excellence or consign it to "the limbo of things that were."

It seems to us that the common-law system of practice and procedure grew to its perfection out of instances. Lawyers of its time acted upon the principle of ubi jus ibi remedium, and, framing the remedy to obtain the vindication of a right, submitted it to a court of appropriate jurisdiction. The proposed remedy then became the target for all adversary shafts of criticism. If it withstood assault, it became a precedent. As all such propositions had to undergo an ordeal of fire, the residuum in the crucible was the common-law, system-a consistent, interrelated whole, and yet capable of extension to newly-discovered rights by reason of the principle in its growth.

Procedure developed pari passu with principle, because the courts which felt impelled to administer the latter, as founded, according to their conception, upon inherent justice, were peculiarly solicitous, that the former should be appropriate. Possibly, if the mere fats of statutes had been their inspiration, their sometimes lack of justice might have derogated from the perfection of remedies.

However that may be, the enforcement of rights, intrinsically just or so deemed by the judges, may well be supposed to have been a great influence, at the beginning, in the framing of proper procedure for their vindication, and, afterwards, its logical application to the written law.

It is almost inconceivable that in such times as preceded the written law the bar and the bench were not necessary to each other in the vindication even of acknowledged right, the former striving against a too sweeping generality in remedies, and the latter desiring to make them as broad

mon-law procedure were laid. But they are not for such reason to be less regarded.

The principle of co-operation is as well. needed in the one case as the other-possibly even more now than then. Then, the court knowing whether or not an asserted right was just, could more easily prescribe the remedy. Now conditions are more complicated and common law and statutory rights so shade into each other, that remedies need to be moulded with a freer and yet a more adept hand.

It was not in the first pleading at common law that particularity was found, but it was by plea, replication, rejoinder, surrejoinder, rebutter and sur-rebutter that a precise issue was reached. These being abolished all manner of motions and demurrers appear, greatly inefficient, however, in keeping evidence within reasonable compass, sometimes an accepted theory by the parties making what pleadings there are of no importance whatever.

Notwithstanding all this, we hear a great deal of the principle of res judicata requiring exactitude in pleading. This is greatly a phantom issue, for of all the rare things in the world, possibly one of the rarest, is that of a suit brought for the very thing that already has been determined between the parties. One judgment for anything but money is as good as a dozen, and we do not remember ever hearing of a second suit for a debt that is at the time in judgment. After all, to guard against a possible second judgment or jeopardy is simply a question of practical detail. A dozen methods might suffice.

It seems to us that the building up of common-law procedure was ideal in being through the joint efforts of the bar and bench of England. We cannot get co-operation one with the other through any

opposing tendencies the true mean was sought, and until it was reached neither was

content.

In the enforcement of a purely written law, whether its command be just or unjust, a different situation is presented than that, in which the foundations of our com

that, if the courts were vested with power to frame rules of procedure, they would reject the assistance of the bar. Indeed, all experience in this country shows that between the best judges in our courts and the bar, there is a relation that implies mutual reliance in the administration of justice,

and when a system for the framing of rules of procedure separates them, the public suffers.

Our courts, when there is need, frame their decrees in equity and interlocutory orders, as emergencies require, and formal objections are not encountered on the equity side so much as on the common-law side. If there is jurisdiction, a meritorious claim, a sufficiency of parties and relief demandable in equity, there are few obstacles attempted to be interposed to the hearing of a cause. Is this not because the courts, sitting in equity, are not so much compelled to struggle in the fetters legislatures have fastened upon them, and because counsel are of less assistance to them in attempting to apply statutory rules? Notice, after all, is the essential ingredient of due process of law. The more simply it is given, and the more completely real issues are stripped bare before trials are begun, the more will opportunity for error be eliminated.

Many a case would not go to a jury at all, if the issues were first sifted down, or if it did, would be expeditiously disposed of. Who cannot recall cases that consumed much time in the introduction of evidence and the jury peremptorily instructed, or a non-suit taken?

NOTES OF IMPORTANT DECISIONS

CORPORATIONS-RIGHT OF A DOMESTIC CORPORATION TO USE ITS CORPORATE NAME IN TRADE WHERE THIS CREATES UNFAIR COMPETITION.-Usually statutes forbid the duplicating of names in domestic corporations, but it is not provided that a domestic corporation shall not take the name of a foreign corporation doing business in a state, neither have we seen that it has been provided anywhere, that a foreign corporation, licensed to do business in a state, shall not do so by its corporate name, notwithstanding a domestic corporation may bear the same or a similar name.

The federal circuit court for the Southern District of New York recognizes that a state may confer on its corporations whatsoever names it wills, and allow them to carry on

business thereunder despite the fact that this might be a tortious use. Where, however, a domestic corporation chooses a name, for the purpose of "diverting and disarranging" the business of a foreign corporation, or, in effect, trading on the foreign corporation's business its use of the corporate name was enjoined, on the presumption that the state intended "that the corporate name is given merely as the name, which the entity may use so long as it acts in accordance with law. By the name so chosen it gets no license to commit what would otherwise be a tort." U. S. L. & H. Co. of Maine v. U. S. L. & H. Co. of N. Y., 181 Fed. 182.

This ruling, instead of interfering with a state in its domestic affairs, assists in preserving the integrity of its laws, and it is pleasant to witness the tenor of the opinion by the federal judge. Too often there seems something of a strain, as if an opportunity to nullify some state statute or policy was not very unwelcome. Ruling, however, like the above should assist toward a friendly rivalry in state and federal courts, instead of making them look askance at each other.

STATUTES OF LIMITATION-CREDIT AS NEW STARTING POINT AGAINST A SURETY.-The Georgia Court of Appeals lately ruled, that, notwithstanding it was "settled law in that state for a quarter of a century at least," that "a payment by one or two more joint contractors, within the statute and before its bar has attached, constitutes a new starting point for the statute," this principle does not apply to a surety who does not make the payment. McLin v. Howey, 69 S. E. 123.

The court relies as much for its conclusion upon the spirit of statutory law as upon the principle that: "A contract of suretyship, being one of strict law, cannot be extended except by the act or conduct of the surety himself."

This ruling would not seem to be entirely just, because it goes too far, when it is considered that the plea of the statute of limitation is merely a personal plea. Thus it is conceded by the court, that, if payment in full is made by a co-surety before this bar has attached, he can sue for contribution, and this suit was of that nature. As we understand the ruling the surety who made payments before and after the bar attached, was held to have no right of contribution whatever. As the court ruled, it is fairly to be deduced, that if a co-surety pays before the bar has attached, he must bring his suit for contribution within the time action upon the original indebtedness would have to be brought, as otherwise the original liability would, in effect, be extended.

If there is a right of contribution it seems to us it should have its own independent period of limitation. If it has, the co-surety suing for contribution should have been allowed this pro tanto.

SALES-RIGHT OF SUBSCRIBER TO SERIAL SET OF LAW BOOKS TO SELL BEFORE COMPLETION OF SET AND INSIST ON CONTINUATION OF DELIVERIES.-It was contended by a certain book company that where a subscriber to its cyclopedia of laws sold his set to another he could not insist on the company continuing to supply him to the end of the series. Rockwell v. American Law Book Co., 76 Atl. 334.

It appears that the subscriber, Rockwell, had received twenty-six volumes of the Cyc and exchanged them with a firm of attorneys for other law books, his subscription to be still in force so that this firm would acquire the Cyc complete. Before the law book company became aware of this exchange it delivered to its subscriber vols. 27, 28 and 29 and ascertaining what had been done it refused to deliver volume 30. Thereupon, the subscriber sued for breach of contract and recovered the amount he had paid for the 29 volumes.

The case is scant, but this recovery must have been sustained on the theory, that the books of an incomplete set were practically worthless. The case was affirmed by New Jersey Supreme Court, and the ruling was on the ground that there was nothing in the contract to prevent sale to another.

The essence of a contract of this character seems to us to bind the seller to keep the volumes in the serial up to a certain standard, and whether he does or not, may be the occasion of substantial dispute between him and a buyer.

Looking at the matter from this aspect other considerations enter into the question of selection of buyers than that in the sale of staple articles. The seller must satisfy the judgment of his customer upon each volume he furnishes, or, if his objection is of a substantial character, he may declare the contract of sale breached as an entirety, and sue for his damages. In contracts for the sale of goods, wares and merchandise, in general aspect, there may be considered only the likeli hood that the buyer is able financially to carry out his agreement and can be made to respond if he breaches it.

As to the sale of a complete cyclopedia, whose constituents appear in installments, conclusion that it is, or not, measuring up to the terms of a contract for a meritorious production is to be deduced differently, than if there were installment deliveries of wheat, corn or

lumber. One or two inferior volumes cannot be regarded independently. The entire work may for this be considered as inferior. Therefore, it seems it would not be unreasonable for a seller to claim a subscriber should not be permitted to place upon him the risk of satisfying another than the purchaser the seller has selected. But under the New Jersey decision this must be provided for in the contract if at all.

INSURANCE-PROSPECTIVE OPERATION OF AMENDMENTS IN FRATERNAL INSURANCE-WAGER POLICIES.-An esteemed subscriber calls our attention to syllabus No. 75, 71 Cent. L. J. 325, as being misleading in its reference to Grant v. I. O. S. & D. of Jacob, 52 So. 698, and thinks the ruling of the court would be more correctly summarized as follows:

"Where a life policy was assigned to one without an insurable interest, though' within the class of designated beneficiaries, under one charter, which afterwards expired by limitation, a change by the insured to another beneficiary, after the reorganization of the association under a new charter, though not within the designated class of beneficiaries in the second charter, but within that of the first charter, does not make the policy a wagering policy, and is not inhibited."

It seems to us that the syllabus we used is possibly not sufficiently full in not stating the insurance was valid at the outset, but that is assumed. The court in that case decided two independent questions, one that insurance eing valid, as against objection that there was a wagering policy, did not become such by being assigned to one without any insurable interest in the life of the assured, and the other that an assured in a fraternal association having by change of beneficiary competent at the time, cut off the original beneficiary, the latter's position was not restored by an amendment, which, if in force at the time of the change, would have prevented same.

The Mississippi court spoke of decision on the former of these questions being "in hopeless conflict," with the law settled for its state by Murphy v. Red, 64 Miss. 614, 1 So. 761, 60 Am. Rep. 62, as above indicated.

Commissioner Whitfield cites an abundance of authority to the other proposition, and, though it be true that a beneficiary in a fra ternal insurance policy has no vested interest, but merely an expectancy, it seems not unreasonable to argue, that the familiar rule of construction the court applies was proper. While the beneficiary has no vested interest, the member had what may be denominated a right in selection, and no right should be taken

SOME DEFECTS IN TRUST COMPANIES.

This is an age of corporative activity and the shifting of individual financial responsibility. Within the last thirty years corporate growth has been tremendous in the United States.

The laws of corporations have been made applicable to almost every phase of business activity. Companies have been formed not only for the collection of claims and indebtedness, but even for the practice of law—although in the latter instance the courts have refused to recognize them as practicing attorneys. Corporations are now found to act as receivers, as executors, as

administrators, as guardians, as assignees, as personal agents, as real estate agents, as insurance agents, as trustees-usually called "Trust Companies." These are far stretches of the corporate idea. The activities of these institutions have resulted both in good and in bad results in the several lines in which they have sought to operate. The methods they pursue cannot always be commended.

The duties of an administrator, an executor, or a guardian are of a personal character. It has been the aim of courts in the past to appoint persons as administrators, executors, or guardians, not only because of their honesty and integrity, but because of their ability to handle the estate or the property of the ward. In the case of the custody of the ward, the appointment usually was made because of the fitness of the person appointed guardian to have custody of a minor.

So in the case of an assignee, a trustee, or a receiver, the appointee was selected because of his personal fitness.

Not only was the person selected appointed because of his personal fitness, but the courts were not prone to permit one person to assume the administration of several estates, usually limiting his activities to one or two at a time, so that the best results would be obtained by his undivided attention. Usually men were se

lected who had made a financial success of their own affairs.

Every lawyer knows of administrators and guardians who have given as close and careful attention to the administration of the business entrusted to them as if it were their own personal business. Indeed, it was rare to find an administrator or guardian who did not conduct himself in that manner. The same was true of receivers, trustees and assignees. The obligations of personal responsibility for the welfare of their trusts rested upon them as individuals; there were no divided responsibilities which so frequently result in neglect, bad management and loss.

How is it with the Practice of the Trust

Companies in these lines?-Trust companies are formed for the purpose of making money for their stockholders. This is the sole motive for their formation. They are not benevolent institutions. but are thoroughly commercial. The larger their dividends the`more valuable will be their stock, the more satisfied will be the stockholders, and the more likely will their managers be able to retain their positions.

The income of the trust companies in the handling of trusts or estates depends on the fees they receive as administrators, guardians, assignees, and receivers. If the income from these resources can be increased and the expenses of administration diminished, the larger will be the next dividend; or the value of their stock in the market will be enhanced thereby, because of the undivided profits remaining in the treasury.

In the very beginning the monetary interests of the trust companies are antagonisticto those of the trusts they are appointed to administer; and it is an antagonism with which it is difficult to cope. No court can be expected, in making them allowances, to know all the "ins and outs" of the business, nor always the exact value of the services rendered. To some extent the trusts, over which these Trust Companies are put, are at their mercy.