ceed correctly at the retrial. But may it not do this far more effectually in approving it in all that it has done correctly and limiting its action to that wherein it erred?

But further than that, does it not thus aid the law in enforcing respect for all that the trial court has correctly done? No practical man will tear down an entire wall because it is illy constructed as to an inconsiderable part, and no court would deny to the builder all claim for constructing it because of such a defect. The principle, however, of fair play and common justice, instinct in correcting error as error pure and simple, is involved, and the very simplicity of a rule of this kind needs no argument for its support.

NOTES OF IMPORTANT DECISIONS

BANKRUPTCY-IMPOSITION OF FINES ON MEMBERS OF BUILDING AND LOAN ASSOCIATION FOR FAILURE TO MAKE PROMPT PAYMENTS.-In the articles of a building and loan association it was provided that certain penalties should be enforced for shareholders neglecting to pay, when due, dues, premiums, loans or interest, and when those are in arrears, payments should be first applied to liquidation of fines. By another provision such fines are not imposed in case of a member's death. It was lately held in a U. S. District in New York, that as death"creates a situation very similar to that of bankrutey," the policy manifested in the former should be applied in the latter. In re Davis, 180 Fed. 148.

It seems not to be disputed by the court at all, that fines would be imposed. but for the exemption in case of death. It is also a familiar rule that exceptions should not be extended beyond their plain import. Another rule, also much resorted to, is that the expres sion of one thing excludes another. The court here seems to us to proceed in the teeth of both of these rules, and to have made a judicial interpolation in a contract.

The court says: "Bankruptcy in this case was not a voluntary act. It was a misfortune and should not work to the advantage of the association or to the detriment of the estate in bankruptcy." Here it would look like the suggestion of still another classification, viz: between voluntary and involuntary bankruptcy. And, if we admit that, then with as much logic we might go and inquire whether a bank

rapt's condition is brought about by foolish, indolent, reckless conduct, or whether one merely went under by stress of circumstances he could neither anticipate nor control. Courts wield no Ithuriel spear to put to flight inequities in contracts freely entered into by competent parties.

WHAT IS THE ESSENCE OF THE TRUST EVIL?

In an article which appeared in the CENTRAL LAW JOURNAL about a year ago, the writer, Mr. William L. Royall, argued that "the citizen has a natural and inherent right to compete in business with his rival even to the point of destroying that rival by fair competition, and that, even though he intend to destroy him; but that he has no right to inflict a malicious injury upon him that is not intended to be for his own benefit, but simply to inflict an injury upon his rival;" contending that the chief malicious injury of which the trusts were guilty consisted in giving away or selling their goods below cost for the purpose of injuring a rival.

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"What is it," he asks, "that has stirred up popular wrath against the great and powerful corporations that the public denominate as trusts? It is the custom they have fallen into of giving their goods away or selling them below cost, which is pro tanto, the same thing for the purpose of destroying a weak rival, or driving him out of the business. * * When a weak rival begins to cut into its profits, it commences giving its goods away, or selling them below cost for the purpose and with the intention of destroying that rival. * * * This is not the exercise of a citizen's right, but the abuse of it. * When the great corporations give their goods away for the purpose of destroying a weak rival, they are doing him a wanton injury, and are therefore doing an unlawful act. T ask particular attention to this word 'wanton.' It is the key to the situation."

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After stating the wrongs of which the trusts are guilty Mr. Royall goes on to .propose a remedy. He says:

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"The first thing to be done is to amend the Sherman law so as to restrict it to all unreasonable restraints on trade and all agreements that aim at doing a rival a wanton injury, and to provide appropriate penalties and appropriate measures enforcing the law. Then let Congress enact a statute as to interstate trade, making it unlawful for any person or combination of persons to give away goods or to sell them at or below cost, or so near thereto as to be in effect a sale at or below cost for the purpose, or within the intention, of destroying a rival in interstate business, or inflicting a wanton injury of any sort and forcing fair and equal competition. * Then let each state pass an act to the saine effect relating to interstate trade."

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In concluding, Mr. Royall declares that. "Our institutions do not oppose men's or corporations' becoming rich. Upon the contrary they encourage them to become just as rich as they can get to be by fair trading. The rich men are the country's strength. All that our institutions oppose is the rich men using the power that their wealth gives them to oppress weak men, and if the government will come between the rich man and the weak man and compel the rich man to desist from practices intended to crush the weak man, everybody will have his rights and the trusts will become a national blessing."

Many lawyers, perhaps the majority, entertain views similar to those expressed by Mr. Royall, but the great mass of the working men of the country and those who sympathize with them, look at the matter from a different view point. The trusts are the masters; there are other masters indeed, but they are becoming fewer as wealth aggregates and combines extend. To the workingman, therefore, the trust problem is the problem of labor and capital. The action of the trust in underselling and driving out a weak competitor lessens the number of employers to whom the workingman may apply for employment. and this is a serious matter for him, but there are other phases of the trust evil

which interest him more. His status as one of an army of employees, and whether with the growth of trusts that status is to be an ascending or descending one is the great question for him. So, too, with the average citizen; the crushing out of weak rivals by selling at or below cost, he, no doubt, regards as an evil; but if he is one of those who feel that the trust evil is of great magnitude, he will not regard the underselling as the essence of the evil. He will see that the indirect evils flowing from the aggregation of wealth-the social and economic evils-will be much the same whether that aggregation result from underseiling or from some other cause.

This broader view of the question presents a problem so vast, so intricate and one upon which so many varying opinions are entertained, that one may well be excused for diffidence in undertaking to discuss it. But it behooves every citizen to get as clear ideas on it as possible, for this is a necessary step towards a solution. The object of the present writer is, therefore, to enlighten himself, not others; for he dare hardly hope to contribute anything of value towards the solution of so difficult a problem.

In the first place, then, let us inquire whether, as Mr. Royall suggests, it is desirable that the rich men of the country should continue to grow just as rich as they can get to be by fair trading. This question is itself so large that very few of its aspects can be considered, and these merely in the most general manner.

What is wealth? We are not asking for an economic definition of the term; we are using it in its general popular sense. Wealth to many, to a deplorably large number, would be abundantly realized if they were assured of plenty to eat, drink and wear and of comfortable shelter. But those who have these things assured do not consider themselves, even well off, and many of them toil more incessantly than thousands of those whose existence would seem to depend directly upon intense struggle. Too often the passion for wealth grows as wealth accumulates, and the struggle for

than the struggle for existence. That mankind from the poorest to the richest should spend their lives in the eager, feverish pursuit of gain, to the neglect of those things which minister to the higher tastes, faculties and sentiments, no one would for a moment contend. No doubt there are multitudes of men who can employ their faculties in no better way than in the quest for gain. But is it desirable that these numbers should increase? Is it desirable that such men should come to dominate opinion to rule politically and socially? That the lawyers, the doctors, the preachers and teachers should feel that they must pander to them? But surely it is towards subservience to wealth that the love of wealth leads. No doubt it also leads to the enterprises that are so important as factors in settling and developing a new country, and the enterprising, wealth-pursuing men deserve their mead of honor. But even material development may reach its desirable limits, and will not those limits soon be reached at the rate at which material development is now proceeding? When the arid lands of the west are brought under cultivation, how much further can agriculture proceed? Does any thoughtful person desire to see it reach a condition such as that which prevails in China, where every available spot is used in the production of breadstuffs? Who wishes to see every solitude in mountain and forest invaded by lumber men and miners? Who wishes to see every water fall diverted from its course in order that electrical energy may be developed? Is there not grandeur in the solitudes of primeval nature, a "spirit of the wood," which mankind would do well to commune with? There is surely a limit beyond which the enterprise which transforms the forest into lumber, which mars the beauty of the hills, the rills and the rocks should not pass. But in order that that limit be not overstepped, the higher qualities in man's nature must control the mere greed for gain.

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semi-economic standpoint and ask whether it is desirable that the rich should grow richer. The term wealth is used more or less interchangeably with capital property and riches. Property is perhaps a better term for our present purposes. The property of the rich man consists of land, machinery, buildings, mines, railroads and commodities, etc. The great steel corporation owns a large proportion of the steel plants in the United States. Is it desirable that this one corporation should own them all? Very likely there would result a reduction in the cost of producing steel. Certainly there would be a saving in the cost. of selling it. And probably, or at least possibly, the public would obtain steel products at a lower price. This seems desirable. Again a few corporations own nearly all the railroads in the United States. If all lines were owned by one company no doubt the cost of transportation could be reduced. There would be no occasion for duplicating depot buildings in the same town. Paralleling and inaintaining lines for the sake of mere competition would cease. The public might reap a benent in the form of reduced fares and rates possibly in the form of better service also. Again, there are great department stores in every large city. Suppose one great corporation owned all the retail businesses in a city. There would probably result a great saving in the cost of distributing retail commodities throughout the city; and it is not impossible that these commodities might be sold at a lower cost to the public. Take another case. Mr. Rockefeller is perhaps the richest man in the world. Suppose that he deemed it to his advantage and to the advantage of the country to get just as rich as possible; that, instead of endowing colleges, etc., he negotiated with the Canadian government for the purchase of millions of acres of prairie land in the Canadian west, and established great farming companies in that region. By the use of combined steam gang-plow, harrow and seeder, etc., he could produce wheat and other grains at a much less cost than

sistence, the lockout will not be prevented by any fear of competition. Suppose that there are several factories of the same kind and that there has been more or less competition among them, it will be manifest that in the matter of employing labor they should act more or less in unison. But even should they not do this, but on the contrary, compete to the fullest extent possible, a lockout which disengaged thirty thousand men, would necessarily leave vast number unemployed, however anxious competing factories might be to employ them. It would be a physical impossibility for the few competing factories so to enlarge operations as to take on even half the men locked out by the competitor. But we are considering the result of aggregation and consolidation carried to its utmost limits, or at least to the extent of uniting under a single management all the different concerns engaged in the same class of business. Consolidation has not yet arrived at this stage, but it bids fair to reach it, or at least to approximate so closely to it that all competition among captains of industry will cease. Indeed, competition in the employment of labor among the greater "captains of industry" has probably altogether ceased; but lack of access to collected data confines us to a hypothetical consideration of the subject. We therefore assume that where one great corporation closes its doors against its employees, the latter are effectually barred from the kind of employment to which they are accustomed, and are thus almost totally deprived of the means of livelihood. Of course, a lockout is of unusual occurrence, and its significance as an incident of industrial consolidation rarely challenges public attention. The labor strike, which is the counterpart to a lockout, occurs more frequently, and its discussion occupies more space in the newspaper and in the public mind. But the lockout is a startling exhibition of the latent power of consolidated industry, of the trust. That a single person or a single corporation should have the legal right to say to a great army of men: "The trust has decreed that you shall

way.

starve," is a fact full of warning, and one which lawmakers cannot consider too earnestly. That the lives and happiness of thousands, even hundreds of thousands, should be in the keeping of a trust, seems strangely incongruous with constitutional provisions which profess to guard personal liberty and secure to each individual the right to pursue his happiness in his own Before the advent of the "captain of industry," the status of the workingman was altogether different. The competition among employers was something like a guaranty that if discharged by one he had merely to turn to another. Capital in the hands of many competing employers was sufficient assurance to the steady, industrious, competent man that he would rarely, if ever, lack for work. He was in no sense dependent upon the will of one employer for the exercise of his right to labor. He had the status of a free man, not merely in name, but in reality. He could look forward to the time when he might himself become an employer of labor. By economy and thrift a journeyman could in a few years save sufficient capital to set up in business for himself. This was true of the skilled workmen in most American industries until well on towards the middle of the nineteenth century. To-day, no doubt, the wages of the skilled workman purchase far more of the comforts of life than the wages paid sixty years ago, and this important fact compensates to some extent for the loss of that in dependence which the old competitive system of capital afforded. He does not feel his dependence so long as his wages continue, and the insidious absorption of his liberties through the silent process of economic development causes him no alarm. It is only during a period of panic or depression, or when he is blacklisted that his real situation forces itself upon his attention. He then feels what it is to be dependent upon one employer, and the union affords him the most convenient medium for minimizing the effects of that dependence. Thus the growth of the union, and the federations of labor has accompanied