vorce against the husband in 1909 on ground of his adultery. In order to get her to dismiss the suit the husband and his father entered into a written agreement with her to pay her $300 per month during the remainder of her married life. From that date until the death of the husband in 1917 she was paid $1900 and there was due and owing on the contract at that time $29,600, for which amount she is suing her father-in-law, who was a party to the contract. The trial court sustained a demurrer to the petition which judgment the Court of Appeals reversed on the ground that the complaint stated a cause of action. The Court said:

"We think that the complaint is sufficient. The agreement set forth therein is not on its face against public policy. It is for the resumption of marital relations between husband and wife separated for cause. In the absence of proof, it may not be presumed that the wife's grievance was unsubstantial. It rests on a valuable consideration. The wife condoned the alleged adultery of the husband. That was a detriment to her. She surrendered a right. The husband got rid both of the action and the cause of action for divorce. He might have been successful in his defense, but it was a substantial benefit to him to have the case ended and his wife again under his roof. The performance of marital duty should not be made the subject of bargain and sale, but it does not appear that reconcilement was plaintiff's duty in this case. Rather it was her right to refuse to condone an offense against the marriage relation and to insist on a divorce, with separate support and maintenance. The husband was not hiring a discontented wife, separated from him without good cause, to return to him. She was to be paid to give up her right to live apart from him. She did not return until she was assured of proper treatment as a wife, and the court will not say to her that she sold her forgiveness, and that 'conjugal consortium is without the range of pecuniary consideration.' To apply such a rule to cases like this would be to discourage the reunion, which the law should favor, of couples unhappily parted. We are dealing with the contract that was executed by plaintiff, and not with unexecuted possibilities based on subsequent separation of husband and wife."

The contract in this case is not a contract to induce a wife to perform her duties as wifesuch a contract would be void for want of consideration, for in such a case the wife would be agreeing to do no more than she ought to do. It is more in the nature of a post-nuptial settlement with this difference that unlike most postnuptial settlements, there is a consideration to support it. Ordinarily an agreement after marriage to pay the wife a certain sum of money is good only when executed. Such an agreement has not the marriage to support it as in the case of an ante-nuptial settlement, and if there is no other consideration the agreement so far

as it is executory, fails. But in the principal case, although this settlement is post-nuptial, there is a valuable consideration-the giving up by the wife of a right of action against the husband for divorce and alimony. If the plaintiff's father-in-law saw fit to promise plaintiff $300 a month for the rest of her married life if she would drop her suit for divorce and continue to live with his son as his wife, he ought to be compelled to keep his agreement.

There is a Texas case which holds that a post-nuptial promise of the husband to pay money to his wife in consideration that the wife would continue to live with him rests on an invalid consideration. Roberts v. Frisby, 38 Tex., 219. Courts should be careful to make a distinction between agreements which attempt to determine the obligations attached to the narriage status, of which consortium is of course one, and agreements which affect the property or personal rights of the spouses. Agreements of the former character are void since the law does not permit the parties either by ante-nuptial or post-nuptial contracts to change or affect their marital obligations. But agreements either before or after marriage, resting on a valuable consideration, may affect or change the financial obligations and property rights of the spouses. While a husband and wife could not by their contract affect their duty to live together, yet where either spouse is relieved of this duty by law and is given a right of action against the other as for divorce and alimony, this purely personal right may be given up as a valid consideration for an agreement by the husband or his father to make a settlement upon the wife.

RIGHT OF TELEGRAPH COMPANY TO CHANGE AN INTRA-STATE TO AN INTERSTATE MESSAGE BY THE ROUTE OF TRANSMISSION.-The Supreme Court has made it possible for telegraph companies to evade the law of certain states making them liable for mental suffering alone apart from other damage suffered at the same time by permitting the company to route an intrastate message through an adjoining state and thus making it an interstate message. Western Union Telegraph Co. v. Speight, 41 Sup. Ct. 11.

In this case the plaintiff, Speight, sought to recover for mental suffering caused by a mistake in delivering a telegraphic message. The message handed to the defendant was "Father died this morning. Funeral tomorrow, 10:10 a. m." and was dated January 24. As delivered to the plaintiff on January 24 it was dated

January 23 and thus caused her to fail to attend the funeral which otherwise she would have done. The message was from Greenville, North Carolina, to Rosemary in the same State and was transmitted from Greenville through Richmond, Virginia, and Norfolk, to Roanoke Rapids, the delivery point for Rosemary.

It is the rule in the federal courts to follow the common law rule that no recovery can be had for mental suffering alone. Southern Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, L. R. A., 1917 A, 197. The trial court set aside a verdict for plaintiff in which the jury found that the message was sent out of the state for the purpose of evading state liability. The Supreme Court of North Carolina reinstated the verdict which is the judgment which the Supreme Court reverses. Chief Justice Holmes concisely and bluntly states the rule as follows:

"We are of opinion that the judge presiding at the trial was right and that the Supreme Court was wrong. Even if there had been any duty on the part of the Telegraph Company to confine the transmission to North Carolina, it did not do so. The transmission of a message through two states is interstate commerce as a matter of fact. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 23 Sup. Ct. 214; 47 L. Ed. 333. The fact must be tested by the actual transaction. Kirmeyer v. Kansas, 236 U. S. 568, 572, 35 Sup. Ct. 419, 59 L. Ed. 721."

The company justified its action by some evidence that its wires were strung in such a way as to make the route chosen the easiest and quickest. But Justice Holmes pays little attention to the question of motive, saying:

"The court below did not rely primarily upon the finding of the jury as to the purpose of the arrangement but held that when as here the termini were in the same State the business was intrastate unless it was necessary to cross the territory of another State in order to reach the final point. This, as we have said, is not the law. It did however lay down that the burden was on the Company to show that what was done 'was not done to evade the jurisdiction of the State.' If the motive were material, as to which we express no opinion, this again is a mistake. The burden was on the plaintiff to make out her case. Moreover the motive would not have made the business intrastate. If the mode of transmission adopted had been unreasonable as against the plaintiff, a different question would arise, but in that case the liability, if it existed, would not be a liability for an intrastate transaction that never took place but for the unwarranted conduct and the resulting loss."

"REASONABLE" - USE OF THE TERM IN RECENT BRITISH CASES.

This word is extremely common in our contracts and statutes. Possibly there is no other word which occupies so prominent a position. Such phrases as "reasonable notice," "fair and reasonable," "reasonable and proper" and others similar, occur frequently and in every case in court, reference probably is made to the "reasonableness" of the arguments submitted. It has been well remarked that an appeal to reason is an appeal sometimes to an objective standard and sometimes to judicial discretion. As an instance of the former, there is the case of Smith v. Boon,1 a prosecution under the Light Locomotives and Highways Order 1896, in which it was held that the "reasonable and proper" speed of a motor on a highway has to be judged apart from the actual inconvenience caused. The argument of the accused in that case was that his speed could not, in the circumstances do any harm and therefore that it was not "unreasonable or improper." The magistrates found as a fact that his speed of eighteen miles an hour was not "reasonble," and on appeal the conviction was upheld. On the other hand, in cases of contracts which stipulate for performance within a "reasonable" time, it is well-known that the phrase is interpreted according to the circumstances of the case and with particular reference to the means and ability of the person by whom the contract is to be performed or the duty discharged. Three very recent cases discuss the term. Attwood v. Lamont, related to a restrictive covenant between an employer and an employe, as to the latter not trading within a certain area after leaving the employment. In a lengthy judgment, Lord Justice Younger discussed the "reasonableness" of such agreements. An important element in

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such agreements pointing to "unreasonableness" is their restraint of trade, a fact which indeed operates in determining the "reasonableness" of all agreements and, as we shall see later, by-laws or subsidiary legislation of that kind. In another case3 the railway company's ticket conditions were attacked as not being "reasonable" but the court pointed out that these formed part of a contract and like every contract conditions the element of "unreasonableness" did not enter into them unless they were so grossly extravagant as to the amount of fraud or were wholly irrelevant. "Reasonable" conditions in that case were defined as being "such as no honest man would try to insert or no reasonable man would dream of looking at it." The third case was in the Scottish Court of Session, in which it was

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held that where lenders on mortgage agreed that the loan should not be called up for fourteen years so long as interest at 4 per cent was punctually paid at quarterly terms, payment six days after a term was not punctual payment in the sense of a contract and the lenders were entitled to call up their money. The Lord Ordinary by whom the case was tried was of opinion that in the sense of the agreement which had to be read reasonably, payment had been made in accordance therewith, and on appeal this was the view taken by one of the judges in the Inner House, but the majority of the appellant judges found that payment had not been punctually made and that the pursuer was entitled to the finding asked for.

Dealing first with the minority opinions, they emphasized the fact that to refer the word "punctual" to the exact day would be a judicial and not a "reasonable" construction of the contract; and that at previous terms there had been delay even on one occasion the difference of twelve days, but there was nothing to show that plaintiff considered this unpunctual payment. Weight was also given to the circumstance, that the

(3) Gibaud v. Great Eastern Railway Co., 1920, 86 T. L. R. 84.

(4) Gatty v. McLaine, 1920, 57 S. L. R. 334.

proprietor of the estate was on active military service.

The effect of the judgment of the majority of the Court is really to hold all these arguments as irrelevant. They find that punctual payment means payment made punctually on the day fixed for payment and that the word is not open to any interpretation. As the Lord President put it "payment made six days later than the day fixed for payment is not punctual payment. If a payment six days later is to be considered punctually made, where is the line to be drawn between punctuality and unpunctuality." With regard to construing the word "reasonably" his Lordship thought that reasonable construction in "law meant to take the words used by the parties in their plain and natural sense and not in the sense which a judge may think fit to put upon the term."

This is a just doctrine led by Lord Chancellor Westbury" that in interpreting a statute the clearness and certitude of the law are for a judge sufficient reason "rules which govern the transmission of property are the creators of positive law and when once established and recognized their justice or injustice in the abstract is of less importance to the community than the fact that the rules themselves shall be constant and invariable" and Lord Halsbury similarly remarked, "a court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision excepting so far as it may help in interpreting what the legislature has already said."

A field of law, however, in which the element of "reasonableness" plays an important part is the validity of by-laws made by local authorities, railway companies or other statutory incorporations. Courts of law have the power to determine whether a bylaw is a reasonable one, upon the principle that delegated legislation is only permitted

upon the assumption that it shall be reasonable. The following cases illustrate how this power has been exercised. By-laws by a corporation excluding persons from an office to which by charter they are eligible are bad as being unreasonable; but those which lay down a criterion of fitness for office are good. By-laws made to cramp or restrain trade are bad; but by-laws made to restrain trade in order to the better government and regulation of it are good in some cases, namely, if they are for the benefit of a place, and to avoid public inconveniences, nuisances, etc., or for the advantage of the trade and improvement of the commodity." A power to pass by-laws for "regulating and governing" certain traders in a city does not include power to prohibit them altogether from plying their trade in the city. A by-law is unreasonable if it is oppressive or curtails the liberties of individuals more than is necessary to give effect to the object which it has in view;10 but a by-law which may impose hardship or inconvenience upon an individual is not unreasonable. if it is for the general good." What is reasonable in one locality may not be so as to another, because of the different circumstances of the two districts;12 and also a by-law may be unreasonable by nature of the penalty attached, 13

DISCOVERY UNDER NEW RULES OF PRACTICE FOR FEDERAL. COURTS OF EQUITY.

Old Rules-Under the old rules in equity procedure as adopted and in force down to 1850 a defendant was not bound to answer any statement in the bill, unless specially and particularly interrogated thereto, nor any interrogatory about which he was not interrogated in the bill. In 1850 this, known as the 40th rule, was abrogated by the Supreme Court. There was, therefore, no longer any need, in order to obtain discovery, for a defendant to be specially interrogated upon any statement in the bill, but complainant could answer if he desired. The old rules were further amended in 1850 by adding a new rule (Rule XLI) so that the interrogating part of the bill should contain interrogatories consecutively numbered in a note at the foot of the bill, and only these should the defendant be required to answer.2

At the December term, 1871, an amendment was made which is embodied in Rules XLII, XLIII, XLIV. These rules provide that the interrogatories constitute a part of the bill and any alteration or addition to them, an amendment thereto; that the old form of conclusion should be altered so that defendant should make answer to each interrogatory, declining, however, to answer any one of them as to which he might protect himself against by demurrer, the same as against other parts of the bill.

Discovery Under Old Rules-In a case by Eighth Circuit Court of Appeals, decided in 1898, while the old rules were still in effect, it is said in an opinion by Sanborn, C.J., concurred in by Thayer, C.J., and Philips, D.J., that: "Are appellants entitled to a discovery, in aid of their title and suit, of the facts within the knowledge of the appellees? It is true that the right

(1) Dewhurst's Rules of Practice in U. S Courts, 2nd Ed., 392.

(2) Ibid. 393.

(3) Ibid. pages 393, 394.

of discovery in Courts of Equity arose from the necessity of searching the conscience of the opposing party in order to ascertain facts, and obtain documents within his knowledge and control, which the complainants could not reach at law because of their inability to compel the examination of the defendant under oath. It is true that the federal and state statutes now in force, which enable the complainant to obtain such examination, have greatly diminished the need of these discoveries; but it is none the less true that these statutes have neither abrogated the right nor curtailed the power of Courts of Equity to enforce them. They have only added another right to that which had already been secured in Courts of Chancery. Every bill for relief exhibited in a Court of Equity is, in effect, a bill of discovery, because it asks or may ask from the defendant an answer upon oath relative to the matters which it charges. power to enforce such a discovery is one of the original and inherent powers of a Court of chancery, and the right of a party to invoke its exercise is enjoyed in every case in which he is entitled to come into a court to assert an equitable right or title or to apply an equitable remedy."5

The

In the Third Circuit Court of Appeals, decided five years prior to the promulgation of the new equity rules in 1912, there is a distinct ruling that bills of discovery were not abolished by federal statutes giving the right to production by parties of books and writings and making of parties competent witnesses, though in many cases the necessity therefor is removed. The court in this case refers to very early English cases in which the right to file a bill of discovery was sustained and to text in standard authors and in state cases showing the purposes for which discovery, by means of a bill was had.

A very excellent case is one from Eighth Circuit Court of Appeals, where opinion is by Philips, D.J., sitting with Sanborn and Thayer, C.J., in Kelly v. Boetcher supra, and sitting in this later case with Sanborn, C.J., and Riner, D.J. This case says: "That bills of discovery and relief inhered in the ancient jurisdiction of Courts of Chancery in England at the time of the adoption of the federal judiciary act is beyond question. This being so, the like jurisdiction inheres in the federal courts, unless abolished by statutes, or changed or modified by some rule adopted by the Supreme Court. No such statute has been passed, and, so far from the Supreme Court having interdicted the practice, the rules in equity, 40, 41 and 44, expressly recognize the existence of bills for discovery." There is not in these rules any express recognition of bills of discovery, but they must be considered to lean in this direction.

But in an earlier federal case it is said: "Power is conferred upon the Supreme Court to prescribe rules regulating the practice of the Circuit Courts in Equity, and it is more properly the province of that court than of the Circuit Court to determine what, if any, innovations shall be made in the existing practice in consequence of the more enlarged powers now enjoyed by courts of law. Until some action by that court, this court should be slow to declare that a jurisdiction so ancient and so convenient as that of discovery, should be surrendered, or should depend upon the accidents of legislation respecting the practice of common law courts."s

In a Supreme Court case, decided just two years prior to the new rules coming into force, it was said, in discussing Section 724, R. S. U. S., referring to trial of actions. at law, where it was contended that "in the trial" implies a restricted use of such an equitable remedy as discovery that: "Un

(7) McMullen Lumber Co. v. Strother, 136 Fed. 295, 69 C. C. A. 433.

(8) Colgate v. Compagnie Francaise, etc., 23 Fed. 82.