ground for the disbarment, the only evidence of the second charge being that the headings of the circular or letters set forth a list of office addresses in foreign states. On the occasion of the court's first notice and censure of the defendant's conduct, he had promised to refrain from advertising in the future. On these facts, judgment of disbarment was rendered by the Appellate Division and affirmed by a majority of the Court of Appeals without opinion. The minority of the court expressed the opinion that as the advertising was not per se improper and constituted merely an offense against good taste as distinguished from good morals, no ground for disbarment existed, although the attorney's conduct was censurable. Judge Pound said: "Professional ethics as a code of moral or legal right to be enforced by the courts by the harsh penalty of disbarment can be nothing more than a system of principles of upright conduct and good character. Rules included therein which do not involve the distinction between natural right and wrong should not be too strictly applied against one whose sin has been against good taste rather than good morals. . . . The decisions of the courts of this state and other jurisdictions have disclosed no precedent for disbarment for conduct that does not indicate some lack of respect for truth and honor or some interference with or contempt for the administration of justice or some violation of law on the part of the attorney."

Many instances of improper and immoral advertising, such as Judge Pound evidently had in mind, exist in the case of attorneys who advertise their special ability and facilities in procuring divorces speedily and without publicity. Courts have denounced the practice as peculiarly reprehensible and clearly against good morals. Another reason usually given is that such advertisements increase litigation or violate the sacredness of the marriage relation. In the leading case of People v. MacCabe (1893), 18 Colo. 186, 32 Pac. 280, 36 A. S. R. 270, 19 L. R. A. 231, the court said: "An attorney may properly accept a retainer for the prosecution or defense of an action for divorce when convinced that his client has a good cause. But for anyone to invite or encourage such litigation is most reprehensible. The marriage relation is too sacred; it affects too deeply the happiness of the family; it concerns too intimately the welfare of society; it lies too near the foundation of all good government to be broken up or disturbed for slight or transient causes. .. When a lawyer advertises that divorces can be legally obtained very quietly, and that such divorces will be good everywhere, such advertisement is a strong inducement—a powerful temptation-to many persons to apply for divorces who would otherwise be deterred from taking such a step from a wholesome fear of public opinion. The advertisement published by respondent, to the effect that divorces could be legally obtained very quietly which should be good everywhere, was the more mischievous because anonymous. Such an advertisement is against good morals, public and private; it is a false representation and a libel upon the courts of justice."

It would seem that advertising as a ground for disbarment is, in its ultimate analysis, a question of public policy and that all advertising which has a tendency to lower the esteem of laymen for the profession and bring it into disrepute is unprofessional, and the court may exercise its power to whatever extent may be necessary to preserve respect for our system of law and our administration of justice.

At this day with advertising raised to the nth power in the commercial world and commercialism infesting the practice of law, strong measures must be taken to impress on attorneys that the pursuit of the legal profession for the mere wages of life is a mistake alike of the means and the end. The trend of authorities should go far toward establishing the doctrine that all advertising which has for its purpose the solicitation of business is, regardless of the subject matter thereof, ground for disbarment or suspension from practice. LELAND F. Coss.

RESTRAINT OF TRADE IN ENGLISH LAW.

AN interesting example of the development of the Common Law, unchecked by legislative interference, may be studied in some recent English decisions on the validity of covenants in restraint of trade.

In medieval times such covenants, whether general or partial, were absolutely void as being against public policy. Thus in Colgate v. Bacheler, (1596) Cro. Eliz. 872, a contract "to prohibit or restrain any, to use a lawful trade at any time or any place," was said to be void "as against the benefit of the Commonwealth." Under these conditions "traders could hardly venture to let their shops out of their hands, the purchaser of a business was at the mercy of the seller, every apprentice was a possible rival," (Lord Macnaghten), and the rule was soon relaxed in favor of partial restraints; "for a time certain and in a place certain, a man may be well bound and restrained from using of his trade (Rogers v. Parry [1613] Balstrode 136).

Coming to more recent times, it was held in Hitchcock v. Cokes (1837) 6 Ad. & E. 453, that such restraints might be unlimited as to time, but until Nordenfelt's Case (infra) there was considerable uncertainty as to whether it were possible for them to be unlimited with regard to space.

In addition to the necessity of such covenants being founded on consideration, the restraint imposed must be reasonable, and the test laid down by Tindal, C. J., in Horner v. Graves (1831) 7 Bing. 735 at 743, was to consider "whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given and not so large as to interfere with the interests of the public," and with the limited means of communication available in those days a restriction over an unlimited space was generally merely oppressive and of no real benefit to any party. It was, however, clearly laid down that such covenants were severable and that the court would uphold the valid portion whilst rejecting those which were bad.

The whole question was threshed out and authoritatively settled by the House of Lords in the great case of Nordenfelt v. Maxim Nordenfelt, etc., Co. (1894) A. C. 535, where it was held that a covenant in restraint of trade may be unrestricted as to space, provided it is not wider than is necessary for the protection of the covenantee nor injurious to the interests of this country. In the famous judgment which Lord Macnaghten delivered in this case, he said: "The true view at the present time, I think, is this: The public have an interest in every person carrying on his trade freely; so has the individual. All interference with individual liberty, of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circum

stances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favor it is imposed, while at the same time it is in no way injurious to the public."

This test of Lord Macnaghten's was definitely adopted by the House of Lords in Mason's Case (1913) A. C. 724.

Since that date the general tendency of English law has been to differentiate more and more between restraints imposed after the sale of a business and those at the termination of a contract of service.

Thus in Morris v. Saxelby, (1916) 1 A. C. 688, it was said: "In determining whether a covenant in restraint of trade is enforceable, a covenant exacted by the purchaser from the vendor on a sale of the good will of a business stands on a different footing from a covenant exacted by an employee. Public policy requires that every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the state of his labor, skill, or talent, by any contract that he enters into. On the other hand, public policy requires that when a man has by skill or by any other means obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market, and in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser" (per Lord Atkinson, at p. 701).

The case of covenants exacted by an employer were exhaustively discussed by the Court of Appeal in Attwood v. Lamont (1920) 3 K. B. 571. In this case the plaintiff, who carried on business at Kidderminster as a draper, tailor and general outfitter, sought an injunction to restrain the defendant, who had been employed by the former as cutter and head of the tailoring department, from the breach of a covenant whereby the defendant covenanted that on the expiration of such employment he would not at any time thereafter carry on business as a tailor, dressmaker, general draper, milliner, hatter, haberdasher, gentlemen's ladies' or children's outfitter, within ten miles of Kidderminster. It was held that "the covenant being a single covenant for the protection of the plaintiff's entire business and not several covenants for the protection of his several businesses could not be severed," and by the majority of the court, "that even if the covenant could be severed by confining it to the tailoring business it would still be void as being in restraint of competition." Younger, L. J., expressing the opinion of the majority, said that the following points were established by Mason's and Morris's cases (supra): (1) It is the covenantee who has to show that the restraint goes no further than is reasonable for the protection of his business.

(2) The restraint must be in the interests of both parties.

(3) An employer is not entitled to a protective covenant against his former servant's competition, though a purchaser of good will is entitled to protect himself from the competition of his vendor.

(4) Previously accepted rules as to the doctrine of severance require careful application if not entire reconstruction.

With regard to this last point he quoted the words of Lord Moulton in Mason's Case (supra): "It would in my opinion be pessimi exempti if when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be re

membered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage in view of the longer purse of the master."

But although it is not permissible for the employer to protect himself against his former servant's competition per se, it is permissible for him by covenant to protect his trade or professional secrets and to protect himself also against his clients being enticed away by his former assistant; in other words, to protect his connection, and this was the ground of the judgment in Lewis v. Fitch (1920) 2 Ch. 159, where a solicitor's managing clerk covenanted that on the termination of his service he would not "be engaged or manage or concerned in the office, profession or business of a solicitor within seven miles of Tamworth," no limit of time being mentioned. The Court of Appeal held that the covenant was reasonable and was not a restrictive covenant to prevent competition alone, Lord Sterndale, M. R., saying that "a managing clerk acting for his master and having control when his master is away, and seeing all the clients of the firm, evidently must acquire a knowledge of the connection and of the master's business which cannot be separated from his own knowledge and skill in the profession."

The rules which the courts have evolved in this class of cases are eminently fair and reasonable, but the position with regard to combinations to control prices or wages is by no means as satisfactory. Combinations of workmen for the purpose of restricting the free disposal of labor or combinations of traders for purposes operating in unreasonable restraint of trade are illegal and void at common law, but by sec. 3 of the Trade Union Act 1871, "The purposes of any Trade Union shall not, by reason that they are in restraint of trade, be unlawful so as to render void or voidable any agreement of trust." Curious anomalies may arise under this Act. Thus in Evans v. Heathcote, (1918) 1 K. B. 418, the plaintiff and defendant were both members of an association for regulating prices by restricting output. Each member was allowed to make a certain percentage of the Association's output, and profits in excess of this amount were pooled for the benefit of those who did not manufacture the amount permitted. The defendants claimed certain moneys due under this arrangement, and though the Court of Appeal held that the agreement was invalid at common law, it also held "that the Association was a trade union" and that under sec. 3 of the Act the agreement was not void, and though under sec. 4 of the same Act the agreement could not be directly enforced, the debts created under it could form the foundation for an account stated and that the plaintiffs were entitled to recover on the accounts stated. London, Eng.

MORAL DAMAGE

P. H. EDWARDS.

THOSE Who remember the history of the Jameson raid of 1895 will recollect that much mirth was occasioned by the inclusion in President Kruger's claim for damages of a large sum under the head of "moral damage." Indeed the expression is little used in this country and so it easily lent itself to jesting. Dommage moral is, however, a reality, meaning injury to honour, affection or other proper feeling, and forms the basis of our law of libel, of Lord Campbell's Act, of the Slander of Women Act of 1891, of breach of promise actions, and actions against bankers for wrongly dishonouring cheques, and in all cases without special damage being proved; while in the practice of the courts actual

damage is often appreciated at an enhanced figure when the conduct of the defendant has been shockingly bad or the feelings of the plaintiff have been injured. In the former case the practice of juries, sometimes encouraged by judges, exhibits the common desire to punish a wrong-doer wanting in moderation. Thus, the plaintiff sells his honour for riches which he has done nothing to earn, the jury has gratified their vindictive righteousness, the defendant learns that gross improprieties can be weighed against gold and the functions of the criminal courts have been usurped. Here is judge-made law of the doubtful kind under which punishment is meted out in a civil court and is measured by the feelings of indignation stirred in the breasts of twelve indignant men by the arts of eloquent counsel, assisted sometimes by the oratory of the judge. These damages are called "exemplary." Now, most countries allow a claim for moral damage as supplementary to a claim for damage to person or property-but to what extent do they permit actions for moral damage only, i.e., for damage to honour, affection or other moral feelings? There are countries which definitely make moral damage justiciable per

se.

Prominent among these is the Argentine Republic, but it generally confines the remedy to damage arising from an act, since art. 1108 of the Civil Code says that a person who has occasioned prejudice to another by omission shall only be liable when a prescription of the law imposes on him the obligation to fulfill the omitted act. Apart from that general provision "every right may be the subject-matter of a wrong, whether it is a right over an exterior object, or is intimately connected with (se confunda con) the existence of a person," (art. 1109). Every wrong causes an obligation to repair the prejudice resulting therefrom to another person (art. 1111). "If the act is an offence against the criminal law, the obligation arising therefrom includes not only the indemnity for loss and profit, but also for the moral injury which the offence has made the person to suffer, by molesting him in his personal security or in the enjoyment of his property, or by wounding his lawful affections" (art. 1112). "The obligation to repair the damage caused by a wrong exists, not only in respect of him whom the wrong has directly damnified, but with respect of every person who has suffered thereby, although it be in an indirect manner" (art. 1113). "Every reparation of damage, whether material or moral, which is caused by a wrong, must merge in a pecuniary indemnity to be fixed by the judge, saving the case in which the object which was the subject-matter of the wrong is restored" (art. 1117). But a person offended by calumny or insult can only recover damages when he proves actual damage or loss of profit and that only when the defence fails to prove the truth of the aspersion (art. 1123). Specific instances of wrongs are dealt with in the same connection, and among others the right to sue for damages by homicide is conferred on the widow and children (art. 1118). Actions for wrongs may be brought against universal successors (art. 1132), but on the other hand universal successors can only recover damages for moral injury (this being the only head of the claim) when the action has been begun by the deceased (art. 1133). Title IX. treats of damage caused by illicit acts, and the reader must remember that "act" includes act of omission. The important article is 1143: "Every author of an act which by his culpa or negligence occasions damage to another is bound to repair the prejudice, etc."

There are, however, many systems of law in which the codes made no specific reference to moral damage, and prominent among them is the French Civil Code. The terms, however, in which wrongs are made justiciable in the civil courts are wide; the two material articles of the code being No. 1382; "Any act whereby a person causes damage to another binds the person by

whose fault the damage occurred to repair such damage;" and No. 1149, "Damages and profits are due, as a rule, to the creditor for the loss which he has suffered and the gain of which he has been deprived" (in consequence of a breach of contract), etc.

On turning to Baudry-Lacantinerie, vol. 15, p. 559, we find that most jurists are of opinion that moral damage is the proper object of pecuniary reparation, and on the following pages cases in the courts are quoted which show that this view is supported by the majority of judgments. Thus, damages have been given for defamation, adultery (both wife and co-respondent being liable), and cases are cited of indemnities recovered for the moral prejudice caused by accidents to the near relatives of the injured; other cases are quoted, however, in which the sum of money allotted has been purely nominal and evidently intended solely to cause the defendant to bear the costs of the proceedings. This, of course, is an unsatisfactory result, but at any rate the principle is admitted, even though the calculation of the pecuniary equivalent of the suffering caused was beyond the appreciation of the courts. In an action for breach of contract actual damage must be proved, even in such an action as that against a banker for wrongly dishonouring a cheque (Baudry-Lacantinerie, vol. 12, s. 480). The influence of French cases of construction is very considerable in those countries which have adopted relevant articles similar to those quoted from the Code Napoleon. Thus Señor Roberto Butron, writing in the Revista de Derecho (Santiago) concludes that the Chilean courts would, and do on the whole, follow the same construction (vol. 17). At p. 51 he quotes certain Italian decisions, and among these, one of the Brescia Tribunal of the 19th March, 1890, condemning an adulterous wife to compensate her husband for the damage which he had suffered through finding himself alone, without family and without power to reconstitute it. It is interesting to refer to the Japanese Civil Code which contains specific prescriptions relating to our subject. Art. 710; "Whether the case be one of injury to the person, liberty or honour of another, or of injury to his rights or property, a person who has under the provisions of the preceding article rendered himself liable for damages must also give compensation for injury other than to rights of property. 711. A person who has caused the death of another must give compensation for damage to the parents, to the husband or wife, and to the children, even in cases where no injury has been done to their rights of property. 723. In the case of a person who has injured another's honour, a court of law may, on the application of the injured party, either in lieu of compensation for damage, or in addition thereto, order suitable steps to be taken for the retrieval of the injured party's honour."

In the German law, as in many other systems, moral damage can only be claimed in addition to damage to person or estate. False imprisonment is an exception and certain sexual offences against females (B. G. B. 847, 1300) such as seduction under promise of marriage, by deceit or menace or abuse of power.

It is difficult not to feel sympathy with the arguments that no damages should be given for moral injury (1) because the latter is inappreciable in money; and (2) because damages are a penalty, and as such more proper to the criminal law.

It may not be superfluous to point out that many wrongs which occasion moral injury are susceptible of punishment under the penal law and in some countries the criminal courts have jurisdiction to award damages in addition to punishment.-W. A. B., in Law Times.

"It is as well a maxim of political law as of reason, that the whole must necessarily contain all the parts."-Per Trimble, J., in Ogden v. Saunders, 12 Wheat. 323.

Cases of Interest

RULE OF THE ROAD AS TO PEDESTRIAN.-In Marton v. Pickrell, 112 Wash. 117, 191 Pac. 1101, reported and annotated in 17 A. L. R. 68, it was held that a pedestrian is not, as matter of law, in the absence of statutory requirement, bound to keep on the right side of the road in passing vehicles. Said the court on this point: "Appellant bases his argument in support of this point upon the assumption that respondent was prima facie guilty of negligence in being upon the left side of the paved roadway. In this we think he overlooks the fact that our statutes, generally referred to as 'the law of travel' and 'the rule of the road,' have reference to vehicles, and those riding or driving animals upon a public highway, and nowhere in express terms, or by necessary implication, we think, do they refer to pedestrians. It is a matter of common knowledge that a pedestrian on a highway, or on a double-track line of railway, is far better able to look out for his own safety and protection by so travelling as to face all oncoming vehicles than he would be if keeping to the same side of the roadway as vehicular traffic, and being thus at all times obliged to keep watch to the rear. Nor does the statute require any user of the highway to keep to the right in travelling, but covers only the meeting and passing of traffic. At any rate, in the absence of a clear statutory rule applying to pedestrians, the question is one for the jury. Under the facts shown by the record it was for the jury to say whether or not appellant used the necessary degree of care to avoid the accident, and whether or not respondent was guilty of contributory negligence."

LIABILITY OF INNKEEPER FOR FORCIBLY ENTERING ROOM OF GUEST.-In Frewen v. Page (Mass.) 131 N. E. 475, it was held that an innkeeper, who, without sufficient reason or previous notice or request for departure, enters the room of a guest for the purpose of compelling him to vacate, is liable to him in damages if excessive force, coercion, or intimidation is used, or his conduct toward the guest is abusive, insulting, and wanting in ordinary respect and decency. The court said: "The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse, and unjustifiable interference, whether exerted by the defendant, or his servants, or those under his control or acting under his orders. The plaintiffs having duly registered and been put in possession of a room for their exclusive use, had the right of occupation for all lawful purposes until vacated, subject only to the access of the defendant, at reasonable times and in a proper manner, for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated, controlling emergency. If, without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in damages if excessive force, or coercion, or intimidation was used, or his conduct toward the plaintiffs was abusive, insulting, and wanting in ordinary respect and decency.

. . The general law is well settled. The guest is entitled to respectful and considerate treatment at the hands of the innkeeper and his employees and servants, and this right creates an implied obligation that neither the innkeeper nor his servants will abuse or insult the guest, or engage in any conduct or speech which may unreasonably subject him to physical discomfort, or distress of mind, or imperil his safety."

TAKING PARTNER INTO BUSINESS AS VIOLATION OF COVENANT AGAINST ASSIGNMENT OF LEASE.-Taking a partner into a business is not, it seems, a violation of a covenant against assignment of the lease of the property where the business is conducted, if the lessees retain their interest in the business and continue active in its management. It was so held in Miller v. Pond (Mich.), 183 N. W. 24, wherein the court said: "We think it may fairly be said from an examination of the decisions touching this question in other jurisdictions, both English and American, that the authorities are not entirely harmonious upon the subject, and cases are to be found on either side of the question. Conceding what was said in the White Case to be dictum, it may be noted in passing that, so far as this court has touched the question, it favored the view that taking in a partner does not in itself violate a condition against assigning a lease. In Tiffany on Landlord and Tenant, p. 925, the subject is discussed with citation of authorities, and it is said in part: 'Upon the question whether a stipulation against an assignment or sublease of the premises precludes an assignment or sublease of part of the premises, or an assignment of an undivided interest therein, the cases, though few in number, are not in harmony.' It is unquestioned that the assignment of a lessee's entire interest in a lease to a partner or to others will work a forfeiture. In such cases the lessee is no longer interested in the premises, and seeks to put in possession a new tenant to attorn to the landlord. Here the old members of the firm did not, by any written instrument of demise, assign the lease or withdraw, but remained in the same business, conducted in the same firm name as before, only with a new firm partner in joint occupation, for conduct of the business. No direct demise or even mention was made of the lease in that connection, and only by implication from the fact that defendant had purchased an interest in the business and become a partner in the firm can an assignment of any interest in the lease be claimed. Defendant was undoubtedly interested in the lease so far as it related to being maintained for the business conducted on the premises leased, but it does not follow that he became an assignee of an interest in the lease, in violation of the wording of the prohibition againt assigning."

VALIDITY OF STATUTE REQUIRING FREE TEXTBOOKS TO BE FURNISHED IN HIGH SCHOOLS.-In Macmillan Co. v. Clarke (Cal.) 194 Pac. 1030, it was held that the California legislature had the power to provide for free textbooks for high schools, though the Constitution did not expressly confer such power except with respect to elementary schools. The court said: "There is nothing in the constitutional requirement that free textbooks shall be supplied to the elementary schools which negatives a legislative power to also supply free textbooks to secondary schools. It is merely a question of how far the legislature may go in its paternal provision for the cause of education without exceeding the bounds of the general constitutional discretion that has been granted. There is nothing in the nature of the provision of textbooks for the use of high school pupils to require different or more specific constitutional authority than has been found sufficient for the building and furnishing schoolhouses, employing teachers, supplying crayons, pens, pencils, and stationery, maps, charts, and other high school equipment. The presumption which attends every act of the legislature is that it is within the constitutional power. The legislature is vested with the whole of the legislative power of the state, and may deal with any subject within the scope of civil government unless it is restrained by the provisions of the Constitution, and the presumption that the legislature is acting within the Constitution holds good until it is made to appear in what particular it is violating constitutional limitations. Re Madera Irrig. Dist. Bonds, 92 Cal. 296, 14 L. R. A. 755, 27 Am.

St. Rep. 106, 28 Pac. 272, 675. We have been able to find no authority questioning the right of the legislature to provide free textbooks in the high schools. There are decisions holding that boards of education and trustees of school districts cannot exercise such power under general authority to provide necessary supplies for the schools, and without express legislative sanction, but such limitation of power is obvious. The implication is generally conceded, however, that such power does not rest with the legislature in the absence of constitutional restraint. Board of Education v. Detroit, 80 Mich. 548, 45 N. W. 585; Harris v. Kill, 108 Ill. App. 305; Honey Creek School Twp. v. Barnes, 119 Ind. 213, 21 N. E. 747. The people have seen fit to safeguard certain features of a free school system by mandatory provisions of the Constitution, relating particularly to elementary schools, but beyond this, in the matter of secondary and high schools, the legislature seems to be left with plenary power to act in its discretion for the public welfare."

VALIDITY OF NOTE GIVEN TO PREVENT ARREST OF RELATIVE.-In Union Exchange Nat. Bank v. Joseph, 231 N. Y. 250, 131 N. E. 905, it was held that one giving notes to prevent the arrest of his relative on a charge of criminal misappropriation of funds could not recover money paid thereon, since, being a wrongdoer in stifling a charge of crime, the law would leave him where it found him, although the relative was innocent of the charge, and the prosecution had not been begun, if the charge was not made in bad faith. The court said: "We think the defendant, if a victim of duress, was at the same time a wrongdoer when he stifled a charge of crime. In such circumstances the law will leave the parties where it finds them. Haynes v. Rudd, 102 N. Y. 372, 55 Am. Rep. 815, 7 N. E. 287. Neither is permitted to recover from the other. The contract is not helped by the suggestion that, for all that appears, Bloch may have been innocent. That issue, beyond doubt, would be irrelevant if prosecution had begun. Gorham v. Keyes, 137 Mass. 583, 584; Steuben County Bank v. Mathewson, 5 Hill, 249. We are asked to hold otherwise where prosecution is merely threatened. Some cases do, indeed, give effect to that distinction. The prosecution, once initiated, they say, must be left to take its course; the prosecution, merely threatened, may be bought off, if directed against innocence. Cowen, J., so held in 1843, upon a trial in the supreme court. Steuben County Bank v. Mathewson, supra. His decision has been followed in some jurisdictions (Manning v. Columbian Lodge, 57 N. J. Eq. 338, 38 Atl. 444, 45 Atl. 1092; Schultz v. Catlin, 78 Wis. 611, 47 N. W. 946; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398; Rieman v. Morrison, 264 Ill. 279, 285, 106 N. E. 215; Deere v. Wolff, 65 Iowa 32, 21 N. W. 168), and rejected elsewhere (State v. Carver 69 N. H. 216, 219, 39 Atl. 973; Koons v. Vauconsant, 129 Mich. 260, 95 Am. St. Rep. 438, 88 N. W. 630; Jones v. Dannenberg Co. 112 Ga. 426, 430, 52 L. R. A. 271, 37 S. E. 729). We think it has not been law in this state since the ruling of this court in Haynes v. Rudd, supra. There the plaintiff gave his note under duress to stifle a prosecution, threatened, but not begun. We approved a charge that "an agreement to suppress the evidence of a crime alleged to have been committed" was as illegal as one "to suppress the evidence or refrain from prosecuting a crime which had been in fact committed." In so far as Steuben County Bank v. Mathewson, supra, is to the contrary, it was thereby overruled. The principle thus vindicated is simple and commanding. There is to be no traffic in the privilege of invoking the public justice of the state. One may press a charge or withhold it, as one will. One may not make action or inaction dependent on a price."

RIGHT OF ACCUSED TO ADDRESS JURY IN OWN BEHALF.-In State v. Townley (Minn.) 182 N. W. 773, it was held that an ac

cused person has no constitutional right to make the closing argument in his own behalf, and especially where he has counsel and has not taken the stand as a witness. Said the court: "We find no constitutional provision which confers on the accused an absolute right to make the argument to the jury in his own behalf. Attention is called to § 6, art. 1, Minn. Constitution, but that section merely declares that the accused is entitled to have the assistance of counsel in his defense. Section 4947, Gen. Stat. 1913, relating to the practice of law, recognizes the right of a party to appear in his own behalf in courts of record. That right undoubtedly exists independently of the statute. The assistance of counsel cannot be imposed on the accused against his will. 8 R. C. L. 83. But if he elects to be represented by counsel, he waives his right to be heard himself, according to some of the English cases. Reg. v. Rider, 8 Car. & P. 539; Reg. v. Manzano, 2 Fost. & F. 64, 8 Cox C. C. 321, 6 Jur. N. S. 406; Reg. v. Beard, 8 Car. & P. 142. In the first of these cases the court remarked that a prisoner defended by counsel should be entirely in the hands of his counsel; that if he stated as a fact anything which could not be proved by evidence, the jury should dismiss it from their minds, and, if he merely commented on what was already in evidence, his counsel could do it better than he could. Other English cases hold to the contrary. See 3 Whart. Crim. Proc. 1515; Archbold, Crim. Pr. 197. Com. v. McConnell, 162 Mass. 499, 39 N. E. 107, is the only American case tried to sustain defendants' contention. We are not inclined to follow it under the special facts of this case. Both defendants were represented by three experienced attorneys, who had entire charge of the defense until the time came to make the argument to the jury. At this point Townley ostensibly discharged all of them. We say 'ostensibly' because it can hardly be claimed that there was a bona fide termination of their employment. After the verdict was returned the same attorneys again appeared for both defendants, moved for a new trial, had a case settled and allowed, took this appeal, and appeared in this court and argued the case for them. At the oral argument we understood counsel to say that their alleged discharge was entered of record solely to avoid the question that would arise if Townley asked leave to argue his own case while still represented by counsel. Since their discharge was only colorable, we hold that it was within the discretion of the trial court to grant or refuse Townley's request. In the exercise of its discretion, the court might properly take into consideration the fact that a party who has not testified is almost certain, in the guise of argument, to make assertions of fact favorable to his cause, which may properly be made only from the witness stand. It might also consider the circumstances under which the pretended discharge of counsel took place, which indicated an attempt by Townley to gain by subterfuge an opportunity to become at once a witness for himself and his own advocate."

EFFECT OF DIVORCE ON DUTY OF FATHER TO SUPPORT CHILD.According to a recent decision of the Texas Supreme Court, a man with adequate estate may be required to pay the value of necessaries furnished his minor children by the mother from her own adequate estate, although she was given their custody when the parents were divorced. See Gully v. Gully, 231 S. W. 97, wherein the court said: "We do not think that a decree of divorce which is either silent as to the children's custody and maintenance or which awards their custody to the mother relieves the father of his primary duty to support the children. The duty to support a minor child is imposed primarily on the father in the interest of the child. The chief concern of the state is the child's welfare. It is best for the child to impose the duty in the first instance on the father, because human experience demonstrates that he is best able to perform the duty.