of view, then, it is of little help in solving the problem before the Colorado court.13

non.

But is there not a new social relationship involved which calls for a true relational privilege? It is submitted that there is. Three analogies suggest themselves. The privilege of husband and wife is accorded because that relationship, the family, is perhaps more jealously safeguarded than any other in our law, and is one to which complete confidence is a sine qua 14 The privilege of attorney and client rests upon the needs of the law itself. In a system as technical and intricate as the common law the legal profession is essential, not only for actual litigation, but for the orderly conduct of everyday affairs; and only the most complete frankness, impossible but for insured secrecy, makes the work of the lawyer possible.15 The privilege of informer and public official has a similar basis in social expediency. The administration of criminal justice would suffer immeasurably were freedom from disclosure not accorded informers.16 Consider the privilege now contended for. The jurisdiction of the juvenile court is not criminal, it is that of the English Court of Chancery, enlarged.17 The discretionary powers of the judge are enormous. The relation sought to be created is one of guardianship, with a view to uplifting and benefiting the child by state help in those instances where parental direction has proved inadequate or vicious.18 It is the social background behind the delinquent child that the juvenile-court judge primarily seeks to reach.19 It seems clear that the relation is one in which trust and confidence on the part of the child, complete freedom from fear of disclosure, are prerequisites to any hope of success.20 Further, no legal reform of to-day promises greater social benefits for the future. The relationship should be, and is, of vital interest to the law itself. In that essential it is similar to those relationships already considered, for the protection of which the law has accorded a privilege of silence; in that essential it differs from such relationships as penitent and priest, to the maintenance of which secrecy is also of the highest importance, but from which the law has withheld the privilege because they do not fall sufficiently within the scope of the law's utilitarian aims and aspirations.21 based his decision. Under either view, no principle applicable to the principal case seems involved.

13 A feeling that the privilege contended for was allied to that of a judge in regard to a case on trial before him appears to be what led the majority of the court to emphasize their denial that "instantaneous jurisdiction" over the boy could have been acquired by his mere confession. Though jurisdiction in the technical sense may not have been acquired, nevertheless a guardianship relation, worthy of protection, may have thereby in fact come into existence. As to which see post.

14 See 4 WIGMORE ON EVIDENCE, § 2336, and cases there quoted.

15 See idem, § 2291, and cases there quoted.

16 Worthington v. Scribner, 109 Mass. 487; Home v. Bentinck, 2 B. & B. 130 (1820); Beatstone v. Skene, 5 H. & N. 838 (1860). See 4 WIGMORE ON EVIDENCE, § 2374; also cases collected in § 2374, note 1, and § 2375, note 1.

17 LAWS OF COLORADO, 1908, chap. 158; Lindsey v. People, 181 Pac. 531, 537 (1919). See FLEXNER AND BALDWIN, JUVENILE COURTS AND PROBATION, p. 7.

18 Cf. State v. Scholl, 167 Wis. 504, 508, 167 N. W. 830, 831 (1918); Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892 (1913).

19 See JUVENILE COURTS AND PROBATION, supra, p. 5.

20 For a full description of juvenile court procedure, see idem, Parts I and II. For a collection of juvenile court statutes, see H. H. HART, JUVENILE COURT Laws of the UNITED STATES.

21 See 4 WIGMORE ON EVIDENCE, § 2394, and cases cited in note 4. In White Mt.

If it be admitted that common-law reasoning requires that a privilege be predicated on the new judge, child delinquent relationship, should this privilege include such a confession as that in Lindsey v. People? It would seem, with all deference to the dictum in that case, that it should. True, formal delinquency proceedings had not as yet been instituted, but it seems clear that the boy voluntarily appealed to the judge in the latter's official capacity. His purpose was to invoke the jurisdiction of the court; and he was thereupon taken in charge as a delinquent child. The relationship to be protected existed in fact; and the privilege should have attached. In the case of attorney and client,22 and probably in that of physician and patient when privileged by statute,23 the courts go even further. It would seem the accepted view, in order fully to achieve the purpose of the privilege, that preliminary communications made as overtures, before the professional relation has actually been consummated, are protected.24

A single inquiry, but one of extreme delicacy, remains. Assuming that the privilege existed, whose was it? More specifically, who might assert it, and who waive it? The first point is of academic interest only, since on the facts the boy had waived the privilege, provided it was his to waive.25 But was it? It is submitted with hesitancy that it was not. It would seem, it is true, that normally the person for whose protection the privilege is accorded should have exclusive power to waive it. Such is the law in the case of lawyer and client; 26 of physician and patient.27 In that of informers, however, the privilege is conceded to be waivable by, and only by, the public official, the recipient of the information.28 The distinction, like the privilege itself, is based on practical expediency. Informers are not to be trusted as sole arbiters of their own privilege. Though for a very different reason, are not twelve-year-old children, for whose protection and care the whole juvenile-court system is planned, less fitted to be repositories of the power to waive the protecting privilege than is the juvenile-court judge? It is the very essence of that system to impose upon him a guardianship over them. Is he not better qualified than they to judge of the necessity for disclosure that may arise because of an impending perversion of justice if the disclosure be not made? And

Freezer Co. v. Murphy, 101 Atl. (N. H.) 357 (1917), the court refused to recognize as privileged communications made to a labor commissioner during a trade dispute. The ground, however, was largely that secrecy was not essential to the relationship.

2 People v. Pratt, 133 Mich. 125, 94 N. W. 752 (1903); Peek v. Boone, 90 Ga. 767, 17 S. E. 66 (1892); Crisler v. Garland, 11 Sm. & M. (Miss.) 136 (1848); Cross v. Riggins, 50 Mo. 335 (1872). Contra, Theisen v. Dayton, 82 Iowa, 74, 47 N. W. 891 (1891); Heaton v. Findlay, 12 Pa. St. 304 (1849). See 4 WIGMORE ON EVIDENCE, § 2304. See 4 WIGMORE ON EVIDENCE, § 2382.

24 Moreover, it should be noted that the statute creating the Juvenile Court aims to secure informal procedure. To attempt to delimit the relationship by lines based or legal forms rather than on de facto existence would seem at variance with the spirit of the institution to be protected. See REVISED STAT. OF COLORADO, 1908, §§ 586, 1590, 1607; LAWS OF COLO. (1909) chap. 199; and LAWS OF COLO. (1913) chap. 51.

25 If there has been no waiver, it is submitted that though the party whose privilege it is be absent, the other party to the relationship should be entitled to assert the privilege in the owner's behalf.

26 See WIGMORE ON EVIDENCE, § 2321.

27 See idem, § 2386.

28 Worthington v. Scribner, 109 Mass. 487 (1872), and cases collected therein.

surely it cannot be maintained that serious danger would result from intrusting this additional exercise of discretion to a man already occupying a post of such enormous trust.

INJUNCTIONS TO RESTRAIN FOREIGN PROCEEDINGS. It is clear that a court of equity has jurisdiction to restrain a party from proceeding further with a foreign suit, since the decree operates on the person of the defendant and is not directed against the foreign court itself.1 But while there is no direct interference with the functioning of the other tribunal, still considerations of interstate harmony and of proper respect due to another court competent to adjudicate the controversy, make the exercise of this jurisdiction a very delicate matter. Formerly, with the English and some American courts, these considerations controlled, and they refrained scrupulously from entertaining such jurisdiction in all cases.2 Since then, courts have not hesitated to make free use of their power to enjoin, deeming it no violation of the principles of comity to interfere in cases, where to do otherwise would lead to grossly inequitable results. Instances are numerous, however, where interposition was a clear abuse of discretion, and where the foreign court, left unhampered, could have reached, in the end, a more desirable conclusion. Practically all courts are agreed to-day that a multiplicity of suits, if vexatious, and such is true in most instances-presents a fair case for the exercise of the Chancellor's discretion.3 Consequently the defendant is required either to elect the forum most advantageous to his cause, or to pursue his remedy only in the jurisdiction where he first instituted proceedings. No one, it seems, can quarrel with the results in these cases; the defendant's conduct is clearly inequitable in putting the complainant to the expense and annoyance of defending several suits, and restricting him to a single action assures him sufficiently of the justice he seeks. The case is not so clear, however, where the action abroad is the only one pending, and this the complainant claims is vexatious. Mere additional expense and trouble in defending the suit should not warrant interference, since a party is not constrained to sue where it is most convenient for his opponent. He is entitled to any procedural advantage he can secure, and the court should not deny him the privilege unless he exercises it in a manner so unconscientious as to outweigh all other considerations. In the much-discussed case of Kempson v. Kempson, the

1 Portarlington v. Soulby, 3 Myl. & K. 104 (1834); Dehon v. Foster, 4 Allen (Mass.), 545 (1861); Cole v. Cunningham, 133 U. S. 107 (1889). In the last case it was held that an injunction of a foreign proceeding does not violate any provisions of the Federal Constitution.

2 See Lowe v. Baker, 2 Freem. 125 (1677); Mead v. Merritt, 2 Paige (N. Y.), 402 (1831); Harris v. Pullman, 84 Ill. 20 (1876).

3 See AMES, CASES ON EQUITY JURISDICTION, 28, note.

White v. Caxton Bookbinding Co., 10 Civ. Pro. (N. Y.) 146 (1886). Monumental Saving Assoc. v. Fentress, 125 Fed. 812 (1903); Old Dominion Copper, etc. Co. v. Bigelow, 203 Mass. 159, 89 N. E. 193 (1909); Home Ins. Co. v. Howell, 24 N. J. Eq. 238 (1874). See also 26 HARV. L. REV. 347.

58 N. J. Eq. 94, 43 Atl. 97 (1899), where the husband of the complainant brought a suit for divorce in North Dakota, invoking the jurisdiction of the court by a fraudulent allegation of his residence in that state. See 15 HARV. L. Rev. 145.

court granted an injunction, and properly so, since the facts disclosed not only hardship but also fraudulent conduct. In a recent Kentucky case, however, the injunction seems totally unwarranted, since it appears that the defense of the action abroad only occasioned slight additional expense and that the defendant sought only a more favorable forum.7 Where the foreign suit is brought solely to harass the complainant, as after a complete adjudication of the matter in the home state, it is clear that it should be enjoined.

Again, it is laid down as a general rule that foreign actions in evasion of the domestic law will be enjoined. A citizen of a state often garnishes the wages of a fellow citizen in a sister state or attaches his property temporarily there, and brings suit solely to evade the domestic exemption laws. It is almost universally held, and with sufficient reason, that the suit may be restrained.10 The local legislature, by statute, has outlined a strong policy of the state in assuring a citizen and his family of fair physical subsistence. To allow another citizen to defeat that policy by resorting to a mere procedural device is something that should not be countenanced by the courts of that state. Of course, this reasoning does not apply when a foreign creditor sues, even though the court can render an effective decree, since the creditor is under no duty to uphold the policy of any state other than his own." Suits in evasion of the state insolvency laws have also been generally enjoined. 12 Here the state is interested in providing adequate machinery whereby an insolvent's property may be ratably apportioned among all his creditors. A single creditor, by attaching the debtor's property outside of the jurisdiction not only evades the operation of the statute and interferes with the insolvency proceedings, but seeks to gain for himself a highly inequitable advantage over the other creditors. The court therefore should entertain no scruples in restraining further action abroad. But whether there is just cause for such a decree before insolvency proceedings have been begun is doubtful, since the machinery of the statute has not yet been put into operation.13 The whole question, however, has been of diminished importance since the passage of the Federal Bankruptcy Act; and to-day it will perhaps arise only in cases where the debtor's property is situated outside of the United States.

Protection of state policy, alone, justifies the injunction granted in the above class of cases. No such justification, nor any other, exists for enjoining suits brought merely in evasion of some common-law rule of reme

7 Reed's Admr. v. Ill. Cent. R. R. Co. 206 S. W. (Ky.) 795 (1919).

• O'Haire v. Burns, 45 Colo. 432, 101 Pac. 755 (1909). It is true that the complainant could plead res judicata as a complete defense to the foreign action, but it would be unfair to require him to incur hardship in the defense of a purely vexatious suit.

Miller. Gittings, 85 Md. 601, 37 Atl. 372 (1897); Sandage v. Studabaker, 142 Ind. 148, 41 N. E. 380 (1895); AMES, CASES ON EQUITY JURISDICTION, 28, note. 10 Wierse v. Thomas, 145 N. C. 261, 59 S. E. 58 (1907); Keyser v. Rice, 47 Md. 203 (1877); Snook v. Snetzer, 25 Ohio St. 516 (1886); Allen v. Buchanan, 97 Ala. 399, 11 So. 777 (1892).

11 See Moor v. Anglo-Italian Bank, 10 Ch. D. 681 (1879); Reynolds v. Adden, 136 U. S. 348 (1889); Barry v. Mut. L. Ins. Co., 2 Thomp. & C. (N. Y.) 15 (1873).

12 Cole v. Cunningham, supra; Dehon v. Foster, supra; Sercomb v. Catlin, 128 Ill. 556, 21 N. E. 606 (1889).

See Cunningham v. Foster, 142 Mass. 47 (1886).

1

dial or of even substantive right. The state cannot properly be said to have a vital interest in having litigation between its citizens determined solely by the common law of the state. Mere disparity of remedies or difference of substantive law is an insufficient consideration for interfering with a case before a court which, it must be assumed, will make just disposition of the controversy. The balance of convenience is against enjoining, since there is no inequity in the defendant's merely seeking a more favorable forum. Some courts, however, are not in accord with this view and treat these cases no differently from those discussed above. Thus, a tort suit in Georgia was enjoined by an Alabama court on the ground that the Georgia court would refuse to apply the Alabama rule relative to contributory negligence and thereby deprive the complainant of a defense to which he was entitled.14 In another case, the court improperly enjoined an action when it did not even appear that the defense of failure of consideration could not be set up as well before the foreign tribunal.15 A recent case goes even further. In Culp v. Butler 16 an Illinois action was enjoined by the Indiana court, because the defense of the Statute of Limitations, which the complainant could plead in Indiana, would not avail him in Illinois. The court obviously confuses barring the right with barring the remedy; the substantive right still subsists, but the domestic court simply refuses a remedy thereon. It is therefore difficult to perceive why the application to a forum that will grant the defendant a remedy constitutes an evasion of the home law, for admittedly there is a good cause of action. An Illinois decision is directly opposed to that of the principal case on the exact point discussed above,18 and on the general principle involved, the weight of authority is also against it.19 It is submitted, that the true rule in this class of cases should be that only suits prosecuted to evade a strong domestic policy should be restrained.

17

EFFECT OF FEDERAL POSSESSION AND CONTROL OF INSTRUMENTALITIES OF INTERSTATE COMMERCE ON THE POWER OF THE STATES. — Two recent decisions of the United States Supreme Court are interesting as new monuments on the vexed boundary line dividing federal from state power. In Northern Pacific Ry. Co. et al. v. North Dakota1 the court held that under the war legislation of Congress the Director General of 14 Weaver v. Ala. G. S. R. Co., 76 So. (Ala.) 364 (1917).

2

15 Sandage v. Studabaker, supra. See also Dinsmore v. Neresheimer, 32 Hun (N. Y.), 204 (1882). 122 N. E. (Ind.) 684 (1919).

16

17 It is difficult to see how the facts in the case raised the question of law upon which the court bases its decision. Presumably the defendant brought his action, before the Statute of Limitations had run in either state. The complainant waited until the limitation period had run in Indiana and then filed his bill there to enjoin. Clearly, under no view was there an attempt to evade the Indiana law.

18 Thorndike v. Thorndike, 142 Ill. 450, 32 N. E. 510 (1892).

19 Edgell v. Clarke, 19 App. Div. 199, 45 N. Y. Supp. 979; Bigelow v. Old Dominion, etc. Co., 47 N. J. Eq. 457, 71 Atl. 153 (1908); Carson v. Dunham, 149 Mass. 521, 20 N. E. 312 (1889); Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, 115 N. E. 554_(1917); Am. Exp. Co. v. Fox, 187 S. W. (Tenn.) 1118 (1916); Federal Trust Co. v. Conklin, 87 N. J. Eq. 185, 99 Atl. 109 (1916); Wade v. Crump, 173 S. W. (Texas) 538 (1915).

1 U. S. Sup. Ct. No. 976, October Term, 1918.

2 39 STAT. AT L. 645; 40 STAT. At L. 451.