werk. Dunn v Great Lakes Dredge & Dock Co., Mich., 126 N. W. 833.

97. Vice Principal.-Authority to hire and discharge men, though not a criterion of viceprincipalship, is a proper circumstance bearing on that question.-Bayles v. Savery Hotel Co., Iowa, 126 N. W. 808.

98.

Mechanics' Liens-Enforcement.-In a suit to enforce a mechanic's lien, subsequent incumbrancers held not necessary parties.-Monk v. Exposition Deepwater Pier Corporation, Va., 68 S. E. 280.

99. Municipal Corporations-Condition of Streets-A village is required only to employ reasonable diligence to keep its streets in a reasonably safe condition.-Walters v. Village of Exeter, Neb., 126 N. W. 868.

100. Cutting Trees.-A city cannot authorize one to damage trees between the street and sidewalk, belonging to adjacent property owners, without making compensation.-Brahan v. Meridian Home Telephone Co., Miss., 52 So. 485.

101. Ordinance Regulating Width of Tires. -An ordinance regulating the width of tires held not discriminating, in derogation of a common right, nor unreasonable.-State ex rel. St. Louis Transfer Co. v. Clifford, Mo., 128 S. W. 755.

102. Use of Streets.-Where a town granted to a telephone company a license to erect its lines in the streets, etc., neither the company nor the town nor any successor to its rights and powers over the streets and alleys of the town could repudiate the contract or take back the grant without the company's consent.-People v. Chicago Telephone Co., Ill., 91 N. E. 1065. 103. Negligence-Humanitarian Doctrine-In an action for negligence, the issues of sole negligence and of negligence under the humanitarian doctrine may be submitted.-Shipley Metropolitan St. Ry. Co., Mo., 128 S. W. 768.

V.

104. New Trial-Surprise.-A party cannot be "surprised" at the evidence of his adversary, though false, if within the issues.-National Stamping & Electric Works v. Wicks, Mo., 128 S. W. 775.

105. Obstructing Justice-Obstructing Execution of Writ.-An obstruction of an officer attempting to execute a writ of search and seizure held to be an offense, although the writ was issued without the filing of an affidavit.—Appling v. State, Ark., 128 S. W. 866.

106. Parties-Defect of Parties.-Where the defect of parties appears on the face of the complaint, the objection must be taken by demurrer. Buckles v. Reynolds, Wash., 108 Pac. 1072. 107. Principal and Agent-Deeds.-A deed of land by an attorney in fact of the owner, signed and sealed by the attorney individually, and not by him as attorney in fact, does not bind the owner.-Woodbury V. King, N. C., 68 S. E.

221.

108. Railroads-Injury to Persons on Track.The mere failure of defendant to have on its engine a headlight did not constitute negligence when other equally efficient means of warning one on the track were used.-Hargrave's Adm'r v. Shaw Land & Timber Co., Va., 68 S. E. 278.

109. Use of Right of Way.-A railroad company may grant a license or easement on its right of way not interfering with the operation of the road.-Hastings v. Chicago, R. I. & P. Ry. Co., Iowa, 126 N. W. 786.

110. Religious Societies-Land Dedicated to Pious Use. The dedication of land in pais to a pious use does not transfer the fee, but only the use: the fee remaining in the dedicator and his heirs or assigns.-Hamlin v. Property in Webster, Me.. 76 Atl. 163.

111. Removal of Causes-Federal Courts.—An action to forfeit the franchises of certain street railway companies was not removable to the federal courts on the theory that it arose under the Constitution and laws of the United States because federal receivers were, in possession of the property of the lessee of the rights sought to be forfeited.-People of State of New York v. Bleecker St. & F. F. R. Co., U. S. C. C., S. D. N. Y., 178 Fed. 156.

112. Separable Controversies.-Whether two defendants were erroneously joined, and whether a separable controversy existed between

plaintiff and each of the defendants, so as to justify a removal to the federal court by one of them, depends on the case made by the complaint.-Galeotti v. Diamond Match Co., U. S. C. C., N. D. Cal., 178 Fed. 127.

a

113. Sales-Delivery.-Where brokers sent seller a contract previously signed by the buyer, and on its receipt the seller signed it and returned it to thein it constituted a delivery.— Groneweg & Schoentgen Co. v. Estes, Mo., 128 S. W. 786.

114. Identification of Property.-A contract of sale for a large number of articles not identified in the contract will pass title if the articles sold are separated and understood by the parties Pitts v. Curtis, N. C., 68 S. E. 189.

115. On Approval.-Where the purchaser of a machine, on approval, refused to return the same after it had failed on the trial to work according to contract, the sale became absolute, and he is liable for the price.--Brown v. Austin Western Co., Va., 68 S. E. 184.

116. States Foreign Corporations.-The immunity of a state from suit is not violated by a suit in the federal court by a foreign railway company to restrain a prosecuting attorney from enforcing a state statute and to restrain the Secretary of State in revoking the company's right to do local business.-Herndon v. Chicago, R. I. & P. Ry. Co., U. S. S. C., 30 Sup. Ct. 633.

117. Street Railroads-Care Required.-A traveler on a city street, when confronted by a car approaching rapidly in violation of the city's ordinances, held only required to use reasonable care.-Burns v. New York & L. I. Traction Co., 123 N. Y. Supp. 474.

118. Subrogation-Persons Entitled. Subrogation can be invoked by a party who has extinguished a charge on land believing that he had an interest in discharging the same.-Foster v. Williams, Mo., 128 S. W., 797.

119. Taxation-Tax Titles.-Persons owing no duty to the owner of land or the state to pay taxes thereon held entitled to acquire separate tax deeds for delinquent taxes for different years, and such titles may vest in one person.Carmell v. Parr, Mich., 126 N. W. 835.

120. Telegraphs and Telephones-Failure to Deliver Message.-Plaintiff, who called up a doctor over the line of defendant telephone company, and talked with defendant's operator, who claimed to be the doctor, held not guilty of contributory negligence as a matter of law in not sooner thereafter trying to get medical aid. Texas Central Telephone Co. v. Owens, Tex., 128 S. W. 926.

121. Torts-Unlawful Assemblage. Certain persons who visited defendant to remonstrate to him concerning his abuse of a horse held not to be guilty of any unlawful assemblage or act, and hence were not liable to plaintiff for damages on account of illness produced by fear from their presence.-Beck v. Luers, Iowa, 126 N. W. 811.

122. Trade Marks and Trade Names-Unfair Competition.-Defendant's manufacture and sale of tooth brushes under the name "Sta-Kleen," printed in the same position and character of letters and on the same character of package as used by complainant in selling brushes under the name "Keepclean." held unlawful competition. Florence Mfg. Co. v. J. C. Dowd & Co., U. S. C. C. of App., Second Circuit, 178 Fed. 73.

of

123. Trover and Conversion-Conversion Check. Trover for the conversion of a check must be brought in the name of the real owner, and not necessarily in the name of the payee.— White v. Bonney, Va., 68 S. E. 273.

124. Wills-Partial Intestacy.-Ultimate intestacy as to a part of the residuary estate held not to prevent the general scheme of the will from being carried out so as to invalidate the whole residuary clause.-Chastain v. Dickinson, 123 N. Y. Supp. 513.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 7, 1910

STATE BANK GUARANTY LAW AS INTERFERING WITH NATIONAL BANKS.

The opinion by Judge Pollock will possibly be long remembered as out-Heroding Herod in seeming alacrity of desire to interfere with a state's management of its domestic affairs. The gravamen of his objection to the Kansas statute was, that, inasmuch as national banks were forbidden by statute creating them, or at least not authorized, to participate in the state scheme, therefore, they were denied their right of free competition, and therefore, again, were unjustly discriminated against and deprived of their equal rights under the Fourteenth Amendment.

Judge Hook, speaking for himself and associates, says: "It is doubtful if it ever occurred to a railroad corporation chartered by congress to urge that a state statute providing for public aid to a railroad corporation, organized under the laws of the state, was void because its ultimate effect would be to create an unfair competition and deprive the former of business, thereby lessening its efficiency as a governmental agency. The contention made here is not different in principle. Congress may prescribe the powers and legislate concerning the corporations it creates, but it has never attempted to set an unalterable copy in these particulars for corporations organized under state laws."

If Judge Pollock's position had any merit in it, at all, there would be illimitable confusion in every attempt at legislation made both by congress and state legislatures. The general government could say express companies, whether as to interstate or intra

it might be urged that its uniformity throughout the country was impinged upon by a state inheritance tax.

Indeed, if incidental effect in state legislation is to be considered as militating against the constitutionality of state legislation, when some governmental agency is involved, Congress has but to extend enactment to as many subjects as it may constitutionally touch to draw the net more closely around state initiative. In the end the question would be not so much what legislation is authorized under state constitutions, as what could presently stand against congressional statute or soon be displaced. No one may dispute that there are many statutes enacted by states, which in their reference to interstate commerce are subject to displacement by Congress acting directly upon the same subjects. But this is so, because of the exclusive power given by the constitution over this subject.

When, however, congress follows in the line of state enactment about things, as to which it merely has a like cognizance as states, a wholly different question is presented.

The very fact, that the right to displace state laws, incidentally affecting a subject over which congress may take exclusive control, is dependent on a concession by the states, embodied in the federal constitution, is an indubitable reason against any such assumption as that made by Judge Pollock.

What the government is authorized to do in the way of creating national banks and railroads is referable to its powers of agency in representing the states. What it does

under such clauses as relate to bankruptcy, interstate commerce, treaties, and declaring of war pertains as intimately to the nature of its sovereignty, as does any of the things which a state does in any of its legislation. The former class of legislation concerns the working of the national machinery; the latter is from the deposit of power, which, not being surrendered by the states, would still there reside. Judge Pollock confuses things incidental to a granted power, necessary for its proper exercise, with the grant of a power itself.

The labored opinion of Judge Pollock, extending over some thirty pages of text, would be deemed of very great importance if by any possibility it could be considered sound.

NOTES OF IMPORTANT DECISIONS

LICENSEES

FIREMEN CALLED ON FALSE ALARM TURNED ON BY OWNER OF PREMISES.-The Colorado Supreme Court discusses at great length the sufficiency of a petition, as against a demurrer, averring facts alleged to constitute a fireman, entering on premises where there was a supposed fire, an invitee. Lunt v. Post Printing & Publishing Co., 110 Pac. 203.

The petition shows it to have been drawn with much ingenuity in recognition of the principle that the duty of a fireman to enter upon premises to extinguish a fire and even against the will of the owner prevented his being considered an invitee. This was not considered to be affected by the owner's turning in an alarm, because that is his duty independently of its being his personal interest to do so. The fireman responds to the alarm not to the person giving the alarm. To avoid this the pleader alleged that the owner turned in the alarm, when there was no fire in fact, but fumes of nitric acid escaping from a cracked carboy on the premises made the owner mistake them for the smoke of a fire, and the fireman being also deceived went into the building and lost his life from inhalation of these fumes.

It was contended that, however innocently and in good faith the owner acted, the fireman was not a mere licensee but an invitee to whom a higher duty of care was owing. The Colorado court, however, reasoned, that

as the fireman had the right and duty to enter the premises upon the reasonable supposition, from appearances, of a fire, correspondingly the owner had a duty of the same sort in turning in the alarm. The opinion is a well reasoned discussion, but at the same time there would seem to be a duty that an owner should, if possible, warn firemen as to the presence of explosives in a building either burning or supposedly burning. The very fact that a fireman goes in response to an imperative call, demands some show of humanity in his behalf, if indeed a warning about explosives is not deemed directly in furtherance of the purpose of turning in an alarm. Suppose for example there were a system of alarms, one feature being to indicate the presence of explosives and the owner, as in the case considered, turned in the alarm without notifying of the presence of explosives.

The pleader in the case complained that no warning was given. We think, if he had also averred that defendant was negligent in not warning, he might have bridged over his difficulty.

TELEPHONE-OATH ADMINISTERED BY NOTARY IN ONE COUNTY TO AFFIANT IN ANOTHER.-In the case of Fairbanks-Morse & Co. v. Getchell, 110 Pac. 331, the California Court of Appeals holds that telephoning an oath across a county line to a notary is to take the notary out of his jurisdiction rather than the affiant into the other county and to render the oath void.

This case assumes merely for the purpose of argument, that an oath over a telephone is valid if the affiant is in the county of the notary when he makes it, as was decided in Sullivan v. First National Bank, 37 Tex. Civ. App. 228.

The jurat in this case says: "Sworn to before me," etc., and the notary testifies that he recognized the voice of the affiant in re. sponse to his reading of the affidavit. There is authority for the proposition that an affidavit., e. g., for attachment need not be subscribed, this possibly depending upon statutory phraseology. And, if the California court is correct in saying, that the place of making the oath is the place of assent thereto, then it must be that an official's presence is pervasive of his jurisdiction, if the Texas court is also correct.

you in a sort of psychological way and yet that physical agency is so much a part of itself that if it is destroyed, this essence goes out of existence, or perhaps is in suspended animation, until the physical agency's successor is found.

We know now, by the token of this California case where a couple gets married when the minister uses a telephone and the man and woman are together at another place. After a while, however, some minister will be trying to perform a ceremony of marriage, when the man and woman are in different places. And possibly that may be sufficient, because a contract can be made over a telephone. But would it, though a minister thus attempts to perform the ceremony, under a license, amount to more than a holding out so as to constitute a common law marriage?

We rather believe, that entering into a sacred compact like marriage should not witness experimental fads. After a while aerial marriages, if high enough up, may make their venue a matter of doubt.

CORPORATION-ATTEMPT

BY CORPORATION TO ENFORCE AN ATTORNEY'S LIEN. Recently the Court of Appeals of New York passed on the question whether under the provision of the business corporation law which provides that "three or more persons may become a stock corporation for any lawful business," a corporation could be lawfully organized to practice law. Application Corpor

ation Law Co., 92 N. E. 15. The court thus answers that question: "This means a business lawful to all who wish to engage in it. The practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study, both general and professional, and a thorough examination by a state board appointed for the purpose. The right to practice law is in the nature of a franchise from the state conferred only for merit. It cannot be assigned or inherited, but must be earned by hard study and good conduct. It is attested by a certificate of the Supreme Court, and is protected by registration. No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal. It is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the courts. As these conditions cannot be performed by a corporation, it follows that the practice of law is not a lawful business for a

corporation to engage in. As it cannot practice law directly, it cannot indirectly by employing competent lawyers to practice for it, as that would be an evasion which the law will not tolerate."

The court then goes on to reason that the relation of attorney and client involves trust and confidence, and: "It cannot be del egated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client. There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant. corporation would control the litigation, the money earned would belong to the corporation, and the attorney would be responsible to the corporation only. His master would not, be the client, but the corporation, conducting it may be wholly by laymen, organized simply to make money and not to aid in the administration of justice, which is the highest function of an attorney and counsellor at law."

The

OF ITS ACTIVITY AND UNFAIR COMPETITION IN THE USE OF A TRADE-NAME.Statutes forbidding the duplication of names by corporations of the same state are very familiar. Confusion in names might be the policy of a state for various reasons besides the giving of any advantage to corporations or as protecting than from unfair business competition. One sufficient reason might be that confusion might result to the disadvantage of others, or make the state less able to keep track of its offspring, so to speak, and apply disciplinary measures. The fact, that it seems never to have been provided that a foreign corporation of the same name as a domestic corporation should not be debarred from comity, carries the idea, that a name is no special property acquisition by a corporation. It is stated in Nims on Unfair Business Competition, page 198, that: "No advantage accrues to a name of a corporation because it is borne by a corporation."

If this is true, we can but admire the splendid audacity of a foreign corporation, bearing the name of Eastern Outfitting Company, which, after transacting a purely local business in Seattle, in March, 1902, opened a branch house in Spokane in 1909, and then sought to enjoin a partnership, under the trade-name of Eastern Outfitting Company, used since 1905, from continuing to use such name. Strange to say, the Washington Supreme Court stood three to two on this question. The majority, however, was against the corporation.' Eastern Outfitting Co. v. Manheim, 110 Pac. 23.

The majority opinion reasons that: "The doctrine of unfair competition is based upon the principle of common business integrity, and equity only affords relief when this principle has been violated. * The mischief which a court of equity will guard against is a confusion in names, or in the identity of parties, or in the goods sold, so as to deceive the public or work a fraud upon the party having a right to the trade-name," and we confess we are surprised to think anyone would dispute this. Then it is recited that concurrently both parties were carrying on a local business respectively in two prominent cities of the same state, and if any confusion arose it would be merely incidental.

The minority say: "When appellant fully complied with the laws of this state, it became entitled to do business within this state and within the entire state." That is sticking in the bark. A domestic corporation and an individual have the right to do business "within the entire state," and it is their locality as much as that of a foreign corporation. But who would think that, if St. Louis has a candy store called "The Busy Bee," Kansas City could not have another of the same name? Shall a foreign corporation have larger right in comity territory, than a resident, natural or artificial?

One of the minority said: "I do not comprehend upon what theory appellant can be clothed with greater powers in Seattle and less in Spokane." No such quest'on was before the court, but the only question was whether its rights, not powers, were being invaded in Spokane because its corporate name

was on the other leg in this case, and the partnership could successfully maintain an injunction against the corporation interfering with its trade-name. Its power to do business in Spokane may be indisputable, but using its corporate name in Spokane for its tradename is another question. This would be a more interesting question than was before the court.

SOME OBSERVATIONS ON THE RULE OF "HABITUAL NEGLIGENCE" IN RAILROAD FIRE CASES.

The question as to the liability for the fires arising along the right-of-way of a railroad company is an important one for several reasons. First. Any question involving the amount of money which the American railroad companies pay out yearly for fire losses, assumes an importance from a business point of view alone. Second. A question involving interesting principles of evidence, and in which old rules are being applied to new circumstances in a legal way, attracts the attention of the practitioner and is well worth his serious consideration.

It is well settled that a railroad company must keep its right-of-way in such a condition that fire set out thereon by the operation of its trains will not be communicated to the land of the abutting owner to his damage.1 The right-of-way of a railroad is its own private property, and it may use it, in general, as it desires, and in so doing may set out fires thereon, but the gist of the cause of action arising out of damage done by fires starting on the right-of-way, is the

to use the same name, become a trade-name. Would it not have appeared ridiculous for the corporation before opening its house in Spokane, to have sought to enjoin the partnership? If so, did it not go into Spokane to face the existing order of things? The final analysis of the minority opinion is for a foreign corporation to get a permit to do business in a state and claim it has a trade-name to cover the state. It seems to us that the boot

or the "negligent spreading."

When the fire starts off of the right-ofway of the company, then the company becomes liable for damages resulting there

(1) Wabash R. R. Co. v. Schultz, 30 Ind. App. 495, and cases cited. This statement is correct as a general principle. Several states have special statutory provisions covering same.