CORRESPONDENCE.

A MODEST LAWYER.-There is a lesson in the life of Geo. F. Edmunds, now deservedly the leading lawyer before the United States Supreme Court, that should interest all members of the profession. Mr. Edmunds is in the prime of life (near 60), of medium size, rather slim in build, a plain gray haired man with a mind at once acute, deep, and penetrating, and a logic incomparable. A native of Richmond, but a resident of Burlington, Vermont, he has reached an exalted position in his profession. He began life as a poor farmer boy, was educated in the common schools with one-half year's course in an academy at Albany; entered the law office of A. B. Maynard at an early age and later completed his studies with Phelps & Smally; was admitted to practice at twenty-one and early earned distinction in the argument of a supreme court case, small in amount but important in principle. He appeared before the supreme court in a home spun suit, with trousers much to short for him and yet with a skill that attracted the attention of Judge Redfield, who sent for the young man and complimented the effort. He was twice elected to the legislature and served as speaker of the house. He then practiced law four years with success and was elected to the State senate, and from there appointed to fill the vacancy caused by the death of United States Senator Foote. To the last position he has been re-elected ever since without opposition. Besides being a senator, he has a large and lucrative law practice. His methods are peculiar: With a terse, clear, brief and few cases cited he argues orally beginning with conceded propositions and reaching logical ends. views were adopted in the great Maine election case in which he said in effect that where the constitution contemplated that all voters had a right to cast a ballot for his choice, if by a mere mistake in initials of a name, which could not be a mistake of the person, surely the voter should not be defrauded of his rights by an error of the printer. His arguments are largely oral; his citation few and well selected; his conclusions irresistable. Not many months ago he was retained by the house of lords in England and called before that august body to expound a principle of American law on heirship. His views were brief and pointed, and convincing. The lords adopted his theory and tendered him a handsome reception which he modestly declined and proceeded at once on his journey. Law is natural to him. He is a born lawyer. His practice is high priced, and not less than $1,000 retainers, with a wide range to charge for time and extent of victory. The lesson of his life to lawyers is this: That one need not start high to reach high; that genius with opportunity may command success; that clearness and brevity are taking in argument; that modesty has promoted Edmunds from the farm boy lawyer through the legislature to the high rank of a superior counsel of the greastest court in the world. His whole life has been in a law school, the school of actual experience. J. W. DONOVAN.

RECENT PUBLICATIONS.

His

THE AMERICAN STATE REPORTS, containing the Cases of General Value and Authority, Subsequent to those contained in the "American Decisions" and the "American Reports," decided in the Courts of Last Resort of the Several States. Selected, Reported, and Annotated By A. C.

Freeman and the Associate Editors of the "American Decisions." Vol. I. San Francisco: BancroftWhitney Company, Law Publishers and Law Booksellers. 1888.

"Le roi est mort, vive le roi." No sooner have the Bancroft-Whitney Company quietly inurned the American Decisions and the American Reports, than they begin the issue of a new series, the American State Reports, the first volume of which is before us.

Under the same general management and the same veteran editorial care, enriched by the experience afforded by a hundred volumes, this series promises to surpass even the preceding series.

We have so often expressed our unqualified commendation of the American Decisions that we will surely be excused from saying more in relation to this new venture of the enterprising publishers, beyond an assurance of our best wishes for their succeess and our conviction that the new series will be, as with most other new things, an improvement on the old.

JETSAM AND FLOTSAM.

TWO STORIES OF CONGRESSMAN PETTIGREW.-I heard two good stories to-day of Pettigrew, of South Carolina, the great lawyer and Unionist, which I had never heard before. He was practicing at one time before a judge who was a Presbyterian of the straightest sect and a very hard working officer. It came to be Maunday Thursday, and Pettigrew and the Episcopalians and Roman Catholics thought they would like an adjournment of court over Good Friday. Pettigrew was selected to make the motion. "Your honor," he said, "I desire to move that the court adjourn over to-morrow." "Why should the court adjourn over to-morrow, when the docket is so crowded?" asked the judge. "Because," said Pettigrew, "to-morrow is Good Friday, and some of us would like to go to church." "No," said the judge decidedly, after a moment's thought, "the court will sit to-morrow as usual." "Very well, your honor," replied Pettigrew, adding, as he turned away, "I know there is a precedent, for Pontius Pilate held court on the first Good Friday."

The same judge was a great stickler for etiquette, and when one hot July day Pettigrew came into the court room in a black coat and yellow nankeen trousers the judge took him sternly to task, asking him whether he did not know that the rules of that court required its counselors to appear in "black coat and trousers." "Well, your honor," said Pettigrew, innocently, "I submit that I am within the rule, for I have on a black coat and trousers." "But they're not black trousers," insisted the judge; black coat and trousers means that both shall be black." "Then," said Pettigrew, "I call your honor's attention to the fact that the sheriff of this court is in contempt of its rules, for they require him to attend upon its sessions in a cocked hat and sword, and while his hat seems to be cocked his sword certainly is not." The judge said no more about the trousers. Philadelphia Record.

ST. LOUIS, SEPTEMBER 21, 1888.

CURRENT EVENTS.

TRUSTS-AGAIN.-Since we published our article on 66 991 Trusts our attention has been called to a very recent decision of the Supreme Court of Tennessee, which fully sustains our view of the legal status of these hitherto nondescript combinations. We have not seen a full report of the case, but have perused with much interest a newspaper report of the opinion.

It seems that three or more oil companies" of Memphis formed a combination in the nature of a trust, and, without parting with the title to their property, committed the

conduct of their business to a board of managers. One of the companies desired to withdraw, and the suit was brought to prevent its withdrawal. The court held that the

attempted combination was a partnership, that neither of the corporations had by its charter any power, express or implied, to enter into a partnership, that their acts in forming it were ultra vires and void, and that, of course, any member of the illegal combination had a right to withdraw from it.

The newspaper further says that the court intimated that the acts of these corporations in forming such an illegal combination, being ultra vires, operated as a forfeiture of their franchises, but as that question was not before the court the remark was merely an obiter dictum. It tends to foreshadow, however, what the action of the court would be if that question were properly brought before it.

A further important consideration has been suggested in this connection. If the worst, in legal contemplation, shall befall a trust, it shall be declared a partnership so far as it concerns parties capable of forming a partnership. If the corporations which have originated or participated in it shall be held to have acted ultra vires, and the trust shall have contracted debts and come to grief financially, the question remains-what are

1 Ante, p. 205.

VOL. 27-No. 12.

whom can they be enforced? Can the stockholders of the sinning corporations be made to pay for the misdeeds of their directors done in violation of their duty and in excess of their authority? Can the individuals who originally entered into the combination, or after its formation became interested in it by the purchase of certificates of trust, or otherwise, be deprived of the powerful aid of their allies, the corporations, and left to bear the brunt of all the legal artillery of the creditors of the trust? And, finally, have parties who have given credit to an illegal combination, formed in part of corporations, of the powers of which under their charters they had or might have had full notice, any remedy at all for their misplaced confidence?

These considerations open a vista of vast possibilities in case the pending and approaching litigation shall result in the bouleversement of the trust system.

It has been suggested that there is no necessity for legislative provision for the punishment of persons who combine to raise the prices of commodities of general use and prime necessity; that such action is a conspiracy at common law, and may be punished

as a misdemeanor. We are aware that there have been decisions to that effect, but we may be permitted to doubt whether their authority has been sufficiently recognized to preclude the necessity of legislative action in that direction if an effort be seriously made to suppress the system of trusts. If that system is as great an evil as it is alleged to be, and if public interests so imperatively demand its abrogation, and on these points we express no opinion, its demolition will require stronger action than can be found in penal laws which were formulated and grew up in non-commercial ages, which are imperfectly systematized, and which for generations have fallen into a condition of "innocuous desuetude." If it is seriously contemplated that an onslaught shall be made by the State or National governments, or both, upon the system. of "trusts," it should be borne in mind that the adversaries to be encountered are vast masses of aggregated capital, completely organized, and fully supported by numerous corporations, many of them improvidently endowed by their charters with extraordinary powers, and still further by long continued,

unbroken commercial customs of buying in the lowest and selling in the highest markets, of pooling, combining, "cornering," irrespective of the nature of the commodity dealt in, of the interests of consumers and of the community, and of the public welfare.

UNNECESSARY EXPOSURE TO DANGER.-One of the London legal journals has been examining the question how far a man may expose himself to unnecessary danger without incurring legal penalties,

A number of gratuitous perils are enumerated, as ascensions in balloons-captive or free-feats with parachutes, rope-walking, trapeze performances and others. The conclusion arrived at is that the people employed in this manner incur no penalties unless they create a nuisance, except in the case of a descending balloon in which the aeronaut commits a technical trespass in returning to earth.

We have never before seriously considered this subject, regarding all persons who seek danger, except at the call of duty, as within the especial jurisdiction of that mythical functionary, the "fool-killer," nevertheless we have something to say, a little more serious, on the subject.

We think the same principle of law which makes suicide, or the attempt to commit it, or counseling its commission a felony, and which interdicts prize-fighting, should be extended so as to cover all cases of exposure to unnecessary peril, incurred for the sake of gain and for the gratification of a morbid public taste. That taste, the enjoyment in witnessing exposure to peril of death, is a relic, if not of barbarism, at least of paganism, and is, though much diluted, fairly descended from such savage propensities as the delight which animated the ancient Romans, when the conquered gladiator was slain by the victor in obedience to the mandate expressed by the down-turned thumbs of Roman ladies and gentlemen.

It is a matter of very serious question with us whether the motive which in reality prompts men and women to crowd in throngs around one who stands for their gratification in danger of an immediate and terrible death is really admiration for his courage and address, or a morbid secret desire to see the act re

sult fatally, and witness in reality the same kind of tragedy which nightly attracts so many thousands to the theaters to witness in mimicry. Of this sort of feeling, of course, every person who with pleasure looks on at this variety of feats is profoundly unconscious, but it may be none the less real and a remnant of our savage instincts lingering under the gloss of our civilization. And in this point of view it may be asked, is it not the province of the law to protect as well the morals of the community as the lives of the persons imperiled in such hazards? The law prohibits prize-fighting, but not so much on account or the technical breach of the peace which the combatants commit in pounding each other as the demoralization of those who witness the disgusting spectacle. case of the prize-fight there is comparatively little danger to life, and yet the law interdicts it. And why should not practices involving far more peril be subjected to stern prohibition enforced alike against the performers, the promoters and the witnesses of the exhibition.

In the

NOTES OF RECENT DECISIONS.

EQUITY SPECIFIC PERFORMANCE CONTRACT-HUSBAND AND WIFE.-The Supreme Court of New Hampshire has recently decided a case, in which it declares the doctrine of equity in cases in which specific performance is demanded under circumstances that render such performance either really or apparently inequitable. The facts were that a husband and wife were jointly entitled to a sum of money due them as pension money, the whole, however, standing in the name of the wife. He drew part of the money and executed an instrument under seal in the shape of a receipt for $550, and stipulated that it should be in full of all demands on his part on the pension money jointly owned by him and his wife, and of the further payments thereafter to be made by the government. The receipt further stipulated that, in consideration of the $550, he released all claim that he might have as heir at law and distributee against the estate of his wife if he

1 Eaton v. Eaton, S. C. N. H., July 19, 1888, 14 Atl. Rep. 867.

should survive her. He did survive her, and this action was between him and her children, they claiming that the agreement to renounce his inheritance should be specifically performed. The court held, that there was no consideration for his promise to renounce his inheritance. The court adds: "Specific performance is inequitable; and the facts show no ground for an exception to the rule that inequitable performance is not specifically enforced. In general, it may be said that the specific relief will be granted when it is apparent, from a view of the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient to call forth the equitable interposition of the court that the legal obligation under the contract to do the specific thing desired may be perfect. It must appear that the specific enforcement will work no hardship or injustice; for, if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate that result.'3 The validity of the defendant's release of his right to a distributive share of his wife's estate is a question that need not be considered."

21 Pom. Eq. Jur. § 400; 2 Story, Eq. Jur. §§ 742, 750, 769; Powers v. Hale, 25 N. H. 145, 152; Pickering v. Pickering, 38 N. H. 400, 407, 409; Eastman v. Plumer, 46 N. H. 464, 478, 479.

3 Willard v. Tayloe, 8 Wall. 557, 567.

DEED-COVENANT-SEIZIN.-The Supreme Court of Minnesota has found it necessary to decide in a recent case, that a party who accepts a deed with the usual covenants of seizin and warranty conveying to him land to which he has already a good title and lawful seizin and actual possession, cannot recover damages for the breach of thecove nant of seizin in that the grantee and not the grantor had actual seizin at the date of the deed. The facts are not stated in the report of the case, and it is a little hard to understand what reason he had for bringing the action, unless, indeed, it was to recover back money which he had been

1 Horrigan v. Rice, S. C. Minn., June 26, 1888, 38 N. W. Rep. 765.

fraudulently induced to pay for his own property. The court disposed of the question in a brief opinion, saying:

"MITCHELL, J. Where, at the time of the conveyance, the purchaser has in himself the valid title to the premises, he cannot sue on the covenants it contains, for they only extend to a title existing in a third person which may defeat the estate granted by the covenantor. They do not embrace a title already vested in the covenantee. 'It never can be permitted to a person to accept a deed with covenants of seizin, and then turn around upon his grantor and allege that his covenant is broken, for that at the time he accepted the deed he himself was seized of the premises. This is decisive of the only point in this case. Had the plaintiff been induced through fraud to accept a deed of his own property, or had he done so in ignorance of the facts affecting his own rights, he might have been entitled to some form of relief. But no such suggestion is made either in his pleadings or his proof. He predicates his right to recover solely upon the covenant of seizin."

2 Fitch v. Baldwin, 17 Johns. 161; Beebe v. Swartwout, 3 Gilman, 179; Furness v. Williams, 11 Ill. 229; Rawle, Cov. § 268; Bigelow, Estop. 346.

STATUTORY LIABILITY OF WIFE FOR NECESSARIES FOR FAMILY.

Under the common law, husband and wife were but one persom, and the husband was that one. The common law implied not only a unity of person but a unity of interest, and the unity of interest was also represented by the husband,1 and therefore no action at law could be maintained against a married woman upon any contract into which she might en

ter.

A declaration in an action of assumpsit against husband and wife, alleging a request and promise by husband and wife during coverture is bad, for the wife cannot be sued upon a mere personal contract made during coverture, although joined with her husband.2 And a judgment rendered against husband and wife, upon a warrant of attorney exe

1 Krouskop v. Shontz, 37 Am. Rep. 818 2 Edwards v. Davis, 16 Johns. 281.

cuted by husband and wife, is void in respect to the wife. It has also been held that a court of equity would not render a personal decree against a married woman upon a contract entered into by her. While a court of equity will enter a decree, upon a contract made by a married womam with respect to her separate estate, to be enforced against such separate estate, yet she is not personally liable on such contract. She cannot, previous to the decree dissolving the marriage, make any valid agreement as to her allowance for alimony. And the court will

not sanction any such agreement, unless it satisfactorily appears that the allowance made in her favor is as much as she is fairly entitled to. Numerous authorities might be cited to sustain these propositions, but they are elementary and generally understood.

Bishop lays down the rule thus: "Being under the power of her husband, she can have no will of her own, and by reason of this lack of freedom of will she cannot contract. Not only she cannot enter into a contract with her husband, as laid down in the last chapter, but she cannot with any other person. Any form of contract which she may make is, as to her, a mere nullity.""

If she had no separate estate no relief whatever could be granted; and, if any decree should have been entered, it would have been of no value, for it could not bind afteracquired property. Therefore creditors were compelled to look, almost exclusively, to the person and property of the husband, who represented the unity of husband and wife in person as well as in property. As an offset to this, however, all of the wife's personal property, her choses in action when reduced to possession and the rents, issues and profits of her real estate, when received, were vested in her husband, and the husband became liable, to some extent at least, for the debts of the wife and her antenuptial contracts.

Statutes have been passed by the legislatures of many of the States, which were intended to relieve married women from the enforced thrall of the common law, to remedy its evils and defects, and to settle upon a fairer, more liberal and just basis their legal

3 Brittin v. Wilder, 6 Hill, 242.
4 Young v. Paul, 10 N. J. Eq. 401.

5 Gardner v. Gardner, 7 Paige Ch. 112.

6 Daggett v. Daggett, 5 Paige Ch. 509.

71 Bishop on Married Women, § 39.

status as to contracts, property and property rights, and to define and extend the remedies that might be pursued by creditors against them and their property; and in some States a woman may now be sued in the courts of law and a personal judgment rendered against her, which will bind her property to the same extent as a judgment against a feme sole, and on which an execution in the usual form may be issued.

In Yale v. Dederer,8 the court of appeals held, that "in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself."

9

In Cushman v. Henry, it was held that, where a married woman, having at the time no separate estate, purchased real property, and as part of the consideration therefor assumed and agreed to pay a mortgage then resting thereon, she was liable to a personal judgment for any deficiency after applying the proceeds arising from a sale of the property under a proceeding to foreclose said mortgage. The same doctrine, in substance, was announced by the Supreme Court of Tennessee, in Jackson v. Rutledge, 10 where it was held that "a married woman, accepting a conveyance of land to her separate use, reserving a lien for unpaid part of purchase money, is bound by the conveyance, and cannot recover her payments, and the lien may be enforced."

The case of Cushman v. Henry, was a New York case, and yet the court was not willing to be bound by the decision in Yale v. Dederer, supra, and did not require the intention to charge her separate estate to be declared in the contract itself, and, as a matter of fact, at the time Mrs. Cormac assumed and agreed to pay the mortgage, she had no separate estate.

In Deering v. Boyle, the Supreme Court of Kansas say: "When a married woman executes a promissory note in payment and satisfaction of her husband's debt, an action may be maintained against her on said note, and her separate property applied in pay

8 22 N. Y. 450.

931 Am. Rep. 437.

10 3 Lea, 626.

11 12 Am. Rep. 480.