a landlord and tenant can contract out of the statute after the tenancy has come into existence, there seems no reason why they should not contract out of it before the tenancy comes into existence; the effect of which would be that, whenever a house became vacant, landlords would re-let only subject to a "contracting out" clause and so exclude all future tenants from the benefits of statutory protection.

It will be seen that in the Court of Appeal the judges did not face the general question of the competency of contracting. out as the Divisional Court judges did. The broad rule of our law is that it is competent to contract out of a statute unless the statute itself contains a prohibition against contracting out. Examples of such statutory prohibition are to be found in the Employers' Liability Acts and the Agricultural Holdings Act. The importance of the decision we are reviewing is that in effect it prohibits contracting out in regard to a statute, which in terms does not prohibit it. The decision, too, raises the question whether our Courts are becoming less careful of preserving the privilege of contracting out than they have hitherto been. Jessel, M. R., in a well-known passage in one of his judgments put the reason for the Court preferring freedom of contract on the ground of public policy. He held that there is a paramount public policy not lightly to interfere with the freedom of contract; this paramount policy must outweigh all except the gravest and most undisputable of lesser public policies to the contrary. "If there is one thing," he said, "which more than another, public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered freely and voluntarily, shall be held sacred and shall be enforced by Courts of Justice. Therefore you have this paramount public policy to consider you must not interfere lightly with freedom

of contract."

The purpose of the law is to impart stability and security to business relationships. The essential nature of the transaction termed "contract" is thus well described by one writer on jurisprudence, Mr. Sheldon Amos:

"In every case of a contract between two persons, one of them, at the least, binds his acts in the future, and the other knows that he does so and directs his own conduct in accordacne with that knowledge. For the person so relying upon the other's future action, so much at least of the cloud of uncertainty that ever hangs over the future is lifted. For the vacillation and changeableness of human action and will, the certainty of a sequence is substituted. The person who thus engages to bind his own future may be induced to do so by a variety of different considerations. may be induced to make the engagement by way of reward for a service already rendered him, or by way of reciprocity as the price of some service done or gift presented at the time, or as the price of some service to be done in the future."


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turned to, or rather attempted to re-enter active practice; but, in his opinion, success is highly problematical, at least at the British bar.

Recently, the press announced that exPresident Wilson would enter upon the practice of law; and that the legislature of New York had granted him the right to practice in the courts of that state. The State of Washington could not be so generous for our constitution prohibits special legislation. Lawyers cannot be admitted here except as provided by general statute. The question has often been asked: "What shall we do with our ex-presidents?" As most ex-presidents at the expiration of their term of office have reached the age of sixty years, it would seem that a dignified retirement would be most appropriate after holding that exalted position. The Constitution makes the President the Commander-in-chief of the Army and Navy. An easy solution would be to place him at the end of his service upon the retired list as an army officer and on retirement pay, equal to the president's allowance.

In glancing over the occupants of the presidential chair one is reminded that twenty-two out of twenty-eight were admitted to the bar. Of these, three were lawyers of first rank: John Adams, Abraham Lincoln and Benjamin Harrison. That is, these names would be found in a book of great lawyers, if they had never occupied the presidency. Only one of them returned to practice-Benjamin Harrison. Grover Cleveland was an excellent president, although he did not rank high as a lawyer, but his reputation as an executive has been growing as his administration is being viewed free from party prejudice. After his first term he became a member of a New York firm headed by the late Francis Lynde Stetson. Benjamin Harrison often appeared in court after he left the White House, and distinguished himself by his lawyer-like arguments.

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Whether Lincoln was really a great lawyer depends upon the viewpoint; althought he has a place in "Great American Lawyers." By the Bar he is regarded rather as a lawyer-orator like Patrick Henry, Henry Clay, Robert G. Ingersoll and Roscoe Conkling; and yet the last was offered the appointment of Chief Justice by President Grant, and Associate Justice by President Arthur, both of which he declined. It is stated that James K. Polk was engaged in the trial of a case before a justice of the peace at Nashville, when notified that he had been nominated for president. That was nothing derogatory to a candidate for the presidency, but if it happened at the present day it would seem somewhat remarkable.

Times have changed in other respects. In 1820 Daniel Webster would charge $20.00 for an opinion in important cases, and $100.00 for an annual retainer. Recently a judge in a New York court allowed $45,000 for preliminary counsel fees in defending an action for divorce. Of course, the defendant was rated as a multimillionaire, and the judge found it easy to be the liberal dispenser of another's


There is no doubt, however, that lawyers who abandoned their practice for political office have, as a rule, had difficulty in ever regaining their former prestige at the bar. Webster and Choate were in the senate, but they were continually in court while serving as senators. Matthew H. Carpenter and Roscoe Conkling did the same. In 1893 a receivership case was pending in the United States Circuit Court at Seattle concerning the Northern Pacific Railroad. There was a noted array of counsel present at the hearing. Senators Spooner of Wisconsin, Manderson of Nebraska, Sanders of Montana, and Dolph and Mitchell of Oregon participated in the

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argument, although the law phase of the case was more ably presented by other counsel who held no political office.

Congress, no doubt, felt that the appearance of Senators and Representatives in court and before government departments, had a tendency to reflect upon its dignity, enacted a statute on June 11, 1864, prohibiting any of its members from appearing in any cause before the departments. Senator Mitchell was convicted under this statute, as was Senator Burton of Kansas. Like many other enactments this law was regarded obsolete until President Roosevelt urged these prosecutions, which brought the statute into prominence, and it seems to have been strictly observed since. These Senators happened to be the victims of a custom that had been followed for years, but the effect was decisive in eliminating Senators and Representatives from practicing before the departments, and apparently before the courts as well.

Reverting to our theme of resurrection. at the bar, there are some noted instances of success which are probably exceptions to prove the rule. In March 1857, the celebrated Dred Scott case was decided by a divided court. Benjamin R. Curtis was one of the ablest judges ever on the Su

preme bench. He wrote a dissenting opinion. Later in that case Chief Justice Taney and Justice Curtis became involved in an acrimonious controversy because of changes made by the Chief Justice after filing the original official opinion by inserting eighteen pages to answer the views of Justice Curtis. Justice Curtis resigned after six years of service. Returning to Boston he entered upon a lucrative practice which averaged over $10,000 a year

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for seventeen years. In 1868 he refused the appointment of Attorney General of the United States, and in 1871 declined to act as counsel for this government in the Geneva Arbitration case, because he disliked public office and did not want to neglect his law practice.

Contemporaneous with Curtis in the Supreme Court was John A. Campbell who was appointed in 1852 and resigned in 1861, because he believed a state had a right to secede, and as Alabama seceded, he, of course, followed the fortunes of that commonwealth. Justice Wayne held the contrary view and refused to follow Georgia, but continued on the Supreme bench to 1865. Justice Campbell also wrote a dissenting opinion in the Dred Scott case. After the Civil War he carried on an extensive practice, appearing in the Slaughter House Cases,10 and many others, as may be seen from an interesting biography of Campbell by Henry G. Connor, United States District Judge in North Carolina. He attained great eminence at the bar, living to March 12, 1889; and had the honor of being the last survivor of the distinguished court over which Chief Justice Taney presided. Had he continued the Supreme bench to the end of his days he would have served thirty-seven years, a


longer time than any Justice of that court. Curtis and Campbell were great jurists and intimate friends. They, however, represented the extreme views on constitutional rights in their day; one as asserted in the North, the other as contended for in the South.

Judge P. Benjamin was a brilliant lawyer. He was a United States Senator but resigned in 1861. He had a very extensive practice in New Orleans, but owing to business reverses he lost most of his property, and the war swept away the re

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mainder. He was respectively Attorney General, Secretary of War and of State for the confederacy. Rather than return to Louisiana to practice he determined to seek his fortune in a foreign land, and on January 12, 1866, he was entered at Lincoln's Inn, London, age 55 years, to begin anew a legal career at the bottom of the aristocratic and conservative Bar of England. It should be remembered that Benjamin was born in the Island of St. Thomas, W. I., and therefore, regarded as a British subject, which greatly favored him, so that he was called to the bar in June, 1866. While preparing for admission he wrote. "Benjamin on Sales," published in 1868, a classic to this day. He became a Q. C. in 1871, but retired in 1883. His income exceeded $75,000 a year, which would apparently refute Mr. Browne's assertion that there is no come-back at the bar. However, Judah P. Benjamin was a remarkable exception to the general run of gifted men. Of all the biographies in the eight volumes of "Great American Lawyers," the career of Mr. Benjamin is most fascinating to me, because of his determination, his patience and wonderful industry and perseverance, crowned with unparalleled success as a practitioner, first at the American and then at the British bar. His professional life should serve as a constant inspiration for lawyers at all times.


The Pacific Northwest embraces a territory larger than the original thirteen states, and in potential wealth and resources surpasses imagination; yet we have never had representation in the United States Supreme Court. George H. Williams probably the greatest lawyer this region ever produced. He was admitted to the bar in Iowa in 1844, and was Chief Justice of Oregon Territory in 1853; later a United States Senator from that state. Then he became Attorney General under President Grant, who nominated him for Chief Justice of the Supreme Court in 1874 to succeed Salmon P. Chase. It seems that Mrs.

Williams was diplomatically speaking, persona non grata to the women of the Supreme Court circle, consequently the nomination was not confirmed. He returned to Portland, Oregon, and practiced law very successfully until he died in 1910. Had he been confirmed and served to the time of his death he would have exceeded John Marshall in length of service as Chief Justice as well as every other member of that court.

From what has been stated it may be concluded that there is "a resurrection at the bar," both in this country and in England, but there is no doubt that it takes extraordinary perseverance and unusual ability to break the rule. Generally speaking, ex-congressmen and other governmental officials of high rank have great difficulty in regaining prestige in a most exacting profession-the law. The really great lawyers like Charles O'Connor, Jeremiah S. Black, Reverdy Johnson, David Dudley Field and many others have held aloof from a political career. In England it is the unwritten law that a Lord Chancellor or a Lord Chief Justice never returns to the bar as a practitioner.11 Lord Erskine chafed under this restriction, for he lived sixteen years after leaving the woolsack, and longed to re-enter the arena of forensic practice, where he had won undying fame as the most eloquent and fearless British advocate.

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A water company which had agreed in its contract with city to keep fire hydrants in repair and furnish sufficient water to put out fires, but which surrendered its franchise from the city and received in lieu thereof an indeterminate permit as provided in Acts 1913, p. 167, § 101 (Burns' Ann. St. 1914, § 10052x3), was liable to a church under Public Service Act, §§ 7 and 116, for loss by fire occasioned by defective condition of a fire hydrant, which condition existed by reason of the water company's negligent failure to keep it in proper order, the word "injured" in the last-named section meaning any wrong or damage done to a man's person, rights, reputation, or goods, including privation of a legal right; and such section created a liability in favor of the individual injured which did not theretofore exist.

NICHOLS, J. Action by appellant against appellee to recover for the loss and damage sustained by appellant on account of fire resulting from appellee's negligence. The complaint was in two paragraphs to each of which a demurrer was sustained. Appellant refused to plead further and elected to stand upon the complaint, and judgment was rendered against appellant for costs. From this judgment, this appeal.

The substantial averments of the complaint, so far as herein involved, are as follows: Appellant was on December 20, 1917, the owner of certain real estate in the city of New Albany, Floyd county, Ind., upon which was situated a stone church, the property of appellant, of the reasonable value of $20,000. In such church appellant had personal property of the total value of $4,000. Appellee at said time owned and operated, and for 14 years theretofore had owned and operated, in said city a system of waterworks for the purposes of supplying said city and its hydrants with water for fire protection, and for municipal and domestic purposes. On August 25, 1904, appellee entered into a certain contract in the nature of a franchise with said city, by the terms of which appellee was permitted and authorized to erect and maintain in said city its said waterworks


for the purposes aforesaid, by which said contract appellee agreed to furnish an adequat supply of water to said city for protection of the property of said city and its inhabitants against fire. The contract covered a period of 25 years. It provided that appellee should furnish at its own cost and expense 200 fire hydrants at points then located, or to be thereafter located, by the city. Such hydrants were to be kept in good order and working condition, and were to be used by said city through its fire department for the purposes of extinguishing fires in said city. Such water system was to be so constructed and the hydrants kept in such condition that during the prevalence of fire the water supply should be sufficient for the purposes of extinguishing such fires. The city agreed to pay the said company for such purposes the sum of $60 per annum for the first 200 hydrants and $50 per annum for each additional hydrant over 200; the funds for such purposes to be paid out of the public revenue of such city raised by taxation of the property of said city and otherwise. such contract was entered into, appellee did maintain in said city its system of waterworks in such contract provided for, and for the purposes therein contemplated. One of said hy drants was located on Vincennes street in said city and immediately in front of appellant's said property, which said hydrant was the nearest fire hydrant to said property. Appellee maintained said system under the terms of said contract for the purposes therein contemplated until June 25, 1917; its only right to maintain said waterworks being under the terms of said contract. On said June 25, 1917, pursuant to the provisions of section 101 of the act of the General Assembly concerning public utilities, approved March 4, 1913 (see Acts 1913, p. 167; section 10052x3, Burns' R. S. 1914), appellee filed with the clerk of said ctiy, and with the Public Service Commission of Indiana, a written declaration legally adopted and executed by appellee to the effect that it surrendered said franchise so received from said city as aforesaid, and that it received by operation of law in lieu thereof an indeterminate permit as provided for in said act, and appellee did so surrender its franchise as afore said, and since June 25, 1917, appellee has been operating its water system in said city, and furnishing water to said city and its inhab itants for the purposes aforesaid, and has been maintaining its fire hydrants, including the said fire hydrant in front of appellant's property, all under its said permit. Said city has during all of said time maintained its fire department adequately equipped for the pur

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