civilized man in the easy establishment and full security of rights. But these are questions which in more tranquil times will find their own adjustment, and while I have hinted to youths intending to follow this noble profession the expediency of tempering it with collateral studies, I congratulate them on the solidity of the position they are to hold. No change, practical or speculative, social or political, or economic, has any terrors for the profession of the law."

RECENT LEGAL LITERATURE.

SHIRLEY'S DARTMOUTH COLLEGE CAUSES. Many readers first made acquaintance with this work in the pages of the Southern Law Review, where it attracted unusual attention, and created a general desire that it might be preserved in a separate and compact form-a wish that now has its fulfilment. Lawyers and students of history will find here something of interest and permanent value. No celebrated case in this country can compete with that here discussed, whether for the importance of the questions involved, or for the ability and learning displayed in its preparation and decision, or for the far-reaching consequences of the principle adjudicated. The trial of the seven bishops in London stimulated resistance to arbitrary power and led the way to revolution; but the principle which it consecrated, if it settled anything, could only be of rare application. It might be said with truth that it settled nothing except the fact that in a free country there is a natural limit to the subserviency of juries. This was simply an empirical result. In the Dartmouth College Case a great rule of Constitutional right was established which every day becomes of wider application. If in the one case Lord Somers made the reputation of being the first lawyer of England by a speech of fifteen minutes in duration, in the other the greatest legal luminaries of a time of great lawyers and great judges, vindicated their natural and acquired supremacy by an unusual display of ability.

Nowhere, we think, have we so full and accurate an account of any great civil cause as that which is to be found in this volume. By the aid of the author's studies, pursued under auspices which few could have possessed, we have the benefit of a strong light thrown on all the motives and characters of the different actors in the judicial drama; we perceive the small sources of personal feeling and jealousy from which the litigation took its origin; the utter novelty of a question now no longer novel; we behold Webster rising with eyes unfathomable with gloom and mystery to speak for the last time for his alma mater, whom he has followed thus far in order that if she fell she may at least fall in her robes." The portraiture of the chief personages is admirably given; perhaps Macauley or Tacitus could hardly have done better. It can not be denied that the author is unusually happy in the delineation of character. Each picture is a perfect gem in its kind; but the setting shows the marks of of haste, of a mind that is full of its subject, communicating itself without labor and without due regard to orderly arrangement and the necessity of a uniform polish. By this laxity the interest of the book is not much diminished, but its effectiveness is seriously impaired. We have an impression that the author is capable of work of a high order, but that he has only scant command of time.

e Dartmouth College Causes and the Supreme Court of the United States. By John M. Shirley, St. Louis; G. I. Jones & Co., 1879.

The photographs of character to which we have referred are evidently based on a thorough study of the lives of the men thus brought before us; but in one case we must be allowed to express a more than provisional dissent. The author does the most ample justice to the great natural genius of Marshall, but he thinks that he was deficient in learning; believing that Mr. Justice Washington was his superior in this latter quality. We are aware that it is a common thing to aggrandize the genius of the great chief justice at the expense of his learning. But we do not believe that any man was ever a great jurist without the most laborious study. Because Marshall attended the yearly meetings of the cricket club, there is a vulgar belief that he spent his time when off the bench mostly in playing his favorité game; because it is mentioned that he one day played marbles when chief justice with a little boy, the vulgar opinion has grown up that he played with every boy that he could catch. This is history; the same history that will have it that the most of the words used by Thurlow were mere oaths; that Washington always looked as if he were sitting for his picture, and that General Jackson never took his pipe out of his mouth but to utter his favorite, By the Eternal." But Mr. Shirley ought to know that to follow history is usually to follow a lie. One game of cricket and one game of marbles will be more dwelt upon than years of study. The learning of Mr. Justice Washington is particularly prominent because in his case there was little or nothing to distract the attention from it. With Marshall it was different; with him his learning, great as it was, was indeed the least part of the man. With him learning was not a thing separate from himself, to be referred to as to dry plants in an herbarium. If we did not know otherwise from the whole tenor of his life, we should almost be forced to the conclusion that there was some affectation in his almost ostentatious simplicity. But on closer inspection we find that there is the amplest evidence of profound learning in most that he said or wrote. He does not indeed turn down the page of any particular book, but we find such a coincidence between his conclusions and those of the greatest jurists that had preceded him, as could only be miraculous if it had not proceeded from patient investigation. Where he differs from his predecessors. his line of thought shows that he has considered what has been said on the other side, and that he knows what to avoid and what to adduce. The supposed want of learning of the greatest jurist that America has to boast should, we think, be dismissed as an idle tale that has done service long enough. That he had great aptitude for the law is most obvious; but he no more knew law by intution than he could know geology by intuition. In the American Leading Cases, in a note by Mr. Wallace to the decision of Chief Justice Marshall, in Field v. Holland, this expression is used, somewhat feliciously it must be admitted, though perhaps with unnecessary severity: "Mr. Justice Cowen, in Pattison v. Hull, 9 Cow. 771, had satisfied himself that he had consigned to insignificance this conclusive authority by observing that in this case the books do not appear to have been consulted. It should be remembered, however, that there are some judges who consult more books than they quote, as there are others who quote more books than they understand." The fable as to the want of labor on the part of Judge Marshall has done vastly more harm than it is ever likely to do good. The truth is that there is no road to distinction in our profession without unremitting toil; and this truth has a still larger application. Of course, there is a common belief that poets throw off their productions by mere inspiration, over which they have no control. Lord B

ron is commonly thought to be a conspicuous example of this facility. Most of his time, it is thought, was spent in dissipation. Another poet who certainly "'labored'' sufficiently, has described him as "taking his way' through all kinds of science without the smallest attention or trouble on his part; but Byron left behind him a mass of writings going to show that he must have been one of the busiest men of his time. The truth is, we conclude, that such notions are only fit for the vulgar to whom they are generally addressed. We must repeat, however, that with this single exception, we do not think that the estimates of the author of the book before us of the principal characters in the conflict which resulted in the Dartmouth College Cases, are open to reasonable criticism.

Mr. Shirley is of the opinion that the principle of construction was somewhat strained in the case in question, and that the court that decided it is now engaged in that process of backing down which is not wholly unfamiliar in judicial writings. In this we strive in vain to agree with him. We know that of late there are not a few who maintain that the opinion of the court was a mistake. We do not think so. It has had a good effect in giving stability to many important rights which otherwise would have been an easy prey to the vacillation of popular opinion and to the schemes of mercenary politicians. Any other doctrine would have thwarted great enterprises by introducing elements of hazard and uncertainty which, under present rules, are unknown. As to the reasoning on which the decision is placed, we have never seen anything that could fairly be adduced as a satisfactory reply to the logic of Chief Justice Marshall, on a point which he was peculiarly fitted to decide, and in the decision of which he had every advantage that could be bestowed by the learning and talent of the bar in its best estate.

NOTES.

-John Humphreys Parry, the eminent serjeantat-law, and one of the leaders of the English bar, died on the 19th inst., of congestion of the lungs, aged sixty-five. The following remarkable title appeared in an answer filed in a New York court last week: Wellington Porter against Daniel Quill, Arsinio Amabile, Raphael Suckrat, Jim Libbick, Louis Somebody, Martin Jinks, Lonigo Louis, Joseph Amen, Tony Amen, Billy Lonias, Bechance Godjohn, Junice Curio, Jim Liberto and others. It was a mechanic's lien suit, most of the defendants being Italian laborers, and it is supposed that the extraordinary production above set forth was the fruit of the prolonged struggle of a modern gang foreman with the dulcet language of the modern Roman.

-We are glad to see that judicial notice has been taken of the fact that cigars are not necessarily "tobacco," for we have been of that opinion ourselves more than once. In an English court last month an excise prosecution was heard against a hawker who was charged with selling tobacco at a fair without a license. A laborer proved buying two cigars, for which he paid 3d., at the defendant's stall. He afterwards, at the request of an officer of Inland Revenue, went and purchased another cigar, which defendant took from a box on his stall. For the defence, his counsel said that the defendant was a cripple almost penniless, and it was strange that the excise should lay a trap to catch him as they had done; but after the explanation he should offer, he thought the bench would have no hesitation in dismissing the case. The

defendant was charged with selling tobacco without having a license. Not a word was said about cigars in the act; and he submitted that cigars might and did consist chiefly of hay and cabbage leaves, and that, in fact, they were not "tobacco" at all. The prosecuting counsel replied; but the bench agreed with the defendants' counsel, and dismissed the case.

-Senator Davis, of Illinois, has introduced a bill into the United States Senate to establish a Federal Court of Appeal. The bill provides that a Circuit Court shall be held in each judicial district of the United States at the same time and place as the District Court. It also provides that the appellate jurisdiction of the Circuit Courts shall be repealed from and after the first of next September, except in regard to bankruptcy proceedings, and that there shall be established in each of the circuits of the United States a "Court of Appeals,'' which shall have appellate jurisdiction, subject to the provisions of the bill, of all cases arising in the several Circuit and District Courts within said circuits respectively. This Court of Appeals is to consist of the Supreme Court justice assigned to the cir cuit, and of the circuit judges thereof, and two of the district judges, to be designated for each term of the court by the senior circuit court judge. Any three of these members of the court, including at least one judge competent to preside, shall constitute a quorum. The decision of the Court of Appeals upon questions of fact shall in most cases be final; but a review upon the law may be had to the United States Supreme Court in certain cases. Other sections of the bill provide that the President shall appoint for each circuit two additional circuit judges, and that the terms of the Court of Appeals shall be held at the cities of Boston, New York, Philadelphia, Richmond, New Orleans, Cincinnati, Chicago, St. Louis and San Francisco, the first term at each place to be held on the first Tuesday of November, 1880.

-A Scotch advocate writes a pleasant letter to a New York journal concerning the peculiarities and traditions of his profession. "I find, "he says, "that nothing interests an American so much as my wig. I only wish the person who thus derives amusement from the fashion had to experience its inconvenience. To begin with, they are by no means cheap. A horsehair wig costs about $50, and an ordinary one-they are now all made out of whalebone shavings-abut $30. They very soon get dirty, and to powder them as some men used to do, only makes one's coat perpetually greasy. Then in summer they are hot and tight on the head. Yet we all wear them. We are not compelled to do so. We must wear a gown; that is our mandate. The abolition of the gown I should regret. Its several parts involve not a little curious history. For instance we carry at the back of the gown a little pocket which, though still worn, is now sewn up. That appendage takes you back more than 300 years, to the days before the Reformation, when the advocates were churchmen. No churchman was allowed to accept a regular payment for his services. But if he was prohibited from handling the money, that was no reason why you, if you wanted your case particularly attended to, should not put a couple of gold pieces into the bag which he carried at his back. So you see we still have some relics of the past surviving in this reforming age. Many of our names even strike a stranger as peculiar. The official head of the bar is called 'Dean of the Faculty.' 'Ah,' said Sidney Smith, when he heard the title for the first time, 'that's very odd now. With us in England our deans have no faculties?' Absurd as these old customs and names may be, it can not be denied that the country has reason to be proud of her. judicial arrangements, not merely in the Supreme Court, but down to the humblest judicatory.''

ST. LOUIS, JANUARY 23, 1880.

ACCOUNT OF PROFITS INDEPENDENT OF INJUNCTION.

The question whether equity has jurisdiction to give any money recovery for the infringement of a patent, except after it shall have granted an injunction, is important in cases arising under expired patents. It is admitted that equity has exclusive jurisdiction over all matters of trust, except in cases of bailment and except where indebitatus assumpsit will lie. Neither the common nor the statute law gives the patentee the right to an action of indebitatus assumpsit, or any other action at law save trespass on the case. If then, the constructive trustee-ship of the infringer exists, equity will enforce it, for the common law has no power to do so. If a man unlawfully uses his neighbors horse and wagon or any of his tangible property, and makes profit therefrom, the common law affords an election of remedies. The injured party may bring trespass or trespass on the case and recover his damages, or he may waive the tort and bring indebitatus assumpsit for money had and received, and thus in effect convert the wrong doer into an involuntary trustee.

For the unlawful use of a patent, however, the law affords only the first of these two classes of remedies, and, therefore, equity furnishes the other. That the infringer may be converted into a trustee as to the profits for the owner of the patent he infringes, is a doctrine announced by the Supreme and Circuit Courts of the United States, and repeatedly applied and acted upon by these courts. When it has been announced it has been stated as a general rule, and when it has been applied and acted upon, it has been not only in cases where equity happened also to grant an injunction but also in cases where no injunction was issued. This doctrine was announced by the Supreme Court in Burdell v. Denig,1 in which case Mr. Justice Miller delivering the opinion of the court said: "In cases where profits are the proper measure, it

(1) 92 U. S. 720.

Vol. 10-No. 4.

ought to make, which govern; not the profits which the plaintiff can show he might have made. Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly in cases in equity, and is based upon the idea that the infringer shall be converted into a trustee as to these profits for the owner of the patent which he infringes." Mr. Justice Clifford, also, in delivering the opinion of the Supreme Court in the case of Birdsall v. Coolidge, said: "Controversies and cases arising under the patent laws are originally cognizable as well in equity as in law, by the circuit courts or by any district court having circuit powers. Prior to the passage of the act of the 8th of July, 1870, two remedies were open to the owner of a patent whose rights had been infringed, and he had his election between the two. He might proceed in equity and recover the gains and profits which the infringer had made by the unlawful use of his invention, the infringer in such suit being regarded as a trustee of the owner of the patent as respects such gains and profits; or the owner of the patent might sue at law, in which case he would be entitled to recover as damages compensation for the pecuniary injury he suffered by the infringement, without regard to the question whether the defendant had gained or lost by his unlawful acts." The judge further said that the above has been modified by the act of 1870, only to the extent of allowing the complainant to recover damages in addition to profits in certain cases in equity, the profits, however, being recoverable precisely as they were prior to 1870.

The same doctrine was applied and acted upon in the case of Woodworth v. Livingston, decided by Mr. Justice Woodbury in the District of Massachusetts in 1849. No reg

ular reports of Mr. Justice Woodbury's decisions for that year were ever published, but the case was appealed to the Supreme Court, which sent the case back with directions to enter a decree for the actual gains and profits of defendants. In Goodyear v. Rubber Company, the bill was filed to recover the profits derived by the defendant from its infringement of the Goodyear patents, all of (2) 93 U. S. 68. (3) 2 Fisher, 499.

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4

5

which expired June 15th, 1865. Mr. Justice Clifford entered an interlocutory decree in November, 1864, but granted no injunction. In Seymour v. Marsh, the bill was filed to recover profits derived by the defendants from their infringement of three patents on harvesters. The patents had all expired before the hearing in the court below, and accordingly the court said: "The complainant's patents having expired, they can have a decree for an account only. To this they are entitled, and it will be accordingly entered." The decree was affirmed on appeal. In City of Elizabeth v. American Nicholson Pavement Company, Mr. Justice Bradley, delivering the opinion of the court, said: "Damages are not sought, or at least are not recoverable in this suit. Profits only as such can be recovered therein." The same questions were substantially presented on demurrer in the unreported case of Sayles v. Dubuque & Sioux City Railroad Company, in October, 1877, before Dillon and Love, JJ., when the following opinion was rendered: "Although the original and extended term of the letters-patent had expired before the suit was brought, we think the bill can be maintained in equity on the ground that it seeks a discovery and accounting for profits made by the defendants' use of the plaintiff's property, which profits, if not trust-moneys, strictly are of that nature, and necessarily require an investigation which a court of law is not so competent to make as a court of equity." The question also arose in the Eastern District of Tennessee, in 1877, in the case of Vaughn v. East Tennessee, Virginia & Georgia Railroad Company. Brown, J., overruled the demurrer and rendered an opinion which has been reported.' The same question again arose in the Middle District of Alabama in 1877, on demurrer to the bill of Vaughn v. South and North Alabama Railroad Company, and the demurrer was overruled by Mr. Justice Bradley. The question next appeared in the Northern District of Georgia, in the case of Woods v. Wallace, and was again decided in favor of the jurisdiction by Woods, J., in October, 1877. The question

(4) 6 Fisher, 115.

(5) 97 U. S. 348.

(6) 97 U. S. 126.

(7) 9 Ch. L. N. 255, 1877.

was next brought before the United States Circuit Court for the Eastern District of South Carolina in May, 1878, in the case of Sayles v. South Carolina Railroad Company. Bond, J., there sustained the jurisdiction of equity by overruling the demurrer. In October, 1878, upon the same question, Mr. Justice Harlan on demurrers to three bills then pending in the Northern District of Illinois, delivered the following opinion: "The argument of the counsel for the defendants was put with very great force. I need not intimate what might have been my conclusion of the question were it new, as I am convinced that it is settled law, determined by the weight of authority, that independent of those cases where the account may be had on the ground of the injunction, the jurisdiction is now entertained in the chancery court, on the ground that the party violating the patent is a trustee, and that he holds whatever profits he has made in trust for the patentee." In June, 1879, the question was once more argued before Mr. Justice Miller, in the District of Kansas, in the case of Stevens v. Kansas Pacific Railway Company, when the court sustained the jurisdiction of equity.

It has been contended that it has been the settled law in England that the jurisdiction of equity is dependent solely on an injunction. With one exception, the English authorities cited, all hold that if for any reason the injunction is not actually granted there can be no account. In the exceptional case it was held that by virtue of an act passed in 1858, equity might award damages without an injunction, provided the court had jurisdiction to grant an injunction when the suit had commenced. The next year, however, it was expressly decided that the act in question had no such scope, and that the rule continued as before. In the cases noted below no injunction was granted, but in each of them an account of the infringers profits was decreed."

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(8) 35 Beav. 561; 35 L. J. Pt. 1,226.

(9) Goodyear v. Rubber Co., per Mr. Justice Clifford, 2 Fisher, 449, (1864.) Affirmed by the Supreme Court, 9 Wall. 804 (1869); Seymour v. Marsh, per McKennan, J., 6 Fish. 115, (1872), affirmed by the Supreme Court, 97 U. S. (1878); Emigh v. Railroad Co., per Drummond, J., 2 Fish. 387 (1863); Sayles v. Railroad Co., per Drummond, J., 4 Fish. 584 (1871); Hendrie v. Sayles, 98 U. S. 546 (1879.)

CONTRACTS BY LETTER.

The case of Household Fire Insurance Company v. Grant, 27 W. R. 858, L. R. 4 Ex. D. 216, [9 Cent. L. J. 271,] raised a point of great importance with regard to the principle involved. Somewhat similar questions have at various times come before the courts, and we doubt whether the law on the subject can even now be considered as definitely settled, the more so that Bramwell, L. J., dissented from the opinion of the court. We must confess to entertaining a very strong opinion that, whatever the law may be, the common sense of the matter is clear, and that the view expressed by Bramwell, L. J., is consistent with reason and justice. The majority of the court (Baggallay and Thesiger, L. JJ.) seem to have considered the matter concluded by authority.

The point was briefly this: The defendant applied for shares in the plaintiff company. The company allotted the shares to the defendant and duly addressed to him and posted a letter containing the notice of allotment, but the letter never was received by him. It was held by the majority of the Court of Appeal that the defendant was a shareholder, overruling British and American Telegraph Company v. Colson, L. R. 6 Ex. 108. The case which was considered to be a conclusiv e authority on the point was Dunlop v. Higgins, 1 H. L. C. 381. There has been a good deal of discussion in this class of cases as to when the contract, if any, is concluded, and at what period the aggregatio mentium is complete. It has been said if the contract is not complete upon the letter accepting the offer being dispatched, when is it complete? If knowledge by the offerer of the ac eeptance of the offer is necessary to complete the contract, it would follow that knowledge by the acceptor of the fact that the acceptance has been communicated to the offerer may be necessary, and so on ad infinitum, so that there never can be an aggregatio mentium, the parties being apart and not being capable of simultaneous expression of agreement. Such is the argument employed in Dunlop v. Higgins.

We can not help thinking that under cover of loose metaphysical expressions and ideas such as “aggregatio mentium,” a good deal of unnecessary perplexity is sometimes introduced. It seems to us that there may be a lurking fallacy in the notion that an aggregatio mentium necessarily constitutes a contract in the legal sense of the term, arising from an absence of distinct idea of the meaning in which the term aggregatio mentium is used. It is generally necessary to a contract, no doubt, but "contract" as used in this relation means obligation binding in law. There is sometimes a contract without any aggregatio mentium at all. One party may not have meant the same as the other all along; and yet there may be a contract. The real question is: When does the contract become legally obligatory on the party sought to be charged?—not till then does it become a contract in any efficient legal sense of the term. It seems to us possible that the aggregatio mentium may in some cases be antecedent to the

time when the contract becomes binding on the offerer, though, of course, this depends somewhat on what is meant by aggregatio mentium. We should say the only practical meaning of the term is assent of two minds to the same terms. Of course, if it is merely the Latin for "contract," the whole question is begged.

In this point of view we do not see any such very great difficulty as has been suggested in supposing that the contract by the offerer does not arise until the acceptance has been communicated to him. The party accepting knows that he has accepted and has taken steps to communicate his acceptance; it may be said that, therefore, he ought to be bound unless and until he ascertains that the mode of communication he took failed; he is not entitled to say that there is no contract until the other party has received the communication. He knows of the aggregatio mentium; the other party by hypothesis does not. The question really seems to resolve itself into this: Can a party be bound by a contract of which he does not know, and ex hypothesi may be unable to know, the existence? In other words, can a man have promised in the legal sense without knowing that he has promised? If it be correct that the contract is completely binding directly the letter of acceptance is despatched, then, assuming some cause that should absolutely prevent the delivery of the letter, the contract, nevertheless, is good. One can not understand any principle on which a person ignorant of the existence of the aggregatio mentium is to be affected by the same legal obligations as if he knew of it, except on the ground of laches on his part or that of his agent.

And here comes in a very remarkable point in the discussion. There seems to have been some such train of reasoning present to the minds of the judges in the various cases; and those who maintain the view of the majority in the case we are discussing seek to make the post office the agent of the party to whom the letter is sent. We can not understand this as a plain matter of fact. It is the plain truth that the post office is the agent of the sender, so far as it is agent of either party, and it seems to us the extreme of far-fetched theory to treat the postman as a messenger sent by the offerer of the proposal to bring back the answer. There was some talk in Dunlop v. Higgins of the usage of trade, and of implied authority to return an answer by post when the offerer must have contemplated an answer by post. With all respect for the eminent persons who used these expressions, if we must call a spade a spade, we should not call them good sense. People communicate by post because it is convenient in all the relations of life. There is no usage of trade that if a person replies by post it shall be sufficient acceptance, nor is there any implied authority in the matter. Any implied authority in the sense of the term "implied" for which we have always streuously contended-viz., any such authority actually in the necessary contemplation of the parties' minds-there clearly is not. Can any sane person suppose that a person writing for an allotment of shares really means in his own mind