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VIRGINIA
LAW REVIEW
Vol. XI. FEBRUARY, 1925 No. 4
THE EXTENT OF THE CROSS-EXAMINATION TO
WHICH AN ACCUSED MAY BE SUBJECTED -
WHEN HE OFFERS HIMSELF AS A
WITNESS IN HIS OWN
BEHALF.
A 'T FIRST impression this question would not seem to be of
sufficient importance to be made the subject of an article
for the Vircryia Law Revuew, but in looking into it carefully,
it will be found that it has been given a prominent place in great
numbers of opinions, by state and Federal courts, as well as in
works on evidence. For example, Professor Wigmore, in his
great work on Evidence,! devotes 115 pages to a discussion, in its
various aspects, of the “Privilege against Self-Crimination,” and
in this treatise the student may find a complete history of the
origin and growth of the principle that protects witnesses in all
cases, as well as persons accused of crime, from béing compelled
to give incriminating evidence against themselves.
Doubtless the reason for the importance that has been assigned
to it is found in the fact that in the Constitution of the United
States, as well as in virtually all of the state constitutions,? there
will be found a provision in substance that the accused shall not
be compelled to give evidence against himself, and this clause ap-
pears in the earliest constitution adopted by the states, thus:
In the first Constitution of Virginia, adopted by a convention
that met at Williamsburg, on May 6, 1776, it was declared,® that
a person accused of crime was entitled to certain rights and priv-
+4 Wiemorn, Evinince, 3069, et seq.
?In 2 CuampertAyny, Tue Movern Law or Evingnce, it is said in a
note to § 1543b that the constitutions of Georgia, Iowa, and New Jersey are
the only exceptions, *
® Va. Const. 1776, § 8.
250 VIRGINIA LAW REVIEW
ileges for his protection, among them that he could not be “com-
pelled to give evidence against himself.”
In the first Constitution adopted by Massachusetts in 1780, it
was provided,‘ that no person held to answer “for any crime or
offense”. could be “compelled to accuse or furnish evidence
against himself,”
In the first Constitution of Maryland, adopted on November
11, 1776, it was provided: ®
“That no man ought to be compelled to give evidence against
shimself in a common court of law, or any other court.”
In the first Constitution of New Hampshire, adopted in 1784,
it was provided,® that no person accused of crime shall be:
“Compelled to accuse or furnish evidence against hiniself.”
In the Constitution adopted by the State of Pennsylvania, on
September 28, 1776, it was provided," that the accused could not
be “compelled to give evidence against himself,”
In the Constitution of North Carolina, adopted on November
12, 1776, it was provided,® that the accused “shall not be com-
pelled to give evidence against himself,”
Similar provisions were made in the first constitutions of other
states, but the ones mentioned are sufficient to illustrate the great
importance that was attached to this privilege by the inhabitants
of this country, when the original states first attempted to set
up their own form of government.
And in the Fifth Amendment to the Constitution of the United
States, adopted in 1791, it was provided,® that no person:
“Shall be compelled in any criminal case to be a witness
against himself.”
So that the protecting hand of the fundamental law of the sev-
eral states, as well as the United States, is thrown around every
person put on his trial, charged with crime, and he is saved from
being compelled, against his will, or over his objection, to give,
“ Mass, Const. 1780, § 12.
° Md. Const, 1776, § 20.
°N. HL Const, 1784, § 15.
* Pa, Const. 1776, § 9.
°'N, C, Const, 1776, § 7.
° U.S. Const. Amend. V, § 5.
CROSS-EXAMINATION OF ACCUSED 251
in the course of the trial, any evidence that might secure, or have
a tendency to secure, his conviction for the offense he is charged
with.
‘The reason why the early fathers put these protecting clauses
in these organic laws, is to be found in the practice that had pre-
vailed in England, where, long before the setting up of state
governments in these United States, or the establishment of the
Federal government, persons accused of crime, and especially po-
litical crime, were often compelled, by cruel punishments, to give
such evidence against themselves as would bring about their
conviction.
In the case of Brown vy. Walker,!° Mr. Justice Brown, in de-
livering the opinion of the court, took occasion to make some ob-
servations on the state of the English law, when, many years ago,
it allowed the interrogation of accused persons, and, in noticing
the reasons why the English courts abolished this practice, said:
“While the admissions or confessions of the prisoner, when
voluntarily and freely made, have always ranked high in the
scale of incriminating evidence, if, an accused person be
asked to explain his apparent connection with a crime un-
der investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation
to press the witness unduly, to browbeat him if he be timid
or reluctant, to push him into a corner, and to entrap him
into fatal contradictions, which is so painfully evident in
many of the earlier state trials, notably in those of Sir Nich-
olas ‘Throckmorton, and Udal, the Puritan minister, made
the system so odious as to give rise to a demand for its
total abolition. The change in the English criminal pro-
cedure in that particular seems to be founded upon no stat-
ute and no judicial opinion, but upon a general and silent
acquiescence of the courts, in a popular demand. But, how-
ever adopted, it has become firmly embedded in English, as
well as in American, jurisprudence. So deeply did the
iniquities of the ancient system impress themselves upon
the minds of the American colonists that the states, with
one accord, made a denial of the right to question an ac-
cused person a part of their fundamental law, so that a
maxim which in England was a mere rule of evidence be-
came clothed in this country with the impregnability of a
constitutional enactment.”
“461 U. 8. 591, 40 L, Ba. 819.
252 VIRGINIA LAW REVIEW
It will be observed that these constitutional provisions do not
forbid or prohibit an.accused from giving evidence against him-
self. -‘I'hey only provide that he cannot be compelled to do so,
and_so an accused may voluntarily elect to waive the privilege
given him not to testify and take the witness stand in his own
behalf.
In view, however, of the common law rule that formerly pre-
vailed in the United States, that a person who had a direct and
certain interest in a civil suit, or a party to a civil action or a
criminal proceeding, was disqualified from testifying in his own
behalf, it was found necessary, or at least thought advisable, to
remove this disqualification by statute, and accordingly, in prac-
tically all the states, the disability of a mere witness, on account
of interest, has been removed, and a party to a civil proceeding
may now, subject to some exceptions, growing out of the death
or disability of the adverse party, that I will not stop to notice,
give evidence in his own behalf, and likewise in criminal cases,
but, as only the statutes removing the disqualification in crim-
inal cases are here pertinent, they alone will be noticed.
Tn the Federal courts the competency of a witness in a crimi-
nal prosecution or proceeding to testify in his own behalf, was
authorized by Congress in what is now section 1465 of. the Com-
piled Statutes of the United States, providing that:
“Tn the trial of all indictments, informations, complaints and
other proceedings against persons charged with the com-
mission of crimes, offenses and misdemeanors, in the United
State courts, Territorial courts, and courts-martial, and
courts of inquiry, * * * the person so charged shall,
at his own request but not otherwise, bea competent wit-
ness. And his failure to make such a request shall not cre-
ate any presumption against him.”
In section 1467 it is further provided that:
No testimony given by a witness before either House, or be-
fore any committee of either House or Congress, shall be
used as evidence in any criminal proceeding against him in
any court, except in a prosecution for perjury, committed in
giving such testimony. But an official paper or record pro-
duced by him is not within the said privilege.”
In Kentucky a defendant in a criminal prosecution was not
reap erin cnce a
~ CROSS-EXAMINATION OF ACCUSED 253
permitted to ‘testify in his own behalf until 1886, when it was
enacted :
“That in all criminal and penal prosecutions now pending or
hereafter instituted in any of the courts of this Common-
wealth the defendant on trial, on his own request, shall be
allowed to testify in his own behalf, but his failure to do so
shall not be commented upon, or be allowed to create any
presumption against him or her. * * * ‘The defendant
requesting that he be allowed to testify shall not be allowed*
to testify in chief after any other witness has testified for
the defense.”
T have not had opportunity to examine the statutes of the
other states, treating of this subject, but it may be presumed that
generally they merely remove the disability of a defendant to tes-
tify in his own behalf, although in some of the states the en-
abling statutes contain certain qualifications.
In view of the constitutional prohibition, of course, no valid
statute could be enacted that would deprive the accused of the
right to remain silent, or the right to decline to testify, but when
he has waived this protection and voluntarily offers himself as
a witness, there would seem to be no objection to regulating, by
statute, the extent to which he might be subjected to cross-exam-
ination, or the limits that might be imposed on a cross-examina-
tion, Generally speaking, however, the allowable extent of a
cross-examination, and the limitations that may be placed on it,
have been determined by the courts without statutory direction.
As a result of the number of opinions by different courts, that
have considered the subject, it is only reasonable and natural that
there should be found some diversity of opinion in the decisions,
as to the limits within which the cross-examination of the de-
fendant, in a criminal prosecution, should he confined, when he
offers himself as a witness in his own behalf. But in the rea-
sonable bounds of this article, it would not be possible to set
forth, in defail, the views of the forty-eight different state courts,
and so it will be confined to a few decisions that illustrate the
current of authority.
Before taking up the views of the state courts of last resort, it
seems appropriate to notice the ruling of the Supreme Court
of the United States on this question.
254 VIRGINIA LAW REVIEW
In Fitepatrick v. United States," Fitzpatrick, Brooks and Cor-
bett were charged with the murder of Samuel Roberts. On the
separate trial of Fitzpatrick, he took the witness stand in his
own behalf, and was asked by his counsel only one question, and
that related: to his whereabouts upon the night of the murder.
In his answer to this question, he denied any connection with the
crime. On his cross-examination by the government he was
«asked, over objection, a number of questions, and made answers
that tended to show that he had a part in the murder. In con-
sidering the admissibility of this evidence on cross-examination,
the court said:
“Where an accused party waives his constitutional privilege of
silence, takes the stand in his own behalf and makes his own
statement, it is clear that the prosecution has a right to cross-
examine upon such statement with the same latitude as
would be exercised in the case of an ordinary witness, as to
the circumstances connecting him with the alleged crime.
While no inference of guilt can be drawn from his refusal
to avail himself of the privilege of testifying, he has no
riglit to set forth to the jury all the facts which tend in his
favor without laying himself open to a cross-examination
upon those facts. The witness having sworn to an alibi, it
was perfectly competent for the government to cross-exam-
ine him as to every fact which had a bearing upon his where-
abouts upon the night of the murder, and as to what he did
and the persons with whom he associated that night. In-
deed, we know of no reason why an accused person. who
takes the stand as a witness should not be subject to cross-
examination as other witnesses are.
“While the court would probably have no power of compell-
ing an answer to any question, a refusal to answer a proper
question put upon cross-examination has been held to be a
proper subject of comment to the jury.”
In Sawyer v. United States, the defendant voluntarily tes-
tified in his own behalf, and on his cross-examination he was in-
quired of touching matters in regard to which nothing had been
said by the witness in his examination in chief,
In considering the admissibility of the evidence introduced in
* 178 U. S, 304, 44 L. Ed. 1078.
* 202 U. S. 150, 50 1. Ed. 972.
SS
(
CROSS-EXAMINATION OF ACCUSED 255
this cross-examination, the court, after quoting with approval the
Fitzpatrick case, said:
“Tt has been held in this court that a prisoner who takes the
stand in his own behalf waives his constitutional privilege
of silence, and that the prosecution has the right to cross-
examine him upon his evidence in chief with the same lati-
tude as would be exercised in the case of an ordinary wit-
ness, as to the circumstances connecting him with the crime.”
In Powers v. United States,*® the court again laid down the
rule that:
“There is some difference of opinion expressed in the authori-
ties, but the rule recognized in this court is that a defendant
who voluntarily takes the stand in his own behalf, thereby
waiving his privilege, may be subjected to a cross-examina-
tion concerning his statement. ‘Assuming the position of a
witness, he is entitled to all its rights and protection, and is
subject to all its criticisms and burdens’; and may be fully
cross-examined as to the testimony voluntarily given, * * *
“Tf the witness himself elects to waive his privilege, as he may
doubtless do, since the privilege is for his protection, and
not for that of other parties, and discloses his criminal con-
nections, he is not permitted to stop, but must go on and
make a full disclosure.”
In this connection it may be noticed that the Supreme Court
of the United States, in Ex parte S‘pies,"4 a case taken to the Su-
preme Court on a writ of, error from the Supreme Court of Tlli-
nois, said that when the defendant voluntarily offered himself as
a witness in his behalf: $
“He became bound to submit to a proper cross-examination
under the law and practice in the jurisdiction where he was
being tried. * * * Whether a cross-examination must
be confined to matters pertinent to the testimony in chief,
or may be extended to the matters in issue, is certainly a
question of State law, as administered in the courts of the
State, and not of Federal law.”
The rule laid down by the Supreme Court of the United States
is generally followed by the state courts, except where the mat-
* 223 U. S. 303, 56 L. Ed. 448,
“123 U.S. 131, 31 L. Ed. 80.
256 VIRGINIA LAW REVIEW
ter is regulated by statute. ‘Thus, in Kentucky, the Court of Ap-
peals said, in Burdette v. Commonwealth : **
“Tt as been settled by this court that when a defendant in a
criminal prosecution voluntarily becomes a witness in his
own behalf, he is to be treated in the same way as any other
witness, and his testimony subjected to the same test by
cross-examination, impeachment or otherwise, as is the tes-
timony of another called as a witness.”
In Saylor v. Commonwealth,® the court again said, in con-
sidering the effect of the privilege of an accused not to be com-
pelled to give evidence against himself, that:
“Under the bill of rights he cannot be compelled ‘to give evi-
dence against himself,’ but when he becomes a witness for
himself in a criminal prosecution he waives that right so far
as the charge under investigation is concerned.”
In State v. Witham, the court said:
“74 the person accused of crime takes the benefit of his own
swearing, he takes the risk. * ok * When the accused
volunteers to testify in his own behalf at all, tipon the issue,
whether the alleged crime has been committed or not, hie vol-
unteers to testify in full, Tis oath in stich case requires
it. Lf he waives the constitutional privilege at all, he waives
it all. He cannot retire under shelter when danger comes.
The door opened by him is shut against retreat.
In People v. DuPounce}® the court, in considering the extent
to which a defendant, in a criminal case, may be cross-examined,
said that:
“The overwhelming weight of authority supports the proposi-
tion, contended for by the people, that he thereby waives his
constitutional right to refuse to answer any question mate-
rial to the case, which would, in the case of any other wit-
ness, be legitimate cross-examination.””
In State v. Ober, the court, in considering the question at
hand, said:
“The respondent, by electing to testify in his own favor,
* 93 Ky. 76.
9 97 Ky. 184.
* 72 Me, 531.
38 133 Mich. 1, 103 Am, St. Rep. 435,
3 82 N, H, 459, 13 Am. Rep, 88.
CROSS-EXAMINATION OF ACCUSED 257
waived his constitutional privilege. If he refuses to testify
at all, the statute protects him from adverse comment or in-
ference; but, if, he avails himself of the statute, he waives
the constitutional protection in his favor, and subjects him-
self to the peril of being examined as to any and every mat-
ter pertinent to the issue.”
And further quoted with approval the opinion of Chief Justice
Church, in Connor v. People,?° in which he said:
“That, by consenting to be a witness in his own behalf, under
the Statute, the accused subjected himself to the same rules,
and was called upon to submit to the same tests, which could
by law be applied to the other witnesses; in other words, if
he availed himself of the privilege of-the act, he assumed
the burdens necessarily incident to the position. ‘The pro-
hibition in the constitution is against compelling an accused
person to become a witness against himself. If he con-
sents to become a witness in the case voluntarily, and with-
out any compulsion, it would seem to follow that he oc-
cupies, for the time being, the position of a witness, with
all its rights and privileges, and subject to all its duties and
obligations. If he gives evidence which bears against him-
self, it results from his voluntary act of becoming a wit-
ness, and not from compulsion.”
The foregoing authorities sufficiently illustrate the rule that
when the defendant takes the witness stand in his own behalf it
is allowable to subject him to the same character of cross-exami-
nation that any other witness might be subjected to, and this
cross-examination need not be confined to matters that were
brought out in the examination in chief, but may extend to other
relevant and pertinent facts and circumstances.
However, in some states, it appears that statutes on the sub-
ject of the cross-examination of a defendant have been enacted,
and the limits to which the cross-examination may go are fixed
and defined by these statutes,?* for example, the California stat-
ute provides that when the accused offers:
“Himself as a witness, he may be cross-examined by the coun-
sel for the People as to all matters about which he was ex-
amined in chief.”
™ 50 N. ¥. 240.,
*\ Citations to some of these statutes may be found in, the note to State
v, Tice (N. Y.), 15 LR. A, 669,
258 VIRGINIA LAW REVIEW
‘She Missouri statute provides that the accused :
“Shall be liable to cross-examination as to any matter referred
to in his examination in chief.”
‘The Oregon statute provides that the:
“Accused when offering his testimony as a witness in his own
behalf, shall be deemed to have given to the prosecution a
right to cross-examination upon all facts to which he has
testified, tending to his conviction or acquittal.”
It further appears from the note,* that in other states there
are differently worded statutes, relating to the cross-examination
ofa defendant, but in states where there are no statutes on the sub-
ject, the prevailing rule is that the defendant may, as shown in
the above referred to cases, be cross-examined with the same
latitude as any other witness.
The question of the right to inquire of the defendant, in his
cross-examination, as to the commission of, other prior crimes or
offenses, or his arrest therefor, is the subject of extensive notes
to the cases of Morrison v. T'exas,2? and Marshall v., Alabama,"
and the general rule is that it is not permissible upon cross-exam-
ination to ask the accused as to prior arrests or prior convictions
for other offenses, distinct from and unrelated to the one under
investigation, although in some jurisdictions this course of cross-
examination is allowable for the purpose of affecting the credi-
bility of the defendant as a witness, and impeaching his moral
character.?*
In short, whether the defendant can be subjected to a cross-
examination of this nature, depends on the rule prevailing in the
state where the trial is had, and if it is allowable to ask any wit-
ness a question of this nature it will be permissible to ask a de-
fendant such a: question, because the defendant, ‘when he offers
himself as a witness, occupies the same attitude as any other
witness, and may be subjected to the same’ character of cross-
examination.
™ Supra, note 21,
»6 AL. R. 1607.
#25 A, I. R. 338.
® Cases illustrating this practice may be found in State v, Werner, 144
La, 380; VanCleave v. State, 150 Ind, 273; State v, Thomas, 98 N. C, 634;
aoe een ee acer ee waa
CROSS-EXAMINATION OF ACCUSED 259
There should, however, be kept in mind, in applying the rule
that only the same latitude will be allowed in the cross-examina-
tion of the defendant that is allowed in the cross-examination of
other witnesses, the further rule that when the defendant offers
himself as a witness, he may be examined as to other crimes
than the one under investigation, if the other crimes committed
by him are so related to, or connected with, the one for which
he is om trial that they may be treated as relevant to it.
For example, a defendant who is heing tried for murder, may
be inquired of concerning a robbery, or burglary, that he was
guilty of, in connection with the murder, and so a defendant who
is being tried for embezzlement, or counterfeiting, or falsifying
records, may be inquired of concerning other counterfeiting, or
embezzlements or falsification of records that have a tendency to
show a course of conduct or habit on his part similar to the act
for which he is being tried.?*
‘The reason for this distinction between the privilege of an or-
dinary witness in a criminal case, and the defendant, is found
in the fact that the ordinary witness is not on trial, he could be
compelled to testify, he has waived no privilege in offering him-
self as a witness, and therefore brings himself directly within
the rule everywhere obtaining, that an ordinary witness can re-
fuse to answer any question that would incriminate him.
In the note to Evans v. O’Connor,?? the accurate and learned
Judge Freeman, recognized as the most capable and corfect an-
notator the profession has produced, said, in pointing out the
difference in the position of, a defendant and an ordinary wit-
ness, that:
“The general rule may be stated to be that where a defendant
takes the stand. as a witness in his own behalf he waives
his right to reftise to answer questions which tend to in-
criminate him concerning all matters which were touched
upon in his direct examination, and upon all other matters
which are so related to his direct examination as to come
within the proper limits of cross-examination, In other
words, the defendant loses his character as a party, becomes
a mere witness, and may be examined as fully as any other
witness. If he makes any statement respecting the transac-
* Unperuin, CriMinat Evivence, 107.
7 70 Am. St. Rep. 316. at 332.
260 VIRGINIA LAW REVIEW
tion, he may be required to state all: Samuel v. People, 164
Ill. 379; Coburn v. Odell; 30 N. H. 540, and cases previ-
ously cited. He may be examined and must answer con-
cerning all matters which are relevant to the case, whether
testified to on the direct examination or not; * * *
“An ordinary witness occupies the same position as a defend-
ant in a criminal case. Such a witness is not bound to tes-
tify concerning any fact which may tend to criminate him.
But if he voluntarily answers in part, he waives his privi-
- lege, and may be fully cross-examined; * * * The
only difference between the two is this, that an ordinary wit-
ness has a right to stop when he is first questioned in re-
spect to facts which tend to criminate him, while a defend-
ant in a criminal case knows in advance that such questions
are to be put to him, and that he is to testify as to his guilt
or innocence, and he waives his constitutional protection in
advance. * * * ‘There seems to be this difference be-
tween a defendant witness and an ordinary witness in
testifying concerning collateral offenses. In the case of a
defendant witness, as we have seen, he may be required to
testify on cross-examination as to any facts relevant and ma-
terial to the main issue in the case, even though such tes-
timony tends to show that he is guilty of another crime, As
to such testimony, material and relevant to, the main issue
in the case, he has waived his privilege by taking the stand
in his own behalf.
“With an ordinary witness this is not the case, the principal
case shows. An ordinary witness does not, by taking the
stand, agree to testify as to everything pertinent to the is-
sue, and he has not in the slightest degree waived his priv-
ilege of refusing to testify, however material to the issues
in the case they may be. And a waiver of his privilege as
to one criminating act constitutes no waiver of his privilege
as to other unconnected acts, even though the latter may
be material to the issue. Such is the rule of the principal
case and it is clearly correct: * * *
“While examination as to collateral crimes is as a rule proper
to affect credibility, the witness may, nevertheless, claim his
privilege if his answer will tend to criminate him. A de-
fendant witness does not place himself’ in any worse posi-
tion than any other witness by testifying in his own behalf,
and any ordinary witness would clearly have the right to re-
fuse to answer criminating questions. Of course, as to the
particular crime for which he is on trial, he has waived. his
privilege by becoming a witness, but this waiver does not
CROSS-EXAMINATION OF ACCUSED 261
extend to other and collateral crimes, unless, as we have
seen, they are relevant to the crime with which he is charged.”
The chief dissenter from the general rule laid down in the
authorities cited, is the distinguished jurist and law writer, Judge
Cooley, who says in his well known and highly esteemed work on
Constitutional Limitations,®® in speaking of, the limitation on the
right to cross-examine a defendant in a criminal prosecution, and
the statutes permitting him to testify, that:
“These statutes, however, cannot be so construed as to at-
thorize compulsory process against an accused to compel
him to disclose more than he chooses; they do not so far
change the old system as to establish an inquisitorial process
for obtaining evidence; they confer a privilege, which the
defendant may use at his option. If he does not choose to
avail himself of it, unfavorable inferences are not to be
drawn to his prejudice from that circumstance; and if he
does testify, he is at liberty to stop at any point he chooses,
and it must be left to the jury to give a statement, which he
declines to make a full one, such weight as, under the cir-
cumstances, they think it entitled to; otherwise the statute
must have set aside and overruled the constitutional maxim
which protects an accused party against being compelled to
testify against himself, and the statutory privilege becomes
a snare and a danger.”
It must be admitted that any rule or principle in constitutional
law, announced by Judge Cooley, is entitled to weighty consid-
eration, but fortunately for the correct administration of justice,
the pronouncement of Cooley that the defendant, when he offers
himself as a witness, is at liberty to stop at any point he chooses,
and refuse to answer pertinent and relevant questions that might
incriminate him, has not been approved by the courts.
With great respect for Judge Cooley’s opinion, it is difficult to
understand how he could reach the conclusion that a defendant
who voluntarily elects to waive the immunity and protection af-
forded him, and takes the witness stand in his own behalf, should
be permitted to testify to such facts as would tend to establish his
innocence of the crime charged, and be privileged to refuse to
answer pertinent and relevant questions. relating to, or connected
with the testimony he had given, or that might prove his guilt.
* Coorry, Constrruttonat, Limrravtons (6th Ed.), 384.
262 VIRGINIA LAW REVIEW
A rule like this would seem to be
i a travesty justi
wena d ‘Y on justice. It
give the defendant an unfair and unreasonable advantage
that
bas ne should not have. It would extend far beyond its pur-
er dl nine the constitutional immunity afforded, aa
ould serve to aid the defendant ‘
‘ to esca i
Ae parades escape the punishment that
The ituti ‘
fedin safeguard was designed to protect the de-
on A 0 tong as he chooses to shelter under it, not to aid him
Me vol luntarily clects to withdraw from its security. He
be inrrender such part of his privilege as suits his interest
‘ i to the remainder. He must keep all or lose all ,
5 igl iti é
we , e light of the authorities, and according to sound princi
4 seems to me clear that wh: '
en the defend; i
elects to take the wi i tet, toe the nee
itness stand in his owr
tal n behalf, for tk '
soe | ; t the pur-
ne el and does give, evidence that might exonevate fi
ie: ay pe should not be confined to matter testified to in
Peat se sl eae the right, in cross-examination when not
a statute, to ask and com} i .
ipel him to answer ever rti
nent a i i th ‘
ioe on pe ovat question that might show his guilt of the erin
charged, however incriminating hi sie
; : ig his answers may be:
one v ty be; and
“— examination should further be allowed to extend to an .
es the commission of other crimes committed by the is.
en lant, so related to or connected with the crime under inv ie
eton as fo be a part of it, or that show motive a
sion, or r i
One est Be necessary to establish his guilty knowledge.
is, however, the cross-examinatio; :
¢ this, | Fi ination should b.
ject i :
— the limitations imposed on the cross-examination of oa
sses, in the jurisdiction where the case is being tried “
John D. Carroll,
for its commis-
Franxvons, Ky,
THE LAWYER AS OFFICER OF COURT 263
HE LAWYER AS AN OFFICER OF THE COURT.
HE lawyer is both theoretically and actually an officer of the
court, This has been recognized in principle throughout
the history of the profession. In ancient Rome the advocatus,
when called upon by the pretor to assist in the cause of.a client,
was solemnly admonished ‘to avoid artifice and citcumlocu-
tion.” +
The principle was recognized also among practically all of the
European nations of the Middle Ages. In 1221 Frederick the
Second, of Germany, prescribed the following oath for advo-
cates: ®
“We will that the advocates to be appointed, as well in our
court as before the justices and bailiffs of the provinces, be-
fore entering upon their offices, shall take their corporal
oath on the Gospels, that the parties whose cause they have
undertaken they will, with all good faith and truth, with-
out any tergiversation, succour ; nor will they allege anything
against their sound conscience; nor will they undertake des-
perate causes; and, should they have been induced, by mis-
representation and the colouring of the party to undertake a
cause which, in the progress of the suit, shall appear to
them, in fact or law, unjust, they will forthwith abandon it.
Liberty is not to be granted to the abandoned party to have
recourse to another advocate, ‘They shall also swear that,
in the progress of the suit, they will not require an addi-
tional fee, nor on the part of the suit enter into any com-
pact; which oath it shall not be sufficient for them to swear to
once only, but they shall renew it every year before the offi-
“cer of justice. And if any advocate shall attempt to contra~
vene the aforesaid form of oath in any cause, great or small,
he shall be removed from his office, with the brand of per-
petual infamy, and pay three pounds of the purest gold into
our treasury.”
Among the French, the office of advocate appears.to have ex-
isted from a very early date. ‘The body of laws enacted in 802,
+ Jostan H. Bewvon, Lawyer's Oar anp Orvice, 19,
2 Orns; Tu Orton, Navurs, anv History. By James Endell ‘Ty-
ler. (B.D. London: 1835, p. 300.) Also, Benton, Lawyer's OatH AND
Orricy, 19.
264 VIRGINIA LAW REVIEW
generally known as the Capitularies of Charlemagne, clearly
recognizes the profession of lawyers, and contains a provision to
the effect that “nobody should be admitted therein but men, mild,
pacific, fearing God, and loving justice, upon pain of elimina-
tion,” ®
An ordinance promulgated February 13, 1327, by Phillippe de
Valois, Regent of, France, provided that:
..“No advocate shall be permitted to plead if he has not taken
the oath, and if his name be not inscribed on the roll of ad-
vocates.””
In 1344 additional regulations, relating to the duties of advo-
cates, were enacted by the Parliament of Paris as. follows: 4
“Those advocates who are retained shall not be allowed to con-
tinue their practice unless they bind themselves by oath to
the following effect: to fulfill their duties with fidelity and
exactitude; ‘not to take charge of any causes which they
know to be unjust; that they will abstain from. false cita-
tions; that they will not seek to procure a postponement of
their causes by subterfuge, or malicious pretexts; that what-
ever may be the importance of a cause, they will not receive
more than thirty livres for their fee, or any-other kind of
gratuity over and above that sum, with liberty, however, to
take less; that they will lower their’ fees according to the
importance ‘of the cause and the circumstances of the par-
ties; and that they will make no treaty or arrangement with
their clients depending on the event of the trial.”
One of the most striking regulations relating to advocates in
former times is found in the Code of Christian V., of Denmark
and Norway, 1683, which provides as follows: 5
* Benton, Lawyer's Oata ann Oreres, 13,
-.* Romer’ Joxys, A History ov ving Frewcn Bar, Anctt ann Mopery,
100, 103. Other interesting regulations of advocacy among the French are
the following: A decree of the Council of Rouen, ‘in 1231, concerning the
gath of advocates; an ordinance promulgated, in 1274, by Philip ‘the Bold,
relating to the functions and fees of attorneys; and an edict of Francis L.,
1536, dealing with the official character and duties of advocates, and the short-
ening of trials. A specially interesting regulation is to he found among the
reform-canons adopted by the bishops of the province of ‘Tours in a coun-
il held at Chateau-Gontier, in 1231, Among other things, it was provided,
“Nor shall they (advocates) bother the Judge with objections, believing that
they will give in to them. They shall sustain the honor of the court, nor per-
petrate in court a falsehood.” Benvon, Lawyer's Oat AND Owrter, 15-21.
* Tue Dats Laws: Or van Cong or Currsitan THe Fora, Farra-
THE LAWYER AS OFFICER OF COURT 265
“ “Lawyers who are allowed to plead Causes, shall be Men of
Probity, Character, and known Repute.
“In Cities shall be appointed such a Number of Lawyers as
are really requisite.
“No one shall be admitted as a Lawyer to act, who does not
take an oath before the Mayor and. Aldermen, that he will
undertake no Cause he knows to be bad, or iniquitous; that
he will avoid all Fraud in pleading, bringing Evidence, and
the like: ‘That he will abstain from all Cavils, Querks and
Chicanery; and never seek by Absence, Delays, or super-
fluous Exceptions, to procrastinate a Suit: ‘That he will
use all possible Brevity in transcribing Processes, Deeds,
Sentences, etc. That he will never encourage Discord, or
be the least Hindrance to Reconciliation: ‘That he will’ ex-
act no exorbitant Fees from the Poor, or others: And that
he will act honestly, and to the best of his Power, for all his
Clients, Of this Oath the Judges shall admonish the Law-
yers in dubious Cases, and if they think proper, require a
Renewal of it in the Court: And moreover, command them
to abstain from all Manner of Scurrility, and Abuse, in
their Pleadings, especially. where the process does not con-
cern the Fame of the Defendant.
“A Lawyer defective in this.his Duty’ shall be discarded, ren-
dered incapable of ever after pleading, and moreover pun-
ished in Proportion to his Offense,”
In England, while much concerning the origin of the profes-
sion is obscure, lawyers were recognized as an established order
as early as the reign of Kdward I (1272-1307), and their duties
and conduct regulated by the Statute Primer Westminster
(1275).° At that time, as now in England, the profession con-
sisted of two branches, then, known, respectively, as pleaders or
counters, corresponding to the modern English barrister; and
attorneys, corresponding to the present day solicitor.’ It should
be noted, also, in this connection, that the earliest regularly
licensed advocates in England were known as serjeants-at-law.
Serjeant-at-law was formerly the highest rank to which an Eng-
lish advocate could attain, and although ‘the class itself has ceased
rorty TRaNsiamp or Me Us or tm Eworse INHAnrrants or any Dan-
isn Servaiments iy Amertca (London, 1756), 58, 59,
°3 Edward I, St. I West, ¢. 29, “
"For origin and early history of advocacy in England, see 9 Va. Law
Ruy. 28-34. For distinction between barristers and solicitors, under the pres-
ent English practice, see Ropnrns, Awurtcan Apvocacy, ch, 1,
206 VIRGINIA LAW REVIEW
to exist, having been superseded by the King’s Counsel, its fun-
damental characteristics remain to the present time.
“The first persons regularly licensed to appear in the King’s
Courts were ‘serjeants,” although their full official title
seems to have been Servientes Domini Regis ad legem, that
is, ‘Servants at law of our Lord the King.’ Unlike all prior
advocates they were part of the court itself; were regularly
appointed by royal patent; were admitted only upon taking
an oath; had a monopoly of all practice, and were directly
amenable to the King as parts of his judicial system. ‘The
fundamental ideas involved in the creation of this class have
never been abandoned, and notwithstanding the class itself
by the name of ‘serjeants’ has ceased to exist, they are still
the distinguishing characteristics of the bar of all counties
where the common law prevails.” *
The earliest authentic forms of lawyers’ oaths in England are
those of the Serjeant-at-law and of the King’s Serjeant, and are
found. in an ancient Roll of Oaths compiled probably during the
reign of Queen, Elizabeth.? These ancient, oaths show. with
great exactness the nature of the advocate’s duties, and are as
follows: :
“King’s Serjeant: Ye shall Swear, ‘That well and truly ye
shall serve the King and his People, as one of his Serjeants
- of the Law, and truly council the King in His matters when
ye shall be called, and duly and truly minister the King’s
matters, after the Course of the Law, to your Cunning:
Ye shall take no wages nor Fee of any Man for any matter
when the King is Party against: the King; ye shall as duly
and hastily speed-such matters as any man shall have to do
against the King in the Law, as ye may lawfully do without
Delay or tarrying of the Party of his lawful process in that
that belongeth to you: Ye-shall be attendant to the King’s
matters when ye shall be called thereto: as God you help,
and by the contents of this Book.” 1°
“Serjeant at Law: Ye shall Swear, ‘That well and truly ye
shall serve the King’s People as one of the Serjeants at the
Law, and ye shall truly council them that ye be retained with
after your Cunning: And ye shall not defer, tract or delay
their Causes willingly, for Covetous of Money, or other
* Warverse, Lecat Exnics, 28.
° Buwron, Lawver’s Oatm ann Orrice, 25.
" Benton, Lawyer's Oatn Ann’ Orricr, 26; Cositcan, Cass on Lacar,
Exnics, 64. ¢
THE LAWYER AS OFFICER OF COURT 267
Thing that may turn you to Profit: and ye shall give due
attendance accordingly: as God you help, and by the Con-
tents of this Book.” 1
No form of oath for attorneys is recorded in the ancient Roll
of Oaths. It seems certain, however, that attorneys were sworn
as early as 1402, for, by statute enacted in that year,!? it was
provided that they should be admitted to practice only upon an
examination by the justices and upon the taking of an official |
oath,
The earliest form of Attorney’s Oath on record is found in
the Red Book of the Exchequer, a book of precedents in the
Court of Exchequer and dating back to a very early period.’
The Attorney’s Oath, as recorded in the Red Book is as fol-
lows: 1*
“The Oath of Attorneys in the Office of Pleas: You shall doe
noe Falshood nor consent to anie to be done in the office of
Pleas of this Courte wherein you are admitted an Attorney.
And if you shall knowe of anie to be done you shall give
Knowledge thereof to the Lord Chiefe Baron or other his
Brethren that it may be reformed you shall Delay noe Man
for Lucre Gaine or Malice you shall increase noe Fee but
you shall be contented with the, old Fee accustomed. And
further you shall use your selfe in the Office of Attorney
in the said office of Pleas in this Courte according to your
best Learninge and Discrecion. So helpe you God.”
From what has been said, and from the forms of oaths quoted,
it will be observed. that the office of advocate has, from time im-
memorial, especially in England,’® been considered one of both
dignity and importance.
" Benton, Lawyrr’s Oat ann Orrice, 26; Costrcan, Casts on Lucan
Funes, 64. See also, Coxe, Siconp Insitrrus (Hd. 1817), 212-214.
* St. 4 Hen, IV, c. 18
™ Bunton, Lawyer’s Oars any Orrics, 27, '28.
* Bewron, Lawver’s Oatn ann Orrtce, 28; Costican, Cass on Litcay,
Evurcs, 64. A later volume, entitled ‘Tx Boox or Oars, published in 1649
and reprinted in 1689, contains the earliest form of oath of the King’s Coun-
sel, which conforms substantially to those of the Serjeant-at-law and of the
King’s Serjeant, Tm Boox or Oavus contains also the early oaths of At-
torney General and Solicitor General. Bewvon, Lawyrr’s Oat ann Or-
ric, 30, 31,
* Tt seems somewhat strange, at first glance, that the modern English bar-
rister is not an officer of the court, and that no oath is required. This is due,
however, to the fact that barristers are “called” to the Bar by the Inns of
268 VIRGINIA LAW REVIEW
In the United States, the lawyer has, almost from the begin-
ning, been regarded as an officer of the court, and as such ad-
mitted to the Bar only upon the taking of an official oath. It
is true that during the early Colonial period the growth of the
profession was slow, owing to circumstances then existing,!® but
with the adoption of the common law, as the established law of
the land, the ancient English conception of the office of advocate
naturally followed, and it is upon this high conception that the
characteristics and ideals of the American Bar have been
founded.17
‘The principle that the lawyer is an officer of the court does not
mean, of course, that a lawyer is a public official exercising a
public trust.’® It does mean, however, in a very important sense,
that he is a quasi-officer of the State upon whom rests in part the
responsibility for the administration of justice. ‘The fundamen-
tal idea underlying the lawyer’s profession has been well ex-
pressed by Hoke, C. J., in a recent North Carolina case !9 in
which he says:
“An attorney at law is a sworn officer of the court to aid in
the administration of justice., He is sought as counsellor,
and his advice sought in the most important and intimate
relations of life. There is doubt if any profession affords
an equal opportunity for fixing the standards and directing
the civic conduct of his fellows. It is of supreme impor-
tance, therefore, that one who aspires to this high position
Court and are subject to their supervision, If, in fact, a barrister, should be
found guilty of unbecoming conduct, he would be reported by the court to
his Inn for investigation and action, On the other hand, solicitors are offi-
cers of the court, and are required to take an official oath before being ad-
mitted to the practice. Cos'tican, Cass on Lacat Erntcs, 61, 65; Rossrns,
American Apvocacy, 7.
* See Introduction to Warren, History or ay Anrtcan Bar,
* The oath recommended by the American Bar Association may be ‘found
in Article TIT of the Canons of Ethics,
# “The ‘office’ to which an attorney is thus appointed, however, is not an
office in the sense of a public trust for the transaction of public business but
is a special license or franchise to exercise certain privileges which. other-
wise the grantee would not be permitted to exercise. ‘The advocate is, there~
fore, an officer sui generis of the court and subject to the rules imposed by
the court in regulation of the practice therein.” Roxsrys, Amurtcan Ap-
vocacy, 13. ‘Thus an attorney, who practices his profession and serves as
County Judge, is not holding two offices in violation of the Constitution.
Bland County Judge Case, 33 Gratt. (Va) 443.
* In‘re Application of Dillingham, 188 N. C, 162.
THE LAWYER AS OFFICER OF COURT 269
should be of upright character and should hold, and deserve
to hold, the confidence of the community where he lives and
works,”
Referring to the office of advocate, Mr. J. H. Benton, in his
excellent treatise, entitled The Lawyer’s Oath and Office, makes
use of the following striking language : °° t
“Why is any oath required for admission to the practice of
the law? No oath is required by law for admission to prac-
tice in any other profession, even where qualifications to
practice are prescribed or ascertained by examinations re-
quired by law, as in the case of physicians. But an official
oath has always been required for admission to the practice
of the law. Why is it required? What is its significance,
and what obligation does it impose?
“The significance of the lawyer’s oath is that it stamps the
lawyer as an officer of the State, with rights, powers and
duties as important as those of the Judges themselves,
* %* %* A lawyer is not the servant of his client: He is
not the servant of the Court. He is an officer of the Court,
with all the rights and responsibilities which the character
of the office gives and imposes.”
From the fact that the lawyer is an officer of the court it fol-
lows that, by virtue of his office, the lawyer has certain important
rights. While the right to practice law is not “property,” nor is
it a “contract,” within the constitutional meaning of those terms,
it is a right of which the lawyer may not be deprived except upon
good cause shown and after proper judicial proceedings.*! This
was settled by the United States Supreme Court in the celebrated
case of Ex parte Garland,” decided in 1866. Speaking for the
court in this case, Mr. Justice Field says: :
“The attorney and counsellor being, by solemn judicial act of
the court clothed with his office, does not hold it as ‘a.mat-
ter of, grace. The right which it confers upon him to ap-
peat for suitors, and to argue causes, is something moré
than a mere indulgence, revocable at the pleasure of the
court, or at the command of the legislature. It is a right of
which he can only be deprived by the judgment of the court
for moral or professional delinquency. * * * ‘They
hold their office during good behaviour, and can only. be
® Benron, Lawyer's OatH anv Orricy, 1, 2.
*6 C.J. 568.
4 Wall. 333.
270 VIRGINIA LAW REVIEW
deprived of it for misconduct ascertained and declared by
, the judgment of the court after opportunity to be heard has
been afforded.” .
Another important result of the principle that the lawyer is an
officer of the court is that the power of admitting applicants to
“the practice of law is judicial in its nature, and hence is vested in
the courts. But notwithstanding the general jurisdiction of the
courts.over the subject, the legislature may, in the exercise of its
police power, prescribe reasonable rules and regulations for ad-
mission to the Bar which will be followed by the courts.22 ‘That
is to say, the legislature may prescribe the qualifications of the
applicant, but the court before which he is examined must deter-
mine whether or not he possesses them, that being a judicial and
not a legislative function.?4
In the case of In re Cooper,?® Selden, J., in speaking of this
subject very aptly says:
“Attorneys and counsellors are not only officers of the Court,
but officers whose duties relate almost exclusively to pro-
ceedings of a judicial nature, and hence their appointment
may with propriety be entrusted to the courts, and the lat-
ter in performing this duty may very justly be considered
as engaged in the exercise of their proper judicial func-
tions,” 2°
© 6 C. J. 572, In a number of states, the examination of applicants is
conducted by a board of examiners, and the oath administered by the courts.
™ In re Applicants for License, 143 N. C. 1, at 31.
* 22 N. Y. 67.
* Good moral character is universally required as a condition precedent to
admission to the Bar. Certificates of good character are, therefore, in, the
absence of statutory provision to the contrary, only prima facie and not con-
clusive evidence. 6 C. J. $73,
In speaking of this important matter, Brown, J., of the N. C. Supreme
Court, uses the following: striking language: “The public policy of our
State has always been to admit no person to the practice of the law unless
he possessed an upright moral character. ‘The possession of this by an at-
torney is more important, if anything, to the public and to the proper ad-
ministration of justice than legal learning, Legal learning may be acquired
in after years, but if the applicant passes the threshold of the bar with a
ad moral character the chances are that his character will remain bad, and
thiat he will become a disgrace instead of an ornament to his great calling—
a curse instead of a benefit to his community—a Quirk, a Gammon or a
Snap, instead of a Davis, a Smith or a Ruffin.” In re Applicants for Li-
cense, 143 N, C, 1, at 21.
“Tt is not enough,” says the Supreme Court of Connecticut, “for an attor-
|
|
THE LAWYER AS OFFICER OF COURT 271
Upon similar principles, disbarment is also a judicial pro-
ceeding, and the power to suspend or disbar, therefore, rests in
the courts. It is well settled that courts authorized to adinit at-
torneys to the Bar have inherent jurisdiction to suspend or dis-
bar them for sufficient cause, and such jurisdiction is not de-
pendent upon constitutional provision or statutory enactment.27
It is true that the legislature may by statute prescribe the
causes for which an attorney may be disbarred, but the generally
-accepted view is that such statutes “merely regulate the power to
disbar instead of creating it,” and that they do not prohibit the
courts from disbarring attorneys for causes other than those
specified in the statute.?*
The power of, the courts in the matter of suspension and dis-
barment has been admirably summarized by the Supreme Court
of Washington in In re Lambuth,?® in the following words:
“But the power to strike from the rolls is inherent in the court
itself, No statute or rule is necessary to authorize the pun-
ishment in any proper cases. Statutes and rules may regu-
late the power but they do not create it. It is necessary for
the protection of the court, the proper administration of
justice, the dignity and purity of the profession, and for the
public good and for the protection of clients. Attorneys
may forfeit their professional franchise by abusing it, and
the power to exact the forfeiture is lodged in the courts
which have authority to admit attorneys to practice. Such
power is indispensable to protect the court, the administra-
tion of justice, and themselves; and attorneys themselves
are vitally concerned in preventing the vocation from being
sullied by the conduct of unworthy members.”
Perhaps the most important result of the principle that the
lawyer is an officer-of the court is that the advocate is subject
to certain peculiar duties and responsibilities. It is not possible,
within the scope of this article, to discuss these duties and respon-
ney that he be honest, He must be that and more. He must be believed
to be honest. It is absolutely essential to the usefulness of an attorney that
he be entitled to the confidence of the community wherein he practices.”
County Bar v, Taylor, 60 Conn, 11.
*6C. J. 580,
* 6 C, J. 584. In some jurisdictions it is held that a statute prescribing
the causes for disbarment impliedly deprives the courts of the power to dis-
bar for causes other than those specified. In re Ebbs, 150 N.C, 44.
™ 18 Wash. 478, 51 Pac, 1071.
272 VIRGINIA LAW REVIEW
sibilities in all of their details, and, for that reason, only the gen-
eral principles underlying each will be mentioned. For conveni-
ence of treatment the duties of lawyers may be grouped under
four general heads, namely, (1) duties to the State or the public,
(2) duties to the court, (3) duties to his profession and fellow
members of the Bar, (4) duties to his client.*°
Viewed from the standpoint of the relation that the Profes-
sion of Law has to the public, its importance can scarcely be over-
estimated. By virtue of his office, the lawyer bears an intimate.
relationship to the State, for to him the State intrusts in a large
measute the enforcement of its laws. To uphold the Constitu-
tion and the Law must, therefore, be his constant cared?
Legislation and jurisprudence, “the right and left hands of
government,” are in the nature of the case largely in the hands
of the legal profession, and it is within these two great fields that
the profession finds its broadest opportunities for usefulness and
service. Legislation is the enactment of law and is, says Judge
Sharswood, “the noblest work in which the intellectual powers
of man can be engaged, as it resembles most nearly the work of
the Deity. It is employed as well in determining what is right
or wrong in itself—the due proportion of injuries and their rem-
edies or punishments—as in enforcing what is useful and expedi-
ent. How wide the scope of such a work.” *?
In the field of jurisprudence we find the influence of the legal
profession even more strongly felt than in that of legislation, for
it is here that the Law receives its practical application to specific
cases as they arise in the courts. Speaking of this phase of the
subject, Judge Sharswood continues: **
“With jurisprudence lawyers have most, nay, all to do. The
opinion of the Bar will make itself heard and respected on
the Bench. With sound views, their influence for good in this
respect may well be said to be incalculable, It is indeed the
noblest faculty of the profession to counsel the ignorant, de-
fend the wealc and oppressed, ahd to stand forth on all oc-
casions as the bulwark of private rights against the assaults
© Warviran, Lacar,’ Eraics, 21; Rossrns, Amertcan Apvocacy, 253.
% Tn most states an applicant is required to take an oath :to support the
Constitution of the United States and of the state in which he is licensed
to practice.
Suarswoon, Inear, Erurcs, 53,
8 Guapewoop, Lecar, Evures, 54.
THE LAWYER AS OFFICER OF COURT 273,
of power, even under the guise of law; but it has still other
functions. It is its office to diffuse sound principles among
the people, that they may intelligently exercise the controlling
power placed in their hands, in the choice of their represen-
tatives in the legislature and of judges, in deciding, as they
are often called upon to do, upon the most important changes
in the Constitution, and above all, in the formation of that
public opinion which may be said in these times, almost
without a figure, to be the wltimate sovereign.”
The duties of the lawyer to the court spring directly from the
relation that he sustains to the court as an officer in the admin-
istration of justice. ‘The law is not a mere private calling, but
is a profession which has the distinction of being an integral part
of, the State’s judicial system. As an officer of the court the
lawyer is, therefore, bound to uphold the dignity and integrity
of the court; to exercise at all times respect for the court in both
words and actions; to present all matters relating to his client’s
case openly, being careful to avoid any attempt to exert private
influence upon either the judge or the jury; and to be frank and
candid in all dealings with the court, “asing no deceit, imposi-
tion or evasion,” as by misreciting witnesses or misquoting prec-
edents, . “It must always be understood,” says Mr. Christian
Doerfler, in an address before the Milwaukee County Bar As-
sociation, in December, 1911, “that the profession of law is in-
stituted among men for the purpose of aiding the administra-
tion of justice. A proper administration of justice does not
mean that a lawyer should succeed in winning a lawsuit. It
means that he should properly bring to the attention of the court
everything by way of fact and law that is available and legiti-
mate for the purpose of properly presenting his client’s case.
* * * His duty as far as his client is concerned is simply to
legitimately present his side of the case. THis duty as far as the
public is concerned and as.far as he is an officer of the court is
to aid and assist in the administration of justice.”
In this connection, the timely words of Mr. Warvelle may also
well be remembered: ** =~
“But the lawyer is not alone a gentleman; he is a sworn min-
ister of justice. His office imposes high moral duties and
grave responsibilities, and he is held to a strict fulfillment
* Warvetis, Luca, Exates, 40,
274 VIRGINIA LAW REVIEW
of all that these matters imply. Interests of, vast magnitude
are intrusted to him; confidence is imposed in him; life, lib-
erty and property are committed to his care. He must be
equal to the responsibilities which they create, and if he be-
trays his trust, neglects his duties, practises deceit, or pan-
ders to vice, then the most severe penalty should be inflicted
and his name stricken from the roll.”
That the lawyer owes a high duty to his profession and to his
fellow members of the Bar is an obvious truth, His profession
should be his pride, and to preserve its honor pure and unsullied
should be among his chief concerns. ‘Nothing should be higher
in the estimation of the advocate,” declares Mr. Alexander H.
Robbins, “next after those sacred relations of home and coun-
try than his profession. She should be to him the ‘fairest of ten
thousand’ among the institutions of the earth, He must stand
for her in all places and resent any attack on her honor—as he
would if the same attack were to be made against his own fair
name and reputation. He should enthrone her in the sacred
places of his heart, and to her he should offer the incense of con-
stant devotion, For she is a jealous mistress.” *
Again, it is to be borne in mind that the judges are selected
from the ranks of lawyers, ‘The purity of the Bench depends
upon the purity of the Bar.
“The very fact, then, that one of the co-ordinate departments
of the government is administered by men selected only
from one profession gives to that profession a certain pre-
eminence which calls for a high standard of morals as well
as intellectual attainments. ‘The integrity of the judiciary
is the safeguard of the nation, but the character of the judges
is practically but the character of the lawyers. Like begets
like. A degraded Bar will inevitably produce a degraded
Bench, and just as certainly may we expect to find the high-
est excellence in a judiciary drawn from the ranks of an en-
lightened, learned and moral Bar,” *¢
The relations between members of the Bar should obviously be
those of mutual respect, good will and esteem. The maintenance
of these relations depends upon the exercise of the utmost good
faith and the due observance of the customary courtesies of the
* Ronprns, Anmercan Anvocacy, 278.
8 Warvi Laeat, Ervnatcs, 35,
THE, LAWYER AS OFFICER OF COURT 275
profession. All agreements and engagements between counsel
should, therefare, he punctually and scrupulously kept. ‘The good
opinion of orie’s associates of the Bar is an asset that cannot be
valued too highly, and this good opinion can be gained and held
only by “real learning, by the strictest integrity and honor, by a
courteous demeanor, and by attention, accuracy and punctuality
in the transaction of business,” ®7
Duties to the client aré justly ranked among those that are pri-
mary and fundamental. ‘The relation between attorney and client
is one of special trust and confidence. It is doubtful if there is
any profession or calling that bears as intimate a relation to the
every day affairs of men as that of the lawyer. ‘No profession,”
says Mr. Robbins, “not even that of the doctor or preacher, is as
intimate in its relationship with people as that of the lawyer. ‘I'o
“the doctor the patient discloses his physical ailments ‘and symp
toms, to the preacher the communicant broaches as a general rule
only those things that commend him in the eye of heaven, of
those sins of his own for which he is in fear of eternal punish-
ment, but to his lawyer he unburdens his whole life, his business
secrets'and difficulties, his family relationships and quarrels and
the: skeletons in his closet. ‘Io him he often commits the duty
of saving his life, of protecting his good name, of safe-guarding
his property, or regaining for him his liberty. Under such sol-
emn and sacred responsibilities, the profession feels that it owes
to the people who thus extend to its members such unparalleled
confidence the duty of maintaining the honor and integrity of
that profession on a moral plane higher than that of the mer-
chant, trader or mechanic,” #%
From a strictly legal standpoint, the attorney owes to his client
the duty of exercising reasonable care, skill and diligence—that
is, that care, skill and diligence that are usually exercised by law-
yers. He is not held to the highest possible degree of care, but
rather to that of the average practitioner. In other words, his
liability to his client is measured in terms. of negligence. °°
Such is the advocate’s legal liability, but his moral responsibil-
ity is broader in scope. “Entire devotion to the interest of the
* Swarswoon, Liar, Evntcs, 76
* Rospins, American Apyocacy, 251.
"EC, J, 682,
276 VIRGINIA LAW REVIEW
client, warm zeal in the maintenance and defense of his’ rights,
and the exertion of his utmost learning and ability—these are the
higher points, which can only satisfy the truly conscientious prac-
titioner,” 4° ‘
It is not to be understood from this statement, however, that
the high duty of an advocate to hig client is to be exercised at the
expense of truth. For high as is the obligation. of the advocate
to his client, the obligation to truth is higher. ‘The lawyer is an
officer in the administration of justice, and he is not expected,
even in the interest of a client, to disregard the fundamental
principle upon which jitstice is based, “Truth,” therefore, “in all
its simplicity—to the Court, to the client, and adversary—should
indeed be the polar star of the lawyer.” 44
It has been the endeavor of the writer to set forth in this
article, in as brief a manner as possible, the nature of the law-
yer’s profession, together with some of the duties, obligations
and responsibilities incident thereto, Advocacy has ever been
regarded as an honorable calling—and justly so. Fidelity is its
chief characteristic, justice to its object, truth its underlying
principle, and service its ideal, ’[he Canons of Ethics of the
American Bar Association, declaring the lawyer's duty in its last
analysis, may well be quoted in conclusion : 4
© Suarswoop, Lacar, Erarcs, 79. Lord Brougham is credited with hay-
ing made the following interesting but extravagant statement: “There are
many whom it may be needful to remind that an advocate—by the sacred
duty of his connection with his client—knows, in the discharge of that of-
fice, but one person in the world—that client and none others To serve that
client by all expedient means, to protect that client at all hazards and costs
to all others (even the party already injured), and, amongst others, to him-
self, is the highest and most unquestioned of his duties. And he must not
regard the alarm, the suffering, the torment, the destruction, which he may
bring upon any other, nay, separating even the duties of a Patriot from those
of an advocate, he must go on, reckless of the consequences, if his fate
should unhappily be to involve his country in confusion for his client.’ ‘This
statement of Lord Brougham is, of course, extreme, and cannot be approved.
Even the high duty of an advocate to his client could hardly be said to de-
mand an utter disregard of the “suffering, torment and destruction” that
might be brought upon others, and assuredly it does not demand a disregard
of the welfare of one’s country. “Besides this,” as Mr. Robbins very aptly
comments, “an advocate who casts destruction broadcast may involve his cli-
ent in the general ruin.” Roppins, AMmRIcAN Apvocacy, 271, 272,
“ Suarswoon, Lucar Erurcs, 167,
“ Canons of Ethics of the American Bar Association, Art. II, § 32.
THE LAWYER AS OFFICER OF COURT 277
“No client, corporate or individual, however powerful, nor
any cause civil or political, however important, is entitled
to receive, nor should any lawyer render, any setvice or ad-
vice involving disloyalty to the law whose ministers we are,
or disrespect of the judicial office, which we are bound to up-
hold, or corruption of any person or persons exercising a
public office or private trust, or deception or betrayal of the
public, When rendering any such improper service or ad-
vice, the lawyer invites and merits stern and just condemna-
tion, Correspondingly, he advances the honor of his pro-
fession and. the best interests of his client when he renders
service or gives advice tending to impress upon the client and
his undertaking exact compliance with the strictest princi-
ples of moral law. He must also observe and advise his
client to observe the statute law, though until a statute shall
have been construed and interpreted by competent adjudica-
tion, he is free and is entitled to advise as to its validity and
as to what he conscientiously believes to be its just mean-
ing and extent. But, above all, a lawyer will find his high-
est honor in a deserved reputation for fidelity to private
trust and to public duty, as an honest man and as a patriotic
and loyal citizen,”
Waxr Forist, N.C.
278 VIRGINIA LAW REVIEW
A DECADE OF THE FEDERAL TRADE COMMISSION,
Parr IV.
S HAS been shown, the declared purpose of the new legis-
A lation which brought into existence the Federal ‘Trade
Commission, was (see Part I, page 27) to clarify the meaning of
the Sherman Law, by specific definition “of the many hurtful
restraints of trade * * * up to the limits of what experi-
ence has disclosed” and then to forbid them “in such terms as
will practically eliminate uncertainty”; and to furnish to “the
business men of the country * * * something more than
that the menace of legal process in these matters be made ex-
plicit and intelligible,” by establishing an administrative body or
commission to which business men could resort for “advice, defi-
nite guidance and information”—a commission which “the opin-
ion of the country would instantly approve’—a commission not
“empowered to make terms with monopoly,” but to serve “only
as an indispensable instrument of information and publicity, as a
clearing house for the facts by which both the public mind and
the managers of great. business undertakings should be guided,
and as an instrumentality for doing justice to business where the
processes of the cotirts or the natural forces of correction: out-
side the courts are inadequate to adjust the remedy to the wrong
in a way that will meet all the equities and circumstances of the
case.”
This was indeed an ambitious program, for it undertook to lay
the spectre of an uninformed public beliefj—a belief not sup-
ported by expert professional opinion,—that the Sherman Law
needed clarification of meaning; and then undertook to clarify
it by a method theretofore untried in the history of jurisprudence,
namely by legislative definition and proscription of every act
which judicial records had disclosed as constituting “hurtful re-
straint of trade.” The effort and the result may well be char-
acterized in the language of the fable, as “mons labitur ct nas-
citur ridiculus mus,” for the legislative definition and proscrip-
tion when enacted proved to comprise a schedule so meagre,
A DECADE OF THE FEDERAL TRADE COMMISSION 279
incomplete and inadequate, as, in the light of a full decade of ex-
perience under the new legislation, to exhibit the Federal ‘Trade
Commission, the creature of’ this Program, as a futile bedy
wholly incapable of performing the great tasks for which it was
created,
The definitions have proven inadequate—in short, a lamenta-
ble failure; “the menace of legal process in these matters” has in
no sense heen “made explicit and intelligible’—-on the contrary,
such menace has been appreciably magnified, and unnecessarily,
‘uselessly and hurtfully magnified, without any substantial prog-
ress towards the promised goal that it be “made explicit and in-
telligible.” :
The projected purpose that the Commission should constitute
a tribunal to which “the business men of the country” could re-
sort for “advice, definite guidance and information” was ruth-
lessly ignored in the new legislation.38
"The Commission, in a few relatively unimportant instances and by dem-
onstrable departure from its statutory powers, has commendably sought to
make good this glaring omission in the new legislation. See opinion ren-
dered July 31, 1924, by the ‘Federal Trade Commission in response to ques-
tions propounded by the Silver Producers Committee to the Secretary of
Commerce in regard to the proposed formation of an, association under the
Export Trade Act (Webb-Pomerene Act) and in regard to the rights and
powers of such an association, ‘The opinion states that “as the administra-
tion of this (the Webb-Pomerene) Act is lodged with the Federal Trade
Commission, the Committee's communication was referred here by the Sec-
retary of Commerce on December 13, 1923.” ‘Thus, after a delay of more
than six monhts, an opinion was rendered from which two of the five com-
missioners dissented, thereby making the opinion that of a bare majority,
Clearly, in this instance, “the menace of legal process in these matters” has
not been “made explicit and intelligible” when two of the five members of
the Commission found it necessary to dissent. By a similar and well-meant
departure from its statutory powers, the Commission has further sought to
remedy the defect above noted by the establishment of a procedure which
it-has designated “Trade-Practice Submittals.”. In the Annual Report of
the Commission for ‘the Fiscal Year ending June 30, 1924, (page 65), this
procedure is thus described:
“From time to ‘time the commission is approached by groups of business
men representing an entire industry -and seeking assistance in ‘the elimination
from. their industry of Practices found to be unfair and harmful but which
the industry is unable by itself to eliminate. Upon request of a substantial
portion of a.given industry, the commission has lent its assistance in these
situations and has called the industry together in gatherings which have been,
termed “'rade-Practice Submittals,’ Submittals have been held in the fol-
lowing industries: Ink, celluloid, knit goods, paper, oil, used typewriters.
280 VIRGINIA LAW REVIEW
It is but logical and natural, therefore, that, so far from “the
opinion of the country instantly approving” (paraphrase ours)
the Commission, there has been no evidence of any approval
whatever; but, on the contrary, emphatic and wide-spread dis:
approval?
creamery, hosiery, guaranty against decline, macaroni, silverware, gold
knives, watchcases, subscription book publishers and music publishers, and
band instruments. A pamphlet on Submittals has been prepared,
“At these submittals the objectionable Practices are frankly discussed and
resolutions usually adopted by the industry looking to their eliminatign.
‘These resolutions are considered by an, industry as binding upon it and are
received by the commission as informative as to conditions in the particu-
lar industry and the views of the trade thereon in the event the commission
is called upon to proceed to complaint upon any practice condemned by. an
industry.”
The usefulness of this procedure is obvious and the Commission is enti:
tled to commendation for establishing it, especially since the new legisla-
tion contains no provision authorizing such procedure. ‘The attention of the
interested reader is, however, called to Page 68 of the Annual’ Report set-
ting forth’ the understanding reached, after such a submittal, by The Sub-
scription Book Publishers’ Association; and at Page 70, by the Band In-
strument Manufacturers. The former understanding was unconditionally
approved by the Commission (p. 70); and the latter (p. 73) with the qual-
ification that, as to some of the subjects comprised. in: the understanding
(presumably because they related to the subjects of prices, rebates, discounts,
ete.—subjects of admitted delicacy if not, indeed, of positive illegality under
the Sherman Law, when agreed upon by competitors), “the Commission re-
ceiyes and takes note of the same as representing the views and opinions of
the industry.” In the same spirit of commendation as is expressed above,
the suggestion is ventured that the beneficent attitude thus displayed by the
Commission towards trade associations, might advantageously furnish the
basis of a changed position of our government with reference to trade asso-
ciations (involving, perhaps, an amendment of the substantive features of
our anti-trust laws upon lines indicated by Mr, Taft), whereby the detri-
mental effect upon such associations resulting from the decisions of the Su-
preme Court in the Hardwood Lumber case and the Linseed .Oil case, may
be corrected. This suggested field of inquiry is, however, too broad, and its
relevancy to the subject here under discussion, too indirect, to permit its
fuller consideration here,
Fairness to the Commission and, in the writer's opinion, the importance
of the suggestion as to trade associations, must suffice as justification for a
digression requiring such a lengthy foot-note,
"Inthe New York Evening Post, December 19, 1924, Cinton W. Gil-
bert, its Washington correspondent, writing of the activity which Jed to the
enactment of the new legislation said: “It was a movement which, stood
for little business against big business, which distrusted economic power or-
ganized on a national scale and sought to curb it by legislation. ‘The law
under which the Federal ‘Trade Commission was appointed * * * was
A DECADE OF THE FEDERAL TRADE COMMISSION 281
Except in so far as the Federal ‘Trade Commission has been
given the power theretofore possessed, and competently per-
formed, by the Bureau of Corporations of the Department of
Coimmerce, namely, the power of mere investigation, the promise
or expectation that the Federal ‘Trade Commission would serve
“as an indispensable instrument of information and publicity, as
a clearing house for the facts by which both the public mind and
the managers of great business undertakings should be guided
and as an instrumentality for doing justice,” etc., has proven
wholly illusory. In so far as relates to the power given to the
Commission as a quasi-judicial tribunal—and this has proven to
be the field in which the Commission has been most active—the
assertion is ventured that the substantial and responsible body of
the business men of the country, entirely apart from those con-
nected with great aggregations of capital, regard the activities of
the Commission with emphatic and openly expressed disap-
proval.*°
We pass now to a consideration of cases which have been ad-
judicated by the Federal ‘I'rade Commission, an undertaking
made difficult in the necessarily limited scope of a discussion stich
as this, because of the very large number of cases which have
been disposed of by the Commission. In the period beginning
with the creation of the Commission and ending with February,
1923, the Commission issued under the title “Federal ‘Trade Com-
mission Decisions,” five substantial volumes each approximately
of six hundred pages. A sixth volume, presumably extending to
the early part of 1924, is now about to -be published. In addi-
tion, there are the further decisions rendered in the period of
about one year which has since elapsed.
In consequence, it will be necessary for the present purpose to
select a few typical cases. Before doing so it seems pertinent
to point out that relatively a large number of the matters con-
sidered and passed upon by the Commission relate to subjects
the furthest extension, of that movement * * * ‘The whole movement
* * © ig bankrupt. Its laws have accomplished little.”
“ A number of important national trade associations, comprising hundreds
of separate business concerns, united in opposing the order made by the Com:
mission against the Mennen Co, and joined, as amici curiae, in the appeal
from that order, which was reversed upon such appeal. See Mennen Co.
v. Federal Trade Commission, 288 Fed. 774, certiorari denied, 262 U. §. 759.
282 VIRGINIA LAW REVIEW
quite alien to the purposes for which the new legislation was
projected and enacted—purposes which concededly related solely
to the then “existing ‘anti-trust law” (see Part I, Page 27)—
namely, subjects such as the misbranding, or otherwise, deceptive
or untruthful description, of various kinds of merchandise. In
so doing, the Commission has relied on section 5 of the Federal
Trade Commission Act which forbids “unfair methods of com-
petition.”
Unquestionably, no such purpose, relatively trivial in compari-
son with the vastly more important objects and functions of the
Sherman Law—one of the most important statutes ever passed
‘in this country” “'—as bringing within the scope of the new leg-
islation and thereby subjecting to the jurisdiction and process of
an important Federal tribunal, the unrelated subjects of mis-
branding or deceptive description of merchandise, was included
in the program laid before Congress by the President of the
United States, nor in the Senate. report accompanying the bill
which later became the Federal ‘Trade Commission Act.42 Tilus-
trations of cases ofthe kind mentioned, follow.
“Wratam H. Tar, Tar AnrrTrust Act ann rug Supreme Court,
* Senator Cummins, chairman of the committee which reported the bill,
said (51 Cong. Ree. 11485) :
“Unfair competition must usually proceed to great lengths and be destruc-
tive of competition before it can be seized and denounced by the anti-trust
law. In other cases it must be associated with, coupled with, other vicious
and unlawful practices in order to bring the person or the corporation guilty
of the practice within, the scope of the anti-trust law. “The “purpose of this
bill in this section and in other sections, which I hope will be added to it, is
to seize the offender before his ravages have gone to the length necessary in
order to bring him within the law, that we already have.
“We knew little of these things in 1890, ‘The commerce of the United
States has largely developed in the last twenty-five years. ‘The modern meth-
ods of carrying on business have been discovered and put into operation in the
last quarter of a century; and as we have gone on under the anti-trust law
and under the decisions of the courts in their effort to enforce that law, we
have observed certain forms of industrial activity which ought to be prohib-
ited whether in and of themselves they restrain trade or commerce or not.
We have discovered that tendency is evil; we have discovered that the end
which is inevitably reached through thése ‘methods is an end which is de-
structive of fair commerce between the States. It is these considerations
which, in my judgment, have made “it ‘wise, if not necessary, to .supplement
the anti-trust law by additional legislation, not in antagonism to the anti-
trust law, but in harmony with the anti-trust law, to more effectively put
into the industrial life of America the principle of the anti-trust faw. which
A DECADE OF THE FEDERAL TRADE COMMISSION 283
In Federal Trade Commission v. Simons, Hatch & Whitten
Co. the complaint made by the Commission was to the effect
that the respondent had wrongly labelled hosiery, containing no
gentine silk, as “fiber silk,” and hosiery composed entirely of
cotton, as “silk lisle’; and in Federal Trade Commission v.
Thompson,** that the respondent had wrongly labelled hos-
iery composed of cotton and of an animal or vegetable fiber, but
containing no genuine silk, as “Ladies Silk Boot Hose” and “La-
dies Art Silk Hose.” ‘The same volume from which these cases
are cited contains a great many similar cases either of misbrand-
ing or of other similar acts of deception. While, of course,
there can be no question of the immorality of these practices, it
would seem obvious, as has been indicated, that they do not rise
to the importance of justifying attention on the part of a great
“Federal tribunal, but might well be left to the attention of State
or other local prosecuting officials. It has been a matter of wide-
spread comment that in recent years such a great volume of work
has been cast upon Federal departments, bureaus and tribunals,
that not only is there danger that the Federal machinery provided
for the proper maintenance of the government will break down
under the burden or prove unequal to the performance of its du-
ties,—but also that the tendency to extend to greater limits the
already wide jurisdiction and powers of the Federal government,
will weaken by disuse the energy and initiative of State and local
tribunals. A more substantial objection, however, and one which
is more pertinent to the subject now under discussion, to the ex-
ercise by the Federal ‘Trade Commission of this feature of its
work—a feature to which it has given a vast amount of atten-
tion—is that it does not involve any question properly arising
under the Anti-trust laws, inasmuch as it does not involve any
question of monopoly or restraint of trade. As has been po'nted
out, such procedure was not comprised within the program sub-
mitted by the President of the United States to Congress when
he recommended the legislation which culminated in the new leg-
islation; nor within the contemplation of Congress when it en-
is fair, reasonable competition, independence to the individual, and disasso-
ciation among the corporations. * * ¥*”
“5 Fed. Trade Comm. Dec, 183.
284 VIRGINIA LAW REVIEW
acted the new legislation, Certain it is, that these questions have
no bearing upon the principal object sought to be attained by the
new legislation, namely, a clarification of the Sherman Law. In
short, it seems too clear for discussion that this feature of the
Commission’s work is unimportant and negligible as bearing
upon the, difficult and important subject of our Anti-trust laws.
They add nothing to the clarification of those laws, because they
have no bearing upon them whatever. ‘They seem to be an arti-
ficial outgrowth of the new legislation of relative unimportance,
and which might better be relegated to State and local jurisdic-
tions, Accordingly, and we think with full propriety, no further
discussion of this branch of the Commission’s work will be pre-
sented here.
Another branch of the work which the Commission has under-
taken does, in fact, properly fall within the true scope of the new
legislation. It has, however, been strongly contended that in the
prosecution of this branch of its work by. the Commission it has
accomplished more harm than good. Reference is here made to
a number of cases instituted by the Commission upon the gen- *
eral subject of, price maintenance or similar questions of prices
and discounts arising with respect to individual business con-
cerns. In these cases, the Commission has brought complaints
against individual business concerns, which are not parts of any
combination or other aggregation of capital, and which contain
none of the elements or possibilities of monopoly. ‘Types of
these cases are National Biscuit Co. v. Fed. Trade Commission,*®
and Mennen Co. v. Fed. Trade Commission.
In the National Biscuit Company case the Federal Trade Com-
mission attacked a sales policy of giving a graduated quantity
discount-to the owner of chain stores on total purchases of all of
the stores of the chain, and refusing to allow owners of single
stores to pool their purchases for the purpose of computing the
discount. ‘The Commission, after a lengthy and costly investi-
gation—costly both to the Commission and to the respondent
company—issued an order requiring the respondent to discon-
tinue such practice. Upon a review of this order by the Circuit
Court of Appeals, Second Circuit, the order was declared to have
209 Fed, 733, certiorari denied;45 Sup. Ct. 95, 69 L, Ed. 39,
A DECADE OF THE FEDERAL TRADE COMMISSION 285
been improvidently granted and was reversed. ‘I'he complaint
was based upon section 5 of the Federal ‘I'rade Commission Act
and upon section 2 of. the Clayton Act.
In the course of its opinion, the court said:
“The gravamen of the offense or the unfair method is the
granting of discounts to. purchasers of quantities as above
referred to. ‘The Commission does not find that the re-
spondents have a monopoly nor that they intend by unlaw-
ful means to obtain one. It is not charged or found that
the petitioners (respondents) have an agreement or under-
standing of any kind as to the creation of a monopoly or,
indeed, the maintenance of a sales policy for such a purpose.
‘The law does not make mere size of, business an offense or
the existence of tnexerted power an offense. It requires
overt acts and trusts to its prohibition of them and its power
to repress or punish them. It does not compel competition
nor require all that is possible.”
‘The court then proceeded to negative the application of section
5 of the Federal Trade Commission Act and likewise of section 2
of the Clayton Act and said: :
“Tt was never intended by Congress that the ‘rade Commis-
sion would have .the duty and power to judge what is too
fast a pace for merchants to proceed in business and.to com-
pel them to slow up. To do so, would be to destroy all
competition except that which iseasy * * *. “The great
purpose of both statutes was to.advance the public interest
by securing fair opportunity for the play of the contending
forces ordinarily engendered by an honest desire for gain.
And to this end it is essential that those who adventure
their time, skill and capital should have large freedom of
action in .the conduct of their own affairs,’ said the Su-
preme Court in Federal Trade Commission v. Sinclair, Re-
fining Co., 261 U.S. 463.
“Effective competition requires that merchants have freedom
of action in conducting their own affairs. ‘To be success-
ful may increase or render insuperable the difficulties that
rivals must face, but it does not constitute reprehensible or
fraudulent methods (Federal Trade Commission v. Curtis
Pub. Co., 260 U. S, 568).
* * * * 2
“In its complaint the Commission charged that the practices
were all to the prejudice of the public. * * * The prac-
Hee of diesnuivtece notes antairomnethad af ernie nec
* ok 2 *
286 — VIRGINIA ‘LAW REVIEW
der the statute unless it is prejudicial to the public. * * *
We conclude that the sales policy of the petitioners as to
their discount plan as well as the refusal to sell co-operative
or pooling buyers, is fair in all respects as to all its com-
petitors and customers. ‘I‘his policy obviously does not
affect the public interest nor deprive it of anything it de-
sires. It is a practice which is recognized by manufacturers
of bakery products and is inoffensive to good business
morals. It was error to direct the petitioners to sell to in-
dividual grocers who pooled their orders of purchase or
who bought on a co-operative basis,”
We have thus quoted somewhat at length from the opinion of
the Circuit Court of Appeals in order to establish the contention
that the proceeding thus brought ought never to have been
brought. We say this not. merely because the event proved that
the complaint did not have proper legal basis, but-also because the
expressions quoted from the opinion of reversal show that the
Commission was unnecessarily seeking to disrupt a business pol-
icy which the court found did not “affect the public interest nor
deprive it of anything it desired” and that it was a practice “rec-
ognized by manufacturers” and “inoffensive to good business
morals.” In short, it was a proceeding involving a meddlesome
interference in the conduct of a private business having none of
the attributes of monopoly, and one which cannot be claimed to
have fallen within the program laid before Congress by the Presi-
dent of the United. States, and was clearly not within the spirit
or. the letter of the new legislation, for, as to the latter statement,
the opinion of reversal by the Circuit Court of Appeals is full
warrant.
It is to be observed that substantially the same complaint was
made by the Commission against the Loose-Wiles Biscuit Com-
pany, a manufacturing concern engaged in the same kind of busi-
ness as the National Biscuit Company, and that this complaint
was disposed of adversely to the Commission by the Circuit
Court of Appeals in the same opinion which disposed of the Nat-
ional Biscuit Company case. ‘I'his fact is pointed out as indi-
eating the hurtful character of the work of this nature which
has been conducted by the Federal ‘Trade Commission inasmuch
as these proceedings (and they are but typical of many others)
must necessarily have involved a great amount of money ex-
t
4A DECADE OF THE FEDERAL TRADE COMMISSION 287
penditure on the part of the government and of these companies,
and in addition, a vast amount of labor in the preparation and
conduct both of the prosecution and of the defense, and all to no
useful end; and, which is more important, threatened disruption
or demoralization to useful business enterprises.
With respect to the Mennen case above mentioned, the con-
ditions tending to show that the Federal ‘I'rade Commission ex-
erted the power. given to it by the new legislation in an unn-ces-
sary and hurtful manner, are even more obvious. In that case
the Commission charged that the Mennen Company had violated
section 5 of the Federal Trade Commission Act and section 2
of the Clayton Act; and in support of such charge it alleged that
the respondent had adopted a plan for the allowance of trade dis-
counts in the marketing of its. products, in pursuance of which
it had allowed a more favorable rate of discount to wholesalers
than to retailers; and, further, that it had refused to give the
wholesalers’ rate of discount to groups of retailers who, acting
through corporations organized by such retailers for that put-
pose, had pooled their orders so that they amounted in quantity
to wholesale purchases. In other words, the Mennen Company,
deeming it to its best business advantage to make its sales custom-
arily through wholesalers, because of the obvious difficulty if not
impossibility of marketing its product through retailers, sought to
give to its wholesale customers the advantage or protection of a
more favorable price than to retailers, even when the latter, act-
ing unitedly and pooling their orders, were able to place orders
in wholesale quantities. It is difficult to understand why the
Federal Trade Commission should have sought to interfere with
this wholesome and time-honored practice. It did however in-
terfere by issuing a complaint against the Mennen Company, with
the result that, after a long and costly investigation, the Commis-
sion issued an order directing the discontinuance of this practice;
but with the further result that the Commission’s order was, in
turn, unanimously reversed by the Circuit Court of Appeals,
Second Circuit.
In the interval between the issuance of this order and its sub-
sequent reversal, the manufacturing industries of this country
and the vast body of its wholesalers were thrown into conster-
nation at the prospect that, if the order of the Commission should
288 . VIRGINIA LAW REVIEW
be sustained by the Circuit Court of Appeals, it would involve
the serious impairment of the manufacturing and wholesale in-
dustries of the country, for it would have resulted in compelling
all manufacturers to give to retailers, when purchasing like
quantities as wholesalers, the same prices as wholesalers. A su-
perficial consideration of this phase of the matter would lead to
the belief that this new condition would inure to the benefit of
consumers by reducing the prices of commodities. But this view
is merely superficial, for the final result would have been the de-
moralization of a great part of the manufacturing industries of
this country and the demoralization or actual extermination of a
vast number of wholesalers, with the final result that the cost of
commodities to the consumer would have been increased through
the added difficulties and expense of distribution which the new
system would have entailed.
In its opinion of reversal the Circuit Court of Appeals sum-
marily negatived the contention of the Commission that the prac-
tice complained of involved a violation of section 2 of the Clay-
ton Act, the section forbidding price discriminations, by show-
ing that this section was designed by Congress for a totally
different situation. It likewise disposed of the Commission’s
contention that section 5 of the Federal Trade Commission Act
was violated, by showing that such section had no application
whatever. The court cited the language used in Great Adantic
& Pacific Tea Co. v. Cream of Wheat Co.,*° that “We have not
yet reached the stage where the selection of a trader’s customers
is made for him by the governinent”; and further said:
“Tn accordance with these opinions we have no doubt that the
Mennen Company had the right to refuse to sell to retailers
at all, and if it chose to sell to them that it had the right to
fix the price at which it would sell to them, and that it was
under no obligation to sell to them at the same price it sold
to the wholesalers. * * * ‘There is nothing unfair in
declining to sell to retailers on the same scale of prices that
it sold to wholesalers even though the retailers bought or
sought to buy the same quantity the wholesalers bought.”
Limitations of space prevent a fuller discussion of this case
and of the National Biscuit Company case. ‘The interested
4 227 Fed. 46, 49. .
A DECADE OF THE FEDERAL TRADE COMMISSION 289.
reader will, it is believed, find a study of these cases and of other
cases decided by the Commission of which these cases are typical,
useful, as raising a question of serious doubt as to what public
advantage could ever have existed for the institution of these
troublesome and costly proceedings, having in mind the disturb-
ance which their prosecution caused to the plain business inter-
ests of this country, and having in mind, also, the slight basis
existing in the new legislation for their institution—a basis not
merely slight, but as the orders of reversal showed, entirely lack-
ing.
A peculiarly striking example of the exertion of its powers by
the Federal ‘Trade Commission in a costly, burdensome and, as
the event proved, futile manner is to be found in the series of
cases: known as the “Gasoline Pump Cases.” 47 In each of these
cases, the order which had been made by the Commission against
the respective company named was reversed; and upon a review, .
under certiorari, by the Supreme Court, these reversals were af-
firmed.‘* ‘These proceedings were brought to compel the discon-
tinuiance of the practice, universally known throughout the coun-
try, whereby corporations selling gasoline, furnish to dealers
“curb filling stations” or outfits commonly seen on the roadside
whereby automobiles can speedily obtain supplies of gasoline.
The following is quoted from the opinion of the court 4° as
showing the nature of these cases:
“The testimony discloses a practice which has been widely pur-
sued in the eastern part of, the United States by corpora-
tions refining and marketing gasoline. It consists of what
is practically a loan, or technically a lease without rental,
by a wholesaler to a retailer, of equipment for the tempo-
rary storage, measurement, and delivery of gasoline to the
consuming public. The practice extends mainly to the re-
tailer whose place of business is referred to as a ‘curb filling
station.’ ‘The leased equipment is known as a ‘cutb pump
“ The application of these cases, in support of the contention here ad-
vanced that the new legislation has proved largely, if not wholly, futile, is
so pertinent that the citations are here set forth in full: Standard Oil Co.,
Texas Co, v. Fed, Trade Comm., 273 Fed, 478; Canfield Oil Co. (and five
other companies) v, Fed. Trade Comm, 274 Fed, 571; Sinclair Refining Co.
uv, Fed. Trade Comm., 276 Fed. 686; Standard Oil Co, Gulf Refining Co.,
Maloney Oil and Mfg. Co. v. Fed, Trade Comm,, 282 Fed. 81.
* 261 'U. S. 465, 43 Sup, Ct. 450, 67 L,, Ed, 749,
229 Bed. 81. 32.
290 VIRGINIA LAW REVIEW
outfit? and comprises a sunken tank for the storage of gaso-
line and a pump of familiar design by which gasoline is
drawn from the tank and delivered to motor vehicles,”
The contract under which this equipment is furnished to the
retailer provides °° that he is “not required to pay any license fee,
rental or other things. for the use of the equipment; nor is he re-
stricted in his business to the equipment covered by the contract.
On the contrary, he may use other equipment leased by com-
peting wholesalers or purchased by himself, Nor does the con
tract expressly tie him to the wholesaler’s products. He may
freely deal in gasoline or other petroleum products purchased
from competing wholesalers. He may not, however, use the
equipment of the contract for storing and handling a competi-
tor’s gasoline.” It is the feature involved in the last quoted sen-
tence upon which the Commission’s complaint was mainly based
as being a violation of section 3 of, the Clayton Act, which for-
bids “tieing contracts”; although, strange as it may seem, the
Commission appears to have regarded the leasing of these out-
fits to the retailers as being also an unfair method of competi-
tion in violation of section 5 of the Federal ‘Trade Commiss'on
Act.
Space forbids a full analysis of this unnecessary and unwar-
ranted exercise of its supposed powers by the Commission. A.
system which has proved so convenient to the general public and
is so widely regarded with favor, surely ought not to have been
the subject of attack by a governmental tribunal—an attack which,
as in the instances above mentioned, involved the expenditure of
large sums of money and of valuable time both on the part of the
government and on the-part of the companies against whom the
complaints were made;—an attack moreover, which the action
of the Circuit Court of Appeals in reversing the orders of the
Commission, proved to have been futile and unwarranted. Brief
extracts from the opinion of reversal ™ must suffice. The court
said:
“The next contention of the petitioners * * * is to the
effect that the evidence fails to show that the public has been
injured. With this we agree. * * * we do not find
© Ibid.
* Tid, pp. 81, 85.
A DECADE OF THE FEDERAL TRADE COMMISSION 291
that the practice has increased the cost of distribution or has
enhanced the price of gasoline to the public, On the con-
trary, it has decreased the cost of distribution. * * *
Clearly,.the public has found an advantage in the practice,
both in the matter of convenience and in the certainty. of
getting the precise make of gasoline advertised on the globe
of the pump. On the other hand, if the orders of the Com-
mission commanding the petitioners to cease and desist from
the practice and thereafter to lease outfits to retailers only
on remunerative rentals, stand, the inevitable result will be
that the number of curb filling stations will be reduced,
thereby lessening the convenience to the public; or the rental
charged the retailer for the outfit will be covered by fixing
wholesale prices so as to allow him a larger profit. In the
readjustment the public doubtless will undergo its usual ex-
perience of paying higher prices.”
In the light of this condemnation of the Commission’s effort
and in the light of the incalculable inconvenience and loss which
the success of such effort would have brought to the vast number
of automobile-users in this country, it is difficult to understand
what could have been the advantage which the Commission
sought to attain. Can it be doubted that this, at least, was not
an instance in which “the opinion of the country would instantly
approve of such a Commission”? (See Part I, page 28.)
In John Bene & Sons, Inc. v. Federal Trade Commission,®®
the Commission issued an order forbidding the petitioner from
circulating misleading statements concerning the product of a
named competitor—an offense adequately cognizable under the
libel laws of the several States.
The Circuit Court of Appeals, Second Circuit, unanimously
reversed the order, holding that “there being no proof of a pub-
lic interest herein, or of its being to the interest of the public that
this proceeding should have been begun or the order complained
of made, said order must be reversed.” (Italics ours.) ‘The en-
tire opinion is illuminating as illustrating the contention that the
Commission exerted its powers in a manner not tending to pro-
mote the public welfare and not consonant with the ambitious
program upon which the new legislation was based.
This extract from the opinion must suffice:
“The Trade Commission, like many other modern adminis:
™ 205 Fed. 729,
292 VIRGINIA LAW REVIEW
trative legal experiments, is called upon simultaneously to
enact the roles of complainant, jury, judge and counsel.
This multiple impersonation is difficult, and the maintenance
of, fairness not easy, but we regard the methods pursued in
showing Proper’s (the competitor’s) diminution in sales as
lacking in every evidential or testimonial element of value;
and opposed to that sense of fairness which is almost in-
stinctive.”
In the light of this severe stricture by one of the highest
courts in the land-—-imposed, it must be noted, not upon a private
litigant, but upon a governmental tribunal—will it be said that
“the opinion of the country would instantly approve of such a
Commission”? And can any sound reason be given why such
a futile proceeding should ever have been begun?
As illustrating the contention that, as shown in the cases cited,
the Commission has often exerted its powers to no useful pur-
pose, and with the result of imposing great expense and the loss
of much valuable, and otherwise useful, time and labor both upon
the government, the courts and private business concerns, the
following is quoted from the opinion of Circuit Judge Denison
in L. B, Silver v. Federal Trade Commission : *
“In the present case, thousands of pages of testimony have
been taken; thousands of dollars of expense incurred, for the
Government and for the respondents, and the time and at-
tention of the Commission and of the Circuit Court of Ap-
peals consumed to the total extent of many days—all over
questions of porcine genealogy and eugenics.
“Tn another recent case, before the Commission and another
Circuit Court of Appeals, a similar amount of, effort was
expended concerning the truthfulness of advertising claims
to merit in a medicinal condiment for live stock—the order
to desist prohibiting, among other things the use of a fic-
titious testimonial. Guarantee Veterinary Co. v. Fed. Trade
Comm., 285 Fed. 853. I do not believe that the Federal
Trade Commission was created for any such purpose, or
that the time and efforts of the Federal courts should be de-
voted to such situations.”
Attention is called to the statement contained at the beginning
of the above quotation, as being a judicial pronouncement of
criticism from a high source, made, again, not against a private
289 Fed. 985.
A DECADE OF THE FEDERAL TRADE COMMISSION 293
litigant, but against an important governmental tribunal; and as
strongly tending to bear out the contention which has been re-
peatedly advanced in the present discussion to the effect that the
Federal ‘Trade Commission has wrongly and hurtfully asserted
the power given to it by the new legislation.
The attention of the interested reader is particularly called to
the remainder of Judge Denison’s opinion,®* which contains a
most exhaustive and painstaking study of the history and scope
of the new legislation, with special reference to section 5 of the
Federal Trade Commission Act. It is believed that the expo-
sition thus presented supports the contention here advanced that
in the numerous cases brought by the Commission with respect
to misbranding, misrepresentation and other like deceptive acts,
the Commission has gone beyond the true scope and purpose of
the new legislation. Limitations of space permit the quotation
of only the following extracts : 5°
“A study of the Congressional Record convinces me that the
Federal ‘Trade Commission Act was wholly collateral to the
Sherman and other anti-trust acts, and that the ‘unfair meth-
ods of competition,’ intended to be reached by section 5, are
only such methods'as tend toward that monopoly or restraint
of competition which the anti-trust acts prohibit. ‘The act
was the ultimate result of House Bill 15613, in the Second
Session of the 63d Congress, introduced by Mr. Covington
on April 13, 1914, and it was the often declared partial
fulfillment of the general anti-trust program adopted by both
‘parties in the previous political campaign, and specifically
laid before Congress for its attention by the address of Pres-
ident Wilson on the subjects of trusts and monopolies, made
January 20, 1914. Several other bills of more or less sim-
ilar purport were introduced and referred, as this one was,
to the committee on interstate and foreign commerce, or,
as others were, to the judiciary committee. ‘The committee
reports and congressional debates, which from this begin.
ning led up to the act as finally passed, cover nearly a thou-
sand printed pages. ‘They have all been read, with reasona-
bly careful attention. Absolute inerrancy of review and in-
ference cannot be claimed, but with reasonable certainty it
may be said that the theory that the Commission was being
endowed with powers and duties which went beyond the
* Tbid., at 993,
© Ibid.
294. VIRGINIA LAW REVIEW
scope of the underlying purpose of the anti-trust acts was
never accepted by either house of Congress. * * * (p,
996). There was: universal agreement, frequently . ex-
pressed, that the bill was not intended to reach private con-
troversies between rival traders. * * * (p. 998).
This review leads me to the conclusion with which this dis-
cussion opened, viz, that the jurisdiction of the Commission
is limited to those situations indicating at least substantial
tendency to restraint of trade or monopoly, * * *
(p. 999). Justice Day said (257 U. S. p. 453, 42 Sup. Ct.
154, 66 L. Ed. 307, 19 A. L,, R. 882) thatthe ‘Trade Com-
mission Act ‘was intended to supplement previous anti-
trust legislation’ * *- * (p, 1000). With an excep-
tion yet to be noted, this recital covers all the judicial deci-
sions under this act which were found up to date. Save
for the Sears-Roebuck and Guaranty Veterinary Co. Cases,
they are all at least consistent with the conclusion that there
is no unfair competition under section 5 unless. there is a
tendency to monopoly. ‘The exception, not yet noticed, is
the Winstead Hosiery Case. When this was before the
Second C. C. A. (272 Fed. 957), there was no occasion to
consider whether the statute went beyond undue restriction
of, competition, since the court concluded that the defend-
ant’s acts were not unfair. It was without doubt assumed
by the court that the statute did have a broader scope, else
the court never would have reached the question which it
considered and decided. So far as the report indicates, the
contention that section 5 reached only such unfair competi-
tion as tended to monopoly was in no way brought to the
attention of the court.”
We have thus quoted at some length from the exhaustive and
scholarly study of this subject made by Judge Denison in order
to base thereon the contention that the argument thus advanced
tends strongly to show, if it does not indeed demonstrate, that the
whole class of cases of the nature of misbranding or other like
deception, which have been prosecuted by the Federal ‘'rade Com-
mission, have been so prosecuted without due warrant under
the two statutes upon which the Commission’s powers are solely
based, that is to say, the new legislation here under discussion.
If Judge Denison’s contention is correct, it follows that in a
branch of the Commission’s work which has, perhaps, been as
extensive, troublesome and costly as any other branch of its work,
its activities were unauthorized,
“4 DECADE OF THE FEDERAL, TRADE COMMISSION 295
We believe that we have shown by a consideration of ad judi-
cated cases arising under the new legislation that it has done
nothing towards the clarification of the meaning of the Sherman
Law; that, instead of eliminating uncertainty, it has increased
the uncertainty which had existed, and contributed additional
confusion and perplexity to the problems of the plain business
men of the country; that, instead of establishing a tribunal which
the opinion of the country would instantly approve, it has done
precisely the reverse; and, finally, that in place of furnishing such
a tribunal to serve “as an instrumentality for doing justice to
business” it has, to a substantial extent, furnished a tribunal
which has wrought injustice and injury.
All this is but the natural result of an effort, assuredly well-
meant, to satisfy an ill-informed public opinion, inflamed by po-
litical controversy, by the expedient of tampering, by means of
the new legislation, with the Sherman Law, which Mr. Taft
properly described as “one of the most important statutes ever
passed in this country”—a statute which, after passing through
a period of admitted uncertainty, had reached a stage of reasona-
ble efficiency and clarity when the new legislation was projected. ©
‘The new legislation attempted a task impossible of achieve-
ment. A decade of experience under it shows that it has lamenta-
bly failed. It is, perhaps, not to be wondered at, ‘that the Com-
mission, realizing the impotency of the two laws upon which its
usefulness depended, has, in numerous instances and doubtless
with good purpose, undertaken tasks beyond the authorization
of its basic laws and has met with the inevitable result of such
an effort—futility and failure. :
It is a matter for regret that the wise counsels of Mr. Taft,
given when the new legislation was under consideration by Con-
gress, were not heeded.
In the concluding part of this discussion, a comparison will be
made between the laws, procedure and policy of this country in
the field which has here been under consideration, and those
which prevail in other countries.
(To be concluded)
Felix H. Levy.
New Yorw Crry,
296 VIRGINIA LAW REVIEW
STERILIZATION OF DEFECTIVES.
wee are the limits of the police power of an American
state over the liberty of persons within its jurisdiction
to reproduce their kind? 2
~ This question is suggested by recent court decisions passing
upon statutes of some of the states moving in the light of mod-
ern advanced eugenical science with the aid of enlightened medi-
cal practice to lessen the transmission of certain hereditable men-
tal defects admittedly harmful both to the afflicted individual
and to society.
If it be established that crime, insanity, epilepsy or. feeble-
mindedness transmitted under ascertained laws of heredity will
be increased from unrestricted procreation by the criminal, in-
sane, epileptic and feebleminded, what power has the State to
protect these against themselves and itself against such certain
multiplication of the defective and socially inadequate?
That the State has the power, exercised by every state, to take
and keep in custody both for their own good and for the welfare
of society persons so afflicted is well settled, nor is it to be doubted
that when thus held in custodial care such persons may by segre-
gation be prevented from procreating.
Is this the sole remedy available to organized society?, Must
such persons languish for life in custody and must the govern-
ment bear the perpetual burden of thus maintaining them if it
would protect itself against the multiplication of their kind, and
must this be so even when through a simple surgical operation
not appreciably dangerous and involving the removal of no sound
organs from the body such persons might be discharged from
custody and become self supporting to the great advantage both
of themselves and of society? May one liberty be thus restored
through the deprivation of another liberty?
Within the past two decades some sixteen of the states have
endeavored by statute to deal with this problem.
The State of Washington by statute," provided for the opera-
tion of vasectomy for thé prevention of procreation as a part of
* Rem, and Bal. Code, § 2287,
STERILIZATION OF DEFECTIVES 297
the punishment that might be imposed in certain cases. ‘The
Constitution of Washington,? contained a prohibition against the
infliction of cruel punishments, In Feilin’s Case,® decided by the
Washington Supreme Court, Sept. 3, 1912, it-was said;
“Guided by the rule that, in the matter of penalties for crim-
inal offenses, the courts will not disturb the discretion of
the legislature save in extreme cases, we cannot hold that
vasectomy is such a cruel punishment as cannot be inflicted
upon appellant for the horrible and brutal crime of which
he has been convicted.”
In New Jersey the Board of Examiners created by “an act to
authorize and provide for the sterilization of feeble minded (in-
cluding idiots, imbeciles and morons), epileptics, rapists, cer-
tain criminals and other defectives,” 4 ordered that the operation
of salpingectomy be performed on an epileptic inmate of a state
charitable institution as the most effective operation for the pre-
vention of procreation, In the case of Siith v. Board of Ex-
aminers of Feeble Minded,’ the court held that the’ statute in
question was based on a classification that bore no reasonable re-
lation to the object of such police regulation, and hence denied
to the individuals: so selected (inmates of state institutions) the
equal protection of the laws guaranteed by the. Fourteenth
Amendment to the Constitution of the United States,
The court said; ¢
“Prosecutrix falls within the classification of the statute in
that she is an inmate of the State Village for Epileptics, a
state charitable institution, ‘the objects of which,’ as stated
in the act creating it, are ‘to secure the humane, curative,
scientific and economical care and treatment of epilepsy,’ 4
Comp. Stat. p. 4961. The prosecutrix has been an inmate
of this charity since 1902, and for the five years last past
she has, had no attack of the disease. From this statement
of the facts it is clear that the order with which we have to
deal threatens possibly the life, and certainly the liberty, of
the prosecutrix in a manner forbidden by both the state and
federal constitution, unless such order is a valid exercise of
Art. I, § 14,
2 "70 Wash. 65, 126 Pac, 75, 32 Ann, Cas, 512,
a
N. J. P. L., 1911, 353,
* (N. J), 88 Atl, 963, 32 Ann. Cas, 515.
* Ibid., pp. 516-517,
298 VIRGINIA LAW REVIEW
the police power. ‘I'he-question thts presented is therefore
not one of those constitutional questions that are primarily
addressed to the legislature, but a purely legal question as
to the due exercise of the police power, which is always a
matter for determination by the courts. ‘This power, stated
as broadly as the argument in support of the order requires,
is the exercise by the legislature of a state of its inherent
sovereignty to enact and enforce whatever regulations are
in its judgment demanded for the welfare of society at large
in order to secure or to guard its order, safety, health, or
morals, ‘The general limitation of such power to which the
prosecutrix must appeal is that under our system of govern-
ment the artificial enhancement of the public welfare by the
forcible suppression of the constitutional rights of the indi-
vidual is inadmissible. Somewhere between these two fun-
damental propositions the exercise of the police power in the
present case must fall, and its assignment to the former
rather than to the latter involves consequences of the great-
est magnitude.
“Evidently the large and underlying question is, how far is
goverhment constitutionally justified in the theoretical bet-
terment of society by means of the surgical sterilization of
certain of its unoffeiding, but undesirable, members?
* * * x * * is * *
“For not only will society at-large be just as injuriously af-
fected by the procreation of epileptics who are not confined
in such institutions as it will be by the procreation of those
who are so confined, but the former vastly outnumber the
latter, and are, in the nature of things, vastly more exposed
to the temptation and opportunity of procreation, which in-
- deed in cases -of, those confined in a presumably well con-
ducted public institution, is reduced practically to nil. ‘The
particular vice, therefore, of the present classification is not
so much that it creates a subclassification, based upon no
reasonable basis, as that, having thereby arbitrarily created
two classes, it applies the statutory remedy to that one of
those classes to which it has the least, and in no event a sole,
application, and to which indeed upon the presumption of
the proper management of our public institutions it has no
application at all. When we consider that such statutory
scheme “necessarily involves a suppression of personal lib-
erty and a possible menace to the life of the individual who
must submit to it, it is not asking too much that an arti-
ficial regulation of society that involves these constitutional
rights of some of its members shall be accomplished, if at
all, by a statute that does not deny to the persons injuriously
te
STERILIZATION OF DEFECTIVES 299
affected the equal protection of the laws guatanteed by the
Federal Constitution.”
The foregoing may, perhaps, be accurately termed both the
earliest and the two leading cases upon the subject.
It will be observed that while the motive of the Washington
statute was punitive, it was also eugenical in its operation. ‘The
New Jersey statute was purely eugenical. Other statutes suggest
a therapeutic motive—the welfare of the patient, though in op-
eration they would be eugenical also,
Similar legislation has run a varied course both with the law
making authorities and in the courts.
The governors of Pennsylvania,’ Oregon,§ Vermont,? and
Nebraska ' have vetoed sterilization bills passed by their respec-
tive states. Of these states, however, Nebraska and Oregon
finally succeeded in securing sterilization statutes,
In Rudolph Davis v. William H. Berry et al..™ the Iowa stat-
ute was held invalid as a bill of attainder, providing for a cruel *
and unusual punishment and having no provision for due proc-
ess of law. ‘This case went to the United States Supreme Court
but was not there decided upon the merits because pending the
appeal the statute involved was superseded by the enactment of a
substantially different statute upon the same subject.1#
No other case involving a like statute appears to have reached
the Supreme Court.
In Haynes v. Williams,’® the Michigan statute was held un-
constitutional as not affording those affected by it the equal pro-
tection of the laws.
The Supreme Court of Indiana, May 11, 1921, in Smith v.
Williams, held the Indiana statute invalid, saying :
“In the instant case the prisoner has no opportunity to cross
examine the experts who decide that this operation should
be performed upon him. He has no chance to bring ex-
* Pennypacker, 1905; Sproul, 1921,
® Chamberlin, 1909,
° Fletcher, 1913.
” Davis, 1913.
* 216 Fed. 419,
* Berry v, Davis, 242 U. S. 468, .
* (Mich.), 166 N. W. 938.
Bae Be [Ske queae ae
;
He
|
300 VIRGINIA LAW REVIEW
perts to show that it should not be performed; nor has he
a chance to controvert the scientific question that he is of a
class designated in the statute. And wholly aside from the
proposition of cruel and unusual punishment, and infliction
of pains and penalties by the legislative body through an ad-
ministrative board, it is very plain that this act is in viola-
tion of the Fourteenth Amendment of the Federal Consti-
tution in that it denies appellee due process.”
_ It will be observed from the foregoing cases, which are fairly
typical of the limited number of court decisions upon the sub-
. ject, that none of, them holds that the State is without the power
in question provided it be exercised through a statute that both
affords due process of law and operates alike upon all individuals
of the class affected, but those courts which follow the New Jer-
sey case hold that limiting the operation of such a statute to in-
mates of State custodial institutions denies such inmates the
equal protection of the laws and renders the statute unconstitu-
tional and void in toto,
THe Vircinia Statute,
Most recent of the states to enact a statute of the character un-
der discussion is Virginia, where an act to provide for the sexual
sterilization of inmates of State institutions in certain cases
passed both houses of the Legislature without dissent and was
approved by the Governor, March 20, 1924.15
Drawn in the light of the experience of other states the Vir-
ginia statute reflects a diligent effort to avoid the defects that
have brought disapproval from the courts of some similar en-
actments,
This statute provides for a hearing after notice before a Hos-
pital Board, the appointment of guardians in proper cases, gives
the right of representation by counsel with an appeal of right to
the Circuit Court, with a further right of appeal to the Supreme
Court of Appeals, and contains other provisions which alto-
gether appear to meet the requirements of due process of law.
The operation of the statute, however, is limited as its title
indicates to inmates of State Institutions, the body of the act
making it applicable to “any such patient confined in such insti-
* Acts of Assembly, 1924, 569, Pollard’s Code Bien., 1924, 475,
STERILIZATION OF DEFECTIVES 301
tution afflicted with hereditary forms of insanity that are recur-
rent, idiocy, imbecility, feeble-mindedness or epilepsy.” 4
Sterilization under the Virginia statute shall not be ordered in
any case unless the Special Board of the institution after the no-
tice and hearing above. referred to shall find upon the evidence
adduced “that the said inmate is insane, idiotic, imbecile, feeble
minded or epileptic, and by the ‘laws of heredity is the probably
potential parent of socially inadequate offspring likewise af-
flicted, that the said inmate may be sexually sterilized without
detriment to his or her general health, and that the welfare of
the inmate and of society will be promoted by such sterilization.”
‘Thus it will be seen that while this statute has a eugenical mo-
tive, sterilization can in no case be ordered under its authority
unless it shall have been first judicially ascertained that the wel-
fare of the inmate also will be promoted thereby. .
When it is considered that those who are subject to. commit-
ment to these institutions constitute classes well defined by the
statutes ?® and thus become because of mental defectiveness
wards of, the State, and being because of mental defects them-
selves incapable of deciding what is best for themselves, can it
be said that it involves an unreasonable classification to provide
for them tribunals judicially to determine what in the respect
indicated will promote their welfare and having so found to or-
der their sterilization—an adjudication which the Virginia stat-
ute requires further to be supported by the finding that the ac-
tion proposed will also promote the public welfare.
‘The field here is a broad one involving what were formerly at
least regarded as elemental personal rights. ‘To exhaust this
field has not been attempted.
If this article shall stimulate consideration and discussion of
the questions suggested it will have served its purpose.
Aubrey E, Strode.
Lyncupurc, VIRCINIA,
“™ Va. Code, §§ 1066-1077.
VIRGINIA LAW REVIEW
Published Monthly, During the Academic Year, by University of Virginia Law Students
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Editorial Board.
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Can ‘tHe Constrrutron By Taucut in tHe Common ScHoors?
“There was also a beaver who paced on the deck,
Or sat malting lace at the bow,
And had often, the Bellman said, saved them from wreck,
‘Vhough none of the crew could tell how.”
—Lewis Carroll, in The Hunting of the Snark.
‘This article is not designed as a technical discussion of a legal
principle, but may, hecause of that fact, have a wider interest; and
since lawyers, especially when assembled at Bar Association meet-
ings, recognize the duty of actively assisting in bringing home to the
average man and woman a knowledge and appreciation of our sys-
tem of government, some suggestions as to how this may be done do
not seem to be out of place.
It is safe to say that. if our pebple.as a whole realized the benefi-
cence of our form of government, the peculiar protection it affords
the individual in the exercise of his natural rights, the stimulus it has
given to individual initiative and energy, we would have not only a
completely loyal, but a contented and happy people.
“Safety first” has an appeal to the instinct of self-preservation,
and in a rather materialistic and selfish age the average man is likely,
when the Constitution is under discussion, to ask: ‘What is there
in it for me?”
EDITORIAL 303
This inquiry must be answered, even though it is not prompted by
the highest ideals of civic duty. It cannot be answered by oratorical
eulogies or by general conclusions as to the value of. the Constitu-
tion, These leave the uneducated cold, if not irritated. They grow
tired of. hearing the Constitution thus referred to, and the result is
very much as given in the above jingle—one of the best specimens
of what has been aptly described as “Carroll’s Classical Nonsense.”
There is, of course, no doubt that the education of the citizen
should commence in his school days, but-it is difficult, if not impos-
sible, to hold the attention of the young to a dry and involved study
of the constitutions, State and Federal, and their respective domains.
Unfortunately, almost every treatise on the subject is involved; gen-
erally intended for lawyers and always for students far beyond the
high school, while text books for use in the common schools contain
a mass of detail describing local, State and Federal governmental
activities assumed to be adapted to the youthful mentality. The stu-
dent, therefore, if attracted at all, concentrates upon matters of mere
routine, and the opportunity for impressing upon his plastic mind
the great principles of natural, individual rights, upon which our
government rests, is lost. ‘The practical problem is whether it is pos-
sible to state and illustrate these principles in so attractive and in-
teresting a manner that a pupil in the common schools will under-
stand and remember them,
Tt would soon seem, that this could be done if mere routine were
ignored so far as possible, and stress placed upon those provisions
of the organic law which actually are of vital interest to everyone
and around which revolve the romance of history and the progress
of humanity.
For instance, a most interesting study could be made of the origin
of the written secret ballot, for while it is true that voting by bal-
lot had been attempted at different times, the principle of the’ writ-
ten secret ballot in its entirety was first established in this country.
and gradually improved and modified by legislation until we have it
as it is in the present day. The sanctity of the ballot, the superiority
of the American system and the great part it plays in the mainte-
nance of free elections could be thus inculcated. .
The subject of religious liberty would, of course, require delicate
handling, since, in showing the crimes committed in the name of re-
ligion in the past, care would necessarily be taken to avoid criticism
of any particular church ; but it should be possible to establish broadly
the fact that where religion and politics were permitted to intermix,
religious persecution inevitably ‘resulted, no matter what form of
belief was professed by the faction controlling the government.
‘Thus, the necessity for a complete separation of church and state
could be demonstrated without injuring the sensibilities of any in-
dividual; a proper understanding of the first and fourteenth amend-
ments would result, and liberty of conscience ‘be so fully respected
that no one would dare appeal to religious prejudices ‘in political
campaigns.
The abolition of imprisonment for debt could be made fascinat-
— A Ne MT OTE
304 VIRGINIA LAW REVIEW
ing. ‘The writings of Dickens and ‘Thackeray, showing the miseries
which resulted from the old system, could be made use of, It is
even possible that young people could in this way be induced to read
standard works of such authors, instead of poisoning their minds
with books on sex problems and trash which go under the name of
literature. As against the former system of imprisonment for debt,
we have our humane exemption laws, and it would be strange if
the young mind, after making the comparison, would not receive a
favorable impression of the American Government. :
How valuable the writ of Habeas Corpus seems when read in con-
nection with the Lettre de Cachet; the provision for public arid jury
trials as against Star Chamber proceedings and Bills of Attainder;
and what absorbing interest would attach to the provision that no
one could be compelled to testify against himself, hy comparing it
with the torture formerly forming a part of the regular legal pro-
cedure.
Modern instances could be cited to show these guarantees of in-
dividual freedom to be still necessary; thus, it is only a few weeks
since the United States Supreme Court, because of the conduct of the
police in securing a confession, set aside a conviction of murder.
The Bill of Rights,.when read in the light of history, becomes
such a living, vital thing, appealing to everyone of us, that it would
seem almost criminal that its glory should be lost in a mass of de-
tails relating to town or county government or the method of nomi-
nating candidates for office.
All this would naturally lead to a study of the judiciary and the
proper functions of our courts, and, first, the necessity for an in-
dependent judiciary could be made evident by a short study of the
crimes committed in the name of justice by judges holding office at
thé will of the appointing power.
In those states. where the judges are elected for limited terms,
lawyers are always anxious to see a good judge kept in office, and
the only logical appeal which can be made to the electorate must be
based upon the necessity for an independent judiciary. ‘To appre-
ciate this appeal, the electorate should know what that’ means.
The student having been thus brought to a realization of the value
of the Constitution to him as an individual would naturally desire its
perpetuation ; the admonitions to guard it given by great Americans,
from Washington down, would appeal to him, and here, again, his-
tory will show that scant attention has often been given to mere pa-
per declarations of human rights where there was no tribunal with
power to enforce them, and thus the duty of our courts, now so
sharply attacked, to set aside legislative and official acts contraven-
ing the organic law would be understood and acquiesced in, Interest
in this phase of the question could be stimulated by reference to the
cases in which this has been done, preference to be given to-those,—
and they are many,—having a very human appeal. .
Civics taught in this way would include history and literature,
and could not fail to broaden the mind of the student and inculcate
real Americanism. It would.teach him to revere our government
NOTES 305
and to respect its authority. If it is true that in this mechanical age
leadership and respect for law and authority are disappearing, should
not an attempt be made to show the youth of the land that ours is a
“government of laws and not of men,” and that “tinkering” with the
Constitution is a dangerous pastime and so, perchance, increase their
respect for legitimate authority and save them from the sentimen-
tality of idealists, upon the one hand, and vicious propagandists,
upon the other?
Tuomas D, O’Brimn.
St. Paul, Minn, ,
NOTES
Satas—Ricu’t or tux Buver ‘to Ruscrnp tag Conrract ror A
Devecr on THY Quarry or ‘tH Goops Drriversp,—The question
of the right of a buyer of goods to repudiate the contract because of
the defective quality of goods delivered has been a constant bone of
contention in the courts. Any discussion of the question must nec-
essarily be divided into two divisions, namely: (1) With respect to
those sales in which the title to all the subject matter passes at one
time; (2) With respect to those sales in which the title to the sub-
ject matter passes at different intervals, i. ¢., those contracts usually
designated as “instalment” contracts,
Before proceeding it might be well to point out that it is generally
of no practical importance, in this country at least, whether the state-
ment in regard to quality is to be considered as a warranty or a con-
dition.t Though text-writers and judges often make the distinction,
it is in most cases productive of confusion rather than clearness,
I;
‘The first class of contracts, embracing the great majority of sales,
will receive only brief treatment. ‘There have been two clearly de-
fined lines of authority in this country. ‘The English Rule probably
prevailed in a majority of our states before the enactment of the
Uniform Sales Act. ‘That doctrine makes a distinction between ex.
ecuted and executory contracts. If the contract is executed there
can be no rescission under any circumstances, and the buyer must
be content with obtaining damages in an independent action or re-
coupment when sued for the purchase price. If the contract is exec-
utory, the buyer may accept the goods and sue for the breach of war-
ranty or he may reject the goods. Under the other doctrine, known
as the Massachusetts Rule,? the buyer is allowed to rescind in either
case if he so chooses, and the question whether title has passed is of
no importance. Of course, the buyer may elect to retain the goods
and sue upon the warranty or obtain recoupment when sued for the
+ New York, prior to the enactment of the Uniform Sales Act, had a doc:
trine at variance with the two well settled lines of American authority which
seemed to require a distinction between technical conditions and warranties.
See article by Professor Burdick, 1 Col. Law. Rey. 71.
* See article by Professor Williston, 16 “Harv, Taw Rev, 468, and cases
there cited.
306 VIRGINIA LAW REVIEW
purchase price. It is the latter rule that was adopted by the Uni-
form Sales Act, enacted in twenty-seven jurisdictions,’
I
The principles involved in a contract for the sale of goods the
title to all of which will pass at one time are comparatively clear,
and the question whether there can be rescission in a given case de-
pends upon the view prevailing in the jurisdiction in which the case
arises. However, the situation in regard to instalment contracts pre-
sents more difficulties...As said by one court: 4
“Upon this question there is a wilderness of authority through
many, many years, and conflicting.”
This statement is true only to a limited extent, as much apparent
conflict is explained when proper distinctions are made. ‘Though it
would be difficult to make a general statement covering all cases, the
doctrine—or doctrines—which the courts apply to-particular circum-
stances are clearly discernible.
‘The English Rule on the question refuses the right to rescind un-
less the breach in regard to any one instalment is such as to show
an intention on the part of the party in default not to be bound by
the contract.6 As said by Coleridge, C. J., in Freeth v. Burr:
‘ * © the true question is whether the acts and conduct of
the party evince an intention no longer to be hound by the con-
tract.” .
‘Thus cach instalment is virtually treated as a separate contract and
the breach of one instalment is no ground for a refusal to accept
subsequent instalments except insofar as it constitutes an anticipa-
tory breach of the whole contract. Such seems to be the English
Rule as applicable to all cases.7
After a study of the American cases it would be hard to state a
general rule as governing the decisions.8 This is due not so much to
a difference in the outcome of the actual cases as to a failure of the
an the restive meilts of aire doctrines, examine the articles in the
controversy between Professors Williston and Burdick.
oe ric Taf rofes mn and Burdick, 16 Harv, Law Rey.
* Hilison, Son & Co, v. Grocery Co, (1911), 69 W. Va. 380, 71 $. E,
38,1, RAS N.S) 5 oe 4 8 9h
onassohn vy, Young 1 4B, & S. 296, 32 L, J. Q. B. 385, 122 Eng,
Rep. R. 470; Simpson v. Crippin (1872), 8 L. R. Q: we 14; Mersey Sidi
and Iron Co. v, Naylor (1884), 511, J. Q. B. 576, 5 B. & C. 269, 9 App.
Cas. 434; Bunyamin, Sares, § 908,
: (87), 91. R c. P 208, 213.
‘or a criticism of this doctrine, see King Philip Mills v. Slat
12,R, 1. 82, 34 Am. Rep. 603, « p Mills x. Slater’ (1878),
Ina note to Bunyamrn, Sats, § 909, Mr. Corbin states the American
doctrine to be as follows: “In the American cases the rule is to look to the
intent and where it cannot be supposed to have been the intent of the par-
ties in making the contract that one must continue performing while the other
is in default, the contract may be abandoned by the aggrieved party.” It
is submitted that the operation of such a rule is not apparent in, the cases,
Also, it would seem that such a rule would-give the right of rescission in all
bilateral contracts unless otherwise stipulated.
NOTES , 307
courts to base their decisions on the same reasoning in cases of sim-
ilar facts, and the fact that language too broad in scope is often ap-
plied to specific cases. However, if attention is paid to the actual
facts in the cases and proper distinctions made, a great deal of os-
tensible conflict disappears.
It seems to be fairly well settled by the weight of authority, at
least of the late cases, that the buyer may rescind the whole contract
if the first or earlier instalments ® are defective in quality 1° and the
buyer promptly notifies the seller of his refusal further to per-
form! But, though such is clearly the trend of the later cases,
there is respectable authority to the contrary, These cases seem to
adopt the English Rule and hold that a branch of one instalment is
not a ground for rescission of the whole contract unless it amounts
to a renunciation of the entire obligation.1?
The doctrine allowing rescission in the absence of any intent to
abandon the entire contract appears to be the better.18 It is seldom
that a defect in the quality of the goods delivered is the result of an
intent to abandon the contract, nor does it necessarily evince an in-
ability to deliver subsequent instalments according to the agreement;
thus, the application of the contrary rule practically prohibits rescis-
sion for this type of breach. Such a result as is in many cases
highly inequitable. Following are the words of Potter, J., deliver-
ing the opinion in King Philip Mills v. Slater: 14
“To hold that the purchaser must receive such lots as are of the
right quality, and that for the periods when they are not so he
must supply himself elsewhere, and sue for his damages, or
claim to deduct them, would introduce confusion into business.
Tt would in most cases entirely frustrate the object of the con-
tract.”
Next for consideration is that class of cases in which the buyer
has knowingly accepted defective instalments, gone on with per-
formance of the contract, and then later refused to accept further
instalments because of the inferiority.of some or all of the goods-
previously delivered. ‘Though practically all of these cases expressly
or impliedly admit the buyer’s right to rescind for a defect in the
° In practically all of the cases allowing the right of rescission, the de-
fect in quality has existed in ‘the first or second instalment and the buyer
immediately repudiated the contract. In all cases in which the buyer has at-
tempted to rescind after a substantial part of the contract has been performed.
he has. been precluded from doing so because of his knowledge of the de-
fective character of goods previously accepted, Whether the courts would
allow the buyer to rescind the contract and refuse to accept further instal-
ments for a defect in the quality of one of the later instalments, the previ-
ous ones having been up to standard, is doubtful.
” Enterprise Mig. Co, v. Oppenheim (1911), 114 Md. 368, 79 Atl. 1007,
38 L. R. A. (N. S.) 548; Newton v, Bayless Fruit Co, (1913) 155 Ky. 440,
159 8. W. 968. ' :
® Bor collection of cases concerning the notice required, see note to 8 L,
R.A. (N. 8S.) 1110.
* Blackburn v, Reilly (1885), 47 N. J. Law 290, 54 Am, Rep. 159, 1 Atl.
27; Worthington v, Given (1898), 119 Ala, 44, 24 So, 739, 43 L. R. A. 382.
™ Wiritston, Sauts, § 467d.
4 Cypvd note 7.12 R. IT. 82. 85.
308 VIRGINIA LAW REVIEW
quality of the earlier deliveries if the right is at once exercised, they
deny for various reasons that the buyer can take advantage of the
previous breach at the time he attempts to do so.15 The only con-
flict to be found in these cases is the reasoning upon which the right
to rescind is denied.
It is often hard to determine the precise reason in a given case.
Scott v. Kittaning Coal Co,1* is a typical example. In that case
the contract was for the delivery of 50,000 tons of coal in monthly
instalments of not more than 6,000 tons. After accepting and using
several instalments, the buyer refused to accept more for the reason
of the inferiority of some previously delivered. In allowing the
seller to recover for breach of contract, Trunkey, J., stated the rea-
soning of the court as follows:
“True, a fraudulent delivery of one article for another authorizes
rescission of an entire contract, perhaps would of a severable
one, but not after the goods had been accepted, paid for, and
consumed.”
Some cases seem to deduce the decision from the fact that the
contract is entire or severable as the case may be.!7 In Harding,
Whitman & Co. v. York Mills 18 it was said:
“They could, of course, refuse to accept inferior yarn, and compel
the plaintiffs to furnish that which was up to the standard, and
they would also be liable to damages if this was not done. But
the contract was entire, and could not be abrogated after there
had -beerr a* partial, even though: a: defective--performance, of
which the defendants knowingly accepted the benefit,”
In Ellison, Son & Co. v. Grocery Co.,1® the contract was held to be
severable but the same decision was reached,
Other cases, without regard to whether the contract is entire or
severable, hold that by accepting further performance under the con«
* The failure to distinguish these cases from those in which there has been
no acceptance of instalments with knowledge of their defective nature has
caused much confusion, Due to broad statements sometimes found in the
opinions, they have been, cited as authority for the general proposition that
there can be ho rescission of an instalment contract for a defect in the qual-
a, ons iene ate potas decisions sustain no such rule,
. a. i m, Rep, 753, Also see Cahen v, Platt
69.N. Y. 348, 25 Am. ‘Rep. 203, ° (i877);
_" The mere fact that a contract provides for the delivery of goods in
instalments does not make it severable. It is a question of the intention of
the parties. Shinn v, Bodine (1869), 60 Pa. 182, 100 Am, Dec, 560. On the
question whether the distinction between, entire. and severable contracts is
material in such a case, it has been said: “The doctrine of severableness,
(if I may be allowed to coin a word) in contracts, is an invention of the
courts * * *- to enable one who has partially’ performed * * * to
sustain an action * *° *, ‘But* this” eqititable’ doctrine’ should” not be in-
yoked by one who has failed to perform, for the purpose of defeating the
other’s right to rescind * As against such a party the contract
should be treated, and enforced, as entire.” Butler, J,, in Norrington v,
pent (1881), 5 Fed, 768, 771, affirmed 115 U. S. 188) 6 Sup. Ct. 12, 29
L, Ed, 366, . :
"© (1905), 142 Fed. 228,
” Suora, note 4.
NOTES 309
tract, after knowledge of the defective instalments, the buyer has
waived his right to rescind,?° or that he is estopped to do so.?*
‘A late case has based the decision on purely equitable considera-
tions, without discussing the technicalities involved, In that case 2?
Waddill, J., in delivering the opinion of the court, said:
“The defendant, after thus ordering the flour under its contract,
and continously for some months receiving the same thereun-
der, ought not in good faith and fair dealing, having partly per-
formed the contract. to he permitted to rescind the same at its
option, because of the alleged defect in the quality of some of
the flour furnished.”
‘These cases denying the right of rescission after the buyer has
knowingly accepted defective instalments are undoubtedly sound,
Any other rule would allow the buyer to select his own time and
watch the rise and fall of the market before exercising his right of
rescission. Furthermore, the equitable considerations involved seem
to be a sufficient basis for the ruling. Whether the fact that the
contract is severable, or entire, and the seller cannot be put in statw
quo, ot waiver, or estoppel, is the reason giver for the decision in
a specific case, the fact that the contrary rule would he inequitable is
an underlying motive. But, by accepting inferior instalments of
goods the buyer is not ordinarily deemed to have given his assent to
receive subsequent instalments of similar inferior goods.?8 How-
ever, continued acceptance of instalments, all containing the same
defect, might have another effect.24
‘The Uniform Sales Act makes the following provision in regard
to a breach of an instalment contract : 25
“Where there is a contract to sell goods to be delivered by stated
instalments which are to be separately paid for, and the seller
makes defective deliveries in respect of one or more instalments,
or the buyer neglects or refuses to take delivery or pay for one
or more instalments, it depends in each case on the terms of the
contract and the circumstances of the case, whether the breach
of contract is so material as to justify the injured party in re-
fusing to proceed further and suing for damages for breach of
the entire contract, or whether the breach is severable, giving
™ Guernsey v. West Coast Lumber Co, (1890), 87 Cal, 249, 25 Pac. 414;
Clark v, Wheeling Steel Works (1893), 53 Fed, 494; ‘Nhomas-Huycke-Mar-
tin Co, v. Gray (1910), 94 Ark. 9, 125 S. W. 659, 140 Am. St. Rep, 93.
*® MéDonald v, Kansas City Bolt Co, (1906), 79 C. C. A. 298,°149 Fed,
360, 8 L..R. A. (N, S$.) 1110.
* Baer Grocer Co. uv, Barber Milling Co. (1915), 223 Fed. 969, 972.
™ Barnette Sawmill Co, v, Fort Harrison Lumber Co. (1910), 126 La. 75,
52 So, 222; Consolidated Nat. Bank-v. Giroux (1916), 18 Ariz, 253, 158 Pac.
451; Wrurston, Convrracrs, § 741. .
™ «Tt is obvious that if such a contract required numerous deliveries, :the
continued acceptance without objection of instalments, all defective in the
same particular, would justify belief that such instalments might properly be
given and would be accepted in the future.” Wriuston, Conrractrs, § 741,
™ Sec. 45 (2).
310 VIRGINIA LAW REVIEW
rise to a claim for compensation, but not toa right to treat the
whole contract as broken.”
Tt will be noted that the provisions of the Statute are confined to
cases in which there is a contract to sell by stated instalments which
are to be separately paid for, and does not apply to contracts which
make no express provision for delivery in instalments or- separate
payment, Even as to the type of contracts designated in the Stat-
ute, no provision is made for the case in which a party, though at one
time having an excuse for non-performance, has proceeded with the
contract. these situations so omitted will be determined by the
common law. Concerning those cases covered, the Statute seems to
have adopted a rule which might be termed the offspring of common
law rules prevailing before its enactment, It is less stringent than
the English Rule but more so than that of most of the jurisdictions
of this country.2¢
W. LB.
® For an interpretation of this section, see Helgar v. Warner's Features
(1918), 222 N. Y, 449, 119 N. E. 113; Winston, Sares, § 465b.
RECENT , DECISIONS. * 311
RECENT DECISIONS
Dearn ny Wronorus, Acr—Aciion ny Soxg Bennrrctary As ADMINIS-
‘retor Nox Barrny sy His Cowvemutory Nuoracence—The plaintiff's wife
was killed, in -an automobile accident in a car driven by the plaintiff. The
negligence of the plaintiff directly contributed to her death. As sole next of
kin and the only beneficiary he brought an action for her death. Feld, action
not barred. Van Clik v. Hackensack Water Co, (N. J. 1924), 126 Atl. 634,
Tt would appear to be the generally accepted rule, that negligence on the
part of the beneficiary, which directly.contributes to the death will bar an
action by him under the death statutes. Kokesh v. Price (1917), 136 Minn,
304, 161 N. W. 715; Flagstaff v. Gomez (Ariz, 1921), 202 Pac, 401, 23
A. 1. R, 661; Matoon v. Dane County (1922), 177 Wis. 649, 189 N.
W. 154. This doctrine is more frequently invoked in the case of a
parent suing for the wrongful death of his minor child, but is equally ap-.
plicable to a case between husband and wife, Kokesh v. Price, supra; Hazel
vy. Hoopeston-Danville Motor Bus Co. (1923), 310 IN, 38, 141 N. E. 392,
30 A. L. R, 491, And this is of course irrespective of the doctrine of im-
puted negligence, which has been repudiated in most jurisdictions as to par-
ent and child. Chicago, ete., R. Co. v. Wilcox (1891), 138 Ill. 370, 127 N,
H, 899, 21 L. R. A. and note; Knoxville R., ete, Co. v. Vangilder (1923),
132 Tenn. 487, 178 S. W. 1117. ‘The reason for the rule that contributory
negligence of the beneficiary bars his recovery is based on the maxim that
no one should profit by his own wrongdoing. Atlanta, ete., R: Co. v. Gra-
itt (1894), 93 Ga. 369, 20 S. EK. 550, 44 Am. St. Rep. 145, 26 L. R. A, 553.
On the other hand a few cases hold that the contributory negligence of
the beneficiary, although he be the sole heir or next of kin, does not bar the
action, Woymore v. Mahaska County (1889), 78 lowa 396, 43 N. W. 264,
16 Am, St. Rep. 449, 6 L. R. A. 545; MacKay vy, Syracuse Rapid Transit
Co, (1913), 208 N. Y¥. 359, 101 N. FE. 885. It is fairly well settled that
where the negligence of one of several beneficiaries contributed to the death,
the right of the remaining beneficiaries to recover is not thereby prejudiced.
Cleveland, ete., R. Co. v. Bossert (1909), 44 Ind, App. 245, 87 N. E. 158;
Kokesh v. Price, supra. Some cases however, deny such a contention, Ploof
y. Burlington Traction Co. (1898), 70 Vt. 509, 41 Atl, 1017, 43 L, RAL
108; Hazel v. Hoopeston-Danville Motor Bus Co., supra.
The reason for such a diversity of holdings as to-whether the action can
be maintained seems to lie in the fact that there are two types of death stat-
utes, Under statutes which provide for an action’ by an administrator, the
amount recovered has in some cases been regarded a’ part of the general
estate of the deceased and on that ground, contributory negligence has been
held not to bar the action, Wymore vy, Mahaska County, supra; Nashville
Lawnber Co. v. Busbee (1911), 100 Ark. 76, 139 S. W. 301, 38.1. R. A. (N.
S.) 754 anid note, In jurisdictions where the action. is brought by av, admin-
istrator, not for the benefit of the estate generally, but for the benefit of the
312 - VIRGINIA LAW REVIEW
next of kin, the weight of authority is to the effect that the action will be
barred by the contributory negligence of a sole beneficiary. Dickenson v.
Stuart Colliery Co, (1912), 71 W. Va. 325, 76 S. BE. 654, 43 L. R. A. (N.
S.) 335; Ploof v. Burlington Traction Co., supra. Some cases such as the
instant one, hold that it will not bar. Consolidated Traction Co. v. Hone
(1896), 59 N. J. Law 275, 35 Atl, 899; MacKay v. Syracuse Rapid Transit
Co., supra. .
The Virginia court considers that the primary object of the statute
is to compensate the family of the deceased, and was not in the interest
of the general estate, and hence where the sole beneficiary is guilty of con-
tributory negligence his right of action is barred. Richmond, ete., R. Co. v.
Martin (1903), 102 Va. 201, 45 S. E. 894, overruling Norfolk, ete, R. Co.
vy. Groseclose’s Adm’r (1891), 88 Va. 267, 13 S, E. 454, 29 Am. St. Rep. 718.
Eunerercrty—Eiucrrrc Current Herp “Materray Furntsaup” Eni
“anc Furnisuer 0 Prrortt'y—A Vermont statute allows a preference to
creditors in receivership proceedings for materials furnished which are ab-
solutely necessary to the operation of the business, Electric current was held
to be “material furnished” within, the statute, Westinghouse Electric Mfg.
Co. v. Barre & Montpelier T. & P. Co, (Vt. 1924), 126 Atl, 594.
Under a statute providing that “there may be ownership of all inanimate
things which are capable of appropriation or of manual delivery,” electricity
is personal property and subject to barter and sale. Terrace Water Co. v.
San Antonio Light, etc., Co. (1905), 1 Cal. App. 511, 82 Pac. 562, The
sale of electric current and delivery from the vendor's wire to the vendee’s
wire terminates the former’s ownership at the point where two wires meet.
Ficheisen vy. Wheeling Electric Co, (1910), 67 W. Va. 355, 67 S. E. 788, 27
L. R.A. (NL S.) 893.
"Phe collection and distribution of electricity for purposes of power and
light is not “manufacturing” within the sense of the statute. Frederick
Electric Light & Power Co. y. Frederick City (1897), 84 Md, 599, 36 Atl,
362, 36 L. R. A. 130; Williams v. Warren (1903), 72 N. H. 305, 56 Atl.
463, 64 L,. R. A. 33, and note, By reason of the restricted sense of the term
“manufacturing corporation,” a company producing electric power is not
exempted from taxation. Commonwealth vy. Northern Electric Light &
Power Co, (1891), 145 Pa. 105, 22 Atl, 839, 14 L. R. A, 107, A company
generating and supplying electric current for light and power is a “manu-
facturing corporation” under the statute. Beggs v. Edison Electric Il-
luminating Co. (1891), 96 Ala, 295, 11 So. 381, 38 Am. St. Rep. 94; People
ex rel, Brush Electric Illuminating Co. v. Wemple (1892), 129 N. Y. 543,
29 N. E, 808, 14 L. R. A. 708; Kentucky Electric Co, v. Buechel (1912), 146
Ky. 660, 143 S. W. 58, 28 Ann, Cas. 714, 38 L, R. A. (N. S.) 907. See note,
641, R.A. 33.
It is doubtful if electricity would be considered a subject of larceny at
common.law. But it was held to be the subject of larceny under a statute
making it larceny to “take another's personal property without the owner's
consent.” 36 C. J. 738, citing United States v. Carlos, 21 Philippine 553.
Cases involving the question of “materiality” of electricity are rare, but,
from the facts that the law generally deals with things in the language of
the people rather than that of science, and that the court, in this case, was
RECENT DECISIONS 313
concerned with the practical or commercial conception of electric current,
there seem to be no grounds for attacking the decision,
Forsicn Coreorattons—Serrvick ov Prockss upon District Representa-
‘ave Invatin—The plaintiff, a domestic corporation, was the distributor for
the defendant, an automobile manufacturing corporation of Indiana, Auto-
mobiles were sold by the defendant to the plaintiff by means of closed bills
of lading with drafts attached with “order notifying” directions. ‘The plain-
tiff filed a petition for an accounting and damages against the defendant.
Process was served on the district superintendent of the defendant, who did
not sell cars for the defendant within the state, but merely watched over and
and made reports concerning the distributors. ‘The defendant entered a plea
to the jurisdiction. Held, no jurisdiction, Southeastern Distributing Co. v.
Nordyke & Marmon Co, (Ga. 1924), 125 S$, EB, 171.
‘There is no more settled principle in the law today than that a court has
no jurisdiction over a foreign corporation in an én personam action or suit,
unless the corporation actually carries on business within its borders, or unless
the corporation voluntarily appears. International Harvester Co. v. Ken-
tucky (1914), 234 U. S. 579, 34 Sup. Ct. 944, 58 L, Ed. 1479; Toledo R.
etc. Co. v. Hill (1917), 244 U. S. 49, 37 Sup. Ct. 591, 61 L. Ed. 982; Vicks-
burg, ete., R. Co. v. DeBow (1919), 148 Ga. 738, 98 S. E. 381. This means
that the corporation, must be doing that class of business which will make
it present in the state. Philadelphia, ete, R, Co. v. McKibbin (1917), 243
U. S. 264, 37 Sup. Ct. 280, 61 L. Ed. 710; Jones v. Illinois Cont. R. Co.
(1919), 188 Towa 850, 175 N. W. 316. If the corporation actually sells in
the state through its agents within the state, it is, of course, amenable to
jurisdiction. Cone v. Tuscaloosa Mfg. Co. (1896), 76 Fed. 891; Spokane,
ete., Ass'n v. Clere Clothing Co. (1915), 84 Wash. 616, 147 Pac. 414. But
the rule is different if it sells to a local distributing dealer who in turn sells
to customers. Here there is no relation of principal and agent, but of seller
and buyer. Wood vy. Colt Co, (1907), 102 Minn, 386, 114 N, W. 243; Har-
rel v. Peters Cartridge Co. (1913), 36 Okla. 684, 129 Pac. 872, 44L. R.A.
(N. $.) 1094, In order to give the courts jurisdiction it is not essential that
the foreign corporation transact a substantial part of%is ordinary business
in, the state but only that the business so carried on he a part of the business
for which it was organized. Pomeroy v. Hocking Valley R. Co. (1916),
218 N, Y. 530, 113 N. E. 504. But where the corporation is not thus actu-
ally present the mere presence of its officers or agents within its borders,
does pot give the courts of the state jurisdiction, Southern Sawmill Co. v.
American, etc., Inmber Co, (1905), 115 La. 237, 38 So. 977, 112 Am. St. Rep.
267; Riverside, etc., Cotton Mills Co. v. Menefee (1915), 237 U. S, 189, 35
Sup. Ct. 579, 49 L, Ed. 910.
Where the foreign corporation, a manufacturer of automobiles, sold the
cars to dealers, within the state, the foreign corporation only having district
representatives within the state) this docs not constitute doing business
within the state. Holger v. Dodge (1922), 233 N. Y. 216, 135 N. E, 268.
"This case is on all fours with the instant case, and their holdings seem emi-
nently sound. Mere advertising or mere solicitation, does not constitute do-
ing business. Peoples Tobacco Co. v. American Tobacco Co. (1918), 246
U. S. 79, 38 Sup. Ct. 233, 62 L, Ed. 587; Pembleton v. Illinois, ete, Ass'n
314 VIRGINIA LAW REVIEW
(1919), 289 Ill, 99, 124 N. B, 355, Where a steamship company with an
agent in the state sold prepaid orders for tickets, this docs not constitute
doing business so as to confer jurisdiction for services of process. Chase
Bag Co. v. Munson S. S. Line (1924), 295 Fed, 990, .
Ixvicrwmn'y anv InvorMation—Excrrrrows iv Stwruty Warca Inprcr-
MEN? Must Necativt—An information was filed against the defendant for
alleged violation of the Prohibition Act, A statute of the state provided
that, “every information shall set forth the offense with reasonable cer-
tainty, substantially as required in an indictment.” ‘I'he defendant was con-
victed and brought error, contending that the information did not charge an
offense against the laws of the state because it did not negative certain ex-
ceptions in the statute defining the offense, Held, information invalid. Peo-
ple v. Martin (1924), 145 N. E, 395,
‘The general rule is that where the statute defining an offense contains an
exception, which is a material and essential part of the definition of the of-
fense, such exception must be negatived in the indictment or information
charging the offense. Parker v. 7. ritory (1899), 9 Okla. 109, 59 Pac, 9;
Binhoff v. State (1907), 49 Ore. 419, 90 Pac. 586; State v. Renkard (1910),
150 Mo, App. 570, 131 S. W. 168. But it is only necessary to negative an
exception in the statute when that exception, is such as to render the nega-
tive of it an essential part of the definition of the offense, United States
v. Cook (1872), 17 Wall. 168; Shelp v, United States (1897), 26 C. GA,
570, 81 Fed. 694; Sofield v. State (1901), 61 Neb. 600, 85 N. W. 840, Where
the exception in a statute is merely a matter of defense it need not be neg-
atived. Tigner y. State (1903), 119 Ga, 114, 45 S$. E, 1001; Sturgeon y.
State (1916), 17 Ariz. 513, 154 Pac. 1080,
Some courts have held that the exception must be negatived only when
contained in the sentence or paragraph which defines the offense, or the en-
acting clause of the statute. Commonwealth v. Louisville & N. R. Co.
(1910) 140 Ky. 21, 130 S. W. 798; State vy. Reilly (1915), 88 N. J. Law
104, 95 Atl, 1008. However, the term “enacting clause” has been held to
mean all parts of the statute which define the offense. State y. Rosasco
(1922), 103 Ore. 343, 205 Pac. 290. Other courts have followed the rule
that the position of the exception with reference to the enacting clause of
the statute is immaterial. State v. Carruth (1911), 85 Vt. .271, 81 Atl. 922;
Collins v. City of Radford (1922), 134 Va. 518, 113 S. E. 735. The latter
rule is in accord with the weight of authority,
Neciicence—No Lrapitry. upon ConRacror For Inyurms Causep ny
Favwry Construction Wann Axcurrecr’s Prans Haye Bren For.owsn.
—Defendant contractors constructed a building with a canopy for the United
States government, The plans and specifications of the government’s archi-
tect were followed throughout. On account of a weakness in construction,
the canopy collapsed and killed plaintiff's husband. She sued for damages,
Held, no recovery. Ryan v. Feeney and Shechan Bldg. Co. (N. Y. 1924),
145 'N. E. 321,
Negligence is a recognized ground of legal liability, McDonald vy. Snell-
ing (1867), 14 Allen (Mass.) 290, 92 Am, Dec. 768; Nolan v. New York,
ete., R. Co. (1898), 70 Conn, 159, 39 Atl, 118; 43 L. R. A, 305, It is defined
RECENT DECISIONS 315
as “The omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would
not do.” Alderson, B., in Blwth v. Birmingham Water Works Co, (1886),
IL Exch, 784; Wrarvon, Neciicence, § 1,
But it is only the lack of such care or diligence as the law demands which
constitutes .actionable negligence, Dygert v. Bradley (1832), 8 Wend. (N,
¥.) 469; Harvey v, Dunlop (1843), Hill and Den. Supp. (N. Y.) 193;
SuuarMAN anv Reprinrp, Nucrcuncr, § 6. Negligence is alleged when it
is charged that the defendant “knew” or “ought to have known” that his
conduct would result in injury to the victim, Ziehm v, Vale (1918), 98 Ohio
St. 306, 120 N. E. 702, 1 A. L. R. 1381, Tt follows that one who erects a
building or does other work according to the plans and specifications of an
expert, such as an architect, or of a commission, such as a Public Service
Comniission, is” not liable for injuries resulting from a defect or an inade-
quacy in the plans or specifications. ‘hornton y. Dow (1910), 60 Wash, 622,
111 Pac, 899, 32 L. R. A. (N. S.) 698; Hardie v. Boland (1912), 205 N. Y.
336, 98 N. E. 661. Unless the defects can be recognized by one of ordinary
ability along the lines of building, the contractor is not liable. Daegling v.
Gilmore (1868), 49 Ill. 248,
It seems that the correct rule is that a builder or contractor is justified in
relying upon the plans and specifications which he has ‘contracted to follow,
unless they are so apparently defective that a builder of ordinary prudence
would be put’ upon notice that the work is dangerous and likely to cause in-
jury.
Municrpar, Corporations—Iaannrty vor NoNetasance or Pouch IN
Exmrcisy o¥ Governmental Funcrons—The owner who had been refused
assistance by the city marshall, in attempting to protect his property from the
second attempt of a mob, to enter his place of business, was killed. In an
action for damages by the mother of the deceased against the town for the
death of her son, Held, No recovery. Rush v. Town. of - Farmville (La.
1924), 101 So, 243. = ,
It is a general rile that the governmental agencies of the state are not
liable in an action of tort. Hubbard v. City of Wichita (1916), 98 Kan,
498, 159 Pac, 399, L. R. A. 1917A, 399, Thus for the exercise of, or on the
failure to. exercise its governmental powers, a city cannot be held fiable
for injuries caused thereby. Mayne v. Curtis (1920), 73 Ind. App.
640, 126 N, E, 699, The city is not liable for its police failing to enforce
traflic regulations and knowingly permitting a’ child to cross a dangerous
street, resulting in the death of the child. Means v. City of Barnesville
(1922), 28 Ga. App. 671, 112 S. E, 739, Nor can police officers whose du-
ties are of a public nature, be regarded in any sense as agents or servants.
Tsatsken. v. City of Detroit (Mich, 1924), 198 N, W. 214. In the appoint-
ment and maintenance of its police officers the city exercises a governmental
function, and hence is not liable for their unlawful or negligent acts in the
discharge of their duties. Wilcox y. Rochester (1907), 190 N: Y. 137, 82 N.
E. 1119, 17 L. R. A. (N.S). 741; Sehy v. Salt Lake City (1912), 41 Utah
535, 126 Pac. 691, 42 L. R. A. (N. S.) 915; Lamont v, Slavanaugh (1915),
129. Minn. 331, 152 N. W. 720, L. R. A. 1915E, 460.
316 VIRGINIA LAW REVIEW
‘The protection of life by a municipality is a governmental duty and a city -
is not liable for failure in its performance, Gianfortone y. City of New Or-
Teans (1894), 61 Fed, 64, 24 L. R. A. 592. It seems that the instant case is
clearly within the reason of the rule,
It is submitted that on principle the instant case is sound. ‘The protection
of life and property, being one of the primary purposes of government, is
clearly a governmental function, Hence nonfeasance or misfeasance, in the
performance of a governmental functiori, is not actionable.
Necotrasiy Norgs—Azuration—Recovery ot Payment Mang ‘to Horie
tw Dug Coursg Wart Drawer Ann Drawiit ari Ony—A check was
drawn by the United States government upon the Treasurer of the United
States, and was “raised” after delivery to payee. It came by negotiation into
the possession of the defendant bank, and was duly presented to the Treas-
urer at Washington, who paid it without notice of the forgery. The United
States now brings suit to recover payment made to defendant, as arising out
of a mistake of fact. Held, recovery denied. United States v, Nat. Exch,
Bank of Baltimore (1924), 1 Fed. (2nd) 888.
It is a general principle of law that money paid upon a mistake of fact may
be recovered. 30 Cyc, 1316; 2 Danm, Nucorrartani, Insrrumenrs (6th
Ed.), § 1369. In Price v. Neal (Eng. 1672), 3 Burr. 1354, the doctrine was
laid down that, both parties being equally innocent, a drawee paying or ac-
cepting a draft in ignorance of fact that signature of drawer was forged
cannot recover the payment made to a bona fide holder for value, ‘This rule
has been generally adopted by American authorities. United States v. Bank
of New York (1914), 134 C. C, A. 579, 219 Fed. 648, L. R. A. 1915D, 797;
Leather Manufacturer's Bank v. Morgan (1886), 117 U. S. 96, 109, 6 Sup.
Ct. 657, 29 L, Ed. 811; South Boston Trust Co. v. Levin (Mass. 1924), 143
N. E. 816; Contra: First Nat. Bank of Lisbon v. Bank of Wyndmere (1906)
15 N. D, 299, 108 N. W.'546, 125 Am. St. Rep. 588, 10 1, R.A. (N.S) 49,
and note, For discussion see Ames, he Doctrine of Price vy. Neal, 4 Hary.
Law Rey, 297, Also, see 2 Dantit, Nxcorrania Instruments (6th Ed.), §
1655a; and. note, 12 A, L.. R, 1089. Other jurisdictions have adopted the rule
of Price y. Neal by force of the Negotiable Instruments Law. Minnehaha
Nat. Bank of Sioux Falls y. Pence (1920), 42 S. D. 525, 176 N. W. 37; 2
Dann, Nxcotraniy Instruments (6th Ed.), § 1868, But where indorse-
ment is to drawee from payee, however, drawee may recover. Birmingham
Nat. Bank v. Bradley (1894), 103 Ala, 109, 15 So. 440, 49 Am, St. Rep.
17; 2 Dani, Necovranre Instrumun'rs (6th Ed.), § 1367.
A different rule prevails, however, where there has been a subsequent al-
teration of a valid instrument, or an indorsement forged thereto, Here the
drawee may recover. White y. Continental Nat. Bank (1876), 64 N. Y.
316, 21 Am, Rep. 612; Citizens Bank of Winfield v. Commercial Sav. Bank
of Guin (1923), 209 Ala. 280, 96 So. 324; 2 Danzer, Necorrania Ivgtru-
Muntts (6th Ed.), § 1661; see also-note: 12 Harv. Law Rev. 344.° It has
been ably argued that section 62 of the Negotiable Instrument Law has
changed this; with eminent authority, however, to the contrary. See Bran-
Nox, Nucorama Instrummnrs Law, 225; Ames, The Doctrine of Price
v. Neal, supra, 306, 307; note, 22 Col. Law Rev. 260, See contra: South
Boston Trust Co. v. Levin, supra.
ae ee
‘
RECENT DECISIONS 317
Where drawer and drawee are the same, a fortiori under the doctrine
of Price v, Neal a payment cannot be recovered from a holder in due course
where drawee pays bill or note to which his own signature has been forged.
Johnston y. Commercial Bank (1885), 27 W. Va, 343, 55 Am. Rep, 315; 3
R. C. L, 1294, And where such a drawee pays a bill which has been mate-
tially altered, he may not recover. ‘I'he rules applicable to an initial forgery
prevail, Bank of the United States y. Bank of Georgia, infra; 2 Danrts,
Necortama: Lystrugniwrs (6th Ed.), § 1688,
Although where the parties are equally innocent, the drawee may not re+
“cover (Price v. Meal, supra), yet the loss will be placed pon one actually
negligent. Stvan-Hdwards Co. v. Union Savings Bank (1917), 17 Ga. App,
572, 87 S, E. 825. For a lengthy discussion, see Parsons Morse, BANKS AND
Banxine (3rd Ed.), §§ 463-466. Also note; 12 A, I, R. 1097, The drawee
has the means of knowing the drawer’s signature, however, and a failure to
use these means is negligence which bars his recovery. Price vy. Neal, supra.
Nor may the drawee recover where the indorser is merely a collecting agent,
Here both parties are negligent, Commercial & Savings Bank y, Citizens’
Nat. Bank (1918), 68 Ind. App. 417, 120 N. E. 670,
In application of these rules, it has been held that where a bank received
its own notes in payment of a debt, which notes were later discovered to have
been altered, the bank could not recover. Bank of United States v. Bank of
Georgia (1825), 10 Wheat. 333, 6 1. Ed, 334. And also, where the ‘I'reasury
Department at Washington paid a forged draft drawn, upon it, it was not
allowed to recover the payment from the holder in due course, United States
v. Chase Nat. Bank (1920), 252 U. 8. 485, 40 Sup. Ct. 361, 64 L. Ed. 675,
10 A. L. R. 1401, and note. See also United States v. Bank of New York,
supra; note, 31 Harv. Law Rev, 304. ‘To he binding, however, the pay.
ment must be made by the ‘Treasurer of the United States, nor will payment
by an assistant treasurer suffice, without -ratification, Cooke v. United States
(1875), 91 U. S. 389, 23 1, Ed, 237:
Where the United States government elects to become a party to commer-
cial paper, it is bound by the same rules as an individual. United States vy.
Bank of New York, supras Cooke v. United States, supra. See also notes:
19 ary. Law Rev. 126; 10 A; L. R. 1406,
‘The instant case seems sound.
Sarts—Rystauran? Krepyr Lrasiat vor Damacis Resviittnc Row
Survick o¥ Unurt Foop—The plaintiff brought an action to recover from
the defendant, a restaurant keeper, for loss and damages sustained as a result
of eating spoiled and unwholesome fish served to her in the defendant’s res-
taurant, in which she was a customer. ‘The recovery was sought om the
breach of an implied warranty of fitness for consumption, Held, defendant
liable. Temple vy. Keeler (N. Y, 1924), 144 N. E, 638,
In some jurisdictions the service of food for immediate consumption on
the premises, is a sale and carries with it an implied warranty of fitness for
consumption. Barrington v. Hotel Astor (1918), 184 App. Div, 317, 171
N.Y. S, 840; Muller v. Childs Co. (1918), 185 App. Div, 881, 171 N. ¥. S.
541. ‘The service of food is a sale within the meaning of the Uniform
Sales Act, Friend vy, Childs Co. (1918), 231 Mass. 65, 120 N. E. 407. And
the keeper of a public place is bound to know whether food served is fit for
318 VIRGINIA LAW REVIEW
consumption, while the customer has little or no opportunity to examine it,
Doyle v. Fuerst & Kraemer, Ltd. (1911), .129 La. 838, 56 So. 906, Hence
a restaurant keeper is liable for damage suffered by a customer as a result of
eating pie, improperly prepared. Leahy v. Essex Co. (1914), 164 App, Div.
903, 148 N. Y. S. 1063. But other courts hold that one serving food on the
premises is not liable as an insurer of the wholesomeness of the food nor upon
an implied warranty of fitness. Sheffer v. Willoughby (1896), 163 Ill, 518,
45 .N. Ei, 253, 34 L. R. A. 464, 54 Am. St. Rep. 483; Valeri vy, Pillman Co.
(1914), 218 Fed. 519, For there is no transfer of general property in food
served for immediate consumption, such as to constitute a sale and thus cre-
ate an implied warranty of fitness. Merrill y. Hodson (1914), 88 Conn. 314,
91 Atl, 533, L. R. A. 1915B, 481, Ann. Cas. 1916D, 917, So there was no
implied warranty of fitness of oysters served on a dining car. ‘T'vavis v.
Louisville & Nashville R. Co. (1913), 183 Ala. 415, 62 So. 851. And in a
similar case where defendant served canned asparagus. Bigelow v. Maine
C..R. Co, (1912), 110 Me. 105, 85 Atl. 179, 43 L. R. A. (N. 8.) 627,
Numerically the weight of authority in the United States sustains the view
that a restaurant keeper is not liable in the absence of negligence. However
the instant case seems sound on. principle. An excellent review of the au-
thorities on this point may be found in.5 A, L. R. 1115,
Sprcire Prrtormance—Courrs Wut, Not Grant Spxcrrc Prrrorm-
ANCE of aN Ararrravion Acrrgmen't Pricrupmne Rusor't ‘to ta Courts,
—A building contract contained a clause providing for the arbitration of all
disputes arising out of delay in the completion of the building and in, de-
fective construction. The delay and defects occurred, but the plaintiff re-
fused arbitration and brought an action for damages. ‘The defendant set up
as a defense his right to specific performance of the arbitration clausé. Upon
the question whether or’ not specific performance would be granted, it was
Held, it would not be granted. Myevre v. Liberty, etc, Co. (La. 1924), 100
So. 694,
There are decisions to the effect that a court will not grant specific per-
formance of an unexecuted agreement which provides for the arbitration
of all disputes which might arise in the execution of the contract, on the
ground that it is an attempt to oust the jurisdiction of the courts. Williams
y. Branning Mfg. Co. (1911), 154 N. C. 205, 70 S. FE. 290. But in a partially
performed contract where the parties cannot be placed in statu quo and gross
injustice might result to one party by permitting the other to take advan-
tage of his own wrong in refusing to appoint appraisers, the general rule is
that equity will enforce the arbitration clause. Castle Creek Water Co. v.
Aspen (1906), 146 Fed. 8, 8 Ann, Cas. 660. Likewise, a clause, provision,
or covenant in a coittract which does not interfere with the judicial deter-
mination of the general question of a breach of the contract or the liability
of one party to it to pay the other an amount which may bé due by its terms,
but simply provides that, as a preliminary to any suit or action the extent
or amount of damages recoverable shall be first ascertained and determined
by the arbitrament of third persons, is held binding, and is eniforced by the
courts, Hood v. Hartshorn (1868), 100 Mass, 117, 1 Am, Rep. 89. So also,
equity will enforce an arbitration claiis¢ where it is a mere incident of the
contract and not of the essence thereof. Town of Bristol v. Bristol, etc.,
RECENT DECISIONS 319
Waterworks (1896), 19 R. 1. 413, 34 Atl, 359, 32 1. R. A. 740; Martin v.
Vansant (1917), 99 Wash, 106, 168 Pac, 990, Ann. Cas. 1918D, 1147; Hous-
ton v. Barnett (1918), 90 Ore. 94, 175 Pac, 619.
It is submitted that the instant case is unsound since the agreement does
not seem to oust the jurisdiction of the courts. However, it is a very close
question,
‘The Virginia decisions are few, and in all cases the arbitration clause was
held to be an essential part of the contract. Specific performance was de-
nied. Corbin v, Adams (1°81), 76 Va. 58; Rison y. Moon (1895), 91 Va.
384, 22 S. EB. 165.
320 VIRGINIA LAW REVIEW
VIRGINIA SECTION
Wuar Is tae Mranine or tue Worn “Anso.ure” in SECTION
6562 or rHy Va, Cong or 1919?—Does section 6562 of the Code of
1919 give the widow absolute title in the property listed in section
6552, where the deceased husband has already made valid testamen-
tary disposition thereof?
Tt is well settled that a citizen owning property has full power to
dispose thereof by will or otherwise, unless restricted by Jaw. ‘There
are certain restrictions in favor of creditors’ and other claims, but
there is nothing in the Code to restrict his disposal of his “Home-
stead” while living, He can, if he wishes, give his family Bible to
Hig worst enemy upon his death bed, and his wife could not com-
plain, .
Under this section, read in connection with section 6552, upon
the husband’s death, his wife’s title to certain listed articles, becomes
“absolute.” But it is clear that there is no article to which her title
can become absolute if he has already made disposition thereof. A
will, being a’ disposition of property, it would seem that a valid
will would defeat her title under the act.
There is one difficulty in the way of this easy solution of the prob-
lem, and that is that title to the property bequeathed passes at the
instant of death under the will, to the bene! iciary, and under the
statute to the wife. Which title will prevail? And if the property
vests in the wife, is it not a restriction upon testator’s power of dis-
position ?
Several Circuit Courts, have to the writer’s knowledge, held that
the title to the property passes to the widow under the statute and
not to the beneficiary under the will. ‘This holding is based on the
ground that the title is declated by the act to vest in the widow ab-
solutely, that there is no qualification possible of the word “abso-
lute,” and that therefore the act defeats the will. It is the opinion of
the writer, advanced with due deference that his reasoning is faulty,
and results in a conclusion at odds with the obvious intent of the
legislature.
‘The whole spirit of the Homestead Law is against it. It is in-
tended to protect the widow against creditors and various enwme-
rated charges (expressio unius exclusio alterius), and the possibil-
ity or necessity of protecting her against the overflowing bounty of a
benevolent testator never occurred to the legislature. Had ‘it oc-
curred to them to do so, they would have put this restriction where it
belongs, in the Wills Act, and in the Statute of Distributions,
‘The only difference between section 6552, which gives her the ab-
solute title, and the other sections of the Homestead Law, is that in
the other sections she is given the use of the property, whereas by
VIRGINIA SECTION 321
this act, in this property she is given the “absolute’ title” and may
dispose thereof at will. “It is submitted that this is the true meaning
of the word “absolute.” It does not mean absolute against all the
world, as the courts have held, but it means in effect this. “You
may hold the property against the creditors of your husband, against
funeral and administration costs, and against these claimants to the
property you may hold title thereto absolutely, as opposed to the
mere use allowed under the other sections of the act.” Nowhere
does it say that she can hold the property against a legatee, and it
is believed that it was not the intent of the legislature that such an
interpretation be put upon the.act. Or in other words-—the nature
of the title, once vested, is described by this word. The manner of
its vesting was never intended to be affected thereby. It is a contin-
gent absolute titke—-not a title vesting automatically upon the hus-
band’s death. It is true that the Court of Appeals has held that
she could hold the property against her husband’s heirs, but on this
point there is conflict, and to so hold seems to stretch the act very far.
“The power of alienation is an incident of the ownership of the
property independent of the homestead law and the directions
and prohibitions of the constitutional or statutory homestead
provisions as to the alienation are mere restrictions upon this
antecedent power. Hence where there is neither constitutional
nor statutory prohibition as incident to the right of ownership,
the owner of the homestead may sell or encumber it either in
whole or in part.” 1
Tt would seem to follow therefore that the statutory restrictions
upon a man’s right to dispose of his property must he explicit, other-
wise the power remains. ‘To say that this word “absolute” in. the
Homestead Act restrains a man from making a will as to that prop-
erty, would seem a restriction on his testamentary power of disposi-
tion, and not in the least an explicit one. On the contrary, it is as
backhanded and concealed a restriction as there well could be,
The point has never been squarely before the Court of Appeals.
In one case however # the court glanced at the possibility of such a
case arising and indicated that if the legislature should attempt to
create such an absolute estate as the one under. consideration, the
statute might he unconstitutional. In another case,’ apparently with-
out any argument having been submitted on the point, even as it
arose in the case the court said:
“or * * the plain language of section 3653 (Code 1919, section
6562) exempts to the widow in every case, whether the estate
he solvent or not, the articles enumerated in section 3650 (Code
1919, ‘section 6552).” (Parentheses ours.)
It should be noted however that there had been no testamentary
disposition of the articles sought to be exempted in this case, and
so as to the particular point we consider the case is not authority.
+29 C. J. 883,
* Murphy v, Richmond (1910), 111 Va. 459, 69 §, 442.
® Riggan'’s Adm'rs v. Riggan (1896), 93 Va. 79, 24 ST
322 VIRGINIA LAW REVIEW
Enough perhaps has been said to show that doubts surround the
use of this word “absolute,” and the difficulty encountered in fath-
oming the ‘legislative intent. ‘Two Circuit Courts at least have
held that this word defeats an attempted testamentary disposition
of the property of the husband. If this was the intention of the
legislature they have amended the act on distributions by one word
in the Homestead Act. If it is not, at their next session they
should clarify their meaning. ‘This is all the more important as
the amounts ‘involved are so small, that important as they may be
to the unfortunate litigants, they will probably never reach the Court
of Appeals for a final determination of the point involved.
Neson Fert.
Warrenton, Va.
Avoprep Curpren as “Issun” Unper tam Act or 1924 Rr-
LATING To Dowsr.—The Virginia statutory provisions relating to
dower were carried into section 5117 of the Code of 1919 in almost
the precise form they had maintained since the foundation of the
Commonwealth. In this form they were substantially declaratory
of the common law, modified, of course, so as to permit the wife
rights in equitable estates of the husband. ‘This section was, how-
ever, amended and enlarged by the legislature at its session of 192214
and 19242 so as to secure to the wife in addition to her life estate
in one-third of the real property of which her husband had been
lawfully seised during the coverture, dower in the remaining two-
thirds in the event of the husband dying wholly intestate or pa
tially intestate, subject in the former case to the claims of his credi-
tors and in the latter to the claims of both creditors and devisees,
provided in both cases that the husband die without issue,
There arises under the present statute the question as to the ef-
fect of adopted children upon the wife’s right of dower. Should
the term “issue” be held to include such children and there be no
child of the husband other than an adopted one, the widow, by the
terms of the statute, would be dowable in but one-third of the hus-
band’s realty (other requisites of dower existing), whereas should
they be held excluded by that term, she would be dowable in the re-
maining two-thirds, subject to the claims of the husband’s creditors
or to those of both creditors and devisees in the cases or whole or
partial intestacy respectively, as provided. An interesting matter of
statutory construction is thus presented.
__ The status of adopted children is one of very ancient origin, exist-
ing in Biblical times,® and developed to a high degree by the Greeks
and Romans. Provisions for the’ adoption of children’ were incor-
porated in the Code of Justinian # and subsequently took’ their place
* Acts of Assembly, 1922, p. 860,
*’Acts of Assembly, 1924, p. 460,
® Romans, 8:15, 9:4.
‘ Sanpars, Jusrmvtan (Am, Ed.), 103, ef seq.
we
VIRGINIA SECTION 323
in the jurisprudence of all countries in which the civil law was en-
forced.®
The status of the adopted child was, however, unknown to the
common law,® and in common law jurisdictions it is one of compara-
tively recent legislative origin. "It was initially engrafted upon
our jurisprudence through the medium of special enactments, and
subsequently by general statutes believed at present to be in force in
each of the United States. ‘To determine the incidents of that status
therefore, the intent or the legislature must in all cases govern, and
when not clearly expressed in the adoption statutes, those statutes
are to be construed in’the light of the civil law as an aid to interpre-
tation.” . ‘:
In Virginia, however, there is no necessity of resort to such ex-
trinsic aid. ‘The statute of this state is clear and explicit insofar as
it sets forth the incidents of the status it creates. It provides that: §
(3% 3k such child shall from and after the entry of the inter-
locutory order, herein provided for, be to all intents and pur-
poses, the child and heir at law of the person so adopting him
or her, unless and until such order is subsequently revoked, en-
titled to all the rights and privileges and subject to all the ob-
ligations of a child of such person begotten in lawful wed-
lock * * *?
What then is the effect of adoption upon the rights of the wife
under the present dower statute? Although the decisions of one
state in matters of statutory construction are in no way binding upon
the courts of another,® the judicial attempts to reconcile similar
statutes of adoption with those of dower and descents in numbers of
the several jurisdictions, renders instructive the conclusions of their
courts,
Adoption statutes may be divided into two classes: (1) Those
requiring the wife’s consent to adoption and (2) those in which such
consent is unnecessary.1° Clearly where her consent is unnecessary
and where, in addition, it has not been given, her property rights,
even though inchoate as in the case of dower, should not be affected
by the ex parte act of the husband in adopting a child.11 Yet it
would seem that where the child had heen adopted by the husband
prior to the coverture, the wife cannot complain that her rights
® Vidal v. Commagere (1858), 13 La, Ann, 516.
° Vidal v. Commagere, supra, note ‘5; Markover v, Krauss (1892), 132
Ind, 294, 31 N, E, 1047, 17 1, R, A, 806; Villier v. Watson, (1916), 168 Ky.
631, 182 S, W, 869; State v. Yturria (1918), 109 ‘Tex, 280, 204 S. 'W, 318.
*'Vidal_v, Gommagere, supra, note §; Humphries %, Davis (1884), 100
Ind, 274, 50 Am, Rep, 788; Batchelder v, Walworth (1912), 85 Vt. 322, 82
Atl. 7, 37 L. R.A. (N. $.) 849, Ann. Cas, 1914C, 1223; ‘Clark v. Clarke
(1913), 76 N, H. 551, 85 Atl, 758.
* Acis of Assembly, 1922, p. 841.
° Morse v. Osborne (1910), 75 N. H. 487, 77 Atl, 403, 30 1. R.A. (N.
$.), 914, Ann, Cas, 1912A,_ $24.
® Atchison v. Atchison’s Ex’rs (1890), 89 Ky. 488, 12 S, W. 942, 11 Ky.
Law Rep, 708.
Stanley 0, Chandler (1881), 53 Vt. 619; McCann o, Daly (1912), 168
I, App. 287, But sce Power v, Hafley (1887), 85 Ky. 671, 4S. W. 683.
324 VIRGINIA LAW REVIEW
were subsequently affected thereby.'* And when the child was
adopted during a prior coverture, it has been held entitled to all
rights and privileges against a subsequent wife of the adopting
parent as if a child of the prior marriage.!®
"The cases under general statutes of adoption as distinguished
from those construing special legislative enactments have very uni-
yersally held that adopted children are included under the term “is-
sue.” ™ Tt has even been held that children adopted during a prior
coverture fell within the statutory expression, “children by a former
wife.” 15
"This decision, weakened by the dissenting opinions of two of the
five justices, illustrates the extent to which the courts proceed in
attempting to reconcile the adoption statutes with the phraseology of
the statutes of dower and of descents. ‘The vigorous dissenting
opinions in this last case were, however, subsequently followed by
the New Hampshire court, in which jurisdiction, it would seem,
“issue by the wife” was the language of the statute.'¢ ‘The latter
case has been cited as holding that the term “issue” in a statute does
not include adopted children.17 If itso decides, as is doubtful, it is
directly opposed to the great weight of authority.
However, as has been stated, the holdings of other courts have lit-
tle weight in this jurisdiction upon a matter of purely statutory con-
struction, In view of the total lack of imperative authority argu-
ment on principle only may properly be advanced.
Let it be conceded that the term “issue” as used in the Virginia
dower statute does not include adopted children. Let it be then as-
sumed that in a given case there be no child born of the marriage.
Then should a child be adopted during the coverture, the wife would
nevertheless upon death of the husband take, in addition to her one~
third dower in the remaining two-thirds of the husband’s real prop-
erty subject, in the case of total intestacy, to the claims of his credi-
tors alone, and in the case of partial intestacy to the claims of both
creditors and devisees, there being, ex hypothese, no issue. Yet if
there had been a child of the wife by the husband born alive during
the coverture, or had there been a child of the husband born during
a former marriage, the widow might claim but one-third, the child
succeeding to the residue under the statute of descents,
_ ? Appeal of Rowan, (1890), 132 Pa. St. 299, 19 Atl. 82; Atchison v, Atch-
ison’s Ex'rs, supra, note 10; Lee v, Bermingham (1916), 199 Ill. App. 497.
But eee. laenhoue vw see) cee) 52 ie Ea
** Moran v, Moran 399), Mo. 558, 52 S. W. 378; In re Moran
(1899). ASL Me Saran We 377. a
™ Drain v. Violett , 2 Bush Ky., 155; Newman’s Estate (1888), 75
Col, 213, 16 Pac, 887, 7 Am, St. Rep. 146; Atchison v, Aichisow's Ex'rs,
supra, note 10; Buckley v. Frazier (1891), 153 Mass, 566, 27 N. E, 768;
Batchelder v, Walworth, supra, note 7. ‘The peculiar wording of the Texas
adoption statutes has led to opinions in that state in conflict with the views
herein expressed, See State v, Yturria, supra, note 6; Harle v. Harle (1918),
109 Tex, 214, 204 S. W. 317.
® Markover v, Krauss, supra, note 6.
% Morse v. Osborne, supra, note 9.
1 Harle o. Harle, supra, note 14,
VIRGINIA SECTION ‘ 325
‘Therefore, if the hypothesis be valid, that the word “issue” does
not include adopted children, there is obvious, a pronounced discrim-
ination between adopted children and children of the marriage, or
of a former marriage.
Let this conclusion be read in the light of the adoption act, which
provides “that such (adopted) child shall * * * be to all in-
tents and purposes the child and heir at law of the person so. adopt-
ing him or her * * * entitled to all the rights and privileges
*°* %* of a child of such person begotten in lawful wedlock
* * #218 "There could then be revealed no greater repugnancy
Acts of Assembly, 1922, p. 841.
between the two statutes.
In matters of statutory construction there is the inescapable pre-
sumption that the various sections of a code were intended to har-
monize rather than to conflict, In order to reconcile the Virginia
statute of adoption with that of dower, it is essential that the term
“igsue” as used in the latter be so construed as to include adopted
children, And this scope, it is submitted, is to be necessarily and
properly given to that word.
LR. C, Jr.
326 VIRGINIA LAW REVIEW
BOOK REVIEWS
Buacx on Banxuricy, By Henry Campbell Black, (St. Paul: West
Publishing Company, 1924, pp. xv, 905.)
"This is a Hornbook with the usual advertised merits of its type, but, in
the opinion of the reviewer, deserving a more uniavorable review than the
average Hornbook. In common with entirely too many modern textbooks,
this one gives the impression of having been rather hastily compiled, to rely
for its sale more upon its timeliness, perhaps, than upon its intrinsic value.
While one cannot fairly expect in a Hornbook the reasoned consistency of
a Bishop, a Wigmore or a Minor, Mr. Black’s work presents some incon-
sistencies which seem quite unpardonable, For instance, one might reasont
ably be surprised and disappointed to find a black-letter statement on page
100 that “where partners are separately in bankruptcy, but not the firm, their
discharge will not release them from firm debts,” and certainly one is en-
titled to a distinct shock when he finds on page 728, in, equally prominent
black-letter, that “one adjudged bankrupt may, by proper proceedings, ob-
tain a discharge not only from his individual debts, but also from those of
a firm in which he is a member.” Considering the fact that each partner is
liable in solido for the firm debts, that such debts are both provable and al-
lowable against his individual estate, though subject to the priority of his
individual creditors, and that they are not by section 17 excepted from the
operation of a discharge, one might agree with the latter statement: Surely
there can be no justification for both, where they appear in categorical form,
in different parts of the book, and without even a cross-reference to sug-
gest a contrary view.
On, the same page (728) where the author corrects, without cross-refer-
ence, the earlier mis-statement as to the effect of an individual discharge on
the partnership debts of the bankrupt, he is guilty of another serious error
in stating that “the discharge of the firm, where the, partners are not sey-
erally adjudicated bankrupt, does not release them personally from the part-
nership debts.” ‘The statement of such a doctrine would seem to indicate a
failure properly to understand the reasoning of the Supreme Court in Fran-
cis y. McNeal, 228 U. S. 695, and to ignore the pertinent logic of Mr. Jus-
tice Holmes’ observation that “it would be a third incongruity to grant a dis-
charge in such a case from the debt considered as joint, but to leave the same
persons liable for it considered as several.”
In a volume published in 1924, and purporting to carry citations brought
down to the close of the year 1923, one might fairly expect to find cited to
that date all the later decisions hy which the Supreme Court of the United States
has settled many important problems on which the lower courts had been
in conflict, Yet, to give but one example, the reviewer sought in vain for
any trace of Williams v. United States Fidelity & Guaranty Co, (1915), 236
U. S, 549, in the author’s treatment of the effect of the discharge of a bank-
rupt principal upon the claim of his surety for indemnity, where the contract,
BOOK REVIEWS 327
to secure which the surety bond was given, was broken prior to the petition
in bankruptcy, but where the surety did not pay the consequent damage until
after the petition. ‘The Williams case may be cited. somewhere in Black on
Bankruptcy, but there is no table of cases, and a diligent use of the index
furnished failed to lead the reviewer to the case sought.
In spite of its deficiencies, Black on Bankruptcy may furnish a valuable
“Jumping off place” to one undertaking to run down a point in bankruptey.
Tt covers a lot of ground, carries a complete appendix including the General
Orders and Forms, and cites a great many cases, perhaps too many, when
one considers the fact that many of the earlier citations might well be dis-
pensed with by the substitution of a later and more authoritative
Gro. B. Eacur, Jr.
University, Va.
‘Tae Law :—Bustness or Prorigston? Revised Edition. By Julius Henry
‘Cohen. (New York:° G. A. Jennings Company, 1924, pp. xviii, 513.)
Although in the eight years that have succeeded the first publication of
this well-known and interesting book, it has acquired a large circle of read-
ers in the profession, and though the author has made no material changes
in this, the second edition, it would seem that as a consequence of the im-
portance of the subject more than a mere notice should be given Mr. Co-
hen’s able work,
Most of us have a firm confidence in our intuitive ability to distinguish
between what is ethically tight and what is ethically wrong, and so are dis-
inclined to seek support in the popular manuals of morality. Yet it is doubt-
ful—to say the least—whether in close cases our consciences may not fre-
quently need reinforcement from reason and authority, ‘The line separating
the false from the true is often, vague and meandering, only too generally the
customs of the local Bar may be lax and always self-interest is powerful
and not easy to be withstood, In such circumstances a man may well require
help if he would keep to the narrow path. This help, both moral and dia-
lectical, may be found in the book under review, and it would seem the re-
viewer’s duty, as a member of the Bar, to inform as many of his fellow
practitioners as he can where such help is to be found,
Nor is The Law—Business or Profession? of interest to the Bar alone.
‘The lawyer, as Mr. Cohen demonstrates, has another and a higher duty than
that so tritely expressed by the term service, i. ¢., service to his client, On
the contrary, the lawyer is before everything else a public servant, he is a
sworn officer of the court and thus subject to a twofold responsibility. In
the interest, therefore, of a speedy and equitable administration of the law,
the Bar must be under the control of an educated public opinion. Of such
education the reviewer knows of no handier source than is the book now be-
fore him, ‘The layman will not find in it the uncouth learning of Coke nor
the austere ‘elegance of Blackstone. ‘The authors’ style is on the contrary
easy, familiar—the censorious ‘might. say. too familiar, non-technical, and in
short admirably adapted to lay comprehension. In this book the untrained
reader will find matter entertaining as well as instructive. ‘The reviewer has,
therefore, no hesitation in recommending a careful perusal of its contents
328 VIRGINIA LAW REVIEW
to all those public spirited citizens who desire to be well informed in mat-
“ters of general import.
A brief summary of what Mr. Cohen has included in his little bool will
not here be out of place. After a preliminary explanation of what is in-
volved in. that supreme penalty for professional misconduct, disbarment, by
which the author gives pumgency to the whole business, he gocs on to de-
scribe the Bars of various nations, both past and present. He shows that
in many of them, such as those of France and England, the standards both
for administration and for behavior after administration, are much higher
than they are in, the United States, this circumstance being caused by the
greater pervasiveness of the guild idea in those countries, ‘This account is
followed by a short history of the growth of the various American bar as-
sociations, with particular reference to the work in the City of New York.
We are then given an illuminating discussion and exposure of the evils of
advertising by lawyers, of fee splitting with non-professional collection and
bankruptcy agencies, A matter here included and of particular interest to +
Virginia lawyers is the author's story of the campaigns in New York and
Missouri against the practice of law by and for incorporated trust companies
who advertise their legal facilities, ‘This main part of the book is followed
by a postscript detailing the progress of the Bar from the ethical point of
view since the first edition in 1916, and by lengthy appendices setting forth
the answers of the New York Committee on Professional Ethics, the canons
of the different associations and an exhaustive brief on what constitutes the
practice of the law in the eyes of the law. ‘The whole book being covered
by a complete index, is available for reference purposes.
Needless to say, the author, as might haye been expected of a lawyer, has
fully supported his thesis with citations. ‘These are not only to be reported
cases and recognized authorities, but as well to the current literature pertain-
ing to the general. subject.
At one time the book under review was somewhat imperatively urged as
parallel reading on the class in legal ethics at the University of Virginia.
It would seem well for this practice to be continued not only at the Unj-
versity, but also at the other schools of law throughout the country,
Lreiiton M, Wicksam,
Richmond, Va.
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IL Department of Graduate Studies,
This department offers opportunity: for advanced instruction in the sub-
jects taught in the College. The degrees offered are Master of Arts, Master
of Science, and Doctor of Philosophy. Open to men and women on same
terms.
III, Department of Engineering,
Vive distinct courses are offered, leading to degrees in Civil, Mining, Me-
chanical, Electrical, and Chemical Engineering and requiring for their com-
pletion four years each, Open to women on special terms,
IV. Department of Law.
The course covers three years of study. The Library facilities are ex-
cellent. Open to women on special terms.
‘Vv. The Department of Medicine.
The course is a_ four-year one. The University Hospital is owned and
managed by the University; advantages are given students of this depart-
ment usually enjoyed only by internes. Open to men and women on same
terms,
VI. Department of Education.
Courses are offered for the degree of Bachelor of Science in Education.
Graduate work for the Master’s Degree and the degree of Doctor of Phi-
losophy. Women having credit for thirty session hours of academic work
in a standard college admitted, providing they are twenty years of age.
State teachers’ scholarships are available for men; foan funds for both men
and women,
VU. The Summer Quarter.
The Summer Quarter is divided into two terms of six weeks each and
courses are offered for College credit. Degrees conferred for summer work
on men and women, The Master’s Degree may be obtained in three sum-
mer quarters. Courses are offered to meet entrance requirements or to ab-
solve conditions. In addition to these, numerous courses are given for the
professional training of elementary teachers, high-school principals, high-
school teachers and school administrators.
For further information concerning the admission of women, catalogue,
announcements, etc., address:
THE REGISTRAR. University. Va.
&
if
ADVERTISEMENTS
AN INDISPENSABLE SERVICE
FOR VIRGINIA LAWYERS
(1) All citations to Virginia cases as cited in the Virginia Appeals
and Special Appeals Reports (previous to the publication of the Official
Reports), Virginia and West. Virginia Reports, United States Supreme
Court Reports, Federal Reporter and notes to the Annotated Reports
System.
(2) Affirmances, Reversals and Dismissals of all Virginia cases by
the United States Supreme Court.
(3) Completely Annotated.
(4) Cross-references to the Southeastern Reporter and Annotated
Reports System,
(5) All citations to the Virginia Constitutions, Codes, Laws, Acts
of Assembly and Court Rules as cited in the Virginia Appeals and Spe-
cial Appeals Reports (previous to the publication of the Official Re-
ports), Virginia Reports, Southeastern Reporter (Virginia cases), United
States Supreme Court Reports and Federal Reporter.
(6) Amendments, Additions, Repeals, etc, by subsequent Acts of
the Assembly, =
SHEPARD’S VIRGINIA CITATIONS ....... Po ee ore $20.00
Cumulative Supplements, per ‘year.
Established THE, FRANK SHEPARD COMPANY Incorporated
1873 1900
Publishers of .
SHEPARD'S CITATIONS
76-88 Lafayette Street New York, N. Y.
ADVERTISEMENTS
Every Practicing Attorney
- and Every Law Student
should of course have a thorough knowledge of the supreme law of
the land,
For a correct understanding of the various provisions of the
Constitution of the United States one must read in connection there-
with the Courts’ interpretation.
The United States Supreme Court for one hundred and thirty-
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THE CONSTITUTION AND THE COURTS
In this set the Constitution is annotated clause by clause, and
these annotations are right up to date and exhaustive in the citation
of cases. The holdings of the decisions are fully set forth, and
copious excerpts from the opinions given.
There is also a 200-page treatise on the Growth of the Constitu-
tion in the Federal Convention of 1787, giving the origin and growth
of each clause from beginning to end in the Convention,:as -well as
a valuable monograph on Constitutional Construction and Inter-
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This wealth of material makes the work an ideal one for acquir-
ing a thorough knowledge of the Constitution and its practical
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In three handy-size volumes, bound in fabrikoid; the price is only
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EDWARD THOMPSON COMPANY
PuBLISHERS
Northport... 1 6 + wee ew « New York
ADVERTISEMENTS
New 1924 Edition’ _
COOLEY ON TAXATION
By Tuomas M. Coormy, LL. D.
Fourth Edition by Clark Nichols of Publishers Staff
4 Large Volumes $40.00
OOLEY has been. quoted by the courts more than all other
books on taxation combined—the standard authority on tax-
ation since 1876. Cooley first laid down many of the rules of
taxation now adopted by the courts and has had a greater influence.
on decisions of the courts than any ‘other writer. No statement of
the law of taxation laid down by Judge Cooley, whether based on
decisions of the courts or merely his views, has been criticised or
chssented Jom: by the courts in all the years since the first. edition.
in .
CALLAGHAN & COMPANY
Established 1864
401-409 Hast Ohio Street, Chicago
198 Broadway, New York
UNIVERSITY SHOP
COMPLETE OUTFITTERS FOR MEN
Langrock Clothes “At the Corner” Boyden Shoes
Irving-Way-Hill Compan:
Keller & George (Incorporated) ¥
JEWELERS 528-880-582-584 East Main Street
; Auto Livery, Automobiles and
Charlottesville, Va. ;
Accessories
Undertakers and Embalmers
CHARLOTTESVILLE, VA.
GLASSES MADE TO ORDER
Lile’
Wes
Equity Pleading and Practice, 8rd ed., 1922, buckram, pp, 368....
Notes on Equity Jurisprudence, ard ed., 1922, buckram,. pp. 850
Notes on Municipal Corporations, 8rd ed., paper, pp. 100.
Notes on Negotiable Instruments, 8rd ed., paper, pp. 100.
For sale by GEORGE W. OLIVIER
and ANDERSON BROS.
University, Virginia
ADVERTISEMENTS
UNION STATION RESTAURANT
NAT MARTIN, Proprietor
Good Food Good Service Clean Efficient
MEALS AT ALL, HOURS
THE UNIVERSITY
PEOPLES NATIONAL BANK BILLIARD PARLORS
Charlottesville, Va,
If you play carom or pocket Billiards,
play at the: University Billiard Parlors.
Resources over $6,500,000"
Everything First-Class and
“Nearly Fifty Years ow the Path Up-to-Date
of True Banking”
OLDEST LARGEST New Chancellor Building
STRONGEST J. $. LaRowe, Proprietor
HOTEL ROOSEVELT
Sixteenth Street at V and W Washington, D, C,
Superior Accommodations for Transient and Permanent Guests
WARREN E. KRECHTING, Manager Reasonable Rates
THE JEFFERSON
Playing Masterpieces of the
Screen
Program Changes Monday, Wednes-
BOOK AND JOB PRINTING day and Friday
THE LAFAYETTE
High Class Photoplays
Program Changed Daily
Conway Printing Co., Inc.
Wingfield & Oliver
423 East Main St. Telephone 482
CHARLOTTESVILLE, VA,
Charlottesville’s Only Complete Musical House
Reproducing Pianos, Grand Pianos, Player Pianos, Organs, Phonographs
String and Wind Instruments of All Kinds
The Latest'in Sheet Music, Player Rolls and Records
CARTER, “The Music Dealer”
245 W. MAIN STREET PHONE 337
ADVERTISEMENTS
LUPTON’S RESTAURANT
Steaks, Club Sandwiches, Chicken and Waffles
REGULAR DINNER SERVED DAILY
JOHN LUPTON, Manager Open 7 A, M. to2 A. M.
Plumbing and Heating LANKFORD’S
_ 118 W. Main St. Phone 974
M. R. SMITH —
EVERYTHING IN FLOWERS
Phone 477 Phone 476 ; :
Member Florists Telegraph Delivery
107 Fifth Street, 8. E. Association
HOLSINGER UNIVERSITY STUDIO
HIGH CLASS PHOTOS
Kodaks & Supplies Edison Phonographs Kodak Finishing by Professionals
“There Is a Difference”
THE GOOD ONE 7
J. B. & W. H. WOOD
INCORBORAN EN MODEL STEAM LAUNDRY
Charlottesville, Virginia .
PHONE 250
Clothiers
UNIVERSITY BARBER SHOP
4 EXPERT BARBERS
We Cater to the Student Trade
CHARLOTTESVILLE
VIRGINIA Next to LaRowe’s Pool: Room
Prompt and Polite Attention
Shoe Shine S. J. CARTER, Mgr.
GEORGE W. OLIVIER
UNIVERSITY BOOKSTORE
Mail Orders Promptly Attended to for
Prof, Lile’s Notes on
EQUITY JURISPRUDENCE
MUNICIPAL CORPORATIONS
NEGOTIABLE INSTRUMENTS
EQUITY PLEADING AND PRACTICE
ADVERTISEMENTS
ANDERSON BROS.
LAW NOTES OF ALL
- UNIVERSITY PROFESSORS
BOOKBINDERS
RICHMOND, VA,
JEFFERSON NEWS STAND
Brunswick Radiolas and
Records.
Charlottesville, Va,
Phone 737
MEISTER AND SMETHIE
LAW AND MISCELLANEOUS
Blank Book Paper
Manufacturers Rulers
Johnson's
Established 1895
UNIVERSITY, VIRGINIA
Hot Late Breakfast
Hot Late Supper
AT THE KITCH-INN
HOTEL ROANOKE
Roanoke, Virginia
All the Comforts of Home Away from Home
STANDING on a knoll, surrounded by
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200 Rooms, $1.50 to $3.50
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a beautiful park with trees and flower
W. A. DAMERON
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