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keep its precedents clear and, secondly, ap- Or why is it necessary to preserve their ply them to particular instances. Giving or manuscript if they cannot get brother judges refusing a judgment to a suitor is of sec- to agree to their reasoning? Why ondary consideration. Do courts do this

"Pile Pelion on Olympus” when their members write voluminous before have thoroughly mastered opinions, which decide no principle of law ? Olympus or confuse us as to our concepAnd is it of any advantage for its members tion, if we think we have? Statute should to state inharmonious reasons to the same provide that no reasons in an opinion which conclusions? Or is it of any profit for one are not concurred in by a majority of a judge to set forth argumentation which has court shall constitute a part of its files or be not the support of at least a majority of published in its reports. Judges should the court? Should opinions in such cases not deem themselves educators, but merely find a place in the reports, or even in the administrators. If they wish to print their files, of courts? The New York court ap- views for private circulation, no one should peared to favor a negative answer to all of object, provided they pay the expense. these inquiries. And why is not that the

N. C. C. correct answer?

In the first place, if the judgment of a court must be received as a lawful settle

NOTES OF IMPORTANT DECISIONS. ment of a question, back of it should not appear any inconsistency. This detracts from its dignity, and, therefore, from loyal



some states it is ruled that the placing of a In the second place, if two or three seal upon an instrument, for example, a deed judges agree in conclusion but disagree as conveying land, is necessary to its validity for to governing principles from which the any purpose, and a late decision by the Su

preme Judicial Court of Maine is an illustration conclusion is drawn, this depreciates the

of how this ruling is perpetuated. Maddocks v. value of established precedent by the con

Keene, 96 Atl. 785. fusing opinion of a single judge or of a Another state has ruled that though a deed minority of the court. A minority should be unsealed, it at least vests in the grantee an no more be allowed to proclaim controlling

equitable title to the extent of what a grantor

then possesses. First Nat. Bank v. Gage, Orereasons for their judgment than they should

gon, 142 Pac. 539. be allowed to pronounce the judgment of

It seems to us that the requirement of a seal the court. As we said, a judgment is of sec- as at common law is one of the things that ondary importance. It is the principle be- should not be observed in modern times. The hind it that counts. If a majority cannot

reason therefor does not now exist and the formulate it, it ought to remain unstated.

reason for the rule ceasing ought to make the

rule cease. In common law times a seal was The case should be decided without any

made of wax and an impression must be made principle being announced. A memoran


Then a scroll was held sufficient to dum opinion should suffice, unless there take its place, or a wafer with adhesive subis reversal, when enough, if possible, should stance on it was enough. But it was not held be stated to guide the lower court. This

sufficient that one might solemnly declare that

he signed and sealed the instrument. Why and nothing more.

if there could be a substitution for the wax with We have heard that some judges write its impression, by a scroll or wafer, there might opinions because of pride in their own opin

not be a solemn declaration of a sealing, and

both sufficient, it is difficult to see. ion, or they feel the necessity of stating their

But, furthermore, the requirement of attestareasons in this way to settle their own

tion before an officer ought better to import minds and some, for other reasons. But

solemnity and deliberation, than the adding of why make their vanity a burden to lawyers? a scroll or a wafer to one's name. All statutes

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which seek proof of identity .of signer with that of professed grantor impliedly repeal, it seems to us, the common law requirement of a seal. It was not really the wax that counted in that day, but the impression thereon. It had an individuality, which a wafer could not carry, and so it might be as to a scroll. These identifying impressions have passed from usage, and signatures have taken their place. But courts which rule as to the necessity of a seal, but not of the impression, seem not to enforce the spirit of the common law requirement.

In the Maine case, supra, it was argued that the deed must have been sealed because “the grantor in writing her name was obliged to write the last two letters of her name off the line and between the two seals (persumptively there when she signed) to avoid writing upon the seals." The deed, therefore, was admitted in evidence. But what kind of seals were they? It was assumed they were sufficient.

COMMERCE-STATE TAX OF COMPANY QUALIFIED TO BE SURETY ON RECOGNIZANCE TO GOVERNMENT.-In 79 Cent. L. J., 147, we noticed decision by Pennsylvania Supreme Court, that act of Congress permitting certain corporations to qualify as sureties on bonds payable to the United States did not make them federal agencies, so as to prevent state taxation thereof, and we expressed our concurrence with that view. In the federal Supreme Court that decision has been affirmed. Fidelity & Deposit Co. v. Pennsylvania, 36 Sup. Ct. 298.

Justice McReynolds said: “These contracts between private corporations and the United States do not necessarily render the former essential governmental agencies and confer freedom from state control. Moreover, whatever be their status, if the pertinent statute discloses the intention of Congress that such corporations, contracting under it with the federal government, shall not be exempt from state regulation and taxation, they must submit thereto.

Neither circumstances nor language of the act indicate design or necessity to limit application by the several states of a well-established system of licensing and taxing bonding companies not incorporated under their own statutes."

It would have been more interesting to treat this question as one under congressional power than to have declared upon the intent of a congressional act. It would extend the commerce clause very greatly to say it meant to authorize Congress to interfere with state power in the way contended under the theory

TRADE-MARKS-PROFITS IN UNFAIR COMPETITION.-In 82 Cent. L. J., 169, we spoke of the unsatisfactory status remaining in American decision as to distinction in recovery for infringement of trade-mark and unfair competition as exhibited in the late case of Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 36 Sup. Ct. 269.

Now appears the case of Straus v. Notaseme Hosiery Co., 36 Sup. Ct. 288, in which Justice Holmes speaks for a majority of the court, Justices McKenna and Pitney dissenting, but without opinion. This case appears to extend the vagueness to which we referred.

In this case, profits were adjudged "from a reasonable time after the defendants had notice of the similarity of the two designs” for hosiery. The Supreme Court says: "That it was unfair to continue the use of a label so similar in general character to the plaintiff's we are not disposed to deny. But it does not follow that the defendants are chargeable with profits as a matter of course. Very possibly, the statutory rule for wrongful use of a trademark may be extended by analogy to unfair competition in a proper case."

There is something here of expression leaving much to be desired. The lower court found there was a similarity of design, notice to defendant and recovery revert back only to the time of notice. Why, if there could be unfair competition in the case at all, are not all the elements of a basis for recovery given? And why does the court speak of analogy to a statutory rule for wrongful use of trademark? He refers to a federal statute, which merely gives protection by way of penalty. But trademark rights are under state law and so are rights under unfair competition. Where can be any analogy between a law for a penalty and a law for the recovery for infringement of a common law right or for damages in unfair competition, also a common law right?

But notice to a violator of the right of fair competition is further denuded of its value as the following language shows. “They (defendants) had been advertising their goods by name and using the design in connection with the name. The natural interpretation is not that they wanted to steal the plaintiff's good

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will, of which they then learned for the first gated subject heads the list. Then the time, but that they wished to preserve their others follow in the order of the apparent own. When they stood upon their rights, of

volume of litigation. The number of course, they made themselves responsible for the continued use of a label that might be pages after each subject refers to the held likely to deceive, and if it should number of pages occupied by each subbe held manifestly to have that tendency, they ject in Abbott's New York Digest of would be chargeable for what, in contempla

All Reported Cases. Here is the table : tion of law, was an intentional wrong, a fraud, although the case is wholly devoid of any in

Twenty-five Major Subjects of Litigation. dication of actual intent to deceive or to Rank in

Volume of steal a reputation of the plaintiff's goods. If


Pages. the defendants' conduct was a wrong, as we

1. W’ills

866 have assumed, it was a wrong knowingly, but

2. Corporations

684 no further inference against the defendants

3. Executors and Administrators..... 673 can be drawn from the fact." No further in

4. Municipal Corporations

653 ference than what? If there was "intentional

5. Master and Servant.

529 wrong or a fraud," must the wrongdoer sep

6. Contracts

504 arate the profits he obtains or are all to be

7. Insurance

466 long to the plaintiff? The opinion of the

Carriers of Goods and Passencourt indicates this burden is on the plaintiff.


427 9. Taxes

409 10. Landlord and Tenant.

313 11. Trusts

307 . PREVENTING UNNECESSARY LITI- 12. Sales of Personal Property.

298 GATION AT THE SOURCE. 13. Negotiable Instruments

289 14. Principal and Agent.

240 15. Attorney and Client.

215 16. Partnership

214 The State Bar Association of New York

17. Railroads

212 has joined forces with the New York

18. Street Railways

180 Chamber of Commerce for the purpose of

19. Vendor and Purchaser of Real devising plans to prevent unnecessary liti


173 gation at the source.

20. Husband and Wife.

165 21. Mechanics' Liens

147 “At the source" is the distinguishing

22. Consideration

141 part of the title of this new committee, the

23. Banking

139 one thing that differentiates it from the

24. Mortgages

135 usual standing committee in every bar as

25. Brokers

135 sociation.

It will be observed that the first subject, Backed by the brains of the New York

ranking in volume of litigation, is "wills." bar and the money of the New York mer

The analysis of all the above cases covering chant, the committee has succeeded in

wills makes a remarkable showing. Seventycompiling some very interesting statistics

three per cent of the litigation concerning showing the major subjects of law most

wills arises from disputes as to their meanlitigated and the principal causes of such

ing and legal effect and nine per cent inlitigation.

volves their execution, revocation and alThe researches of the committee in

teration. These two items taken together cluded all of the reported cases in New

clearly show that eighty-two per cent of York, and the results of the investigation

all litigation relating to wills is of a preare incorporated in a tabular statement

ventable nature. showing the twenty-five major subjects of law which according to the New York re- Each of the twenty-five subjects is ports occasion the most litigation. In this analyzed in this way. The committee oftable, which we here subjoin, the most liti- fers to send the analysis on any subject to any person interested, who makes re- merly may have been found under local quest of the secretary, Mr. Charles T. law emanating from a different source.”'l Gwynne, 65 Liberty St., New York, N. Y.

At first the legal profession did not The purpose of this joint committee is not only to discover the causes of liti- generally grasp the fact that the only

remedy an employe engaged in the intergation, but if possible to discover reme

state commerce of an interstate railway dies which will tend to decrease its vol

company, injured by reason of its negliume. We also learn from a letter received from Mr. Daniel S. Remsen, chairman of

gence or of its officers or employes had was

that given by the Federal statute. It has the Bar Association Committee, that one

taken many decisions to thoroughly drive of the most beneficial results of the com

this fact home.? mittee's deliberations is likely to be the discovery of some workable scheme of arbitration and conciliation as a means

(1) Atlantic Coast Line R. Co. v. Burnett, 36

Sup. Ct. Rep. 75, reversing 163 N. C. 186; 79 of preventing litigation.

S. E. 414. In the case in the state court it was

held that the fact that action was brought more A. H. ROBBINS.

than two years after the injury was inflicted must be presented by answer, like a plea of the statute of limitations, and if no such plea was filed that defense was not available, even though the complaint or declaration showed that more than two years had elapsed between the in

jury and the time the suit was brought. The INTERSTATE RAILROAD EM- Federal Supreme Court reversed the case on the

ground that the plaintiff must show he had PLOYES AND WORKMEN'S COM

brought his action within two years after he PENSATION ACT.

received his injury. The same rule has been declared by the Supreme Court of Tennessee.

Vaught v. Virginia & S. W. R. Co., 179 S. W. 314. By the Act of April 22, 1908, Congress undertook to provide a new remedy for a

(2) Mondu v. N. S. N. H. & H. R. Co., 223

U. S. 1, 32 S. C. 169; 56 L. Ed. 327; 38 L. R. A. person "suffering injury while he is em

(N. S.) 44; 1 N. C. C. 875, reversing 82 Conn. ployed by” an interstate carrier, by rail- 352; 73 Atl. 754; St. Louis S. F. & T. R. Co. v.

Seale, 229 U. S. 156; 33 Sup. Ct. 651; 57 L. Ed. road in interstate or foreign commerce, and also, in case of his death gave a Wabash Ry. Co. v. Hayes, 234 U. S. 86; 34 new remedy to his personal repre

Sup. Ct. 729; 58 L. Ed. 1126, affirming 186 Ill.

App. 511. sentative for the benefit of .... [his)

St. Louis St. Ry. V. Hesterly, 228 U. S. 702; surviving widow .... and children, and if

33 Sup. Ct. 703; 576 L. Ed. 1031, reversing 94 none then of . [his) parents, and if Ark. 240; 135 S. W. 874; Taylor v. Taylor, 232

U. S. 363; 34 Sup. Ct. 350; 58 L. Ed. 638. Michnone, then to the next of kin dependent

igan Cent. R. Co. v. Vreeland, 227 U. S. 59; 33 upon . [him] for [his] injury Sup. Ct. 192; 57 L. Ed. 417, reversing 189 Fed.

495. Missouri, K. & T. R. Co. v. Wulf, 226 U. or death, resulting in whole or in part

S. 570; 33 Sup. Ct. 135; 157 L. Ed. 274, affirming from the negligence of any of its officers, 192 Fed. 919; 113 C. C. A. 665. agents, or an employe of such carrier, or Grand Trunk R. Co. v. Lindsay, 233 U. 42;

34 Sup. Ct. 581; 58 L. Ed. 828, affirming 201 by reason of any defect or insufficiency

Fed. 836; 120 C. C. A. 166. Seaboard Air Line due to negligence in its cars, engine, ap- R. Co. v. Horton, 233 T. S. 492; 34 Sup. Ct. 635; pliances, machinery, track, roadbed, ways

58 L. Ed., reversing 162 N. C. 424; 78 S. E. 494.

N. Carolina R. Co. v. Factory, 232 U. S. 248; or works."

34 Sup. Ct. 305; 58 L. Ed. 591, reversing 156 N.

C. 496; 72 S. E. 858. Niles v. Central Vt. R. According to the latest expression of Co., 87 Vt. 356; 89 Atl. 629. Louisville & N.

R. Co. v. Kemp, 140 Ga. 657; 79 S. IF 550 the Supreme Court of the United States

lett's Southern R. Co.. this "Act of Congress created the only

501. C. & C. v

132; 139 obligation that has existed since its en


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A recovery of damages is given only in case of an injury occasioned by negligence. "It was the intention of Congress to place the action upon negligence only, and to exclude responsibility of the carrier to the employes for defects and insufficiencies not attributable to negli


So exclusive in its character is the Federal Act that no action can be maintained under it for the benefit of relatives other than those specified by it."

If a state statute allows an administrator to maintain an action because of the death of an employe engaged in interstate commerce, for one whom the Federal Act does not name as entitled to receive a benefit, the action cannot be maintained on the Federal statute, for that statute has limited the number of persons for whose benefit action may be maintained. This conclusion is reached in another way: the statute was necessary to enable an action to be maintained for the benefit of the persons designated, and without it none could be maintained; and, therefore, one cannot be maintained for the benefit of a person not designated by the statute, for no cause of action has been created for the benefit of such a person.

Whether or not in such an instance an action can be maintained on a state statute for the benefit of such omitted beneficiary has not, I believe, been decided ; but I do not think it can, for the reason that Congress has designated in cases of fatal negligent injuries those only for whose benefit actions can be maintained under Federal statute, and this is equivalent to a declaration by it that no other action shall be brought for the benefit of a person not designated by the Federal statute by reason of the negligent fatal injury of an interstate employe."

Damages for a willful injury, therefore, cannot be recovered under the federal statute; and, to recover them resort must be had to the common law or a state statute. As Congress did not pretend to provide for a recovery in the case of a willful injury by the enactment of the statute of 1908, it did not prohibit a recovery of damages for such an injury."

The federal statute in no way limits the amount of damages recoverable when the injured employe himself brings the action; it simply says that the interstate carrier by railroad "shall be liable

act of Congress is paramount, when a law that is relied on as a source of an obligation in tort sets a limit to the existence of what it creates. other jurisdictions naturally have been disinclined to press the obligation further. There may be special reasons for regarding such obligations imposed upon railroads by the statute of the United States as so limited. At all events, the act of Congress creates the only obligation that has existed since the enactment in acts like this, whatever similar ones formerly may have been found under local law emerging from a different source. If it be available in a state court to found a right and the record shows a lapse of time after which the act says no action shall be maintained, the action must fail in the courts of a state as in those of the United States."

(6) Seaboard Air Line R. Co. v. Horton, 233 U. S. 492; 34 Sup. Ct. 635, 58 L. Ed. 1062, reversing 162 N. C. 424, 78 S. E. 499; Wabash R. Co. v. Hayes, 234 U. S. 86; 34 Sup. Ct. 728, 58 L. Ed. 1226.

(7) "The title clearly indicates that it does not cover all the grounds of liability, but that the act relates only to the particular case formerly provided for in it. The provisions of the act relate solely to liability on account of negligence. The several states, therefore, in the exercise of their police power, may make such laws and regulations for the protection of labor within the state as may seem best, unhampered by the Federal Employers' Liability Act, except so far as they attempt to prescribe a liability for negligence or the remedies there. for

in interstate

(3) Thomas v Chicago & N. W. R. Co., 202 Fed. 766.

(4) In Tonsellito V. New York & H. R. R. Co. (N. J.) 94 Atl, 804, it was held that a father could maintain an action under the Federal statute for the loss of service of his infant child where the child survives the injury-a very doubtful decision.

(5) In Atlantic Coast Line R. Co. v. Burnett, 36 Sup. Ct. 75 (reversing 163 N. C. 186, 79 S. E. 414) Justice Holmes says: "In dealing with enactments of a paramount authority, such as Congress is, within its sphere over the states, we are not to be curious in nomenclature if Congress has made its will plain, nor to allow substantive rights to ha i

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