other cases, the learned judge pointed out that in Hamer v. Sharpe (supra) for instance, the authority in question was in terms, not authorizing the agent "to sell," but to find a purchaser. "To my mind," he observed, "there is a substantial difference between those expressions. Authorizing a man to sell means an authority to conclude a sale, authorizing him to find a purchaser means less than that-it means to find a man willing to become a purchaser, not to find him and also make him a purchaser."

The decision of the Court of Appeals in Smith Ltd. v. Great Western Railway Co., 150 L. T. J. 370, though not unanimous, provides a very clear illustration, so far at least as English law is concerned, of the legal position in circumstances such as there arose. It was an appeal by the plaintiffs from a decision of the learned County Court judge at Birmingham. The claim was for the value of a parcel of boots consigned by the plaintiffs by the defendants' railway from Birmingham to Wilton. The parcel was delivered to the company at owner's risk upon the terms of a special contract by which the company were not liable for loss, etc., except upon proof that the loss, etc., arose from willful misconduct of the defendants' servants. It was proved that the parcel was delivered to the defendants' carman at the plaintiffs' place of business, and that the carman delivered it at the defendants' parcels office at Birmingham, whence it should have been dispatched to Wilton. The parcel was never delivered to the consignee at Wilton, and there was no evidence as to what happened to it after it reached the parcels office, nor as to whether the public had access' to the parcels office. The position taken up by the plaintiffs on appeal was: "We have traced the goods into the hands of the company's servants; they do not deliver them, and will tell us nothing about them, and we ask the Court to find that they have been lost by wilful misconduct of their servants." The company's position was: "You say the goods are lost; we cannot trace them, and, as there is no evidence whether they were lost by outsiders, or the negligence of our servants in misdelivery or otherwise, you have not proved your case." It was held by Bankes and Scrutton, L. J. J. (Atkin, L. J. dissenting), that the appeal should be dismissed, there being no evidence on which the County Court judge could properly find that the non-delivery was due to wilful misconduct on the part of the company's servants.

Glasgow, Scotland.

DONALD MacKAY.

IS THE REFORMED PROCEDURE DESTROYING EQUITY?

In the introduction to the first edition of Pomeroy on Equity Jurisprudence, the learned author says:

"Every careful observer must admit that in all the states which have adopted the Reformed Procedure there has been, to a greater or less degree, a weakening, decrease, or disregard of equitable principles in the administration of justice. I would not be misunderstood. There has not, of course, been any conscious intentional abrogation or rejection of equity on the part of the courts. The tendency, however, has plainly and steadily been towards the giving an undue prominence and superiority to purely legal rules, and the ignoring, forgetting, or suppression of equitable notions. The correctness of this conclusion cannot be questioned nor doubted; the consenting testimony of able lawyers who have practiced under both systems corroborates it; and no one can study the current series of state reports without perceiving and acknowledging its truth. In short, the principles, doctrines, and rules of equity are certainly disappearing from the municipal law of a large number of the states, and this deterioration will go on until it is checked either by a legislative enactment, or by a general revival of the study of equity throughout the ranks of the legal profession."

Mr. Pomeroy is concededly one of the three or four great law writers America has produced. Personally, I think he has had no superior. He was one of the most perspicuous observers of the results of the Reform Procedure that we have ever had in this country; and such a statement as this deserves earnest consideration. It was written in 1881, seven years after the Reformed Procedure was adopted in England, and after this procedure the abolition of the distinction between the actions in equity and actions at law had been in force in many states for several years.

At that time I believe there were fifteen states that had abolished the distinction be

tween law and equity so far as the matter of the form of the actions is concerned. I believe that at the present time more than two-thirds of the states have the Reformed Procedure. Since Mr. Pomeroy wrote this statement, coupled with a prediction, forty years have elapsed. It is a very pertinent inquiry now for lawyers whether his prediction has been fulfilled.

If, as a matter of fact, in the code states, the law is tending to override and break down equity, then the Reformed Procedure is a failure. No short cuts, no saving in time, no simplification of procedure could compensate for any weakening of the vigor of equity principles. I think all lawyers will agree on that. On the other hand, if, under the Reformed Procedure, equity remains in full vigor, if it continues to soften the rigidity of the law and relieve litigants from the harshness of purely legal principles, then the Reformed Procedure should be extended to the Federal court.

I can only speak concerning Kansas. When I came to the state in 1886 there were 35 volumes of Reports; now there are 107. Considering the fact that we no longer print the briefs, that the volumes. are larger than in the early days, it is safe to say that I have seen three-fourths of the judicial law of the State handed down, ana have watched it rather closely. Certainly in Kansas there has been no weakening of the equity principles. The law has nowhere overborne the equity practice, and nowhere are equity principles more firmly established, more intelligently applied and better understood than by our own court. I could, from our Supreme Court Reports, compile a set of equity reports that would compare favorably with the chancery reports of other states.

I should be glad to know what lawyers in other code states think of this. If the

Reformed Procedure is consistent with the life and vigor of equity principles, we ought to favor its extension. In any event, the distinction between law actions and equitable actions, where the same court sits alternately as chancellor and judge at law, is purely a matter of form. Those states are consistent which maintain a distinction between the application of the law, as well as its form, by a separate tribunal. In such states a chancellor is appointed supposedly for his knowledge of equity, and a Law Bench is appointed supposedly because of their knowledge of the law, although there is usually a common appeal from both to the same appellate tribunal. But to maintain the individual between the forms of the action, while the same individual sitting on the bench administers both, is an absurdity. Can it be said that when the judge on the bench closes his law docket and opens his equity docket, thereby becoming a chancellor, he has gained anything in the knowledge of equity, or ability to apply its principles? To state the question is to answer it. To be consistent, equity cases should be tried by a chancellor, a different individual from the law judge.

In the meanwhile, this procedure leads to delay, circumlocution and frequently injustice. Here is a typical case. A claims an equitable title to an undivided interest in real estate. Under the old practice, he must first bring an action in equity to reduce his equitable title to a legal title; he must then move to the law side and bring his action in ejectment to obtain possession, and then bring a third action either in law or equity, as the facts warrant, for partition. Under our code this would all be done in one action, in two counts.

Another illustration. Not long ago clients of mine in the paving business were sued on the law side of the Federal court

for damages for defective paving. We answered setting up the written contract which provided that when the city engineer accepted the paving, this should be final, and plead approval and acceptance by the city engineer. The city replied alleging that this approval and acceptance of the engineer was obtained by fraud, bribery and corruption. This, of course, was an equity defense and was stricken out. The court then gave the city leave to file a bill in equity to set aside the pretended acceptance, and, in the meanwhile, stayed the law action. The city tired of the circumlocution and perceiving that it would be two or three years at best before they could return to prosecute the law action, dismissed the whole thing, and my client went scot-free of any investigation on the merits, which, I think, knowing my clients, was lucky for them.

Under the Reformed Procedure this would all have been tried out in one action; yet both of these actions would have been tried before the same judge, having no more knowledge of equity when he sat as chancellor than he had when sitting as a law judge.

There can only be one good reason for such circumlocution, and that is that the Reformed Procedure has failed along the line predicted by Professor Pomeroy, that it has tended to break down and weaken the generous rules of equity, tended more towards the harshness and rigidity of legal rules. So that is a point which I think it worth while for lawyers in the code states to consider. Certainly, if the Reformed Procedure can be applied to the Federal code without weakening the administration of equity, it is greatly to be desired. Anything in these busy days which saves circumlocution and makes for a swifter end to litigation, is highly desirable.

THE CUSTODY OF AN INFANT—II -INTERESTS SECURED BY THE DECIDED CASES.*

The Law of the Custody of an Infant. -Prima facie the father of an infant has the legal right to its custody.27 This right is not an absolute one,28 but is contingent upon the proper performance by the father of those duties toward the child which are

*The first article on the subject of Custody of an Infant was published in last week's issue of the Journal (92 Cent. L. J. 228). It was entitled "A General Survey of the Interests Involved."

(27) English Cases. Eyre V. Countess of Shaftesbury, 2 P. Will. 103; Ex parte Hopkins, 3 P. Will. 152; Tomes v. Elers, 1 Dick. 88; Butler v. Freeman, Ambler 302; Powell v. Cleaver, 5 Bro. C. C. 499. Creuze v. Hunter, 2 Cox Chancery Cases 242; The King v. DeMandeville, East 221; Whitfield v. Hales, 12 Ves. jr. 492; Ex parte Mountfort, 15 Ves. jr. 445; Ball v. Ball, Sim. 35; Wellesley v. Wellesley, 2 Bligh N. S 124; Rex v. Greenhill, 4 Adolph. & E. 624; In re Spence, 2 Phillipp Ch. R. 247; Thomas v. Roberts, 3 DeGex & S. 758; Anonymous, 2 Sims N. S. 54; In re Hakewill, 12 C. B. 223; Van Sittart v. Van Sittart, 2 DeG. & J. 249; Algar-Ellis v. Lacelles, 24 Chan. Div. 317; In re Elderton, 25 Ch. Div. 220.

American Cases. State v. Smith, 6 Greenleaf (Me.) 463; Cooke v. Bybee, 24 Texas 278; Rust v. Vanvacter, 9 W. Va. 600; State v. Barney, 14 R. I. 62. State v. Paine, 4 Humph. (Tenn.) 523; Clark v. Bayer, 32 Oh. St. 299; State v. Richardson, 40 N. H. 272; Thiesing v. Thiesing, 26 S. W. (Ky.) 718; State v. Flint, 65 N. W. (Minn.) 272; Giles v. Giles, 80 Neb. 624, 46 N. W. 916; Bonnett v. Bonnett, 16 N. W. (Iowa) 91; Hunt v. Wayne Circuit Judges, 105 N. W. (Mich.) 531; In re Brown, 117 Ill. App. 332; Green v. Campbell, 14 S. E. (W. Va.) 212; Washaw v. Gimble, 7 S. W. (Ark.) 389; State v. Rauff, 2 S. E. 801; Sturdevant v. State, 19 N. W. 617; Proctor v. Rhodes, 4 Ky. Law Rep. (Abstract) 453; In re Ferrier, 103 III. 367; Burke v. Crutcher, 4 Ky. Law Rep. (Abstract) 251; State v. Baird, 21 N. J. Eq. 384; People v. Olmstead, 27 Baro. (N. Y.) 9. People v. Mercien, 8 Paige 46, 26 Wend. 64; In re Toulmin, R. M. Charlt. (Ga.) 489; U. S. v. Bainbridge, Fed. Cas. 14,497; United States v. Green, 3 Mason 482; Anonymous, 55 Ala. 428; State v. Stigall, 22 N. J. Law, 286; Shaw v. Natchway, 43 Iowa, 653; Henson v. Walts, 40 Ind. 170; Adams ▼ Adams, 1 Duv. (Ky.) 167; Wadleigh v. Newhall, 136 F. 941; Umlauf v. Umlauf, 21 N. E. 600; Haskell v. Haskell, 152 Mass. 16; Griffin v. Griffin, 187 P. (Ore) 598; Leach v. Leach, 223 S. W. 287; State v. Cagle, 96 S. E. 291; Travis v. State, 31 Oh. Cir. Ct. R. 492; Starnes v. Albion Mfg. Co., 61 S. E. 525. Hernandez v. Thomas, 39 S. 641; State v. Bratton, 15 Am. L. Reg. n. s. 359; Heineman's Appeal, 96 Pa. St. 112; Johnson v. Terry, 34 Conn. 259; Schroeder v. Filbert, 60 N. W. 89. (28) See Note 27. Nearly all the cases there cited support the text.

the basis for giving the right.29 Custody is purposive. The child must be cared for. It is assumed by the law that the ties of blood and affection will be strong enough to induce the father to protect, care for and educate the child, without interference by society.30 But this assumption is refutable and if the father fails to carry out his obligations and neglects the welfare of the child, the child will be taken from him.31 This is well brought out by the language of Lord Chancellor Redesdale, when he says:

"What is the ground upon which the opposition is made to this order? (The order was to remove the child from the custody of its father.) The opposition is founded upon the right of the father to have the care and custody of his child. That right is not disputed by the order; but the question is whether the father having that right, is at liberty to abuse that right. That is the real question. Why is the parent entrusted with the care of his child? Because it is generally supposed he will best execute the trust reposed in him; for that it is a trust of all trusts the most sacred, none of your Lordships can doubt. I apprehend that it is impossible to say that the father had that absolute right which is contended for at the bar. What are the grounds upon which the custody of the child are given to the father? First, protection, then, care and education. Is it not clear that if the father does not give that protection, does not maintain the child, that the law interferes for the purpose of compelling the maintenance of that child? Is it not clear that if the father cruelly treats the child in any manner, that a court of criminal jurisdiction will interfere for the purpose of preventing that treatment? Is it to be said then, there is no jurisdiction whatsoever in this country, that can control the conduct of a father in the education of his children? If

a stranger were to enter this house, and hear what was argued on that subject, would it not strike him with astonishment that

(29) State v. Bratton, 15 Am. L. Reg. n. s. 359; Johnson v. Terry, 34 Conn. 259; Adams v. Adams, 1 Duv. (Ky.) 167; Heineman's Appeal, 42 Am. Rep. 532.

(30) Verser v. Ford, 37 Ark. 27. Wellesley v. Wellesley, 2 Bligh N. S. 124.

(31) Ibid. 2 Story Eq. Juris. par. 1341 and cases there cited.

the law of this country should not have provided for such a case?"32

The English doctrine is also our own doctrine as the following will show. In Heineman's Appeal,33 decided in 1880, the Court said: "The general rule is that the father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them. But this is not on account of any absolute right in the father, but for the benefit of the infant, the law presuming it to be for its interest to be under the nurture and care of its natural protector, both for maintenance and education. It is a mistake to suppose that the father has an absolute vested right to the custody of the infant."34

In 1894 a Nebraska Court said: "The

right to the custody of an infant child which the law confers upon the father is not for the benefit of the father but for the benefit of the child. This right of custody is conferred upon the father because the law presumes that the father will avail himself of the custody of the child for the child's benefit; but he may lose the right if he abandons the child."34a And even Eakin, J., who seems to think that to have the law look solely to the interests and best welfare of the child when custody of the child is awarded is "intolerably tyrannical and utopian," says: "The preference (for the father as the custodian of the child) is conceded to the ties of duty and affection, and attends the primary obligation of the father to maintain, educate and promote the happiness of the child according to his own best judgment and means within his power.'

1136

It is at once apparent, if the right to custody depends upon the proper fulfillment

of duties toward the child, and if the failure to perform these duties of maintaining and educating the child is a reason for taking

(32) Wellesley v. Wellesley, 2 Bligh N. S. 124. (33) 42 Am. Rep. 532. (34) Heineman's Appeal, 96 Pa. St. 112, 114. (34a) Schroeder v. Filbert, 41 Neb. 745. (35) Verser v. Ford, 37 Ark. 27. (36) Ibid,

the custody of the child away from the parent, that the law really is primarily interested in the welfare of the child and that custody is a method adopted by the law to secure that welfare. It would follow, therefore, that all questions of custody would finally be decided by reference to this question: What does the best interest of the child demand? The welfare of the child would be the controlling consideration. And this is the law. The overwhelming weight of authority is to this effect.37 There are a few cases which scoff at this test, but they are obviously wrong.38

It is at this point that the public and social interests emerge. A recent writer has well said: "Nothing illuminates more searchingly the character of a State than the method it utilizes in the upbringing of its young. The progress which any nation makes, or fails to make, is faithfully recorded in the history of the rearing of its children. The conditions under which children are brought into the world, nourished, trained and inducted into the responsibilities of maturity compose the indisputable realities of every social order. The manner in which its children are nurtured is in truth perhaps the best measure of the civilization of a race. The State is vitally interested in the proper maintenance and education of its children, because the children of today are the voters and rulers of tomorrow. The tritest of psychological truisms is that the formative period in the existence of a human being is the most important one; and it is a commonplace of

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(37) Two early cases are. Reynolds v. Tynham, 9 Mod. R. 40; (1723); United States V. Green, 3 Mason 482 (1824). Some recent cases are, F. v. F. (1920), 1 Ch. 688; Wadleigh v. Newhall, 136 F. 941 (1905); State v. Cagle, 96 S. E. 291 (1918); Leach v. Leach, 223 S. W. 287 (1920); Griffin v. Griffin, 187 P. 589 (1920); Standard Oil Co. v. Mager, 85 Sou. 186 (1920).

(38) People v. Olmstead, 27 Barb. (N. Y.) 9; Hernandez v. Thomas, 39 S. 641; Verser v. Ford, 37 Ark. 27.

(39) William L. Chenery. (40)

"Standards of Child Welfare." A Report of the Children's Bureau Conferences, May and June, 1919. Depart. of Labor. Children's Bureau, Bulletin No. 60. Page 11.

child psychology that the early years of a child's life and training are the formative ones. The public interest in the State as a juristic person is vitally connected with the character of the custodian of a child. For what the custodian is, will determine, in all likelihood, what the child is to become, and the existence of the state depends upon its citizenry being of the proper kind to maintain its integrity. Furthermore, the public interest in the State as the guardian of the social interests is here involved. For, the securing of the social welfare depends upon the character of those who are in places of trust and power, and if the child is trained to be selfish and self-seeking and is taught to look upon politics as a game for personal advancement, and office-holding as a method of self-enrichment, he will, when he reaches maturity and attains to office, sacrifice the interests of the community to his own selfish demands, and the State will have failed in its function of safeguarding the interests of the whole. The courts have seen and considered these public interests, and so far as it was possible have secured them."1

The social interests secured by the law of custody are many and varied. The fact that the welfare of the child is the determining factor shows that the social inter

(41) In re Ferrier, 103 Ill. 367; Starnes v. Albion Mfg. Co. 61 S. E. 525; Wadleigh v. Newhall, 136 F. 941; Hunt v. Wayne Circuit Judges, 105 N. W. 531; State v. Cagle, 96 S. E. 291. Here the Court said: "The State is vitally interested in its youth for in them is the hope of the future It may therefore, exercise large powers in providing for their protection and welfare." Page 292. Witter v. Cook Co. Commissioners, 100 N. E. 148. Here the Court said: "This court has long ago declared it to be a power, which exists in every well-regulated society, to see that infants within the jurisdiction, are not abused, defrauded or neglected, and that they shall be reared and educated under such influences as will make them good citizens, and that this power is vested in the court of chancery representing the government."( In re Brown, 117 Ill. App. 332, where the Court said: "In case the child is abandoned or neglected, or, what is worse, if its home becomes unfit therefore, the state has the right and it is its duty to take the child from its parents in order that it may have a chance to grow up into a law-abiding citizen."