It was claimed by the railroad company that the constitutional limitation of the Seventh Amendment for a unanimous jury in federal courts "applies to Congress so as to prevent that body from creating a court and giving it power to act free from the restraint of the amendment, it must also apply, unless the substance is to be disregarded and the shadow be made controlling, to the power of Congress to create a right and leave the power to enforce it in a forum' to which the constitutional limitation is not applicable."

As to this contention, the Chief Justice says: "But this again enlarges the Amendment by causing it not merely to put a limitation upon the power of Congress as to the courts, constitutional or otherwise, which it deems fit to create, but to engraft upon the power of Congress a limitation as to every right of every character and nature which it may create, or, what is equivalent thereto, to cast upon Congress the duty of subjecting every right created by it to a limitation that such right shall not be susceptible of being enforced in any court whatever whether created by Congress or not, unless the court enforcing the right becomes bound by the restriction which the Amendment establishes."

The court goes on to say that the contention applies only, as urged, to courts authorized to enforce purely federal rights as being pro hac vice federal courts. Then he says: "If this principle were well founded, the converse would also be true and both federal and state courts

would, by fluctuating hybridization, be bereft of all real, independent existence."

We must confess, the Chief Justice has us in the air in his argumentation, and all the while, we are impressed with the thought, that the constitution was regarding the right to have facts decided by a common law jury as a fundamental right, certainly to be preserved as to every right secured by federal law. What real difference does it make what tribunal passes upon that right, as long as it acts under federal authority?

As the case stands, a state court vested by Congress with the right to dispose of this question of fact, applies state law, and not federal law, to such disposition and in doing so violates federal law. But for Congress the state courts could do nothing whatever and yet in doing anything they follow state law.

BY OR

JURISDICTION-ACTIONS AGAINST FEDERAL CORPORATIONS.-By Act of Congress of Jan. 28, 1915, it is provided that "no court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an Act of Congress." In applying this act, by the Supreme Court, to a suit by corporation whose charter antedated the Act of Congress, contention was that all that was "intended" by the law was to eliminate the mere creation of a railroad corporation under an Act of Congress as a ground for regarding the suit as arising under the laws of the United States" was rejected. Bankers' Trust Co. v. Texas & Pacific Ry. Co., 36 Sup. Ct. 569.

the

The court says as to that contention that: "In this there is an evident misapprehension of what constitutes incorporation, as also the real basis of the jurisdiction affected. A corporation is never merely created. Being artificial, possessing no faculties or powers save such as are conferred by law, and having in legal contemplation no existence apart from them, its incorporation consists in giving it individuality and endowing it with faculties and powers which it is to possess. It is upon this theory that the decisions have proceeded. The ruling has been that a suit by or against a federal corporation arises under the law of the United States, not merely because the corporation owes its creation to an Act of Congress, but because it derives all of its capacities, faculties and powers from the same source."

It is said that by the Act of Jan., 1915, the fact of the derivation of power from a federal source becomes "a negligible factor" for jurisdictional purposes and a statutory court with

no jurisdiction other than that expressly conferred has no jurisdiction as to a federal corporation as such.

The court also says that such a corporation being merely a citizen of the United States and not a citizen of any state, a suit by or against it cannot involve a controversy between citizens of different states. Possibly this shutting the door of the Federal courts against congressional corporations may make some of them wish to surrender their charters. At all events, it tends to show how utterly insufficient should, in fact, be deemed affidavits for removal filed by many foreign corporations. If a federal corporation presumptively may obtain a fair trial in a state court, a fortiori may it be supposed there is no need for a corporation of another state to flee to federal courts for protection.

RECENT DECISIONS IN THE BRITISH

COURTS.

It is a feature of English company law that it permits companies to refuse to enter on their share registers any notice of a trust; the names of the trustees are entered but they are regarded as holding in their own individual right and not as for any third party or in any fiduciary capacity. A very important decision (Makereth and another v. Wigan Coal & Iron Co. [The Times of 18 May, 1916, and Solicitors' Journal, Vol. 60, page 5081), has just been issued on the question what effect this has on a company's right of lien on shares which in the knowledge of its officials are trust property, but as to which there is no marking in the register indicating any trust.

The facts of the case need not be detailed at length. The court was amply satisfied on the evidence that the shares in question belonged to trustees for persons interested under a will; that in 1910 the company had notice of that fact; and that in 1912, when one of the trustees gave a charge to the company on the shares for his personal debt, it had not escaped the memory of the company's officers, that the shares were the property of trustees, and consequently that the charger's interest in them was one of trust and not of absolute property.

As regards a private person, there would be no question but that if he, with the same knowledge that the defendant company had, took a charge on a trust estate for a debt of one of the trustees he would take with notice of a breach of trust, and therefore could not set up the charge against the beneficiaries.

But then the question here was, whether the company could be held to be in a better position than a private individual, so that, notwithstanding its knowledge that the shares were held in trust, it was able to assert against the beneficiaries, a lien or charge on the shares for the private debt of one of the trustees.

In giving judgment, Mr. Justice Peterson was not much assisted by any decision of the English courts. In several cases it had been stated generally that a company need not take notice of trusts, but these dicta had reference to the obligation of companies in registering transfers. In other cases again general observations had been made that companies were liable to be affected with notice of the interest of a third party. The only decision precisely in point, however, was one by the Court of Appeal in Ireland, Reardon v. The Provincial Bank of Ireland (1896) 1 Ir. Rep. 532. With the judgment in that case, Mr. Justice Peterson agreed and held that neither by the statute nor by its articles was the company protected, in face of the notice that the shareholder was not the beneficial owner of the shares, and that accordingly it was wrong in asserting a lien against the beneficiaries.

The common law rule that executory contracts entered into before the war are avoided on the outbreak of hostilities; while executed pre-war contracts (i. e., where one party has received the whole consideration but still has to perform his promise) are suspended during hostilities, though apparently simple, is proving very difficult of application, for commercial contracts are often complex things, making it hard to say whether the war has put an end to them or merely postponed their fulfillment.

There is thus always the possibility that a contract entered into with an enemy prior to the war is not dissolved but only suspended, and that on the conclusion of hostilities a claim for performance or, failing that, damages for breach might be made. The prolonged duration of the war has accentuated the difficulty; therefore, Parliament has thought it necessary to give some means of guidance to those involved in such contracts, and the Legal Proceedings against Enemies Act, 1915, enables British subjects to apply to the court for a declaration whether or not any contract with an enemy to which the applicant is a party has been dissolved or not. If the court declares the contract at an end, then the British contracting party is clear of all future claims; if the decision is that the contract still subsists, being suspended till the end of the war, then at

any rate he knows how he stands and can arrange his affairs accordingly.

This procedure, in addition to its practical helpfulness to business men, will obviously have the effect of enabling the courts to develop the principles of the law as to the dissolution or subsistence of enemy contracts now, instead of having to do so at the end of the war. It is important to see how the judges are viewing the matter, and we refer to two somewhat leading cases for that purpose. In Zinc Corporation, Lim. v. Hirsch (1916) 1 K. B. 541, an English company had, some years prior to the commencement of the war, entered into a contract with certain persons in Germany to sell to the latter the whole of the English company's production of zinc concentrates at their mine in Australia. The period covered by the contract was ten years, and the amounts of the yearly supplies were indicated. The contract provided that in the event of force majeure, or any other cause beyond the

control of the parties, preventing or delaying the carrying out of the contract, the agreement should be suspended during the continuance of any such disability. The Court of Appeal did not think it necessary to state expressly whether or not this suspension clause covered the contingency of war; but held that, even assuming it did, the effect of the prohibition against the British company disposing of the materials to any other person would be to restrain the company from using its resources for the benefit of the nation, and on that ground alone the contract became illegal as from the commencement of the war, and was therefore dissolved as from that time. Commenting on that decision a writer in The Law Times points out that the test of whether or not the continuance of a contract is prejudicial to the interests of the state may, in the event of the prolongation of the war, lead to the dissolution of every contract between British subjects and alien enemies, for every such contract may be said, in a sense, to be prejudicial to the interests of the state.

Another judgment also embodying a comprehensive principle is that of Mr. Justice Rowlatt in Distington Haematite Iron Co. (1916) W. N. 117. He held that a contract is dissolved if a postponement of performance involves the alteration of the contract itself. That ruling should appeal to the business man as being concise and practical. In other words, unless the contract can subsist in every particular notwithstanding suspension, then it is further dissolved. Here again the effects of the decision are very far-reaching. It is difficult even to imagine a contract that could, in these days

Introductory.-There are dangers connected with the use of an automobile in the public highways not incident to the use of horse-drawn vehicles. By reason of its power, speed, weight and peculiar construction, it is capable of doing great damage and inflicting great injury if not carefully and capably handled. No other vehicle has the dangerous combination of speed and weight that the automobile has; and it is this combination that renders it extremely dangerous to other travelers in the highways when it is negligently operated, or when it gets beyond the complete control of its driver.

The automobile is more likely to skid to a dangerous extent on a smooth or slick pavement than any other vehicle. This characteristic is well known to all users of the machine, and must be taken into consideration in exercising reasonable care for the safety of others. When the condition of streets is such that automobiles are likely to skid, thereby becoming a menace to other travelers, owners thereof must take reasonable precautions to guard against inflicting injury in this manner, by adopting appliances that have proved practicable as a preventive of skidding. Failure to exercise reasonable care in this respect may charge an owner with negligence, although at the time of an accident he may make use of every facility at hand, and do everything in his power to avoid inflicting injury.

These precautions are required to be taken only in view of the condition of the highways at the time, and conditions that ordinarily arise in the operation of automobiles on highways in that condition. An

Turning Out of Wet Car Tracks.-A boy about 5 years of age was standing on a sidewalk when an automobile operated by defendant suddenly left the roadway and, running with great force upon the sidewalk, struck and forced him against a building, causing injuries from which he died. There was evidence that the machine was being driven in a street railway track; that water was running in the track, and the surface of the street in the vicinity was wet and slippery; that, without slackening but with increased speed, defendant turned to get off the track; that the car skidded on the rails and passed upon the sidewalk. The type of car and the testimony of the expert called by the plaintiff warranted a finding that by reason of their diameter the tires adhered tenaciously to the groove of the track, and, if an attempt were made to turn out, the tendency of the car, even with a dry track, would be to twist around and run onto the sidewalk, while with a wet rail the tendency to move laterally, and of the rear wheels to cling to the track, would be greatly increased. The defendant testified that he had been running an automobile about eight months, and never before on the street where the accident occurred.

It was held that the case was for the

jury; that the jury properly were permitted to pass upon the question whether from his experience as shown by his testimony the defendant's conduct in the operation of the car in running in the groove of the track, and in applying increased power when trying to turn therefrom, was that of the ordinarily prudent driver acting under like conditions.*

Due to Oily Condition of Road.-One who was injured while a passenger in a public motor omnibus brought suit to recover there for alleging, first, negligence in the operation of the vehicle whereby it was driven against a electric light standard, and, second, negligence in placing on the high

(4) Williams v. Holbrook, 216 Mass. 239 (1913).

way a dangerous vehicle which was liable to become, and did in fact become, uncontrollable owing to the slippery condition of the road, and which, on that account, constituted a nuisance. The trial court permitted the case to go to the jury only on the second ground. The injury occurred when the omnibus skidded against the standard. There was a verdict for the plaintiff, which the trial judge set aside and entered judgment for defendant. In the course of his opinion the judge stated that it was not suggested at the trial that the defendant company used an imperfectly constructed or wrongly designed vehicle, or that the company had omitted to use any known contrivance or take any proper precaution to prevent skidding. The accident occurred while the omnibus was traveling about five miles an hour, and was due to the oily condition of the road. As there was no question of any defect in this particular vehicle, and as the question considered by the jury was whether, in view of the fact that motor omnibuses and other motor propelled vehicles have a tendency to skid on slippery roads, it was negligence on the part of defendant, which had knowledge of this tendency to skid, to place in service a vehicle likely to become uncontrollable in slippery conditions of the road, it was found that there was no evidence of negligence having regard to the fact that motor omnibuses had been run in the streets for years.5

Due to Excessive Speed.-While standing on the sidewalk at a street corner, plaintiff was knocked down and run over by defendant's automobile. The defendant had ten years' experience in driving his own car. The car in question was new, of 48 or 50 horsepower, in perfect condition, and equipped with the latest anti-skid and safety appliances. Defendant was going west on a wide street, in which were two car tracks, during daylight, with his car straddling the north rail, and when about 100 feet from the cross street he sought to

(5) Wing V. London General Omnibus Co., 101 L. T. 411 (1909), K. B. 652 (1909), rev'g 100 L. T. 301.