did his work faithfully. Although the cases as to the burden of proof relat- ing to actions on bonds are not uniform and the law is not settled,®^ the rules as to conditions in insurance eases seem to be generally followed. Thus, while the plaintiff is required to allege performance 6f condi- tions precedent, yet the defendant has the burden of proving the facts constituting any alleged breach of the contract. This is based on the rule, now generally recognized, that in order to raise an issue on the plaintiff's gen- eral allegation of performance, the defendant must particidarly allege the breach. This seems to be the rule for insurance cases whether the breach com- plained of is that of a condition precedent or subse- quent. Thus, the defendant must prove such breaches 81 Costigan, PerfoTmance of Contracts, pp. 19-25, 35. The evidence by which this offer can be shown is another matter. A request or a notice may be sufiScient indication to the defendant that the plaintiff not only wishes the defendant to perform but is himself ready to perform. Certainly a formal tender either of goods or money is not necessary, but in the absence of any legal excuse, some notification that in effect amounts to an offer to perform, coupled with an immediate ability to perform, seems requisite, . both on principle and authority, in order to give the plaintiff a right of action. Williston, Sales (2d ed.), 448. B2 Moody V. Insurance Co., 52 Ohio St. 12. 1-^5 545 184 ' LAW OF CONTRACTS as a vacancy of the premises in violation of the policy.*^ 166. Representations and warranties. — ^A repre- sentation is a statement of some matter or circum- stance relating to the contract and which either in part or altogether induces its formation by the par- ties. The representation may be either expressed or implied by conduct, and may be made before or at the time of the making of the contract. Repre- sentations which do not form a part of the contract are either immaterial or in the nature of conditions going to the existence of the contract. Hence they do not enter into the question of the perf ortnance of conditions in existing contracts. In turn represen- tations which are embodied in the contract may be merely representations, or conditions as well. If the latter, it may be as to either a material or an imma- terial matter. Furthermore, a material representa- tion may amount to a warranty. Ordinarily, a warranty is a contract collateral to a legal transaction and by which a party thereto undertakes or promises that certain facts are or shall be as he represents them. A breach of warranty gives rise to a claim for damages in contract, and the untruth alone of the warranty is sufficient for a cause of action. But in a suit on a representation, the plaintiff must prove that the representation was made fraudulently or recklessly in known ignorance of the facts. Unfortunately, the term "warranty" is used in a variety of senses. It is used in the law of real prop- s' Moody V. Insurance Co., 52 Ohio St. 12. 546 PROMISES AND CONDITIONS 185 erty, where, however, it does not have the sense of a condition.^* As used in a sale of personal property in some jurisdictions, it is a collateral statement or rep- resentation to the contract of sale having reference to the character of, the quality of, or the title to, the goods sold, and by which the warrantor promises or undertakes that certain facts are or shall be as he represents them. Such a warranty is not a condition. But in other jurisdictions, the collateral promise con- ception is ignored and such a material promise is made a condition. In such courts, if the condition is broken the buyer may repudiate or rescind the contract.®^ In cases of insurance policies and charter parties the term warranty usually does not have the meaning of a collateral promise, but means that the thing war- ranted is a condition. In such contracts, it is a rep- resentation or promise which is so essential a part of the contract that its truth or performance is a condition precedent to the other party's liability to perform.** In such cases the terms "warranty" and "condi- tion" are often confused and used interchangeably. The distinction, however, is clear. In speaking of a representation by A to B, as a warranty, that repre- sentation is considered with reference to A's obliga- tion, but when the same representation is regarded 8* Costigan, Performance of Contracts, p. 29. ssWilliston, Sales (2d ed.), 608, 181; Uniform Sales Act, §12, 69. 88 Insurance and charter party contracts are governed by the law mer- chant and hence taken largely from the Boman Law, which states that the ebligation of a contract is to do what good faith demands. The common law conception, however, as applied to other contracts, is to do what the parties intended. OUive v. Booker, 1 Exch. 416 (Eng.). 547 186 LAW OP CONTRACTS as a condition, the effect of that representation on B's obligation is the question concerned.®^ Whether a representation or promise in a policy of insurance or a charter party is also a warranty depends on whether the parties have expressedly, or by unexpressed intention gathered from the whole contract, made the validity of, or liability under, the contract dependent on the truth or the performance of such representation or promise. A fair construc- tion of the contract as a whole is the determining ele- ment, and no particular form of words is alone con- clusive. This is true even if the word "warrant" appears.®^ In cases of doubt, the policy is construed in favor of the insured, and the statements made by the applicant for the insurance, for instance, will be held as representations merely. But a guaranty of the truth of a representation which forms a part of the contract is a condition precedent to recovery in the law of insurance and of charter parties.®® This condition precedent, however, differs from an ordi- nary condition precedent in that the defendant must allege and has the burden of proving its falsity or breach, as indicated in a prior section. When used in reference to statements or promises in general mercantile contracts, the word warranty is properly used only as to that which is a condition. Thus, in the contract of a merchant, a statement sTHarriman, Contracts (2d ed.),- § 311. 88 Globe Mutual Life Insurance Association v. Wagner, 188 111. 133. 88 McClain v. Provident Co., 110 Fed. 80. By statutes in a number of the states no misrepresentation or warranty will defeat recovery on an insurance policy unless the misrepresentation is made with actual intent to deceive or the matter misrepresented is material to the risk. See subject, iNStTRANCE. 548 PROMISES AND CONDITIONS 187 descriptive of the subject matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and maritime law; that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract.®** 80 Norrington v. Wright, 115 U. 8. 188. 549 CHAPTER XIV. RT7LES ON CONDITIONS. 167. History of conditions. — Originally in the coimnoii law there were no conditions except express ones. This seems to have remained true imtil after simple bilateral contracts were enforced. But as justice demanded the finding of conditions, the courts would scrutinize contracts under seal containing mu- tual covenants for express conditions, and they did so even before simple bilateral contracts were recog- nized. "This gave great importance to the precise terms in which mutual covenants were expressed, and it not infrequently happened that a single word turned the scale. Thus, if A covenanted with B to give or do something for something else which B covenanted to give or do in return, it was commonly held that the word 'for' made A's covenant depend- ent upon B's."^^ This undue emphasis on such a word as "for" as importing an express condition was the' result of the feeling of the judges that perform- ance should be conditional on performance at a time when the judges had not yet reached the conception of conditions as capable of implication. Later,®^ in 1773, it was held that the dependency of one cove- nant upon another would be implied so as to create a condition precedent by implication. In 1792, con- »i Lahgdell, Summary of Contracts, § 140. »2 Same. 550 RULES ON CONDITIONS 189 current conditions were implied in a case, since which time the doctrine of mutual dependency has been established.®* 168. Rules on express conditions. — ^Express con- ditions may exist both in bilateral and unilateral contracts, and it is immaterial whether or not there are also implied conditions in the same contract. Courts construe the language of an express condition, wherever possible, in such a way as not to work an unjust forfeiture or oppression. For instance, in insurance contracts, the courts will go far in con- struction to help out the insured. "Policies are drawn by the legal advisers of the company, who study with care the decisions of the courts, and, with those in mind, attempt to limit as narrowly as pos- sible the scope of the insurance. It is only a fair rule, therefore, which the courts have adopted, to resolve any doubt or ambiguity in favor of the insured and against the insurer."®* Wherever it is doubtful whether certain words do or do not constitute an express condition. Professor Langdell lays down the rule that it is then material to inquire whether they constitute a promise, for if they do not, that will be an argument in favor of their being a condition, "it being a cardinal rule of interpretation to give effect in some way to all the words of a contract, if it be possible."®^ Although some matter is apparently of very little »3 Goodison v. Nunn, 4 T. E. 761 (Eng.) ; Langdell, Summary of Con- tracts, § 133. 94 Taf t, J., in Manufacturers ' Accident Indemnity Co. v. Dorgan, 68 Fed. 945, 956 ; Langdell, Summary of Contracts, § 33, and rule 2 on Express Conditions. ss Langdell, Summary of Contracts, rule 4 on Express Conditions. I 551 190 LAW OF CONTRACTS importance, the parties may consider it essential. Consequently, if they sufficiently express an intention to make the literal fulfillment of such a thing a con- dition precedent, it will be one. On the other hand, they may think that the performance of some mat- ter, vhich is apparently of essential importance and prima facie a condition precedent, is not really vital and may be compensated for in damages, and if they sufficiently expressed that intention, it will not be a condition precedent."® Similarly, the intention of the parties determines whether or not the word or clause in which an express condition is found is also a covenant or promise. An express condition may be waived. Thus, if after a breach of a condition by A, B chooses to go on with the contract, he thereby waives the breach as a breach of condition. But he may sue for damages for the breach of the contract unless the breach of contract is also waived. Whether or not this is the case, is a question of fact in each case. Where A agrees to deliver 10,000 boxes, of which 4,900 were not in accordance with the contract, B is allowed to recover in damages for the failure to perform lit- erally although he waived the breach of condition. Some jurisdictions hold, however, that in contracts of sale the buyer's acceptance of goods not only waives the non-performance of the condition but also any right to damages for defective quality or for delay in performance.®^ 98 Bettini v. Gye, 1 Q. B. D. 183 (Eng.) ; Adams y. Guyandotte Vallev E. Co., 64 W. Va. 181. BTLangdell, Summary of Contracts, rule 11 on Implied Conditions, and rule 1 on Express Conditions; Williston, Sales (2d ed.), 5§ 485, 487, 489. 552 RULES ON CONDITIONS 191 169. Performance dependent on approval.— Fre- quently building contracts contain an express provi- sion providing that the contractor is to receive the agreed price only upon the approval by an architect of the work done. The decisions in reference to such certificates are not harmonious. Ordinarily, the judgment or estimate of such third party is binding on the parties to the contract and the express condi- tion must be literally complied with.'® But every- where it is held that the fraudulent collusion of one party with the architect will excuse the non-perform- ance of the express condition.®® In the United States, the fraud of the architect or his refusal to exercise an honest judgment, even if done without collusion, excuses a failure to produce the certificate.^ But if the promise is made merely upon the will of the promisor, a mere voluntary obligation arises. Thus, to agree to furnish lumber in such quantities as one may **deem fit and advisable" is to promise to furnish nothing. The promisor may cease furnish- ing the Itunber whenever he pleases. 170. Contracts conditional upon satisfaction. — Performance of a contract may depend upon the »» Bnsh V. Jones, 144 Fed. 942. e» Batterybnry v. Yjeb, 2 H. & C. 42 (Eng.). 1 Tn New York it Eeems that the court may disregard the express condi- tion precedent and substitute its judgment or that of the jury for that of the architect if the defects for which the architect refuses to certify seem trivial. This doctrine must not be confused with the riile that in the absence of express conditions a substantial performance of a building contract en- titles the contractor to recover the purchase price leas proper deductions for the unperformed part, Nolan v. Whitney, 88 N. Y. 648; Keeler v. Herr, 157 ni. 57. The latter doctrine is one of conditions implied by law in the absence of express conditions. Handy v. Bliss, 204 Maes. 513. See Clarke V. Watson, 180. B. (N. S.) 278 (Eng.). 553 192 LAW OF CONTRACTS personal satisfaction of one of the parties. Thus, A may agree to paint a portrait of B to B's personal satisfaction. In such a case, A will not recover for his services until B is in fact satisfied. The fact that B is unusually critical is inunaterial, since A agreed to take the risk of B's approval.^ It is not sufficient that others are satisfied. Similarly, a condition which gives an employer the right to discharge the employee if he considers him incompetent, is a bar to an action for breach of contract. The rules apply to personal taste in me- chanical matters as well." The promisor must, how- ever, act honestly and in good faith : his dissatisfac- tion must be actual and not be feigned. In matters not involving personal taste or comfort, the courts construe the condition as one reqidring the satis- faction of a reasonable man. Such are contracts for material and work.* Thus, where A tells B that he may return the goods he has purchased unless he is satisfied, if the article is one involving personal taste, as a bookcase or an organ, B may return the article if he is dissatisfied. Even if tide matter is not a matter of personal taste, where B is made the sole judge, the articles may be returned where the seller can be placed in status quo. But in cases not involving personal taste, even where B is to be satisfied, the courts are particularly careful in requiring at least genuine dissatisfaction, and sometimes adopt the rule of reasonable satisfaction. 2 Gibson v. Carnage, 39 Mich. 49 ; Brown v. Foster, 113 Mass. 136. s Harder v. Marion Co., 97 Ind. 455. * Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387; Tobin v. Kella, 93 N. E. 596 (Mass.). 554 RULES ON CONDITIONS 193 171. Promises to pay. — ^Where A promises B to pay him when he is able, the courts interpret the promise reasonably. If the promisor once becomes able to pay, the condition disappears and his promise becomes absolute. BAs subsequent inability will not restore the condition.^ On the one hand, such prom- ises do not imply ability to pay without embarrass- ment,, or even without crippling the debtor's business. On the other hand, abUity to pay cannot be gathered from the fact that the debtor may be in possession of property sufficient to pay the particular debt. If he is plainly insolvent, or if an enforced payment would strip him of practically aU means of support, the debtor is not to be considered as being able to pay.^ 172. Rides on conditions implied in fact. — Condi- tions implied in fact are for all practical purposes express conditions and are governed by the same gen- eral rules. Thus, if performance by A is conditional upon the happening of an uncertain event, knowledge of which is peculiarly within the possession of B, it is a condition precedent to liability on A's part to perform that B notify him that the event has happened. In Hayden v, Bradley,'^ A rented property from B, who agreed to keep it in repair. A was not per- mitted to recover from B for failure to repair because he had not first notified B that the property needed attention. B was not in a position to know of such 5 Work T. Beach, 13 N. T. Supp. 678 ; Denney & Co. v. Wheelwright Co., 60 Miss. 733. « Tebo V. BobinBon, 100 N. Y. 27. 7 6 Gray 425 (Mass.). 555 194 LAW OF CONTRACTS defects ai\d performance on his part was conditional upon notice. But if A agrees with B to pay B a Sum of money when leaves for Europe, if both have equal oppor- tunities to know of C's departure, B can recover from A without giving him notice. The rule is as laid down in Vyse v. Wakefield:* "Where a party stipulates to do a thing in a certain specific event, which may become known to him , or with which he can make himself acquainted, he is not entitled to any notice, imless he stipulates for it ; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him." Of course, the parties may expressly provide that notice or demand is necessary to impose a liability to perform on one party. Such an express condition must be performed in order to charge the latter. It need not be in writing, unless the contract so provides.® 173. Rules on conditions implied in law. — Where the parties fail to provide a condition which fair dealing requires, the law will imply conditions in the interest of justice. Thus, in every bilateral contract, the promises on the one side are presumed to be the equivalent for aU the promises on the other side. Consequently, they are prima facie subject to the implied condition that performance on one side is conditional on a concurrent perf ormaijce on the other side. In other words, the two sides of every purely bilat- 8 6 M. & W. 442 (Eng.). » Dunn V. Mareton, 34 Me. 379. 556 EULES ON CONDITIONS 195 era! contract, being the equivalent for each other, constitute prima facie mutual and concurrent con- ditions. Thus, where each side of a bilateral contract is put into a separate instrument, complete in itseK and not referring to the other side, each side will never- theless be dependent upon the other, if that would be the case if both sides had been incorporated in the same instrument.^'' In the ordinary case of unilateral contracts, no pos- sibility of conditions being implied by law would seem to exist. But in the ease of an option whereby for $50 paid by B to A, A promises in writing to con- vey a tract of land to B if he pays A $5,000 in sixty days, but B promises nothing, it is possible that the law implies a condition that the deed shall be exchanged for the $5,000 simultaneously.^^ It makes no difference, however, whether the con- tract is a specialty or is not under seal, nor is it any objection that the consideration of the promise on each side is the promise and not the performance on the other side. The most common instances of con- tracts where the two sides of the contract constitute mutual and concurrent conditions, are contracts for the sale of real and personal property. 174. Act on one side requiring time. — Certain dis- tinctions must be borne in mind, for the rule laid down is very general and only holds prima facie. If the promise on the one side is to do specific acts which 10 Hunt V. Livermore, 5 Pick. 395 . (Mass.) j contra, . Moggridge v. Jones, 14 East. 486 (Eng.). 11 Costigan, Performance of Contracts, p. 61. 557 196 LAW OF CONTRACTS require time for their performance, while the cove- nant or promise on the other side is simply to pay money, the specific acts must be fully performed before the money is payable. Such promises are not concurrent. Thus, if instead of an agreement whereby A agrees to write an article for B by Janu- ary 1, 1914, and B agrees to pay him $100 for it when it is completed, the contract is simply that A agrees to write an article for B for $100, it is a condition implied in law that A complete the article before he demand payment of B. The two sides of this contract do not constitute mutual and concurrent conditions. B's promise to pay is subject to a con- dition precedent which is the completion of A's article. A's promise is absolute and unconditional. The most common instances of contracts of this description are ordinary contracts for service, build- ing contracts, and charter parties. If A covenants to work for a year and B covenants to pay him $2,000, the work must be performed before the money need be paid. The work is a condition precedent.^* 175. Where only the time for performance of one act is definite. — If the promise of A is to do specific acts requiring time for their performance (the time being indefinite), while the promise of B is simply to pay money at a fixed time, both sides of the contract are considered independent and absolute. This is true whether the time of A's performance be before or after the money becomes payable, or partly bef oj'e and partly afterward. Thus, if A is to obtain ten salesmen for B, for which service B is to pay the i^Costigan, Perfonnaiice of Contracts, p. 47. 558 RULES ON CONDITIONS 197 sum of $50 on June 1, 1914, A may recover that sum on that date without having performed. This is qualified by the rule that a condition wiU be implied that if prior to the time fixed for B to pay, A repudiates the contract or makes the perform- ance impossible, or becomes insolvent, or otherwise makes it certain that he cannot perform, payment by B will be excused. Likewise, if the expectation was that performance was to be complete before the time fixed for payment, and performance was after that time, the time for payment was extended. In such a case, one would be a condition of the other.*^ Rule as to property. But if a day is fixed for pay- ment in an agreement for the sale of any property, but nothing is said as to the time of delivering the deed or the chattel, the latter is deliverable when the mopey is payable. Thus, if A agrees to sell B his land for $5,000, and B agrees to pay that sum on January 3, 1914, the deed must be delivered on that date before A may sue for the money. The effect will be the same as if the same day had tieen expressly fixed for the payment of the money and the delivery of the deed. The two sides of the contract under this rule will be mutual and concurrent conditions." 176. Breach of condition. — Two sorts of breaches may occur: (1) in limine, that is at the outset; and (2) after a part performance of the contract. If a breach of condition occurs before there is any per- formance, it is a breach in limine, and discharges the IS liangdell. Summary of Contracts, rule 5 on Implied Conditioiis; Costi- gan, Performance of Contracts, pp. 48, 49. i« See Skillman Hardware Co. v. Davis, 53 N. J. L. 144; 14 Yale L. J. 424. 559 198 LAW OF CONTRACTS contract, provided it is not a trifling or merely for- mal breach." Inasniuch as the law implies that each party shaU be in a position to perform literally, such a breach in limine by the plaintiff constitutes a defense for the defendant. A trifling breach by A, although it may not justify non-performance, may nevertheless give rise to an action in favor of B for damages for breach of contract. To constitute an excuse for non-performance a breach after part performance must be substantial, for the law will not imply a breach. There must be something more than a mere breach to indicate that the party is not going on with his agreement and that he is not merely failing to perform one element. A less breach will justify non-performance by B if the breach is in limine than if it takes place after part performance. To justify non-performance in the latter event, the breach must go to the substance, essence or root of the contract. It must defeat the main scope of the agreement.^* Thus, the temporary illness of an employee which does not go to the root of the contract will not prevent him from enforcing the contract; but if the illness makes it necessary to obtain a substitute who cannot, however, be en- gaged except for the full period of service of the sick employee, the iUness goes to the root of the contract. The employer is discharged from further liability on the contract." 177. Eules as to time. — When the contract fixes loBettini v. Gye, 1 Q. B. D. 183 (Eng.). iBKauffman v. Baeder, 108 Fed. 171; Harriman, Contracts (2d ed.), 8 516. IT Pouseard v. Spiers, i Q. B. D. 410 (Eng.) ; Leopold v. Salkey, 89 BL 412. 560 RULES ON CONDITIONS 199 no time for performance, the contract is construed as allowing a reasonable time. Where A and B con- tract for the sale of A's horse for $100, the contract must be performed within a reasonable length of time. What constitutes a reasonable time depends upon the circumstances of each case. The difficulties, hazards and the amount of diligence used should be considered.^^ Thfe decisions are by no means uniform as to whether the question is one for the court or the jury. It would seem that what is a reasonable time in which a contract must be performed is a matter of law for the court when it depends upon construc- tion, whereas it is a question of fact for the jury when there are matters in dispute or the question depends on facts extrinsic to the contract. When a contract fixes a time for performance, and the parties agree that time is to be made of the essence, nothing short of performance on time is a discharge.^® Time may be expressly made of the essence, or it may be construed as such when tune is a material object of the contract. Thus, in McClel- lan V. Coffin,*" a contract was made to "furnish the work within three years, or the note to be void." It was held that time was material, and that the failure of the party to finish the work within the time specified relieved the other party. Of course, the provision may be waived. But in the absence of assent by the other party, performance after the time fixed does not discharge the contract.^^ Not JsGoodall V. Streeter, 16 N. H. 97. i» Miller V. Phillips, 31 Pa. St. 218. 20 93 Ind. 456. 21 Underwood v. Wolf, 131 111. 425. 1-36 561 200 LAW OF CONTRACTS only as to the day, but as to the hour, may the parties agree that time shall be of the essenee.^^ At common law, time was always of the essence. But courts of equity, by their own rules, and by their influence on the principles of the courts of law, have softened the iron-bound rule. The intention of the parties is determined to learn whether performance actually depended on a day certain, or whether a time was merely set to secure performance within a reasonable time. Grenerally, however, time is of the essence in mercantile contracts;^' but in land con- tracts, as well as for services, and building construc- tion, generally time is not of the essence.^* The parties may, however, as stated, make time of the essence, and both law and equity will then enforce the provision. A contract to be performed "as soon as possible," "when convenient," etc., requires performance within a reasonable time.^® In computing time, as where performance must take place within ten days after date, the date of execution is excluded.^® Similarly, performance on a day certain permits the whole of that day in which to perform.^'' 178. Instalment contracts. — ^Wherever there is a contract for delivery by instalments, and no time is fixed, payment is to be made upon each delivery,'" 22 Shinn t. Boberts, 20 N. J. L. 435. 23 Norrington v. Wright, 115 U. S. 188. 2* Cleveland Kolling Mill v. Ehodes, 121 U. S. 255; Denett v. Bowman, 61 Md. 526. 20 Florence Gas, etc., Co. v. Hanby, 101 Ala. 15. 2« Shelton v. Gillet, 79 Mich. 173. " Massie v. Belford, 68 HI. 290. 2« Withers v. Eeynolds, 2 B. & A. 882 (Eng.). 562 RULES ON CONDITIONS 201 for the law will imply concurrent conditions wher- ever possible. But where a lump sum is mentioned and no time is fixed, the payment and last instalment would be concurrent. All of the preceding instalments would be independent. If the seller of a piece of property waits until all instalments are due, he must tender the deed to the buyer, because then it is possible to make the conditions concurrent. At any time, how- ever, up to the time when the third payment is due, he can sue for the second instalment without ten- dering the deed. The general American rule excuses further per- formance of a divisible contract where the breach has gone to the essence. The tendency is to hold that non-performance of one instalment will justify a refusal to proceed with the rest of the contract. A agreed to deliver to B 600 tons of iron during three months in equal portions to- wit : 200 in June, 200 in July and 200 in August. A actually delivered 20 tons in June and 21 tons in July. Here there is a contract for instalments which themselves are split into units. In the United States, each instalment is regarded as a unit, and if it is not fully performed, it is a breach in limine.^^ But English courts regard this as a breach after part performance, and conse- quently no excuse for non-performance by the other party.^" Defective quality does not generally seem to excuse future performance of accepting the remaining in- 20Eugg V. Moore, 110 Pa. St. 236; Williston, Sales (2d ed.), J 467. 30 Freeth v. Burr, L. E. 9 C. P. 208 (Eng.). 563 202 LAW OF CONTRACTS stalments, unless they are also of poor quality, although a contrary doctrine also exists.*^ 179. Renunciation of contract. — If A agrees to convey a tract of land to B on January second, and fails to do so on that date, B would have a right of action immediately. But if in the October preced- ing A had announced that he would not convey, the problem is whether B may sue him at once, or whether he must wait until the time for performance arrives. Before B changes his position, however, A may generally repent and withdraw his repudiation even against B's protests.*^ I Renunciation before performance. Parties to a contract which is wholly executory have a right to the maintenance of the contractual relation up to the time of performance, as well as to a performance when it is due. Therefore, if A renounces his obli- gations before such a time, B, if he so desires, is excused from performing his obligations. More- over, the general rule permits B to sue A at once for the breach. He need not wait until the time set for performance arrives,^^ In the case of Frost v. Knight,^* A promised to marry B upon his father's death. While his father still lived, A renounced the contract. B was per- mitted to sue at once. ''The promisee," said the court, "has an inchoate right to the performance of the siCahen v. Piatt, 69 N. T. 348; FuUan v. Wright & Colton Co., 196 Maes. 474. azTraver v. Halsted, 23 Wend. 66 (N. Y.). 8S WindmuUer v. Pope, 107 N. Y. 674, Leaoino Illustrative Cases. Contra,- Daniels y. Newton, 114 Mass. 530. »*L. E. 7 Exch. Ill, 114 (Eng.). 564 RULES ON CONDITIONS 203 bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract." In a leading English case*® A engaged B to enter his service in June, but notified him in May not to come. He was held liable in an action by B, although suit was brought before the time for performance had arrived. The court based its decision on the ground that a relation is created between the parties by the contract which the parties impliedly promise not to prejudice.*® There are certain requirements, however, which must be satisfied in order to apply this rule. Thus, the renunciation must cover the entire performance to which the contract binds the promisor.*'' A par- tial renunciation does not confer an immediate right of action. In the case of Johnstone v. Milling,*® the landlord agreed among other things to repair the premises at a certain time. Before that time arrived, he repudiated this particular covenant. The tenant sued for damages at once. It was held that the con- tract was the whole lease and that the anticipatory bi'each of one covenant did not entitle the tenant to sue at once. Furthermore, there must be no question but that it is a renunciation,, for a mere expression of an intention not to perform is insufficient.*® Finally, 85 Hoehster v. De La Tour, 2 B. & B. 678 (Eng.). 36 See Eoehm v. Horst, 178 U. S. 1. 37 Anson, Contracts (Huff cut's 2d ed.), §362. 88 16 Q. B. D. 460 (Eng.). 38 See Dingley v. Oler, 117 IT. S. 490. 565 204 LAW OF CONTRACTS the rules as to anticipatory breach apply only to bilateral contracts.*" If B, after A announces his renunciation, chooses not to regard it as an anticipatory breach, and con- tinues to insist on performance, the contract is not discharged. It remains in existence for the benefit of both parties.*^ Consequently, where the renuncia- tion is not accepted, the promisor is again entitled to any defense that may arise. In Avery v. Bowden,*^ A agreed that his ship sail to Odessa and there take on a cargo from X's agent, to be loaded within a set time. X's agent refused to supply a cargo. A was then entitled to treat the refusal as a breach. Instead, the nmnber of days not having expired, the master of the ship continued to demand performance. Then, still within the time limit of the contract, a war broke out. Thereby performance became legally impossible, and when A sued for breach of contract because of the agent's refusal, the court held that the renuncia- tion not having been accepted, and the time limit not having expired, X was entitled to exoneration because of the war. Although the parties may not increase the dam- ages by attempted performance,*^ neither may the renouncing party force the other to sue for breach before the day fixed for performance.** The cases ■io Lawson, Contracts, § 440.