This list includes only those cases commented upon editorially or in our Notes of Im-
portant Decisions, or in full annotated. The abbreviation Ed., indicates editorially-R. D.,
cases commented upon in our Notes of Important Decisions, and ann. case, annotated case.
Adler v. United States (U. S. C. C. A., Fifth
Cir.) Trial-Participation of Judge by Ex-
amination and Cross Examination of Wit-
nesses Prejudicial to Accused, R. D. 95.
American Land Co. v. Zeiss (U. S. S. C.) Con-
stitutional Law-Lost Records Act of Cal-
ifornia to Cure Confusion and Uncertainty
in Land Titles, R. D. 149.
Asher v. Bennett (Ky.) Infancy-Estoppel to
Disaffirmance by Misrepresentation of Age,
R. D. 412.
Atlantic C. L. R. Co. v. Riverside Mills (U. S.
S. C.) The Carmack Amendment as a Law-
ful Regulation under the Commerce Clause,
and its Logical Possibilities as to Inter-
state Rates and the Common Law Duty of
a Common Carrier, Ed. 129.
Aurora State Bank v. Hayes-Eames Elevator
Co. (Neb.) Bills and Notes-Negotiation,
ann, case. 156.
Bartlett v. First Nat. Bank of Chicago (Ills.)
Bills and Notes-Fictitious Payee, ann. case,
198.
Barrett-Hicks Co. v. Glas (Cal.) Open Account
-Burden of Proof to Show Payment, R. D.
114.
Blerce v. Waterhouse (U. S. S. C.) Pleading and
Practice Amending Ad Damnum Clause
Binding on Surety on Return Bond in Re-
plevin, R. D. 167.
Brown & Brown Coal Co. v. Antezaj (Mich.)
Bankruptcy-Release of Surety, ann. case,
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Chernick v. Independent American Ice Cream
Co. (N. Y.) Master and Servant-Assump-
tion of Risk under the New York Labor
Law, Ed. 435.
Currier v. United States (C. C. A. Eighth Cir.)
Eminent Domain-Right of Government to
Condemn for a Post-office Site Where De-
ficiency in Appropriation for a Site is
Made up by Private Donation, R. D. 377.
Dale v. Smith (U. S. D. C.) Removal of Causes
-Suit Against Receivers Appointed by
Federal Court as one Arising Under Fed-
eral Law. R. D. 41.
Drake v. Vernon (S. Dak.) Bankruptcy-Costs
Recovered by Successful Defendant in Ma-
licious Injury Suit Released by Discharge,
R. D. 21.
Evans v. Mosely (Kans.) Practice-Remanding
Case for Partial New Trial, R. D., 353.
(Tex.)
Ex parte Farnsworth
Constitutional
Law-Referendum, ann. case, 342.
Ex parte Harding (U. S. S. C.) Federal Courts
An Exception to the Rule that a Federal
Court Cannot Acquire Jurisdiction in Per-
sonam by Waiver, Ed. 281, 297, 316.
First National Bank of Memphis v. First Na-
tional Bank of Clarendon (Tex.) Banks and
Banking-Collection of Drafts, ann. case,
First National Bank v. Home Ins. Co. (N. Mex.)
Bills and Notes-Draft by Agent, ann. case,
426.
German Alliance Ins. Co. v. Hale (U. S. S. C.)
Insurance
Constitutional Law-Penalizing
Companies for Belonging to Tariff Associa-
tion to Fix Rates, R. D. 168.
Goodhart v. State (Conn.) Attorney and Client
-Failure of Counsel to Keep Faith with
the Court as a Condition of Being Allowed
to Proceed on a Proposed Line, R. D. 353.
Graves v. Rose (I.) Wills-Misdescription as
Being or Not Within the Rule Governing
Latent Ambiguity, R. D. 20.
Gross v. State (Tex.) Husband and Wife-Priv-
ileged Communication, ann. case, 381.
Hermanek v. Chicago & N. W. Ry. Co. (C. C.
A, Eighth Cir.) Master and Servant-As-
sumption of Risk, ann. case, 443.
Howard V. Howard (N. J.)
sions, ann. case, 216.
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Hunter v. Trust Reserve L. Ins. Co. (U. S. S.
C.) Foreign Corporation-Service on Statu-
tory Agent after Corporations Withdrawal
from State. R. D. 96.
In Linquist v. Hodges, (Ills.) Master and Ser-
vant-The Tests which Show or Disprove
the Relation of Fellow Servant, R. D. 454.
Illinois C. R. Co. v. Kentucky (U. S. S. C.) Ap-
Question
peal and Error-Constitutional
First Presented on Motion for Re-hearing
in State Supreme Court, R. D. 58.
In re Metropolitan Trust Co. (U. S. S. C.) Dis-
missal Upon Demurrer as to One Defendant
Where Appellate Court Held Cause Wrong-
ly Removed, R. D. 3.
Institute of Holy Angels v. Borough of Ft. Lee
(Ala.) Taxation-Exemption of Building for
Charitable Purposes in Course of Construc-
tion, R. D. 41.
Interstate Commerce Commission v. Delaware
L. & W. R. Co. (U. S. S. C.) Commerce-The
Right of a Carrier to Inquire for Rate-
making Purposes into the Ownership of a
Shipment, R. D. 376.
Ives v. South Buffalo Ry. (N. Y.) The New York
Decision Declaring Workmen's Compensa-
tion Act Unconstitutional, Ed. 279.
Jones v. Northern Pacific Ry. Co. (Mont.) Neg-
ligence-The Degree of Care to Which the
Doctrine of Res Ipsa Loquitur Applies, R.
D. 131.
Keller v. Wolkarte (Tex.) Master and Servant
-Period of Employment, ann. case, 67.
Kiernan v. City of Portland (Oreg.) Constitu-
tional Law-The Initiative, Referendum
and Recall, ann. case, 362.
Kissam v. United States Printing Co. et al (N.
Be-
Y.) Contract-Validity of Agreement
tween Employers and Trade Unions that
Former will not Employ Non-union Labor,
R. D. 5.
Old Dominion S. S. Co. v. Flanary (Va.) Car-
riers-Waiver, ann. case, 232.
Parkison v. Thompson (Ind.) The Disinclina-
tion of Appellate Courts in this Country
Towards Simplifying Appeals and the Final
Disposition of Causes on Appeal, Ed. 93.
Raher v. Faher (Iowa) The Constitutionality
of a Statute Providing for Personal Service
of Process Outside of a State, Ed. 189.
Randolph v. Ballard County Bank (Ky.) Cor-
porations-Requirement of Statute as to
Limit of Indebtedness and Liability of Di-
rectors for Excess, R. D. 209.
Reid v. Owensboro Sav. Bk. and Trust Co. (Ky.)
Corporations-Laches Barring Subscriber
for Stock from Right of Rescission When
Corporation Becomes Insolvent, R. D. 244.
Rex v. Bail (Eng.) Admissibility of Evidence
of Other Criminal Acts, R. D. 4.
Sexton Trustee v. Dreyfus (U. S. S. C.) Bank-
ruptcy-Interest on Secured Debts Subse-
quent to Adjudication, R. D. 150.
Shepard v. Northern Pac. Ry. Co. (C. C. A.,
Eighth Circuit) Commerce-The Right of
the State Under the Interstate Commerce
Act to Regulate Transportation Wholly
Within its Borders, R. D. 334, 351.
Silsbee State Bank v. French Market Grocery
Co. (Tex.) Garnishment-Burden of Proof,
ann. case. 84.
Simmons v. Williford (Fla.) Replevin-Gather-
ing Fruit from Trees by Means of a Writ
for Personal Property, R. D. 22.
Martin (N. J.) Husband and Wife-
Coercion, ann. case, 137.
State v. Yee Gueny (Oreg.) Dying Declarations
-Religious Belief as a Test of Admissibil-
ity in Evidence, R. D. 132.
Supreme Ruling of Fraternal Mystic Circle v.
Ericson (Tex.) The Right of a Fraternal
Benefit Association to Re-rate its Members,
a Law of Necessity, Ed. 19.
Swift v. David (C. C. A., Ninth Cir.) Foreign
Judgment-Merger, ann. case, 8.
Thompson v. Thompson (U. S. S. C.) Right of
Wife Under Enabling Act to Sue Her Hus-
band for a Tort, Ed. 75.
United States v. American Tobacco Co. (U. S.
S. C.) Monopolies-The Tobacco Trust De-
cision, Ed. 411.
United States v. Grimaud (U. s. S. C.) Consti-
tutional Law-Prescribing Penalties for
the Violation of Regulations to be Made
by a Departmental Officer, R. D. 436.
United States v. Heinze (U. S. S. C.) Constitu-
tional Law-Unilateral Right of Appeal in
Criminal Cases as Contrary to Fourteenth
Amendment, R. D. 76.
United States v. Press Pub. Co. (U. S. S. C.)
Statutes-Construction
in Application of
State Law to Federal Reservations, R D.
77.
United States v. Standard Oil Co. (U. S. S. C.)
Monopolies The Doctrine that the Anti-
trust Act Refers Only to Unreasonable Re-
straints of Trade, 375.
United States v. Santa Rita Stone Co. (N. Mex.)
Monopolies--Combination Between Two
Corporations Effected by the Common Agent
of Both, R. D. 263.
Virginia-Carolina Peanut Co. v. Atlantic Coast
Line R. R. (N. Car.) Carrier-Special Dam-
ages for Delay, ann. case, 461.
Von Bremen V. Mac Monnies (N. Y.) Sales-
Good Will, ann. case, 178.
Warren v. United States of America (C. C. A.,
Eighth Cir.) Criminal Law-Mailable Mat-
ter, ann. case, 27.
Washington et al. v. State (Miss.) Bail--Scire
Facias, ann. case, 103.
ST. LOUIS, MO., JANUARY 6, 1911
SOMETHING FOR THE NEW YEAR-SOME
DEFINITE REFORM IN PROCEDURE.
The new year brings with it many very
important issues, not the least of which is
that suggested in President Taft's recent
message to Congress, to-wit, some definite
reform in procedure.
There is no doubt but that there is no
other question connected with the admin-
istration of law that so constantly agitates
the mind of the people. Fed by the chaff
of aimless argument on the part of political
agitators, the public conception of what
might be a real impediment to the course
of justice is often magnified into a Him-
alayan range of so-called technicalities that
are impassable save only to those able to
command great wealth or influence.
As a matter of fact, every lawyer of
experience stands ready to prove the asser-
tion that, excepting rare cases, justice is
quite accurately administered in this coun-
try and that the only objection to present
methods is not that they deny justice, but
that they often delay the relief sought or
are otherwise cumbrous and unscientific.
No lawyer ever contended that the law
as it had arrived in his hands was perfect;
his only concern is that he may hand it
on to future generations a little better than
he found it. And to this, procedure is no
exception. Read the history of this branch
of the law and observe the great strides it
has made from the obscurity and supersti-
tion of barbaric practice to the present
enlightened system, which, in spite of its
existing imperfections, is the best system
in the world so far devised.
No right thinking jurist or experienced
practitioner will approve any wholesale
condemnation of the present system or any
violent uprooting of it that there may be
transplanted in its place the exotic product
of some idealistic dreamer. And this is
true whether such suggestion come from.
within or without the profession.
The injunction to "prove all things, hold
fast that which is good," applies with par-.
ticular emphasis to every reform or ad-
vance in the law. We shall, therefore, in a
campaign which we shall undertake this
year, for some definite reform in legal pro-
cedure, keep in view constantly those great
fundamental principles already established
and from which it would be fatal to depart
and to suggest such modification in their
administration as to more quickly effectu-
ate their ultimate and sole purpose,-not
to hinder or delay justice, but to make it
first, exact; second, prompt; third, inex-
pensive,
Much of the confusion that surrounds
all campaigns for reforms in procedure is
that both the lay and professional reformer
so frequently charge pell mell in a quix-
otic attack on a phantastic windmill, which
they term, "technicality" without ever paus-
ing to explain how any rule of procedure
can be other than technical and without
classifying their so-called "technicalities"
so that the mind might approach them one
at a time and determine calmly whether we
can better things by changing the rule at-
tacked or by abrogating it entirely. It is,
therefore, very clear that nothing can come
of any wholesale denunciation of techni-
calities; that the only contribution of value
must be in the nature of a bill of partic-
ulars, in which the writer shall discard in-
vective for reason and generalities and
platitudes for clear and definite suggestions
hased upon experience and approving them-
selves to lawyers and judges engaged in
the active practice of the law.
Suppose, for the sake of convenience,
that we subdivide the subject of procedure
into five parts. First, courts of justice,
their organization and jurisdiction. Sec-
ond, pleading, by which a case is brought
into a court, including all the usual mo-
tions that go to perfect the statement
of the cause of action and to bring
the case to trial.. Third, jury and jury
trials, that peculiar Anglo-Saxon institu-
tion by which we determine the exist-
ence or non-existence of facts. Fourth,
'évidence, the rules by which we determine.
the character of proof offered to establish
any particular fact. Fifth, appeals and
Fifth, appeals and
appellate procedure, that system by which
we transfer a cause from one court to a
higher court for purposes of review and
correction of errors. Now, if a cry against
"technicalities" is raised, let us insist that
the party shall classify his suggestion as
falling within one or the other of these
four classes so that the fury of the attack
shall not reflect on any of the other sub-
divisions but shall strike directly and in-
telligently at the rule, or application there-
of, which is charged with defeating what
we have termed the ultimate purpose of all
rules of procedure, to-wit, that justice shall
be exact, prompt and cheap.
of these other questions belong to different
subdivisions and do not rest on the same
reasons for their existence and therefore
cannot be properly included in any one.
broadside against "technicalities."
In this campaign which we shall under-
take during this year, we shall call upon
the greatest experts of the profession to en-
lighten us with their views on these par-
ticular questions. For this purpose we
have appointed the Hon. Thomas W.
Shelton, of Norfolk, Va., as one of
our associate editors, and shall look to
him to lead the discussion on this very
important issue and to classify the re-
sults with the purpose in view that they
shall ultimately take some definite shape.
Mr. Shelton is a member of the Commit-
tee on Reform in Procedure of the Na-
tional Civic Federation and represented that
committee in a joint meeting with a similar
committee of the American Bar Associa-
tion, at the recent meeting of the Associa-
tion at Chattanooga. It is through these
two powerful and influential organizations
that this reform must come, and the aid of
the CENTRAL LAW JOURNAL having been
requested, and at once given, we offer the
profession the influence of these columns
for a general discussion of this important.
subject.
We have requested contributions on this.
subject from President Taft, Mr. Frederick
W. Lehmann, Solicitor General of the
United States; Judge Alton B. Parker,
Hon, Everett P. Wheeler, of New York;
Prof. Roscoe Pound, of Harvard Univers-
Now we shall take up a few instances.
Shall the first pleading be regarded as sim-
ply giving notice to the defendant or shall
we dignify it as being the foundation of
the cause of action and as constituting the
credentials without which no court can ac-
quire jurisdiction. In the first alternative,
departures and variances and even the fail-
ure to state a cause of action would not be
regarded if sufficient notice or a continuance
is allowed the defendant, and a plaintiff,
therefore, if he showed a good cause of
action in the evidence which he submitted
on the trial, would be allowed to recover.
In the second alternative, a plaintiff show-
ing a just and clear cause of action on the
trial would be non-suited if he had stated
a different one, or none at all, in his plead-ity; Mr. Walter G. Smith, of Philadelphia ;
ings. Why cannot the profession discuss
this single question without drifting, as is
so frequently the case, into general and ex-
travagant condemnation of "technicalities
of procedure." Surely this question has
nothing in common with the question
whether a case should fail of review on
appeal because the bill of exceptions was
not properly executed or signed, or with
the question whether a case should be re-
versed because of the probably immaterial
testimony of an incompetent witness. All
Judge Selden P. Spencer, of St. Louis:
Judge Thomas A.
Judge Thomas A. Sherwood, of Long
Beach, California; Mr. Edward D'Arcy,
of St. Louis; Prof. Alexander A. Bruce.
of Grand Forks, South Dakota; Justice
John M. Harlan, and Hon. Edgar H. Far-
rar, of New Orleans, President of the
American Bar Association. In addition to
these we shall welcome short definite sug-
gestions from any judge, active practitioner
or from the deans and faculties of our
various law schools. Surely from such a
broad discussion of this very important
subject we may confidently expect large
and beneficial results.
From time to time we shall offer certain
propositions to the profession for their ap-
proval or rejection, the votes to be submit-
ted to a committee of tellers of recognized
standing in the profession. We are sure
that the profession will respond to this pro-
gram in order that the consensus of pro-
fessional opinion may be clearly indicated.
A professional referendum has never been
attempted except locally, or on some very
minor issue, but those really great men of
our profession whom we may properly
designate as "constructive jurists" have
often remarked upon the importance of
such a referendum in order that every re-
form or scheme of codification about to be
launched might go forth not only with the
outward expression of the approval of the
profession through its duly constituted au-
thorities, but that it might have such ap-
proval supported by a vote of confidence
from the rank and file of the profession.
We should welcome expressions of ap-
proval or of objection from the profession
as to any feature of this plan or any sug-
gestions by which the plan might become.
more effective.
NOTES OF IMPORTANT DECISIONS
JURISDICTION DISMISSAL UPON DE-
MURRER AS TO ONE DEFENDANT WHERE
APPELLATE COURT HELD CAUSE WRONG-
LY REMOVED.-Justice Hughes in the second
opinion handed down by him from the Supreme
Court holds, with the concurrence of the other
judges, that, where on appeal from a circuit
court it is decided that the cause was not a sep-
arable controversy which gave ground for re-
moval, and motion for remand was, therefore,
wrongly denied, yet a judgment upon demurrer
dismissing the action as to one of the defen-
dants was not a nullity as being rendered with-
out jurisdiction. In re Metropolitan Trust Co.,
31 Sup. Ct. 18.
The justice said: "The decree (of dismissal)
cannot be so regarded unless the court, upon
the motion to remand, was without jurisdiction
to determine whether a separable controversy
existed, and hence not merely committed an
error, but exceeded its authority. The decree
was not a nullity unless the order refusing to
remand was a nullity and the latter contention
was negatived by the decision of this court
upon the application for a mandamus, in re
Politz, 206 U. S. 323. The reversal by the
circuit court of appeals of the final decree as
to the other defendants, and its direction to
remand, did not make the decision of the court
of first instance any the less a judicial act
and within the scope of its jurisdiction and dis-
cretion; and as that reversal and direction
did not affect the trust company (defendant in
whose favor was decree of dismissal) the de-
cree in its favor remained in full force."
It is clear, that, if the decree or order on
demurrer was a judicial act, the court below
had no jurisdiction to vacate it after the term
had elapsed, and it seems also clear that, if it
was not a judicial act, there was no strict need
in attempting to vacate it, because there was
nothing to vacate. In either event it is a little
difficult to see why the trust company should
have been troubling itself about getting out a
writ of prohibition against the lower court or
why the Supreme Court should have granted
one. If there was no judicial act in the first
instance, there was nothing to bother about
If there was primarily a judicial act and, sec-
ondarily, after the term, there could be no ju-
dicial act in reference to a judicial act during
the term, why should the supreme court level
a writ of prohibition against an utterly abortive
thing? It granted the writ. Against what?
But is it a fair deduction from the Politz case
to say, because there is jurisdiction to
pass upon a motion to remand for want of jur-
isdiction to retain, that, when wrong retention
has been adjudged, it does not utterly nullify
any and everything in the form of a judgment
that succeeded, whether excepted to or not?
When the court, in the case considered, ad-
judged it would not remand, because it thought
it had jurisdiction, its decision did not actually
create jurisdiction. It merely had the power to
attempt to proceed upon the supposition that
its view as to jurisdiction was correct. It is
not the claim of jurisdiction which gives a
court the right to adjudge. It is the existence
of jurisdiction that does this.
We have always thought, that there was no
more conclusive way of showing that a judg
ment should be held for naught and making it
assailable wherever it showed its head, than to
demonstrate that the court was without juris-
diction to render it; but here we find a merely
casual tribunal rendering a judgment, when it
was actually without jurisdiction, and that
judgment deemed valid, because the court ren-
dering the judgment had authority to listen to
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