Central Law Journal.

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Copyright, 1913, by Central Law Journal Co. Entered at the Post-Office, St. Louis, Mo., as second-class matter.

NEEDHAM C. COLLIER, EDITOR-IN-CHIEF ALEXANDER H. ROBBINS, MANAGING EDITOR

CONTENTS

EDITORIAL.

Meaning of "Adulteration" in the Pure Food and Drugs Act. Enjoining Heard in Favor of Shippers Charged Illegal Rate. Joinder of Causes of Action Arising Under Federal and State Law...

Was he Guilty?

J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of “occupying a place on the ground for the purpose of recording bets," under a penal statute making that a punishable offense?

See "Occupant-Agent or employee," in Words and Phrases, for the answer

The courts have defined or construed many thousands of words, legal and nonlegal, but all the subject of some legal contest. These definitions can be applied in your practice

Words and Phrases

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Central Law Journal.

ST. LOUIS, MO., FEBRUARY 13, 1914.

PEACE IN OKLAHOMA.

We remember that Oklahoma's Governor and its Criminal Court of Appeals aforetime have been hurling dire verbal bolts at each other, but now it would seem that "grim-visaged war hath smoothed his wrinkled front," as per opinion ex parte Williams, 136 Pac. 597, sustaining the Governor's honoring a requisition.

The court says: "When the Governor's action in any matter is authorized by law, it is our duty to sustain such action, and we take great pleasure in doing so." Courtesy is as courtesy does, but it would more have comported with the court's dignity to have cmitted a speech of this kind. Absence of a Governor's personality and of a court's personnel in documents by either better illustrates dignity than does their obtrusion. CUSTODIA LEGIS EXISTING THOUGH

JURISDICTION IS NONEXISTENT.

Beardsley Co. v. Ashdown & Co., 80 S. E. 128, decided by West Virginia Supreme Court of Appeals, shows that property was placed in the hands of a receiver and converted into money in a suit, where the bill was dismissed for want of jurisdiction.

It was ruled that though there was no jurisdiction to appoint a receiver, the court still had power to correct the wrong as far as possible and turn over the proceeds to the trustee of one of the parties to the litigation, who pending the suit had been adjudged a bankrupt.

The receiver, notwithstanding lack of jurisdiction, was deemed, nevertheless, "the court's officer to serve its convenience, and preserve rights pending their determination."

It seems strange to say that custody of the law exists, though it comes into existence through mere form of law in opposition to its spirit, but it would be greatly worse when a court has jurisdiction to decide a jurisdictional question to say that an erroneous ruling, that it has jurisdiction over a controversy, makes its every step something like trespass.

THE MEANING OF "NEGLIGENCE" IN THE FEDERAL EMPLOYERS' LIABILITY ACT.

The Kentucky Court of Appeals in Helm v. Cincinnati N. O. & T. P. Ry. Co., 160 S. W. 945, says, of an action brought under the Federal Employers' Liability Act that: "This vital question presents itself: When does the Federal Employers' Liability Act give an action for negligence? If the action is based simply upon negligence without any definition or limitation of that term as known and applied under the common law, then it is a familiar rule of construction that the term is to be given its ordinary significance as fixed by the common law."

The court proceeds to quote Section 1 of the act, and then says: "It will be observed, that the act of Congress creates a right of action only when there has been negligence upon the part of the railway company's employes to the injured employe, and when this negligence has caused the injury or death of the employe. The act of Congress does not undertake to define negligence and in no way limits the application of the common law rule upon that subject; and since there is no federal common law, it is the common law of the state where the accident occurred to which we must look in determining whether the acts complained of amount to negligence." The court from this on consults state decision to ascertain what is the common law of that state in regard to negligence, and applies that to the word "negligence" in the

Act.

There seems to us many objections to what the court has announced as a prin ciple and to the use of Kentucky authority though the principle be sound. Numerous federal cases proclaim the independence of federal courts in deciding what is a state's common law, when no federal question was involved, and a fortiori should that independence exist when there is question of interpreting a

federal statute. Indeed. though state courts may never have felt obligated to conform their interpretation to

federal view, where only state law was being enforced, they ought to feel bound to follow that view where federal law is involved.

But it is not true that the fact of there being no federal common law remits to state courts the defining of common law terms employed in federal legislation. Both by Justice Peckham in the Joint Traffic Association case, 176 U. S. 505, and by Chief Justice White in the Standard Oil case, this is made to appear. The burden in construction in anti-trust cases has lain in ascertaining the meaning of common law terms. The common law for the national government has always been recognized in its nomenclature, if in nothing else.

It seems to us, however, that it would be beyond the competency of Congress to have enacted the Federal Employers' Liability Act upon any such theory as the Kentucky court announces. It as a legislative body is fully as much constrained to employ language to which only one meaning shall be applied, as is any other legislative body.

Observe how a different rule would work. Suppose state decision in Kentucky regarded negligence at common law differently than its contiguous state, Ohio. Then an employe as to an injury claimed to be good ground of action might succeed in one state and be unsuccessful in another, and yet each suit would be under the same law.

But are two alleged causes of action happening in diverse jurisdictions really based on the same law? This seems not true, except in a formal sense, if the law has variant interpretation in two different jurisdictions. Indeed, we doubt whether it is federal law at all, for there is no federal law as to whose interpretation and enforcement the federal Supreme Court may sur render its right and duty conclusively to speak.

This seems especially true as to such legislation as the Federal Employers' Liability Act. This is not, however, an unusual peculiarity, because very often, not to say generally, federal laws are merely regula

It may be said, therefore, that the penalty a carrier employed in interstate commerce may have to pay for its negligence, is the same penalty, though the negligence be in Maine or California, in Florida or Minnesota. Congress takes a comprehensive view of the country in this act, and while, possibly, it might divide and subdivide—as to which we are not prepared to say-the country, it has not attempted to do this. There would, however, be a different Federal Employers' Liability Act in some states. than in others, if the theory the Kentucky court follows is sound.

The result of all this is that we must ascertain from federal decision what is the

meaning of "negligence" under this act,

whatever might be our view about federal independence being right or wrong in the cases in which it may have been defined.

sidered was discussed in 78 Cent. L. J., 91, A related question to what is above con

under the title: "Joinder of Causes of Action Arising Under Federal and State Law."

NOTES OF IMPORTANT DECISIONS.

PARTNERSHIP ACCOUNTING UNDER CONSTRUCTIVE SERVICE.-It occurs to the mind to be a little different to make constructive service sufficient in a partnership accounting, than where the res is as between creditor and debtor or as between co-owners merely. The interest of the members of a partnership is always subsidiary, indeed it does not exist except in the surplus over and above debts, and it is not altogether so evident that at the instance of one or more of several partners, the local assets of a partnership may be placed in custodia legis and creditors may be called in, where service upon members of the part

nership is constructive only. The Supreme Court of Minnesota holds that this may be done. Smith v. Smith, 144 N. W. 138.

To our mind the court rules correctly in this, because there is the general right of a partner to call for an accounting and for a receivership to effectuate his purpose, and though this be upon personal service in the state of the other partners, their rights are subordinate to the rights of creditors of the partnership. Therefore the custody of law is proper, though for the primary benefit of others than the parties to a suit. All that creditors are interested in is whether the adjudication of that custody is legally sufficient and, if it binds those having merely an equity in the assets, it binds them to respect the custody. They have their remedy over, if assets are sufficient, as well in cases of constructive service as those of personal service.

The court, however, would seem to be more shorthanded in a proceeding of this kind than in others, where equity constrains a resident as to assets elsewhere located, and therefore practically might not be able to decree fully by way of final accounting.

LANDLORD AND TENANT-JOINT LIABILITY OF CARRIERS USING A PASSENGER STATION IN COMMON.-In 77 Cent. L. J. 464, there was discussed “Liability for Injury to Third Person by Nuisance on Leased Property." There was annotation of a case by Supreme Judicial Court of Massachusetts wherein it was held that a landlord was not liable for injuries to a pedestrian from a nuisance caused by the tenant, the lease providing he should be held "harmless" as to any nuisance so arising. Our note went to showing there was a diversity of view on this question. But whatever be the better rule on this subject, it would seem not to control, notwithstanding the agreement between two railroads using a passenger station in common, one railroad being lessor and the other lessee. Peters v. Detroit & M. Ry. Co., 144 N. W. 827.

The court said: "It is not necessary to consider the rights and duties of defendants under their agreement. Liability of either defendant must rest upon some duty owed to plaintiff not performed; and if both owed the same duty, and neither performed it, it would seem that joint liability should result. * * *Did both defendants owe to plaintiff the duty to maintain the premises in a reasonably safe condition? Of this we have no doubt. They united in extending to him the invitation to come upon the premises. From the joint invitation

and the business carried on there and by both arose the joint and several duty. The defective condition was a decayed plank through which in traveling the platform to which he was invited by both defendants, plaintiff's foot was caught and held." The court then says the question is not presented as to whether if plaintiff had been going there only because of business with one of defendants the other would also have been liable.

Here it is perceived that it is joint invitation alone that is considered to create joint liability, which might be true irrespective of joint occupation of a public place bound by law to be maintained being in itself sufficient or not for this, but that thought is suggested. With such an obligation on a railroad it seems to us that the court would not attempt to unravel evidence to show to which railroad the invitee goes for business reasons. If only one invites, yet the other authorizes him to invite.

THE MEANING OF "PRESENCE" IN ATTESTATION OF WITNESSES TO A WILL.

General Form of Statutes as to Subscription by Witnesses. In nearly every one of our states it is specifically stated that wills, other than nuncupative and olographic wills, must be subscribed in the presence of the testator, some of the statutes saying "attested and subscribed," etc., others saying witnessed or calling subscribers attesting witnesses and requiring that they subscribe in presence, etc. Where the words are "attested in his presence" as are in statutes in Illinois, Colorado and Mississippi, it has been ruled that other parts of the statute may be looked to to see whether this means subscription. It was ruled as to the Illinois statute that it does.1

In Colorado there was nothing to be gathered from the statute generally as to the meaning of the phrase "attested in his presence" and the question whether it included subscription in presence was directly in issue, the fact showing, "that while both. of the attesting witnesses thereto saw" the

(1) Calkins v. Calkins, 216 Ill. 458, 75 N. E. 182, 1 L. R. A. (N. S.) 393, 108 Am. St. Rep. 233.