the legal validity of the doctrine, even in the extreme circumstance of goods held in the freight station at destination beyond the expiration of a reasonable time for their removal by the consignee, insisting that the legal transition in the measure of liability did not affect the common carrier relation.

90

The influence of this confusing doctrine also appears in the application of the Interstate Commerce Act. The United States Supreme Court has held that since the Act defines "transportations" to include receipt, storage, and delivery, the terminal railroad continues to hold the interstate shipment as common carrier until actual delivery to the consignee, though a reasonable time has elapsed, the freight has been paid, and part of the goods removed.900 In reaching this decision the Court expressly denied the creation of a new relation of warehouseman within the state of destination which would substitute the measure of liability of the state law for that of the federal law. The Court also construed this definition of transportation to have been introduced into the Interstate Commerce Act for the very purpose of bringing the law of interstate railroad carriers into harmony with the actualities, by extending the relationship of interstate common carrier and shipper to cover the entire business undertaking. Contrast with this the established rule of construction of the Carmack Amendment to said Act," that the liability of the initial carrier for loss or damage to the goods ceases the instant the terminal carrier holds them as warehouseman under the shifting relations test.92 What is the result? That the harlequin character of the common carrier is not only perpetuated but extended under the Interstate Commerce Act. For some purposes he is treated as retaining his interstate common carrier personality throughout, while for others, as to the same goods,

90 Southern Ry. Co. v. Prescott, 240 U. S. 632, 637–641 (1916); Cleveland etc. Ry. Co. v. Dettlebach, 239 U. S. 588 (1916); Michigan Central R. R. Co. v. Owen & Co., 256 U. S. 427 (1921); Efland Hosiery Mills v. Hines, 184 N. C. 356, 114 S. E. 472 (1922).

91 Carmack Amendment to Interstate Commerce Act, § 20, June 29, 1906, 34 STAT. AT L. 595.

92 N. Y. etc. R. R. Co. v. Chandler, 129 Va. 695, 106 S. E. 684 (1921); Hogan Milling Co. v. Union Pacific R. R. Co., 91 Kan. 783, 139 Pac. 397 (1914); Adams Seed Co. v. Chicago etc. R. R. Co., 181 Ia. 1052, 165 N. W. 367 (1917); Keystone Publishing Co. v. Pa. R. R. Co., 78 Pa. Sup. Ct. 486, 490 (1922); Adams Express Co. v. Croninger, 226 U. S. 491, 511 (1913).

in the same place, and at the same time, he is deemed to have had thrust upon him the new character of warehouseman, thus possessing both characters simultaneously, the one predominating over the other according to the nature of the particular question involved.

Another practical inconsistency of the doctrine of shifting relations is found in the field of legislation regulating public warehouses. The Massachusetts Public Warehouse Act 93 affords a good illustration. The draftsmen of that statute, after defining a public warehouseman to include a railroad corporation, seem to have bethought themselves of the practical connotations this involved. Forced then to recognize the actual normal situation that the common carrier only warehouses the goods as an incident in the ordinary performance of the business transaction of common carriage, they endeavored to bring the statute into harmony with the every-day facts by adding a proviso which expressly declared that "a railroad corporation licensed as a public warehouseman shall not be required as such to receive any property except such as has been or is forthwith to be transported over its road."

The fundamental thought is the unity and continuity of the common-law relation corresponding to the unity and continuity of the business transaction which it controls; in other words, that the common-law relation of common carrier of goods and shipper is coterminous with the business fact. It is submitted that the relation operating through its shifting incidents of liability will solve every problem until the goods have been finally stored by the common carrier with a real public warehouseman, or sold under statutory authority to recover freight and charges.

93 1921 MASS. GEN. LAWS, c. 105, § 1.

94 Louisville etc. R. R. Co. v. Brewer, 183 Ala. 172, 62 So. 698 (1913); Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 170, 182, 17 N. E. 721, 725 (1888); Burnell v. New York Central R. R. Co., 45 N. Y. 184, 188 (1871). See 2 HUTCHINSON, CARRIERS, 3 ed., § 786; 4 R. C. L. 763. In the light of these authorities, to the effect that the common carrier may terminate the business transaction and all relational incidents of liability by storing the goods in a public warehouse at the shipper's expense, after holding them a reasonable time at destination awaiting delivery, coupled with the cases cited in note 81, supra, establishing his right to a reasonable storage charge if, instead, he retains them in his own freight-house, the case of State v. Chicago, M. & St. P. Ry. Co., 68 Minn. 381, 71 N. W. 400 (1897), appears erroneous. It held unconstitutional a

95

The doctrine of shifting relations stands a dogma of inertia in our law. That it exists is simply because human kind dislikes to think through the accepted formulae and test their worth in the crucible of actuality. Once the courts are confronted with the technical juggling inherent in the doctrine of shifting relations, and are convinced that the just result they seek may be as readily accomplished as a practical matter and without the unseating of established decisions, it is to be hoped that they will hasten to return to the true path of scientific legal development. Should they fail to see the light, may we not look forward to the elimination of such anomalous doctrines by the American Law Institute in its authoritative restatement of the law?

George Jarvis Thompson.

UNIVERSITY OF PITTSBURGH
SCHOOL OF LAW.

statute requiring railroads and transportation companies to turn over to a storage company or public warehouseman all property which the consignee failed to call for or receive within twenty days after notice of arrival, declaring that the statute did not relate to the general welfare but was purely for the promotion of private interests. Since the shipper must pay a reasonable storage charge even to the carrier, and since there is a public policy in keeping the freight stations free from congestion, this would seem clearly a matter within the discretion of the legislature as the proper policy-declaring department of the government.

95 See the rule in Shelley's Case referred to as a dogma of inertia in Pennsylvania, in Pierce v. Hubbard, 10 Pa. Co. Ct. 63, 64 (1891), aff'd in 152 Pa. St. 18, 25 Atl. 231 (1892), where the court said: "A determined effort was made to abolish or restrict it in this state at that time [1877], and occasional efforts have been made since, but without success, an inertia, miscalled conservatism, to the discredit of that good word, having prevented such a wide measure of justice from being embedded in our law."

THE ELEMENT OF INTENT IN SURRENDER
BY OPERATION OF LAW

THE frequently cited case of Lyon v. Reed,' which has ex

ercised a powerful influence in questions involving surrender by operation of law, indicates that "surrender would be the act of the law, and would prevail in spite of the intention of the parties."" Baron Parke seems to have felt that he had adequate historical support for this statement, and he offered no other substantial ground for it. Because of the difficulties into which a strict adoption of his opinion would lead, it appears that an independent investigation of the question should be made with a view to disclosing whether historical or other reasons exist which constrain agreement in it.

The Statute of Frauds provides that "no leases, estates or interests either of copyhold, or terms of years .. shall at any time . . . be assigned, granted or surrendered, unless it be by deed or note in writing signed by the party so assigning,

or by act and operation of law." If the phrase "act and operation of law" had a well-defined meaning before the Statute of Frauds was passed, which meaning excluded any question of intent, it may be that such interpretation should prevail under the Statute. On the other hand, if it had no accepted meaning at that time, or if the element of intent was not then disregarded as immaterial, we should be free to give it such rational and practical interpretation as might seem to be proper.

That there are two classes of surrender, i.e., surrenders in deed and surrenders in law, seems to be commonly recognized by

1 13 M. & W. 285 (1844).

2 At p. 307.

3 29 CAR. II., c. 3, § 3; 8 STAT. AT L., Pickering ed., 405. 1923 CAHILL'S CONSOL. LAWS OF N. Y., c. 51, § 242, shows provision for surrender "by act or operation of law." 1920 PA. STAT. (West Pub. Co.), § 20192, provides for surrender "by act and operation of law." These illustrate the situation in many states. In other states the failure of statutes to mention surrender by operation of law has not prevented the courts from following the English rules on the subject. See Duncan v. Moloney, 115 Ill. App. 522 (1904). See also 2 REED, STATUTE OF FRAUDS, §766; 27 C. J. 225.

courts and text-writers, and it seems settled that the surrender "by deed or note in writing" requires a constitutive document,* but the surrender "by act and operation of law" is clearly intended to be proved by some other kind of evidence. The words of the Statute seem to support the idea that an "act" of some kind is to be followed by a certain legal consequence, i.e., an "operation of law;" that the surrender "in law" is the result of an act to which the law will attach this significance under proper circumstances. This presents the questions, what kind of act" is required? Is intent a material element of such an act? It is assumed that "act" as used here cannot take the meaning of "deed," because that would give the "act and operation of law" clause of the Statute the same sense as the "deed or note in writing" clause. Therefore it would seem to mean something less formal, -some conduct having less evidential force. The nature of the "act" is suggested by the two following situations where it is well settled that surrenders in law are accomplished: (1) where a tenant for years has accepted a new, valid lease which is inconsistent with his prior one; 5 (2) where he has returned and the lessor has accepted possession, both parties intending to end the term. In the first of these situations there seems to be compelling evidence of a mutual intention of the parties to abrogate the former lease. In the second situation the acts of the parties affecting possession may not clearly disclose their intention, and this uncertainty necessitates the introduction of further evidence. Such evidence might indicate, of course, that there was no mutual intention to end the term, that the landlord entered to make repairs, or accepted the key (sometimes a symbol of possession) by mistake or for a temporary purpose."

4 See WIGMORE, EVIDENCE, 2 ed., § 2454.

5 Fulmerton v. Steward, 1 Plowd. 102 (1555); Ive v. Sams, Cro. Eliz. 521, 5 Co. Rep. 11а (1596). See TIFFANY, REAL PROPERTY, 2 ed., 1582, text and note. 6 Dodd v. Acklom, 6 M. & G. 672 (1843).

7 Evidence has been admitted to show that the landlord entered for the purpose of making repairs, not intending to accept a surrender. Pier v. Carr, 69 Pa. St. 326 (1871); Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94 (1892); Smith v. Hunt, 32 R. I. 326, 79 Atl. 826 (1911); Breuckman v. Twibill, 89 Pa. St. 58 (1879).

The act of accepting the key of premises, if qualified by an intent to accept return of possession and to end the leasehold interest is held to operate as a