third person's act in pointing out the boundaries was a binding representation by the agent and the owner.-Lofland v. Greenwood, Tex. Civ. App., 181 S. W. 517.

94. Principal and Surety-Strictissime Juris. -Sureties are never bound beyond the strict letter of their contract, and have the right to stand upon the precise terms of their agreement, which cannot be extended beyond the stipulation to which they have bound themselves.-W. P. Fuller & Co. v. Alturas School Dist., Cal. App., 153 Pac. 743.

95. Process-Burden of Proof-Defendant, sued in one state upon the judgment of another and claiming that such judgment is void for lack of service upon him, had the burden to prove that the summons was not served as indicated by the officer's return by overcoming the return so completely as to leave little or no doubt as to its validity.-Arapahoe State Bank v. Houser, Wis., 155 N. W. 906.

96. Public Lands-Void Patent.-A subsequent patent obtained lapping over the land covered by a prior patent is void to the extent of the lap.-Kentland Coal & Coke Co. v. Elswick, Ky., 181 S. W. 181.

re

97. Railroads Public Utility.-Where an insolvent railroad company was sold by a ceiver under order of court, the court cannot, the operation being unprofitable, require the purchasers to continue operation, for that would work a confiscation, and it would be impracticable to enforce the judgment.-Enid, C. & W. Ry. Co. v. State, Tex. Civ. App., 181 S. W. 498. 98. the insured kept for three weeks a draft to which was attached a release from liability and then cashed it, it could not be said that, as a matter of law, a representation, in securing his signature thereon, that it was a receipt, and not a release, was not a false, material representation.-Rocci Massachusetts Accident Co., Mass., 110

V.
E. 972.

Release-Evidence.-Although

N.

to

99. Partial.-Limited release executed master by injured servant of claims for injuries resulting from the bruising of his shoulder did not cover breaking of bones and consequent degeneration of the spinal cord, etc., unknown to the parties at execution. Beddingfield v. New Orleans & N. E. R. Co., Miss., 70 So. 402.

100. Replevin-Prior Demand.-Want of prior demand will not defeat a right to immediate possession of personalty, but only affects the question of costs in replevin where defendant's original taking is not wrongful and he does not resist the right.-Wall v. Rouse, Okl., 153 Pac. 1112.

101. Sales-Warranty-Where a soda fountain sold under a written contract was a defined, known article of sale on the market, and was bought as such, the buyer could not recover damages, though it was not a serviceable article and did not meet the requirement for which bought.-Western Cabinet & Fixture Mfg. Co. v. Davis, Ark., 181 S. W. 273.

102.- Warranty.-Where the seller of a stallion gave a written contract of warranty, after the sale, upon delivery of the horse, without consideration, which warranty was part of the fraud practiced upon the buyer, such warranty did not merge the seller's misrepresentations and preclude the buyer's pleading fraud in the seller's action on the purchase-money notes.Nave v. Powell, Ind. App., 110 N. E. 1016.

103. Shipping-Liability.-Where the oral charterer of a steamer agreed to return it in the same condition as at the time of charter. except for wear and tear, he was not liable for the vessel's becoming wrecked and sunken without his fault: his liability being no greater than imposed by Civ. Code, §§ 1928, 1929, 1955. regulating the liability of bailees and hirers.-J. M. Brown v. W. P. Fuller & Co., Cal. App., 153 Pac. 960.

104. Specific Performance-Action at Law.Specific performance of the alleged contract of a trustee at a sale of land at auction will not lie, plaintiff's remedy, if any misconduct, of

trustee, being by an action at law.-Herryford v. Moore, Mo., 181 S. W. 389.

105. Special Taxes-Estoppel.-Where a city had jurisdiction to levy an assessment and the proceedings were merely irregular, an abutting owner, who was benefited by the work, cannot, having allowed completion without objection, thereafter object to an assessment for the amount, of the contract price.-Branting v. Salt Lake City, Utah, 153 Pac. 995.

106. Statutes-Construction.-Where there is conflict in two statutory provisions, it is the duty of the court to reconcile them, if possible, and so to construe them that full force and effect shall be given both.-Smith v. Smith, Ind. App., 110 N. E. 1013.

107. Street Railroads Contributory Negligence. Where a 6 year old girl ran into the side of a moving electric car, having crossed the track nearest her behind a car going in the opposite direction, which did not stop, but kept moving all the time, she was guilty of contributory negligence.-Adams V. Boston Elevated

Ry. Co., Mass., 110 N. E. 965.

108. Taxation-Double.-Even if the assessment of the tangible property of a corporation was irregular, the court would not permit the taxing authorities to take advantage thereof to exact double taxation upon its capital stock. -Marshalltown Light, Power & Ry. Co. v. Welker, Iowa. 155 N. W. 807.

109.--Tax Deed.-Where. at the time tax proceedings were entered, the one in whose name the property was taxed was dead, a deed given under such proceedings and sale was void as to the heirs of the deceased.-Laclede Land & Improvement Co. v. Goodno, Mo., 181 S. W. 410.

110. Telegraphs and Telephones-Addressee. -Where a telegram addressed in care of a third person had the addressee's name changed beyond recognition by the negligence of the sending agent of the company, so that it reached such third person with the name of the addressee changed, the delivery to the third person did not constitute in law a delivery to the addressee.— Western Union Tel. Co. v. Schoonmaker, Tex. Civ. App., 181 S. W. 263.

111.- -Public Policy.-A contract of a telegraph company whereby it escapes the consequences of its own negligence is void as against public policy.-Haskell Implement & Seed Co. v. Postal Telegraph-Cable Co., Me., 96 Atl. 219.

112. Tenancy in Common-Action.-Cotenants may maintain a suit for their share of the comproperty against the executor of a deceased cotenant, who asserts, an adverse claim to the whole.-Coppedge v. Coppedge, Ga., 87

mon

S. E. 113.

392.

Trade-Marks and Trade-Names-Infringement. It is an infringement on a legally acquired trade-name to use in the same locality and in the same line of business a name of similar import and not readily distinguishable from it.-Basket Stores of Lincoln v. Allen, Neb., 155 N. W. 893.

114. Trover and Conversion-Damages.Election by plaintiff in action for wrongful conversion of personalty to take value of property at time of conversion or its highest market value between conversion and verdict need not he pleaded, but may be oral in open court.— Potts v. Paxton, Cal., 153 Pac. 957.

115.--Lien.--A lienholder can recover in trover only when he has an immediate, absolute. and unconditional right of possession at the time of the conversion of the property on which he holds the lien.-International Trust Co. v. Palisade Light, Heat & Power Co., Colo., 153 Pac. 1002.

116. Vendor and Purchaser-Constructive Notice. A recorded deed is constructive notice only of the facts which it recites, but a party is chargeable with notice of what a reasonably prudent person with knowledge of the facts, would have ascertained by inquiry, where he has actual knowledge of a deed or its recordFennimore v. Ingham, Tex. Civ. App., 181 S. W.

513.

Central Law Journal.

ST. LOUIS, MO., MARCH 24, 1916.

THE BRANDEIS MUDDLE.

The controversy that has arisen over the appointment of Louis D. Brandeis to the Supreme Bench is, in whatever aspect examined, very unfortunate. For, if confirmation fails, there will be a suspicion fixed in the minds of probably a great majority of citizens that his defeat was brought about by representatives of big business who feared that the liberalism of Mr. Brandeis would likely prejudice their interests. If the nomination is confirmed, the reflections already cast upon the ethical standing of Mr. Brandeis not only by members of the Boston bar but by such leaders of the profession as Root, Taft, Baldwin, Rawle, and others is likely to cause many careful and reflecting minds to lose confidence not only in the nominee himself, but in the decisions of the court of which he is a member.

In view of the present situation the Senate is confronted with a serious responsibility to thoroughly sift all of the evidence presented and make a finding of fact with respect to the ethical fitness of Mr. Brandeis so that it shall appear on confirmation that the charges of his traducers are untrue, to be explained, if at all, only on the ground of the ultra-conservative's abhorrence of extreme radicalism; and on the other hand, if confirmation should fail, that it may appear as a proven fact that Mr. Brandeis is so careless of,

It is difficult for those unacquainted with Mr. Brandeis to form much of an opinion from the published proceedings before the Senate Committee. It appears that the Harvard faculty is hopelessly divided on the issue, the majority, with President Lowell as a mouthpiece, alleging his unfitness, while others, speaking through Arthur D. Hill and others, equally enthusiastic in favor of his qualifications, intellectually and otherwise.

One interesting observation by Mr. Hill in the letter read in evidence, would seem to call for further explanation. Mr. Hill attributed Mr. Brandeis' unpopularity with the Boston bar to the circumstances shown that he is "a radical, an outsider, successful and a Jew." This was in a letter read to the Senate judiciary sub-committee by George W. Anderson of Boston, written by Arthur D. Hill of Boston, who further said he thought Mr. Brandeis was the best fitted man in Boston for the Supreme Court of the United States. It would be "difficult if not impossible," he said in the letter, "for a radical to be popular with Boston lawyers." He argued that Mr. Brandeis had rendered great public service, was actuated by high motives, and had sacrificed much money for his ideals.

On the other hand, Mr. Arthur E. Pillsbury, of Boston, who represented the view of probably the majority of the Boston bar, testified that Mr. Brandeis' reputation at the Boston bar was not such as to make him a good justice. His characterization was quite the least complimentary yet presented to the committee, but when asked by the Senators to state specific instances and conversations he declined to answer. "Mr. Brandeis' reputation as it has come to me," he said, "is that of a very active, adroit and successful business lawyer of unbounded audacity-if you wish to go into questions touching integrity, a man of duplicity, double dealing, who works

under cover so no one can ever know where he is. I have never heard him accused of cheating in money transactions." Mr. Fillsbury said, in answer to questions by Mr. Anderson, that he was attorney for years for the elevated roads and gas interests which had been attacked by Mr. Brandeis. He said he had never met Mr. Brandeis more than a dozen times-in fact What he had carefully avoided him. knew of him, he said, was hearsay. There does not seem to be much of probative value either in the testimony of Mr. Hill or Mr. Pillsbury. The evidence is not of a character that lawyers themselves would regard as sufficient even in proof of reputation.

Where there is so much smoke there must be some fire. Let the Senate uncover the rubbish of personal likes and dislikes and find out whether they are provoked by the actual misconduct and low ethical ideals of Mr. Brandeis or spring from intellectual, professional or personal antipathies on the part of his professional brethren. In the meantime, Mr. Brandeis is entitled to the benefit of the rule that presumes innocence, even with respect to a man's reputation, until proven guilty by something more than hearsay and opinion evidence.

A. H. R.

NOTES OF IMPORTANT DECISIONS.

EVIDENCE INSTRUCTION COMMENTING ON "DISREPUTE" OF EXPERT TESTIMONY. The Fourth Circuit Court of Appeals undertakes, in disapproving an instruction by a trial judge on the quality and credit to be given to expert testimony, to set such a matter right, the instruction and the Appeals Court's ruling to be read in the light of the latitude given to federal court to comment to the jury on facts in evidence. Perkins v. United States, 228 Fed. 408.

The instruction that was held error is quite a free comment on the expert evidence in a

own

homicide case, where insanity was set up. It spoke of what might be called "an undeserved disrepute" attaching to such evidence and it lays down the rule in effect that the only experts who ought to have any credit given to them are those who speak from their knowledge and experience and not those who have learned from books what they testify about. For example, as proof of this, the judge said: "All of us know in our knowledge that twenty years ago we could take a medical book and read the positive opinion that miasma proceeded from what they called malaria or bad water; you now take a medical book, and they tell you it proceeds from neither of these causes, but proceeds from the bite of a mosquito." The court went on to say that in twenty years from now all the present day medical books would be considered worthless.

But what has that to do with the question? Any witness testifying from personal experience would draw conclusions to-day, that would seem absurd twenty years from now. It is impossible for any man with any scientific knowledge worth considering to put aside his subconscious knowledge from his experience knowledge. The latter is wholly permeated and saturated by the former.

The Appeals Court said: "The knowledge of experts in any science or art would be extremely limited if it extended no further than inferences from phenomena falling within their own experience. Their testimony is admitted as valuable because based on their special knowledge, derived not only from ex perience, but from the experiments and reasoning of them, communicated by personal association or through books or other sources. It is more or less valuable according to the source from which it comes, but the general proposition that it is of no law value, unless based on personal experience, 'is not sound.'”

We think this statement eminently salutary. Our rules of law so far as a matter of this kind is concerned, are upon conditions in our surroundings. If a medical man can be called in to diagnose us for disease, because he is licensed as a competent practitioner, the policy of our law ought to permit his testimony as an expert, but independently of this it is valuable according to the consensus of opinion.

EQUITY-BILL BY STOCKHOLDER TO RECOVER TRIPLE PENALTY UNDER ANTITRUST LAW.-In Fleitmann V. Welsbach Street Lighting Company, 36 Sup. Ct. 233, United States Supreme Court holds that a stockhold

er's suit in equity against his own company and a number of other corporations and individuals to compel the defendants other than his own company to pay to the latter three-fold damages under the anti-trust law cannot be maintained, his own corporation refusing to sue. There was dissent, but no opinion, by Justices McKenna and Pitney.

Justice Holmes, speaking for the majority, says: "Of course, the claim set up is that *** if the corporation were proceeding directly under the statute no one can doubt that its only remedy would be at law. Therefore the inquiry at once arises why the defendant's right to a jury trial should be taken away because the present plaintiff cannot persuade the only party having a cause of action to suehow the liability, which is the principle matter, can be converted into an incident of the plaintiff's domestic difficulties with the company that has been wronged. No doubt there are cases in which the nature of the right asserted for the company, in the failure of the defendants concerned to insist upon their rights, under a different state system, has led to the whole matter being disposed of in equity; but we agree with the courts below that when a penalty for triple damages is sought to be inflicted, the statute should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law."

If this ruling is not in the teeth of the maxim ubi jus ibi remedium, where there is a right there is a remedy, (Hughes, The Law Restated, p. 265), it is difficult to consider this as much more than a glittering generality. If there is not here a knockout, the maxim is staggering near the ropes. But we still believe in the maxim and feel that we must, or our hold on the law as a system that aims at justice will be slipping.

But the Justices possibly were thinking of federal courts as courts of equity, and not of state courts, where equity supplies that whereof the law by reason of its universality is deficient. Under this principle a court of equity should get the necessary parties before it and mould the procedure so that a jury's verdict, if one is by the Constitution entitled to have that, shall not be merely advisory to a court, but shall govern it as it governs a court of common law. Is it not better to modify a rule of procedure than to deny altogether entrance into a court of equity? Was there ever a constitutional principle that was supposed to stand as a bar against a claim of right in a court either of equity or common law?

TO WHAT EXTENT DOES THE CARMACK AMENDMENT TO THE HEPBURN LAW AFFECT COMΜΟΝ LAW REMEDIES AND PROCEEDINGS IN THE STATE COURTS?

The subject will, for convenience, be considered in three divisions:

First, I will make a general statement of the conditions that lead to the passage of the law.

Second, I will discuss the law as it specially applies to causes of action arising on account of damage due to delay, of injury to, or loss of, property in transit under through bills of lading issued by interstate carriers, and to causes of action arising because such carriers fail to comply with the provisions of Sections 8 and 9 of the original act, or because they violate said provisions.

Third, I propose to make a specific application of the law to the right of an interstate shipper to waive the shipping contract and charge the carrier under its common law liability.

Under the common law, the initial carrier could, in its shipping contract, elect to limit its liability to damage sustained by the shipper on its own line; but if the initial carrier elected to contract for through shipment, it was liable to the shipper for any damage sustained on the lines of the connecting carriers as well as on its own line. This rule is based on the law of agency-a principal is liable for the act of his agent.

The uniform doctrine of the English courts, beginning with the Muschamp case, decided in 1841, briefly stated, was that when a common carrier accepted goods for shipment, the destination of which was beyond its own line, it was, in the absence of a special contract otherwise, conclusively presumed to have contracted for thorugh shipment and liable on its contract. A few of the American courts held to the same rule. The rule of the English courts was repudiated by the Federal Supreme Court and by a majority of the state courts; and

carrier, in the absence of a special contract, was bound only to carry over its own line and deliver to a connecting carrier, after which its liability as a carrier ceased and it then became liable only as a forwarder. Finally, the universal custom practised by carriers, was for each carrier in the route to limit, by special contract, its liability to damage occurring on its line and otherwise limit its common law liability, except for acts of gross negligence. This condition resulted in much trouble, delay and expense to the shippers in collecting claims from the carriers for loss and damage, and required the shipper to follow his claim through the various departments of two or more separate carriers until not only his patience, but his money was entirely exhausted.

The states were without power to legislate concerning interstate carriers, and Congress, having plenary power in matters. of interstate commerce, with no limitations save those in the Federal Constitution, was prompted by the foregoing recited conditions to relieve the shipping public of these burdens; and, with that end in view, it enacted what is known as the Carmack Amendment. This law, briefly stated, provides that a receiving carrier shall issue a bill of lading providing for through shipment, making all connecting carriers its. agents, instead of agents of the shipper; also that the initial carrier shall be liable for all damage in transit, any special contract to the contrary, notwithstanding.

In the outset, it is well to notice the most pertinent features wherein jurisdiction has been withdrawn from state courts. It goes without saying that state courts have no jurisdiction in the enforcement of rights growing out of national legislation if by the express terms of such legislation exclusive jurisdiction is conferred upon commissions or the Federal courts. Under this act, if a shipper who has sustained damage as the result of a discriminatory rule, promulgated by a carrier, files his complaint with the Commission and it is by that body

or discriminatory, the state court has no jurisdiction, and redress must be sought either before the Commission or in the Federal court. In other words, the consideration of and decision in such a case would involve the determination of matters calling for the exercise of the administrative power and discretion of the Commission; hence, exclusive jurisdiction for the redress of an injury in such a case has, under Sections 8 and 9 of the original Act, been conferred upon the Commission or the Federal court, as the complaining shipper may elect.

Section 7 which amends Section 20 of the original Act, so far as material here, provides:

"That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed. Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any, remedy or right of action which he has under existing law."

Section 8 of the original Act provided in substance, that in case any common carrier, subject to the provisions of the Act, shall do, or permit to be done, anything prohibited or declared to be unlawful, or shall omit to do anything required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation, together with reasonable counsel fees, to be fixed by the court, in every case of recovery.

Section 9 provides, in substance, that any person, claiming to be damaged by any common carrier, may either make com