Central Law Journal. A LEGAL WEEKLY NEWSPAPER Central Law Journal Company 420 MARKET STREET, ST. LOUIS, MO. To whom all communications should be addressed. Subscription price, Five Dollars per annum, in advance. Subscription price, including two binders for holding two volumes, saving the necessity for binding in book form, Six Dollars. Single numbers, Twenty-five Cents. Copyright, 1914; 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. Indemnitor's Liability for Interest Accruing on Judgment Affirmed by Appellate Tribunal Though Beyond Amount of Indemnity NOTES OF IMPORTANT DECISIONS. Marriage-Untruthful Protestations of Affection as Ground for Annulment..... Husband and Wife-Surgical Operation on Wife Not Requested but Passively Accepted 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 135,000 definitions. 8 volumes $48.00 delivered West Publishing Company 181 00844 182 183 MISSOURI, WEEKLY DIGEST OF CURRENT OPINIONS 195 University of Michigan Three years' course leading to the degree of LL. B. The degree of Juris Doctor (J. D.) open to graduates of approved universities and colleges. Regular session October to June, inclusive. Credit towards either degree may be obtained through work in the summer session of ten weeks. Law library of about 33,000 volumes. A fourth year of work leading to the degree of Master of Laws and permitting of specializations has been organized. For announcements, address, DEAN, DEPARTMENT OF LAW, University of Michigan, Box X, Ann Arbor, Mich. FRESH FROM THE PRESS "Trust Estates as Business Companies" By JOHN H. SEARS. An Elaborate Treatment of a Method of Business Organization, Which it is Submitted, Will be Found Superior to Incorporations, Under Existing Conditions, for all Kinds of Legitimate Business, Willing to Pursue a Policy of Honesty and Good Faith. Many of the greatest corporations of our large cities have already been reorganized on the new basis and many more are interested. Lawyers should be fully informed on this new and important development of the law. A Treatise of 400 Pages, Bound in Law Buckram, Containing a Careful Discussion of Extensive Authority, Together with Complete Exhibits of Agreements and Declarations of Trust Establishing Companies for Various Purposes. Price, prepaid, $5.00 ADDRESS Central Law Journal Company 420 Market St. St. Louis, Mo. "Here is Your Answer, "in You Need This! WEBSTER'S NEW INTERNATIONAL Gregory's Common Law HON. GEORGE C. GREGORY. What pleading gives you the most trouble! How often attorneys have been thrown out of court or limited in their recovery by unfortun ate errors in the petition? This book will save you these mistakes! Over 109 complete forms, covering every vari ety of action and dealing with commencement and parties, statement of cause and prayer for relief. Every form supported by authority! Central Law Journal Company Central Law Journal. ST. LOUIS, MO.. MARCH 20, 1914. JURISDICTION OF STATE BOARD IN FIXING RATES BETWEEN TWO PORTS IN A STATE WHERE ROUTE IS OVER THE HIGH SEAS. It has been held that a state board may not fix and enforce rates for traffic moving from one point in a state to another in the same state, where the shipments passed any appreciable distance through another state because this would be an attempt to regulate commerce among the several states. In California the question arises whether or not a vessel plying between two ports in a state is subject to regulation by a state board, where its route is over the high seas. Wilmington Transp. Co. v. Railroad Commission, 137 Pac. 1153. The commerce clause of the Constitution reads: "The Congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes," and under it our Supreme Court has held that a vessel engaged in gathering sponges on the high seas and transporting them to the United States is engaged in foreign commerce and is amenable to the regulative power of Congress. Abby Dodge v. U. S., 223 U. S. 166. By this decision it would seem that the court held that what is taken from the high seas is taken from a foreign country in the sense of the commerce clause. But here the question is whether merely using the high seas as a route between points in a state is regarded as outside of state lines, so far as the commerce clause is concerned. It does not seem to present the same difficulty in supposing that Congress should protect our coast from the introduction from the high seas of merchandise picked up thereon or from thereunder, as that it was intended to interfere with state regulations over vessels, which, in plying between ports of the same state, passed outside of the shore mark, and entered the area common to all nations. This is a practical, as well as a theoretical question. Vessels in thus being upon the high seas would be there as of common right and when they passed over the line they took upon themselves no obligation to any other authority. This line that puts a vessel upon the Figh seas is but an imaginary line and it depends greatly on the configuration of the nearest land bounded by the sea. U. S. v. Grush, 5 Mason, 290, was where Justice Story defined the term bigh seas as being the uninclosed. water which is without the fauces terrae on the seacoast, and it is evident that it might constantly be changing. When the commerce clause speaks of commerce among the several states it refers to something more permanent in its nature, and, generally, it refers to commerce which would belong to one state or another, but for the intervention of the clause. But an incidental crossing of waters not Letween narrow headlands or promontories and the raising of questions of fact as to what is uninclosed sea hardly was meant. where all of it was for the free traversing of seacraft. This commerce clause arose out of the ccèssities of our form of government, and it is to be applied to suit our convenience. If the sea produces articles of commerce, e. g. sponges, as in the Abby Dodge case, supra, then the clause would attach, and if it remains a highway then it would not attach. The clause operates in an exclusive way, but not to interfere unless there is a recessity for interference or to control a particular subject. Take also questions in maritime law and here it is readily seen the federal law must take hold. Ford v. Steamship Co., 102 U. S. 541; Re Garnett, 141 U. S. 1. In such case there is no question of commerce with a foreign nation involved. The clause says 'commerce with foreign nations," and we might go far beyond the border line of high seas before there would be any question of commerce with a foreign nation. an inconsistency of this kind? Why have The California court rightly held, we be referred to in the testimony! think, that all transportation over waters outside of the territorial waters of a state is not necessarily commerce with foreign nations. The clause more correctly seems to embrace commerce with a specific foreign nation and not commerce with the high seas in which our government and all governments have the same interest, and that interest the right freely to traverse. The high seas as a route is not supposed to have any commerce. PARDON-UNACCEPTED TO TOLL PRIVILEGE AGAINST INCRIMINATION.—In U. S. v. Burdick and Curtin, 40 N. Y. L. J. 2731, Hand, D. J. gives his view for the observance of a pardon removing the reasons for a witness refusing to testify on the ground, that his answers will tend to incriminate him. NOTES OF IMPORTANT DECISIONS. DEATH-ADMISSIBILITY OF EVIDENCE AS TO NUMBER OF CHILDREN LEFT BY DECEDENT IN ACTION FOR.-In Iowa "the only true measure of recovery for the death of an individual is the value of his life to his estate," and therefore under a statute having this idea in view it was held that it was not improper to admit evidence of the number of children he left. It was thought that just as the fact of decedent's marriage tended to show an incentive to thrift and accumulation, the further fact that he had children was admissible on the same theory. Nicoll v. Sweet, 144 N. W. 615. Two judges dissented from this view, but they proceeded along the line that the court should exercise some control over the admissibility of testimony, and where the evidence is more calculated to excite sympathy than to show what would be the value of one's life, it ought to be excluded. life, or If the beneficiaries of decedent's their representatives, had to bring an action for his death, a question of this kind could hardly arise, because it would appear in the pleadings, whether he had a wife or a wife and children or not. And why should it not appear who are the beneficiaries, when in some states the rule of recovery is said to be according to the interest there is in decedent's life on the part of the plaintiff. Under these circumstances defendants might be more than glad to show a decedent had left neither wife nor children. These statutes, as the majority in this case show, express a "rule that is vague, uncertain and speculative, if not conjectural, but it is the best which judicial wisdom and experience has yet been able to formulate." A widow can bring her children into the court room with her and yet they cannot In this case there was an attachment for contempt for refusal by two witnesses to testify regarding the sources of their information as to customs frauds, they contending that disclosure would subject them to prosecution under certain sections. The judge reviews the instances of pardons. which in this country have been confined to amnesty proclamations, but in only one instance was there a pardon for any such purpose as in this case. It is recited that: "Presi dent Jefferson appears to have issued a pardon to a proposed witness in the trial of Aaron Burr, with a view to tolling the privilege, but though the witness refused to accept it, I cannot learn that the question of privilege was raised upon the trial itself." But, whether refusal would be considered, it was said: "The witness only needs protection and he is protected when the means of safety lies at hand. If he obstinately refuses to accept it, it would be preposterous to let him keep on suppressing the truth on the theory that it might injure him. Legal institutions are built on human reeds and are not merely arenas for the exercise of scholastic ingenuity." The precedent thus set may call into exercise quite frequently the pardoning power, instead of prosecuting officers promising free dom from prosecution. OBSERVATIONS ON REFORM OF The iconoclastic hand of reform, having dealt with more or less violence with practically every other subject of general concern, is now stretched toward the laws and the courts. As is usually the case with reform agitations, there is manifested a contemptuous disregard for traditions and institutions of the past and a gross carelessress of future results which, combined with *Paper read before the Bar Association of the Nineteenth Judicial Circuit of Missouri. a disposition to disturb governmental equilibrium by removing the conservative straining force of the courts of law lately so widespread and supported by public men of great genius of leadership, tend to produce a situation worthy of serious consideration, to say the least. Reforms based upon real and existing public necessities, and accomplished at the end of the mature deliberation of thoughtful and reasoning minds, are not objects of dread, but ought rather to be encouraged, especially by members of any class directly affected, whether their own peculiar interests be promoted or not. But reforms born of ambition for political power and carried into effect upon waves of political excitement seldom have any corrective influence, and usually prove upon experiment to be reforms in name only. Judges of the courts and students of the law, already recognized as conservatives, have, as a class, failed to engage in the promotion of strange doctrines, and the consequent displeasure of reform advocates has found expression in the term "reactionaries." which has indeed been applied with marked impartiality to all who have counseled cautious and deliberate action. revolutions have their price, and only occasionally do they prove worth their cost, and men whose habits and associations lead to a close observation of this general truth feel impelled, regardless of the temporary displeasure of others, to resist the adoption of radical measures in public reforms until the most careful consideration from every conceivable viewpoint assures beyond serious question the probable beneficence of the results to be expected. The reform measures which are now proposed as calculated to correct existing evils and abuses in the administration of the law are almost as numerous as the individual advocates of the reform theories, but in general they pretend only to effect changes in the rules of court procedure. Nevertheless they present, in part, at least, suggestions so contrary to all accepted forms of established order in the direction of human affairs that they have so far failed of the support of any considerable number of judges and lawyers of the country. It may aid to a better understanding of the views to be presented here, if we do not lose sight of the fundamental fact that the legitimate office of government is the attainment and security of a stable and settled condition of society. The history of human governments exhibits a continuous and prolonged effort to accomplish this end, which, until comparatively recent times, was approached in a greater or less degree by the suppression of individual activity. The more ancient theory was that the security of the prerogatives of the ruling power and the stability of the organized state was possible only in inverse ratio to the degree of recognition accorded by the sovereignty to the individual or personal right. This theory, which still prevails with some unimportant concessions in practically all of the Old World nations, was transplanted to American territory by the colonist, who knew no other and therefore regarded it as the only substantial basis upon which an orderly condition of society could be maintained. Without attempting a review or discussion of the causes which necessitated such a course, it suffices here to recall that the establishment of independent American government developed a radically different. theory-that of maintaining together an orderly society and an unrestricted individual activity. It was the bold conception of the founders of this government (born perhaps of the difficulties attending the application of any previously tried theories) that man. could be at once civilized and free. This is the principle which distinguishes American liberty, and which, denounced in its beginning by every respectable political authority as visionary and impractical, has in its operation challenged the attention and admiration of the world as a nurturer of a strong social fabric and tremendous political power. |