these as reasons for the exercise of a plenary power are of little import in its actual exercise. We are wholly unable to appreciate how a power to regulate instrumentalities in commerce, has, either directly or by implication, any police feature in its exercise. And we do not see that there is any power in Congress to drag in the protection of a citizen or a class of citizens as the sole reason for mere regulatory legislation. A traveler or an employe in other business may, it is conceivable, be given the right to recover a penalty from the owners of an instrumentality in interstate commerce, but in theory of law and the power to legislate, by way of regulation, this should be deemed wholly fortuitous. It is not to be regarded as the causa causans the regulatory legislation. This sort of legislation may create a juggernaut for a traveler or an employe falling under its wheels, but this may be no reason for arresting their progress. And vice versa, it may declare a penalty where either is crushed, if this bears some fair relation to regulation. for, indeed, were there a stipulation for such, it would be deemed "insurance against the commission of crime and void against sound principles of public policy." There are a number of cases cited to this proposition, as to which the cases are also cited in 80 Cent. L. J., supra. In respect to the inclusion of the incontestable clause, supra, it is said: "The incontestable clause in this policy does not prevent the defendant from setting up the defense interposed in this action. By the use of the term 'incontestable,' the parties must necessarily mean that the provisions of the policy will not be contested, and not that the insurance company agrees to waive the right to defend itself against a risk which it never contracted to assume." This reasoning follows necessarily from what is said by the court in regard to policy specifically stipulating to be bound in the event of a death so occurring. It is to be noted, also, that the court distinguishes this holding from that in the Owens case, 100 N. C. 240, 6 S. E. 794, which referred to constitutional provisions against corruption of blood and forfeiture of estates. Those cases are based on statutes of descents, dower and the like and therefore may have little of principle involved in their determination. NOTES OF IMPORTANT DECISIONS. INSURANCE - INCONTESTABLE CLAUSE IN POLICY NOT COVERING EXECUTION OF ASSURED FOR CRIME.-In 80 Cent. L. J. 363, there was treated the question of "Murderer Taking Under Will or by Inheritance," and now we find considered by Supreme Court of North Carolina the question whether an incontestable clause in a policy covers death of insured by execution of law. Scarborough v. American Nat. Ins. Co., 88 S. E. 482. The clause referred to provided that, "This policy shall be incontestable two years from its date of issue for the amount due, provided premiums have been duly paid, except for fraud." Of course, the fraud referred to was in the procurement of the insurance. The court first declares that, though an ordinary policy is silent as to death by act of law administered as a punishment for the commission of a capital felony, yet parties are not, EVIDENCE-JUDICIAL COGNIZANCE OF UNIFORMS OF EMPLOYES AND OF ENVELOPES OF PUBLIC UTILITY.-In Phillips v. Western Union Tel. Co., 184 S. W. 958, decided by St. Louis Court of Appeals, the principle of judicial cognizance is extended quite greatly. The facts in this case show that one apparently a messenger boy of defendant ran into plaintiff while on the street with an envelope in his hands. As to a motion to instruct for defendant, the court said: "The Western Union Telegraph Company, a public utility, is so much in the use and eye and knowledge of all our people, that we may assume that the jury will apply their knowledge of the usual course of business of this great instrumentality of public service when considering facts connected with that service. We all know that the Western Union Telegraph Company uses messengers for the delivery and taking up of messages, dispatches, telegrams. The jury, as men of ordinary intelligence, had a right to infer that Kenzell was a messenger boy in the employ of the Western Union, clothed in its usual uniform, going along the street in the direction of one of its branch offices, carrying in his hand an envelope recognized as the envelope ordinarily used by the Western Union in the transaction of its business, that he was at the time in the discharge of the duties of his employment." It is then observed that the defendant had it in its power to rebut the inference that might be drawn and a presumption against it arose on its failure so to do. Judicial cognizance is quite latitudinous, but when it takes in the uniforms of employes of, and envelopes used by, a "great instrumentality of the public service," it may be said its horizon is as difficult to define as is the reach of a state's police power. The comfort the defendant may derive from this ruling is to quote the court's language in its advertising matter. There are really SO many messenger boys, pages, chauffeurs, policemen and mail carriers, wearing the livery of business and snobbery, that it ought to be a little hard to tell whose uniformed servant runs into one on the street, when he is in a state of unpreparedness. PROPERTY BANKRUPTCY-INDIVIDUAL WHERE PARTNERSHIP IS WITHOUT ASSETS. A question certified to Supreme Court by Third Circuit Court of Appeals and answered affirmatively, was: "When a partnership as such is insolvent and when each individual member is also insolvent, and when the only fund for distribution is produced by the individual estate of one member, are the individual creditors of such member entitled to priority in the distribution of the fund?" Farmers' & M. Nat. Bank v. Ridge Ave. Bank, 36 Sup. Ct. 461. The Chief Justice shows that there is in the bankruptcy act of 1898, as in prior bankruptcy statutes, an unambiguous rule for distribution where there are both partnership and individual assets. He concedes, also, that in a case such as the question certified refers to, there was considered to exist an exception having the effect to make the fund of a partner distributable among partnership and individual creditors without priority in favor of either. The Chief Justice says, however, that: "The Act of 1898 in the opening subsections of § 5 confers the power on courts of bankruptcy to adjudge a partnership a bankrupt and to administer the partnership estate so far as possible as any other estate-"an authority not conferred by the previous bankruptcy acts," and this is followed by a subsection, which provides that: "The court may permit proof of the claim of the partnership estate against the individual estates and vice versa, and may marshal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates." From this the Chief Justice deduces the conclusion that the same power granted to regard a partnership estate like any other estate, exists to regard the estate of an individual partner as of one not a partner, and, therefore, the claims against an individual partner have priority over partnership debts. This is said to mean distribution "so as to prevent preferences and secure the equitable distribution of the property of the several estates." The opinion we have been considering shows a very important departure from prior bankruptcy statutes and appears little to regard the principle of joint and several liability being the same under ordinary contracts. Indeed, it shows that the rule in bankruptcy distribution may be very different from contractual liability at law. ACTION-POSTHUMOUS CHILD AS PLAINTIFF.-By Nebraska statute, it is provided that a liquor dealer shall pay all damages that individuals may sustain justly attributable to his traffic in intoxicating drinks. In Phair v. Dumond, 156 N. W. 637, decided by Nebraska Supreme Court, the facts show that in May, 1909, defendant sold liquor to one who became the father of plaintiff, born in October, 1910. The mother of plaintiff was grossly abused by the father in May, 1909, and the injuries she received from him caused her to die in May, 1911. The court held that under such a statute a posthumous child had the right to re cover. Did this in principle cover a case of this kind? At the time of the injury this child had neither any being or potential being. It, therefore, is not a case of pre-natal injury to an unborn being, unless the consequences remaining-continued suffering-is a renewal of the primal offense. We have, however, never understood that suffering in the future did any more than enhance damages. This action, however, is statutory for loss of support and suffering of the parent is not to be considered at all. Is not this right of support only in favor of those in existence or potential existence at the time injury causing damages happens or is caused? The principle of recovery by a posthumous child having a right of recovery seems not broad enough to cover the facts in this case. It means, or should mean, a posthumous child en ventre sa mere at the time of the injury causing damages. JUDICIAL REFORM MUST BEGIN IN fewer appeals and less work for appellate THE TRIAL COURT. Judge Henry Lamm, in a recent address on the "Law's Delays," delivered before the Missouri Bar Association, said, "the greater bulk of the delays arise below"-By below meaning the circuit court. The tax-paying public has tried and convicted the courts of nisi prius on two charges -that the business of the courts is attended with unreasonable delay and unreasonable expense. Both charges are sustained by the evidence of experience. Here, it is proper to observe that the feature of unreasonable expense is frequently the outgrowth of unreasonable delay. It is the purpose of the writer to suggest some improved methods, or, perhaps rather a return to the old methods of some distinguished jurists who have adorned the bench of the Circuit Court, by which methods delay and expense may be reduced. In some counties of Missouri, for instance, (according to the present plan of trying cases) is there a real hearing of law questions in the Circuit Court? In actual practice (in some counties) do not the parties depend upon an appeal to the appellate court for their real opportunity to be heard on law questions? Is this a proper method? In truth, the trial court should have all the help that counsel are able to render, in the decision of all law questions. The trial court should accord a patient hearing of argument and authorities by counsel, regarding all law questions arising in the case. The trial judge should not leave it to his discretion to determine whether he shall hear or consider argument and authorities on a law question. He should make an inflexible, invariable rule of court, that he shall hear argument and authorities on all law questions for a certain, definite length of time on different phases in each case. Here is an illustration of some practical rules, the adoption of which would bring about more justice, less delay, less expense, judges. 1. Each side shall have thirty minutes, in the aggregate, to argue and submit authorities on questions arising in the law of evidence during the taking of the testimony -the jury to be excused from listening to legal discussions at the request of either party. 2. Each side shall have thirty minutes to argue and present authorities at the close of all the evidence, as to the giving and refusing of instructions. 3. Each side shall have thirty minutes to argue and present authorities on a motion for a new trial. 4. The trial judge shall not, in any wise, abridge or shorten the aforesaid time of counsel-but may extend the same at the request of either party, in his discretion. A compliance with these rules, and a full hearing of the law questions in the trial court would bring about more justice would materially reduce the number of cases appealed to higher courts, for the reason that the parties would find out that their case had been correctly decided below-would materially reduce the number of reversals in appellate courts would materially reduce the amount of work to be done by the appellate court in considering an appealed case. A trial judge should not be averse to a full hearing of law questions, for any reason should not be afraid that the spectators will find out that he does not know all the law-should not be ashamed to let the spectators know that the lawyers who have studied the particular case, know more about it than any judge who has not studied it—should not guess at the law, rather than learn it from the authorities cited by the lawyers in their arguments. A circuit judge, who (for any reason) cannot take time to properly hear arguments and consider authorities on the law of a case, is one who cannot take time to properly perform his duties. There is no danger of the lawyers deceiving the trial judge about a question of law-if he will patiently hear both sides. Lawyers who have prepared themselves. to present the authorities and the reasoning on law questions, should be encouraged to do so-instead of being criticised for attempting to do so. ADVERTISING SCHEMES AND THE LOTTERY LAW. There probably has been no more marked progress in the criminal law in any branch than that which is evidenced by legislative prohibitions against lotteries and kindred enterprises. Most of us in middle life can well remember the Louisiana lottery, and many have seen men who made fortunes great and small out of it, and many more who squandered fortunes great and small upon it. But so rigorous has been the application of the statutes and the enactment of new ones that lotteries are largely a thing of the past and there The By habitually invoking and securing the assistance of counsel in determining law questions, the trial judge would be enabled to try and dispose of the cases on his docket instead of having them continued. trial judge should encourage litigants and lawyers to try or otherwise dispose of their cases-instead of encouraging delays and continuances. By looking at the cases in the light shed on them by legal authorities to which reference is suggested by attorneys in their argument, the trial judge. should be enabled to decide cases at the term when they are tried. No case should be taken under advisement beyond the term at which it is tried. To recapitulate, three improved methods are here suggested: First. The trial judge should insist on litigants and lawyers speedily trying or otherwise disposing of their cases. Second. The trial judge should get all the help he can from the lawyers in deciding all law questions. Third. Cases should be decided at the term when tried-no case should be taken under advisement beyond the trial term. A good beginning for this article was found in the previously mentioned address of Judge Lamm; and, it likewise affords a good ending, where he says: "In the next place, if the fault is in the trial judge, then the remedy is to pick out another free from those faults and not merely rail generally at conditions." Respectfully submitted, Trenton, Mo. PLATT HUBBELL. are no chances of this nature which do not seem to be prohibited in one form or another except lawsuits and matrimony. Lotteries have been defined to be a species of gaming by a scheme for the distribution of prizes by chance among persons who have paid or agreed to pay a valuable consideration for the chance to obtain a prize.1 There must be something gained or won by lot. Chance is an essential element, whether it be as to any return or merely as to the value of the return. There must be a sum ventured on the chance of obtaining a greater value.2 There must be a pecuniary consideration paid and it must be determined by lot or chance according to some scheme held out to the public what and how much he who pays the money is to have for it.3 A valuable consideration must be paid directly or indirectly for a chance to draw a prize by lot. A valuable consideration must be paid directly or indirectly for a chance to draw, and if there is no valuable consideration as where persons are gratuitiously given business cards, each card entitling the holder to a chance to draw a piano. there is no lottery. It will thus be seen that there are three essential elements to every lottery, first, (1) Burks v. Harris, 91 Ark. 205, 120 S. W. 979, 69 Cent. L. J. 647. (2) State v. Perry, 154 N. C. 616, 70 S. E. 387, 45 Cent. L. J. 404; Chaney Park Land Co. v. Hart, 104 Ia. 592, 73 N. W. 1059, 46 Cent. L. J. 234. (3) Hall v. Ruggles, 56 N. Y. 424. (4) Cross v. People, 18 Colo. 321, 32 Pac. 821, 36 Am. St. Rep. 292, 36 Cent. L. J. 435. (5) Cross v. People, 18 Colo. 321, 32 Pac. 821, 36 Am. St. Rep. 292. the payment of a consideration; second, the receiving of something in return which may be of greater or less value than the consideration; third, the determination as to whether it is of greater or less value or not by lot or chance. And when we come to measure advertising schemes which savor of chance and which are held out as a trade inducement we must find each one of these three essentials present, or we do not find a lottery. We may go further and say upon the basis of decisions which will be referred to shortly that enactments designed to prohibit certain classes of advertising schemes will not ordinarily be upheld as an exercise of the police power unless the project aimed at by the statute contains these elements, for it seems to be a well settled doctrine that the device to which the prohibition is directed must contravene good morals and that in order to contravene good morals it must be a lottery. We may not, however, lose sight of the fact that this doctrine has not gained universal support and that there are respectable decisions to the contrary, but as was said by the court in disposing of these authorities in a case to which reference will be made hereafter these decisions have not been of sufficient force to create a ripple in the current of authority. Trading Stamps.-The field to which we have just been referring is the legislation against what is known as trading stamps. A great many states have tried to prohibit. trading stamps. This may be briefly described as an advertising plan by which the trading stamp concern agrees to put a merchant's name, in a list, published in a book, containing blanks along with the names of other merchants who give trading stamps issued by the concern which publishes the book. In return the merchant purchases trading stamps of the advertiser for a consideration and gives these stamps to each one of his cash customers in proportion to the amount they buy. The customer then sticks these stamps in the blanks in the book which has been given him by the advertiser, and when he has secured a cer tain number, usually 990, he is entitled to take the book to a store which is kept by the advertiser and there exchange his stamps for some article kept on display at the store. Now these enactments directed at this trading stamp advertising plan have been almost universally held to be void as beyond the power of the legislative body under the police power, and this holding has been supported by the doctrine that the plan contains no element of chance, that there is nothing uncertain, undetermined or unknown. In short the trading stamp business has been held not to be within the prohibition of existing lottery laws and has also been held not to be contrary to good morals, and therefore not within the scope of the police power to prohibit in nearly all of the jurisdictions where the question has arisen; the basis of the holding being that it does not appeal to the gambling instinct, contains no element of chance and lacks two of the essential elements of our definition of lottery, namely, the receiving of something of a lesser or greater value than the consideration paid, and the determination of whether or not that thing shall be of a greater or lesser value by lot or chance. The contrary view has been taken by the Supreme Court of the District of Columbia which position has been in effect sustained by the Supreme Court of the United States. This holding is based on a somewhat peculiar legislative condition. The legislative assembly of the District of Columbia in 1871 provided for the licensing of gift enterprises. This provision (6) State v. Shugart, 138 Ala. 36. 35 So. 28, 100 Am. St. Rep. 17; Ex-parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 588; City and County of Denver v. Frueauff, 39 Colo. 20, 88 Pac. 389; State v. Hawkins, 95 Md. 133, 51 Atl. 850, 93 Am. St. Rep. 328; State v. Caspare, 115 Md. 7, 80 Atl. 606; Commonwealth v. Sisson, 178 Mass. 578, 60 N. E. 385; State v. Sperry-Hutchinson Co., 110 Minn. 378, 126 N. W. 120; State v. Sperry-Hutchinson Co., 94 Neb. 785, 144 N. W. 795, 49 L. R. A. (N. S.) 1123; People v. Dycker, 76 N. Y. Supp. 111, 72 App. Div. 308; State v. Dalton, 22 R. I. 77, 84 Am. St. Rep. 818. 48 L. R. A. 775, 51 Cent. L. J. 1; State v. Dodge, 76 Vt. 197, 56 Atl. 983; Young v. Commonwealth, 101 Va. 853, 45 S. E. 327. |