« ForrigeFortsett »
bear the burden of such proof and yet satisfy a court requiring the proof of a single legacy by a preponderance of evidence. For this reason the issues in the tort action are not made res judicata by the probate decree. Hibshman v. Dulleban, 4 Watts (Pa.) 183; Angel v. Hollister, 38 N. Y. 378; Long v. Baugas, 2 Ired. (N. C.) 290.
TORTS STATUTORY LIABILITY WHETHER INFANT'S DECEIT BARS ACTION UNDER CHILD LABOR STATUTE. While employed in the defendant's plant, in violation of a child labor law, a minor sustained injuries. Neither party was negligent. The minor had represented himself as of legal age. His mother now sues in his behalf. Held, that she can recover. Alexander v. Standard Oil Co., 72 So. 806 (La.).
It is settled that a violation of a child labor law followed by injury in the employment gives a cause of action to the minor. See 28 HARV. L. REV. 433. And courts generally disallow the plea of contributory negligence. Pinoza v. Northern Chair Co., 152 Wis. 47, 140 N. W. 84. Contra, Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876. Nor can assumption of risk be pleaded. Thomas Madden, etc. Co. v. Wilcox, 174 Ind. 657, 91 N. E. 933. But the contributory fault in the principal case was of a significantly different order. An employer who knows he is hiring a minor under age can reasonably be deprived of the usual defenses, based on conduct of the minor from which the statute meant to save him. It is another thing to make an innocent employer the insurer of minors whose conscious misrepresentations are to be made the source of his absolute liability. Now it has been held that an action for deceit will lie against an infant. Rice v. Boyer, 108 Ind. 472, 9 N. E. 420. The misrepresentation, by causing the employment, was a proximate cause of the employer's liability. It is, therefore, submitted that the plea of deceit should be good, either by way of counterclaim or to prevent circuity of action. Cf. Dushane v. Benedict, 120 U. S. 630. The decisions, however, support the principal case. Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229; Beauchamp v. Sturges, etc. Co., 250 Ill. 303, 95 N. E. 204; Kirkham v. Wheeler-Osgood Co., 39 Wash. 415, 81 Pac. 869. Contra, Koester v. Rochester Candy Works, 194 N. Y. 92, 87 N. E. 77.
TRADE MARKS AND TRADE NAMES - PROTECTION APArt from StatUTE FAILURE TO COMPLY WITH STATE STATUte as Bar to RELIEF AGAINST UNFAIR COMPETITION. - The defendant, a foreign corporation, engaged in business in Missouri without taking out a license. Thereupon, for the purpose of pirating the business, the complainant corporation organized under the same name, receiving a certificate of incorporation from the Secretary of State. The complainant filed a bill to enjoin the defendant from doing business in the state under its corporate name. The defendant filed a cross bill. Held, that the defendant was entitled to judgment on its cross bill. General Film Co. of Missouri v. General Film Co. of Maine, 237 Fed. 64.
Trade names are acquired by adoption and user and belong to the one who first used them and gave them value. See Nesne v. Sundet, 93 Minn. 299, 101 N. W. 490. A corporation may choose any name, subject to the rule that it may not choose the name of a corporation already existing, or one that is to be used to deceive the public. See Van Houten v. Hooton Cocoa Co., 130 Fed. 600. See NIMS, UNFAIR BUSINESS COMPETITION, § 102. Nor does the issuance of a charter to a corporation under a certain name give it a right to use that name if it was deliberately chosen or used for the purpose of deceiving the public and thereby appropriating the business of another. Peck Bros. v. Peck Bros., 113 Fed. 291; Bender v. Bender, 178 Ill. App. 203. Clearly, then, the defendant had a right to the trade name. Such right is enforceable in equity. For the failure of a foreign corporation to comply with the terms of a licensing statute
is not a bar. The maxim of "unclean hands" applies only when the wrongdoing has some association with the right on which the complainant depends. See I POMEROY, EQUITY JUR., 3 ed., § 399; 25 HARV. L. REV. 481. The furthest the courts have gone is to disqualify a complainant in case there is deceit associated with the trade name or mark. Manhattan Medicine Co. v. Wood, 108 U. S. 218; Worden v. Cal. Fig Syrup Co, 187 U. S. 516. The principal case arose in the federal courts. Now, being a foreign corporation, the defendant had the right to its name regardless of its Missouri business. And the federal courts conceive that the right of property in a trade name is incapable of being curtailed or limited territorially by statutes like that in the principal case. U. S. Light & Heating Co. of Maine v. U. S. Light & Heating Co. of New York, 181 Fed. 182. See Consolidated Ice Co. v. Hygeia Co., 151 Fed. 10, 11. Even if the violation of the statute were by its terms to exclude corporations from state courts, the federal tribunals would still be left open to them, since the penal part of a statute does not apply to the federal courts. New York Breweries Co. v. Johnson, 171 Fed. 582. See U. S. Light & Heating Co. v. U. S. Light & Heating Co., supra, 186.
WAR - CONFISCATION OF NEUTRAL SHIPS FOR CARRYING CONTRABAND CARGOES - CHANGE IN INTERNATIONAL LAW. - A Swedish vessel carrying a full cargo of conditional contraband to a German port was captured by a British man-of-war. There was no evidence that the owner of the ship knew of the character of the cargo. Held, that the ship is subject to condemnation. The Hakan,  P. 266.
A Danish ship carrying a full cargo of conditional contraband between two neutral ports was captured by a British man-of-war. There was evidence that this carriage was part of a continuous voyage which was to end in German territory. There was a dispute as to whether the shipowner knew of the ultimate destination of the cargo. Held, that the ship is subject to condemnation. The Maricaibo,  P. 266, 286.
For a discussion of these cases, see NOTES, p. 497.
WITNESSES COMPETENCY IN GENERAL-EFFECT IN CRIMINAL TRIAL IN FEDERAL COURTS OF FORMER CONVICTION OF CRIME IN STATE COURTS. In a criminal trial in a federal court in New York, a witness was offered, who at the age of eighteen had been convicted of forgery in a New York state court and had been given an indeterminate sentence at a reformatory. Held, that he was a competent witness. Rosen v. United States, 56 N. Y. L. J. 771 (C. C. A., 2nd Circ.).
The court rests its decision on a supposed distinction between reform and punishment. In criminal trials in the federal courts, the competency of witnesses is determined by the law of the state as it was at the time of the Judicature Act of 1789, or at the time the state was admitted to the Union. United States v. Reid, 12 How. (U. S.) 361; Logan v. United States, 144 U. S. 263; Maxey v. United States, 207 Fed. 327. In the absence of state decisions of that time, the common law controls, according to which conviction of forgery brings infamy. Rex v. Davis, 5 Mod. 75. Cf. Poage v. State, 3 Ohio St. 229. Therefore a subsequent substitution of reform for punishment is immaterial. Further, it is well settled that it is the infamous nature of the crime and not the character of the punishment which determines the qualification of a witness. People v. Park, 41 N. Y. 21; The King v. Priddle, 1 Leach C. C., 4 ed., 442. See Bartholomew v. People, 104 Ill. 601, 607. See also GREENLEAF, EVIDENCE, 15 ed., § 372, n. 1. However, the result might be supported on another ground. A witness is ordinarily disqualified only in the jurisdiction where he was convicted. Commonwealth v. Green, 17 Mass. 514; Sims v. Sims, 75 N. Y. 466. Contra, State v. Candler, 3 Hawks (N. C.) 393. See STORY, CONFLICT OF LAWS, 7 ed., § 92; 21 HARV. L. REV. 547. Since the state and federal courts
are the agents of different sovereigns, conviction in one would not disqualify a witness in the other. Brown v. United States, 233 Fed. 353. On account of present uncertainty it might be advisable to extend to criminal cases the federal statute which now provides that in civil cases the courts shall be governed by the law of the state in which the trial is held. See 34 STAT. AT L. 618; U. S. COMP. STAT. 1916, § 1464.
A TREATISE ON THE AMERICAN AND ENGLISH WORKMEN'S COMPENSATION LAWS. By Arthur B. Honnold. Two volumes. Kansas City: Vernon Law Book Co. 1917.
The first volume of this treatise contains a comprehensive and well-arranged compendium of the decisions and opinions of the courts, industrial commissions, accident boards, attorneys-general, etc., construing the various workmen's compensation and compensation-insurance laws in the United States and Great Britain. To the legal profession and the legislator this part of the work will be invaluable, a large proportion of the decisions, etc., to be found therein being inaccessible in any except the largest libraries, and being even there difficult to find because unindexed in the common digests. The second volume contains a complete edition of the text of all such laws. It is regrettable that this part of the work could not have been omitted and its place partially supplied by references to the statutes, where appropriate, in the text of the first volume. Not only do some of the decisions cited in the first volume relate to earlier texts of statutes which in this compilation appear in amended forms (e. g., McWeeny v. Standard Boiler Co., 210 Fed. Rep. 507, cited under § 204), but also in many of the states the legislatures are even now busily engaged in adding to the list of compensation statutes and amending existing statutes, with the consequence that within a few months this compilation will in all probability be out of date. And whatever value it would otherwise have for the time being has been largely sacrificed by the lack of an adequate index. In the index provided — to illustrate reference is made under the heading "Diseases" to provisions in the statutes of Iowa, Kentucky, New York, Wisconsin, and Great Britain; but a cursory examination reveals special provisions relative to disease also in the statutes of Colorado, Indiana, Louisiana, Maryland, Nebraska, Pennsylvania, Vermont, and Wyoming.
The fact that many of the thirty-four systems of law covered by this treatise are in a state of evolution and rapidly changing has made time the essence of the author's task, with the consequence that in his haste to publish his material he has allowed many minor errors and inaccuracies to remain uncorrected in his text. For examples: In § 20, the New York Compensation Act is referred to as "elective only with the employer," whereas, in ordinary sense, that act is altogether compulsory. In § 103, De Voe v. N. Y. State Railways, 169 App. Div. 472, is cited in the course of a presentation of the distinction between hazardous and non-hazardous employments, whereas that case was decided on the ground that at the time of the accident the injured workman was not engaged in any employment whatsoever. In § 121, De Filippis v. Falkenburg, 170 App. Div. 153, is cited as deciding that an injury due to "horseplay" by a coemployee arises out of the employment, whereas the decision was to the contrary. In § 138, ptomaine poisoning and typhoid fever are mentioned as diseases "commonly known as occupational diseases," whereas commonly they are regarded as the very opposite of "occupational diseases," though under some circumstances they may be "accidents." And in a footnote to § 204 it is stated that the Ohio
statute contains no definition of “wilful act,” whereas that statute was amended in 1914 expressly to define that phrase.
Because the industrial commissions and accident boards in a number of our states not only exercise quasi-judicial functions but also provide insurance, some of their pronouncements are neither judicial nor administrative, but are rather in the nature of advertising "puffs" for their insurance schemes. Obviously pronouncements of the last-mentioned kind have no place in a legal textbook. Nevertheless some of them are to be found in the work under review. For instance, in § 5 are presented claims for the stability of protection afforded by the Washington State Insurance Fund. The weight to be given to such claims may be deduced from the fact that within the last few months the auditor of the state of Washington, after an examination and audit, has reported that the Washington State Fund is unsound in principle, insolvent in fact, and mismanaged in practice.
To the student of "the law of compensation" it may be disappointing that the author has refrained from any personal discussions of the principles underlying the statutes under consideration or of the grounds for choice between alternative principles and practices. For illustration, though he points out in § 138 that the tendency has been to deal with industrial accidents distinct from industrial diseases, he does not attempt to explain why compensation has generally been granted only for "injuries by accident" to the exclusion of "injuries by disease." But consideration of the vastness of the field that would have been opened up by any other course makes it plain that for immediate usefulness the author has chosen the better part in limiting himself to a bald presentation of the British and American authorities. Moreover our American compensation laws are highly and hurriedly empirical and imitative; and an authoritative commentary upon principles would require a more thorough exploration of European sources than American commentators have yet had time and opportunity to make.
The foregoing criticisms simply indicate some limitations to the usefulness of this work and some qualifications to its reliability. The author has aimed to produce a treatise of immediate helpfulness, and, in spite of the unusual difficulties of his task, has eminently succeeded. P. TECUMSEH SHERMAN.
BELGIUM AND THE GREAT POWERS: HER NEUTRALITY EXPLAINED AND VIN-
BELGIUM'S CASE: A JURIDICAL ENQUIRY. By Charles de Visscher. Trans-
These are two of the recent additions to the crop of controversial books dealing with the German invasion of Belgium in 1914. The first, that of the late M. Waxweiler, is, from a legal point of view at least, of scant importance. It really is fervid patriotic pamphleteering, designed to meet the equally patriotic and insignificant books of various Germans; and the war of the professors at times becomes quite violent. The first section of the book, dealing with the policy of Belgian resistance, is certainly of no importance to a student of international law. The part (pp. 44-117) given over to a denial of any Belgian-English ante-bellum arrangement would be of little value even if the evidence were presented more clearly and more frankly. And Belgium's innocence can hardly be proved by the fact that even ten Belgian diplomatists believed in it (cf. p. 86). In discussing Belgium's duty to resist passage by a belligerent, the Treaty of 1831 alone is mentioned; M. Waxweiler is either ignorant of, or attaches no importance to, the provisions
of the Treaty of 1839. For the student of the international law question raised by the invasion of Belgium, this volume is negligible.
Professor de Visscher's is a book of a very different sort. The ablest book on the subject that has yet appeared (with perhaps the exception of Dr. Dernburg's), it is obviously the work of a trained lawyer and a skilled logician. The basis of Belgium's neutralization, the treaties of 1831 and 1839, is explained lucidly and accurately enough, with the very important exception that the author does not state, indeed inferentially denies (p. 70), that the Treaty of 1839 failed to "textually insert" the "garantissent" articles of 1831. The neutrality of Greece is treated with perhaps not absolute fairness. The German arguments of necessity (notrecht) and self-defense against France (notwehr) are effectually disposed of upon the facts; but the author is discreetly silent as to similar theories held by English writers at least as late as 1914. Professor de Visscher disposes of the Belgian-British-French intrigues as skilfully as is possible. As he accurately states, Germany was bound by the Hague Convention (5) of 1907 on the morning of August 4, 1914, when Belgium was invaded, since it was not at war with a non-contracting power until II P. M. of the same day. A narrow gap of time, but a sufficient one. There can be no question that the Germany of to-day is a party to the treaties of 1831 and 1839; the question is, did these treaties, coupled with subsequent events, deprive Germany of the power to declare war against Belgium (as she did), and hence make the invasion of Belgium an invasion, not of a belligerent, but of a neutral? Only in that event can there have been a violation of the Hague Convention. This fact Professor de Visscher fails to realize adequately (see pp. 146 et seq.).
These are the defects most apparent in M. de Visscher's work. Frequent citations of American authorities are pleasant, as perhaps they were designed to be. The book is a reasonably fair as well as an able one, restrained throughout. It is a pity that some American writers upon the invasion of Belgium, ex-assistant attorneys-general and men of even higher ex-official rank, cannot learn both international law and moderation from this professor of Ghent. RAEBURN GREEN.
HANDBOOK OF THE LAW OF PRIVATE CORPORATIONS. By William L. Clark, Jr. Third Edition by I. Maurice Wormser. St. Paul: West Publishing Co. 1916. (Hornbook series.) pp. xiii-803.
In 1897 Clark on Corporations was made part of the Hornbook series. The HARVARD LAW REVIEW (10 HARV. L. REV. 530) called Mr. Clark's work "above the average" in the student text field.
So great has been the development in Corporation Law since the work of Mr. Clark, that a new edition of the text became essential. Mr. Wormser of the New York Bar, and professor of law in Fordham University Law School (also author of Wormser's Cases on Corporations), undertook the task of revision and reconstruction. In fact he has had to completely revise the text throughout in order to bring it up to date - abreast with the authorities.
The "Hornbook" idea has been preserved in the topical arrangement of the subject matter. Ample notes, replete with authorities (including those reported in 1916), add greatly to the weight of the text.
Two chapters are distinctly valuable VIII, The Corporation and the State; and XV, Foreign Corporations - showing the relation between Corporation Law and Constitutional Law and Conflicts respectively. The chapters on Membership, Liability on Contracts by Promoters, and Powers are praiseworthy.
Throughout Mr. Wormser is sound and accurate, possessing two virtues not too often attained by "handbook" authors. It is particularly pleasing to find a clear and accurate definition of the well-worn phrase Ultra Vires. Quot