ment, there can be no equitable estoppel.61 Ordinarily, if a person is mistaken as to a fact, and states what he believes to be true, no estoppel will follow though an innocent party accepts and acts upon the erroneous utterance to his injury.62 The general rule seems to be that estoppel by representations cannot arise unless they were made with actual knowledge of the facts.63

But an apparent exception to this rule. seems to exist where representations are made without knowing whether they are true or false, the law seeming to hold the party to the same consequences as if possessed of actual knowledge. Upon this question of knowledge the following instruction was approved in a recent Missouri case: "Although you may find from the evidence that defendant did not know that said representations were untrue, yet if you believe from the evidence that, pending the negotiations for the purchase of said land, and for the purpose of effecting the trade and inducing said agent to make it, defendant made said representations as of his own knowledge (and they were untrue), but did not know whether they were true or false, and knew or had reason to believe that said agent relied on said representations as true, and said. agent did so rely on them, and was thereby deceived and induced to trade for or purchase said land, you will find for plaintiff."

The principle at the basis of all estoppels in pais is that, whenever one of the innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain it.65

Evansville, Ind.

CHAS. W. MCKINNEY.

61 Sims v. City of Frankfort, 79 Ind. 446.

62 Thrall v. Lathrop, 30 Vt. 307; Turner v. Ferguson, 58 Tex. 6; Colbert v. Daniel, 32 Ala. 314; Davis v. Davis, 26 Cal. 23; Holmes v. Crowell, 78 N. Car. 613; Wright v. Thomas, 26 Ohio St. 346.

See Dougherty v. Yates, 35 S. W. Rep. 937. 64 Caldwell v. Henry, 76 Mo. 254.

65 Preston v. Witherspoon, 109 Ind. 457; Hirsch v. Norton, 115 Ind. 341; Manifold v. Jones, 117 Ind. 212.

CONTRACT-EXECUTORY CONSIDERATION.

MARTIN v. MELES.

Supreme Judicial Court of Massachusetts, May 22, 1901.

tee in defending certain suits growing out of letters patent for a system of tanning. Plaintiffs were ap pointed the committee, and incurred obligations in conducting the litigation. Held, that defendants' promise to contribute was not void as without consideration, since either plaintiffs' promise to conduct the litigation, or other subsequent acts, were sufficient to support the defer.dants' promise.

HOLMES, C. J.: This is an action to recover the contribution promised by the following paper, which was signed by the defendants and others: "January 21, 1896. We, the undersigned manufacturers of leather, promise to contribute the sum of five hundred ($500) dollars each, and such additional sums as a committee appointed by the Massachusetts Morocco Manufacturers Association may require; in no case shall the committee demand from any manufacturer or firm a total of subscriptions to exceed the sum of two thousand (2,000) dollars, such sum to be employed for legal and other expenses, under the direction of the committee, in defending and protecting our interests against any demands or suits growing out of letters patent for chrome tanning, and in case of suit against any of us, the committee shall take charge thereof and apply as much of the fund as may be needed to the expense of the same."

The plaintiffs are the committee referred to in the agreement, and subscribers to it. They were appointed and did some work before the date of the agreement, and then prepared the agreement which was signed by nine members of the association mentioned, and by the defendants who were not members. They went on with their work, undertook the defense of suits, and levied assessments which were paid, the defendants having paid $750. In November, 1896, the defendants' firm was dissolved, and two members of it, Meles and Auerbach, ceased tanning leather. The defendants notified the plaintiffs of the dissolution, and on June 23, 1897, upon demand for the rest of their subscription refused to pay the same. The main questions insisted upon, raised by demurrer and by various exceptions, are whether the defendants' promise is to be regarded as entire and as supported by a sufficient consideration.

It will be observed that this is not a subscription to a charity. It is a business agreement for purposes in which the parties had a common interest, and in which the defendants still had an interest after going out of business, as they still were liable to be sued. It contemplates the undertaking of active and more or less arduous duties by the committee, and the making of expenditures and incurring of liabilities on the faith of it. The committee by signing the agreement promised by implication not only to accept the subscribers' money, but to perform those duties. It is a mistaken construction to say that their promise or indeed their obligation arose

If, then, the committee's promise should be regarded as the consideration, as in Institute v. French, 16 Gray, 196, 201 (see Institute v. Haskell, 71 Me. 487), its sufficiency hardly would be open to the objection which has been urged against the doctrine of that case, that the promise of trustee to apply the funds received for a mere benevolence to the purposes of the trust imposes no new burden upon them. Johnson v. University, 41 Ohio St. 527, 531. See Presbyterian Church v. Cooper, 112 N. Y. 517,20 N. E. Rep. 352. Neither would it raise the question whether the promise to receive a gift was a consideration for a promise to make one. The most serious doubt is whether the promise of the committee purports to be the consideration for the subscriptions by a true interpretation of the contract.

In the later Massachussetts cases more weight has been laid on the incurring of other liabilities and making expenditures on the faith of the defendant's promise than on the counter-promise of the plaintiff. Cottage St. Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286; Sherwin v. Fletcher, 168 Mass. 413, 47 N. E. Rep. 197. Of course the mere fact that a promisee relies upon a promise made without other consideration does not impart validity to what before was void. Bragg v. Danielson, 141 Mass. 195, 196, 4 N. E. Rep. 622. There must be some ground for saying that the acts done in reliance upon the promise were contemplated by the form of the transaction either impliedly or in terms as the conventional inducement, motive and equivalent for the promise. But courts have gone very great lengths in discovering the implication of such an equivalence, sometimes perhaps even having found it in matters which would seem to be no more than conditions or natural consequences of the promise. There is the strongest reason for interpreting a business agreement in the sense which will give it a legal support, and such agreements have been so interpreted. Sherwin v. Fletcher, ubi supra.

What we have said justifies, in our opinion, the finding of a consideration either in the promise or in the subsequent acts of the committee, and it may be questioned whether a nicer interpretation of the contract for the purpose of deciding which of the two was the true one is necessary. It is true that it is urged that the acts of the committee would have been done whether the defendants had promised or not, and therefore lose their competence as consideration because they cannot be said to have been done in reliance upon the promise. But that is a speculation upon which courts do not enter. When an act has been done, to the knowledge of another party, which purports expressly to invite certain conduct on his part, and that conduct on his part follows, it is only under exceptional and peculiar circumstances that it will be inquired how far the act in truth was motive for the conduct, whether in case of consideration.-Williams v. Carwardine 4 Barn. & Adol. 621 (see Institute v. Haskell, 71

Me. 487),-or of fraud. Windram v. French, 151 Mass. 547, 553, 24 N. E. Rep. 914, 8 L. R. A. 750. In Cottage St. Church v. Kendall, 121 Mass. 528, the form of the finding in terms excluded subsequent acts as consideration, and therefore it did not appear whether the facts were such that reliance upon the promise would be presumed. In Academy v. Gilbert, 2 Pick. 579, 13 Am. Dec. 457, the point was that merely signing a subscription paper without more did not invite expenditure on the faith of it. See Academy v. Cowls, 6 Pick. 427, 438, 17 Am. Dec. 387; Ives v. Sterling, 6 Metc. 310, 316. In this case the paper indisputably invited the committee to proceed.

A more serious difficulty if the acts are the consideration is that it seems to lead to the dilemma that either all acts to be done by the committee must be accomplished before the consideration is furnished, or else that the defendant's promise is to be taken distributively and divided up into distinct promises to pay successive sums as successive steps of the committee may make further payments necessary and may furnish consideration for requiring them. The last view is artificial and may be laid on one side. In the most noticeable cases where a man has been held entitled to stop before he has finished his payments, the ground has not been the divisibility of his undertaking but the absence of consideration, which required the court to leave things where it found them. In re Hudson, 54 Law J. Ch. 811; Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. E. Rep. 352. As against the former view if necessary, we should assume that the first substantial act done by the committee was all that was required in the way of acts to found the defendants' obligation. See Academy v. Cowls, 6 Pick. 427, 438, 17 Am. Dec. 387. But if that were true, it would follow that as to the future conduct of the committee their promise not their performance was the consideration, and when we have got as far as that, it may be doubted whether it is not simpler and more reasonable to set the defendants' promise against the plaintiffs' promise alone. We are inclined to this view, but do not deem a more definite decision necessary, as we are clearly of opinion that, one way or the other, the defendants must pay.

Thus

NOTE.-Executory Consideration of Contracts.— It is a rule of law well settled by authority that mutual and concurrent promises afford sufficient legal consideration for the support of each other. Boies v. Vincent, 24 Iowa, 387; Morrill v. Colehour, 82 Ill. 618; Grimley v. Davidson, 133 Ill. 116; Nunnally v. White, 60 Ky. 584; Ames v. Taylor, 149 Me. 381. where several persons are interested in a purchase, and liable for the purchase money, a promise, on the part of one, to pay the money yet due, is a sufficient consideration to support an engagement on the part of the others to abandon and give up all their interest in the property purchased. Morrill v. Cole hour, 82 Ill. 618. But the promise must be one which the party is not already bound to do. Thus a promise by an executor to look among the papers of deceased for one belonging to plaintiff, and to surrender it to her,

is not sufficient consideration for a contract. Sullivan v. Sullivan, 99 Cal. 187. The following cases will show the distinction to be observed in this connection. An agreement by an officer not to move property seized by him on execution and intrusting it to the custody of another is a sufficient considera. tion for an agreement by the latter to keep the prop. erty safely, and have it forthcoming at the sale on execution. Ames v. Taylor, 49 Me. 381. A owning a majority of the stock of a corporation, contracted with B, an employee, that the latter should have the earnings on 300 shares of stock after a certain date, but the shares were not to be transferred until A could part with them and still retain control of the corporation. Held, that the contract imported a valid consideration in B's implied agreement to render future services. Price v. Minot, 107 Mass. 49. A promise to contribute to the expense of an enterprise is a sufficient consideration for a promise to share in the proceeds. Britenstool v. Michaels, 56 N. W. Rep. 607. A judgment debtor's agreement to grind corn at a fair price in payment of the judgment, is a sufficient consideration for the creditor's agreement to deliver him sufficient corn for that purpose. Oldham v. Kerchner, 79 N. Car. 106.

Of course it is necessary that there should be mu tuality of promises. A promise is never a good con sideration for a promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agree. ment. Bailey v. Austian, 19 Minn. 535; Tewkebury v. O'Connell, 21 Cal. 60; Henry County v. Drainage Co., 52 Ill. 454, State v. Holcomb, 46 Neb. 612. Thus where an agreement is made by a single individual for the donation of money to a religious institution without any undertaking on the part of the donee to make any return therefor, the agreement by the institution to receive and invest the money, and apply the interest to the payment of expenses, does not furnish a sufficient consideration to support the agree ment. 2 Denio (N. Y.), 403. But, although that is the case where the subscription is individual, yet the court further held that where several persons subscribe to raise money for an object in which all feel an interest, e. g., to support a religious or literary institution, the mutual promises of the several sub. scribers form a valid consideration for the promise of each. Nelson, C. J., said: "The substance of the contract between the parties, leaving out the particu lars, is this: The defendant agrees to pay the plaintiff for the benefit of the institution they represent, $8,000, in four annual payments, provided they will procure subscriptions and contributions which, with his, shall amount to $50,000 before a given time; and shall afterwards invest the same as specified. The plaintiffs consent and perform the conditions. It seems to me that the labor and expenses of procuring the subscriptions and investing the fund, constitute damage and loss to the plaintiffs, which bring the cases within the very definition of a good considera. tion for the promise." (See sec. 346, vol. 11, Cent. L. J.)

A conditional promise is a sufficient consideration for an act, though the condition calling for performance is not satisfied. Gutlon v. Marcus, 165 Mass. 335; Patton v. Mills, 21 Kan. 163; Lenz v. Brown, 41 Wis. 172. Thus the agreement of one of several plaintiffs to assign to one of several defendants the securities and claims on which an action is brought is sufficient consideration to sustain said defendant's promise to pay a certain sum, if defendants prevail

in said action. Gray v. Bowen, 23 N. Y. Sup. Ct. Rep. 67.

Sometimes, as in the principal case, it may be diffi cult to determine whether there were any valid mutual promises. In that case a consideration may be found for the promise of one party in the subsequent performance on the part of the other. Thus, subsequent performance of services and expenditure of money, in prosecution of the employment to procure for a person a purchaser for his land, is a sufficient consideration for a previous promise by the owner to make the person so employed a compensation if the owner himself sold the land. Goward v. Waters, 98 Mass. 596. So also that large class of agreements where a father promises to deed land to a son if he returns or a parol agreement between father and son that, on condition that the son will enter on certain land and improve it, the father will deed him the same, are sustained by sufficient consideration, where the son acts upon the promise and enters upon and improves the land. Lobdell v. Lobdell, 33 How. Pr. (N. Y.) 347; Rumbolds v. Parr, 51 Mo. 592. So also where two parties had, and believed they had, a similar interest in the settlement of a question, and one promised the other to share equally in the expenses if he would commence and carry through the suit in his own name, and the promisee, on the faith of such promise, did commence and carry through the suit, it was held that the promise was founded on a sufficient consideration. Dorwin v. Smith, 35 Vt. 69.

A fortiori, if the performance of one promisee not founded on his mutual promise will furnish sufficient consideration for the promise, the performance by one of several mutual promisors, as in the principal case, will bind the others. Thus in the case of Sterling Wrench Co. v. Amstutz, 53 Ohio St. 484, 34 N. E. Rep. 794, solvent stockholders of an embarrassed company having agreed to contribute to a fund to pay off the company's debts, one of them agreed that, as part of his contribution, he would cancel a note held by him against the corporation and a part or all of the other contributing shareholders, for a corporate debt. The other contributors performed the agreement on their part. Held, that they and the corporation could plead the contract in bar of an action on such note. In Nunnally v. White, 60 Ky. 584, one left property to his children, and, at the death of any of them without issue, the share of that one was to be divided among the rest. In consideration of love and affection, a contract was signed by which the interests of all the others under this clause were agreed to be released so far as regarded the shares of two of the devisees. Held, that the execution of this contract by one of the covenantors, by filing a disclaimer, would suffice to bind the rest, even conceding that they would not be otherwise bound. So also in McCandless v. Allegheny Bessemer Steel Co., 152 Pa. St. 139, 25 Atl. Rep. 579, a contract by persons whose property was threatened by a mob to reimburse the sheriff for money expended for the wages and sustenance of special deputies to be employed by him to guard the property, which contract was carried out in good faith by the sheriff, is not void for want of consideration. It must be borne in mind in considering this last case that the agreement with the sheriff was not merely to pay him for the perform. ance of duties devolving upon him by virtue of his office, for in such case, as we have already seen, the agreement would have no consideration. But the rule is otherwise as to matters not within the scope

of the officer's public duties, as, for instance, the employment of special deputies.

JETSAM AND FLOTSAM.

ARIZONA'S NEW CORPORATION LAW.

The last session of the Arizona legislature passed a general incorporation law which has drawn the attention of incorporators from the several eastern states, and is promising to make Arizona a formidable rival of West Virginia, Delaware, Maryland and South Dakota, which states have heretofore had a monopoly on business in this line. All the good features of the corporation laws of these states are included in the new law, as well as numerous other advantages to the incorporator. Private property is exempted from corporate debt, no annual or other reports are required, there is no annual or other tax upon the corporation, none of the incorporators need appear or be residents of the territory, and the amount of the capital stock does not increase the cost of incorporating. It is only necessary that the corpo. ration appoint a resident of Arizona as its agent. Over three thousand companies have been incorporated under Arizona's favorable laws, the bulk of which are eastern companies and California and Texas Oil companies.

THE "ALTRUISTIC" NEGLIGENCE CASE LAWYER. The "ambulance-chaser" has often been condemned, and deservedly so. It is the daily experience that as soon as an accident occurs, a half dozen or more socalled lawyers appear and offer their services at any price to the suffering person or to his heirs. But the lawyer who is an "ambulance chaser," but who devotes his main practice to a recovery for suffered injuries, at the hands of corporations, finds favor in the eyes of Justice Woodward of the Brooklyn appellate division, judging by a deliberate address, devoted to this subject by him, under the title "The Ethics of the Law of Negligence."

He insists that there are few higher duties than those of the attorney who appears in the courts in the advocacy of a cause involving negligence. "His labors" (says the justice) "are at once egoistic and altruistic; he is seeking the amelioration of the pain and suffering of his client, and of those depending upon him for their support and maintenance, at the same time, that he is building a barrier against future pain and suffering on the part of those who must fall victims to the carelessness of those intrusted with duties to the public, unless they are held to a rigid accountability for their aggressions upon individuals."

Our modern industrial development, with its network of machinery in all directions, has gradually filled the courts, and the reports with a class of negli gence cases, which will soon crowd out all other ordinary litigation. The accident case lawyer has become a distinct class, like the patent or admiralty lawyer. Justice Woodward takes a most hopeful view of the gradual settlement of the rules established for the adjustment of these inevitable controversies. He believes that the public service of great corporations has been vastly improved, and the safety of persons been promoted, by force of the energy and skill, with which the many accident cases have been presented to the courts. He deplores that in these actions, as in other branches of the law, there will be found "lapses" on the part of practitioners from the high ideals of ethics, but he also believes that the law, both in its principles and in its administration, is in

harmony with the principles of ethics, and has for its object the lessening of pain, and the increase of pleasure, both for individuals and society.

Thus a new place has been found for the accident lawyer, whose labors are at once "egoistic and altruistic," avenging, through the instrumentality of the law, the killing and maiming of the individualan ethical crime against society.-National Reporter. LAWYERS' FEES.

William O. Inglis, in Munsey's Magazine, writes interestingly about the fees of lawyers. "The highest fee," says Mr. Inglis, "ever received by a lawyer is credited to William G. Moore, of Chicago. A few years ago Mr. Moore was recognized by his professional brethren as a brilliant man with a good praetice, who was yet to distinguish himself. He conceived the plan, which he perfected after much study, for bringing all the American tin plate manufacturing concerns into one corporation. With infinite patience and labor, with courage and audacity that no obstacle could balk, he succeeded in organizing the American Tin Plate Company. He fee was said to be five million dollars, and the report of the Industrial Commission at Washington appears to verify this. Of course, a great part of the lawyer's reward was in the form of stock of the new company. About a year ago, Andrew Carnegie was at odds with his chief associate, Henry C. Frick, and the latter began a suit in which all the chief stockholders of the Carnegie companies became parties. A disastrous legal fight was threatening, one that would do infinite harm to the great steel business. After the rival interests had spent two hundred and fifty thousand dollars in legal fees, James B. Dill, a New York lawyer, succeeded in showing these men that they were at odds over a matter of ten million dollars, and that they would lose a great deal more than that in keeping up the fight. He pointed out a plan of reorganization and consolidation that would yield a profit of a hundred millions. Mr. Dill's advice was followed with com plete success. Mr. Dill received a check for one mil lion dollars as his fee. That is enormous, but if a lawyer helped any man to make a profit of a thousand dollars, the gainer would hardly think ten thousand dollars an exorbitant fee for the advice.

"James C. Carter, that rugged, forceful man who appears in the United States Supreme Court at Washington more often than any other New York advocate, derives an income of a hundred thousand dollars a year from his law practice. His retainer is never under five thousand dollars, and he receives at least five hundred dollars for each day or part of a day that he spends in court. Joseph H. Choate, now our ambassador to Great Britain, had a similar scale of fees while practicing law in New York. Messrs. Cromwell & Sullivan recently received two hundred thousand dollars for their services to the Northern Pacific Railroad. Edward Lauterbach's fee for reorganizing the Third Avenue Railroad Company was two hundred thousand dollars, but the company was in the hands of a receiver before the lawyer could collect. For clearing up all the difficulties that beset the probate of the recent Vanderbilt will, Senator Chauncey M. Depew was paid a hundred thousand dollars. Lawyer Levy Mayer sold the Ogden Gas Company to the Chicago Gas Trust, and thereby earned a fee of half a million. Messrs. Moran, Kraus & Mayer spent three years in whisky trust litigation and in the formation of the American Spirits Association. They were paid two hundred and fifty thousand dollars.

"Perphaps the most remarkable fee on record was the quarter of a million dollars paid to the late William M. Evarts, a few years ago, for saying 'yes.' The question submitted to him was whether a great corporation had the legal right to exist. The late Benjamin Harrison received two hundred and fifty thousand dollars for acting as counsel for Venezuela in the arbitration proceedings at Paris concerning the boundary dispute with British Guiana. John E. Parsons received the same amount for reorganizing the sugar trust under the laws of New Jersey. Thomas B. Reed, formerly speaker of the house of representatives, is guaranteed an annual income of fifty thousand dollars by the law firm of Simpson, Thatcher & Barnum, of New York, and he probably earns twice that amount.

"In another branch of the profession, Messrs. Weeks, Battle & Marshall are said to have received fifty thousand dollars for the defense of Roland Molineaux. Austin G. Fox and Daniel Rollins received fifty thousand dollars for their services as special deputies to the attorney-general of the state of New York, in connection with certain prosecutions which grew out of the Lexow investigation in New York.

"A comparison of these fees will show that the great financial rewards in the law business are those which go to legal advisers for the exercise of the creative faculty, rather than to the advocates who plead at the bar. In the struggle to obtain practice, even the firms whose names are widely known do not disdain methods that would make a layman stare. Sons of presidents of trust companies are eagerly wel comed as partners in law firms. They bring business. There are great firms in the Wall street district that have social attaches. They bring business. Not infrequently it happens that mediocre lawyers are taken into firms, not for their own ability-which might perhaps be worth a thousand dollars a yearbut for the social influence of their wives, which brings practice worth fifty times that amount into the hands of their husband's associates.

"There is another side, that of the men who do not reach the high places, for it is only the giants that re ceive these enormous fees. Like most other cities New York is overcrowded with lawyers, and, lest the young man contemplating the law as a profession be too optimistic, it should be said that more than half the lawyers of New York have a hand-to-mouth struggle for existence. Notwithstanding the enor mous incomes of the leaders of the bar, the average net earnings of the lawyers of New York are said to be less than a thousand dollars a year."

JUSTICES WITH A BIAS.

Of course, what astronomers call "the personal equation" must enter into the decisions of every judge, although, no doubt, he is the greatest who can reduce it to a minimum. We have long been proud of the impartiality of our English bench, and our

The question of pecuniary interest is somewhat different from that of bias. It is based upon the principle that no man should be a judge in his own cause, and it is clear law that direct pecuniary interest, however small, in the subject of the inquiry will disqualify a person from acting as a judge in the matter, unless, of course, he has been relieved by statute from the disqualification.

It must be remembered, however, that notwithstanding relief by statute or that the pecuniary interest is merely indirect, yet any substantial interest in the result of the hearing, such as to make it likely that the justice will have a bias, will disqualify him from acting. That is a fundamental proposition which has been laid down and acted upon for many years by the courts. Unlike many legal doctrines it is clear and simple, and its application to particular cases is generally by no means difficult to an un prejudiced outsider. Of course, each case must de pend on its own facts; but the difficulty usually arises in the mind of the person interested rather than in any complexity of the law. Of course the defeated party can hardly fail to take a prejudiced view, and he often sees favor and bias where neither exists. On the other hand, the justice who has a real bias equally fails to recognize that he is doing anything wrong in adjudicating on the question, while in some men the mere likelihood of bias produces the effect of making them endeavor more anxiously to hold the balance straight.

From the cases it is almost impossible to lay down any narrower propositions than those broad ones above quoted, and the case law serves merely the purpose of illustrating these principles. We may refer to a few by way of example. In Reg. v. Hain, 12 T. L. R. 323, it appeared that three justices on the licensing committees had been directors and shareholders in a company having for its object the estab lishment of a boarding house or hotel. The manag. eress had applied for a license and it appeared that she did so in pursuance of a resolution passed at a meeting of the company at which these justices as directors had been present. The justices when appointed on the confirming committee had resigned their seats as directors and sold their shares, so that they had ceased to have any pecuniary interest, although some of their relatives, however, still had shares. A divisional court, consisting of Russell, L. C. J., and Wright, J., held that it was clear that these justices had resigned their seats on the board of directors for the express purpose of being free to support, as justices, the application for the license, therefore it could not be said that the granting of the license was an unbiased judicial decision. Russell, L. C. J., added that it was perfectly possible that they had acted in what they honestly thought would be for the best interests of the neighborhood.

That case was one of indirect pecuniary interest. In Reg. v. Fraser, 57 J. P. 500, we have an illustration of bias arising from quite a different cause. In that