81.

-Authority of Agent.--Seller will not be he'd to notice that agent's authority was limited to contract for goods to be so'd on consignment, as stated in letter of introduction, where it clearly appears that agent made full report of transaction to buyer, who ratified and approved what he had done.-Sherman & Sons v. United Clothing Stores, Ky., 283 S. W. 1922.

82. Principal and Surety-Duress.-Duress practiced by the holder upon the maker of a negotiable promissory note constitutes a defense available to the surety who has indorsed the instrument in ignorance of such duress or of facts sufficient to put him on inquiry.-Bank of Clinchburg v. Carter, W. Va., 133 S. E. 370.

83. -Mortgage Note.-If plaintiff agreed uncondiționally to buy mortgaged cattle at stipulated price and pay off mortgage indebtedness to mortgagee under adjustment, plaintiff became principal ob'igor to mortgagee on unraid balance of mortrage note. and Fence would have no right of reimbursement against sureties on mortgage indebtedness; but if plaintiff's agreement was only to assist sureties and mortgagor in raising amount to satisfy indebtedness to mortgagee, and its nonpayment was not result of breach of contract on his part, then plaintiff was not principal debtor as between him and sureties and mortgagor.-Cauble v. Cauble, Tex., 283 S. W. 914.

necessary

84. Railroads Compensation for Carrying Mail. -Congressional determination of compensation payable land grant rai'roads under Act June 10, 1852, § 6, Act Feb. 9, 1853, § 6, and Act July 28. 1916. § 5 (Comp. St. § 7482a), for transportation of mails, is not open to judicial review.-Missouri Pac. R. Co. V. United States, U. S. S. C., 46 S. C. 598.

as

85. Removal of Causes-Joint Tort-Feasors.Action for injury from pollution of stream combined result of individual acts of defendants, making them joint tort-feasors he'd not separable, so as to be subject to removal as to single defendant to federal court.-Moses V. Town of Morganton, N. C., 133 S. E. 421.

86. Sales Price Blank in Order.-Where order for flour was sent to seller with price thereof left blank; with understanding that price he stated in confirmation, insertion of price in order by seller was not a material a'teration.-Bresky v. Rosenberg, Mass., 152 N. E. 347.

87. Rejection of Goods. Where contract for sale of rice required average weight of bags to be 224 pounds, and required merchants' certificate, held that buyers were entitled to reject rice, where merchants' certificate showed that average weight was 218 pounds, and deficiency in veigat on entire shipment amounted to 16,000 pounds.Hind v. Willich, N. Y., 216 N. Y. S. 155.

88. Seaman-Jurisdiction.-Action by personal representative of deceased seaman, under Seamen's Act 1915, § 20, as amended by Merchant Marine Act 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), against shipowner to recover for seaman's death from alleged negligence of owner, held under Judicial Code, §§ 24, 256 (Comp. St. §§ 991, 1233), giving federal District Courts exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction, but reserving to suitors in all cases right to common-law remedy where common law is competent to give it, properly brought in state court, notwithstanding provision of Seamen's Act, § 20, as amended, that jurisdiction of such actions should be in the district where defendant employer resides or has his principal office, nor was the saving clause stated limited to rights recognized by maritime law when that clause was first adopted.-Panama R. Co. v. Vasquez, U. S. S. C., 46 S. C. 596.

89. Searches and Seizures-Warrant.-In prosecution for transporting intoxicating liquor in automobile in violation of Transportation Act 1923, evidence that searching officers believed that defendant was hauling whisky, based on fact they saw him exchange packages with a negro held not to show probable cause for search of automobile without a warrant, and hence search was

unlawful, and in violation of defendant's rights Under Const. art. 1, § 11, and evidence resulting therefrom was inadmissible.-Boyd v. State, Ind., 152 N. E. 278.

90. Taxation-Royalties from Ore Mines.-Laws Minn. 1923, c. 226, imposing tax on royalties received from ore mines, does not impair obligain tion of contracts, violation of Const. U. S. art. 1, § 10, since title to all lands and leases were obtained subject to state's power to tax under Const. Minn. art. 9. § 1.-Lake Superior Consol. Iron Mines v. Lord, U. S. S. C., 46 S. Ct. 627.

91. United States Lease of Barges. Under lease by United States of towboats and barges, reserving right in government to cancel lease on noncompliance, in judgment of lessor, with any of terms or conditions thereof, the lease was properly terminated by decision of Secretary of War and Chief of Engineers, communicated to lessee in accordance with such provisions.-Goltra v. Weeks, U. S. S. C., 46 S. Ct. 613.

92. Vendor and Purchaser-Rescission.-A vendee in possession under a contract for deed cannot rescind and recover what he has paid thereon because of the existence of an easement, which restricts the use of the property involved, acquired by condemnation proceedings subsequent to the making of the contract.-Summers v. Midland Co., Minn., 209 N. W. 323.

93. Wills-Election.--When such a beneficiary elects to take under a will, he must renounce every right inconsistent with its full effect and operation. Part 1, syl., Tolley v. Poteet, 57 S. E. 811, 62 W. Va. 231, approved.-Rau v. Krepps, W. Va., 133 Atl. 508.

94. Life Interest.-Will giving remainder to trustees, with direction to pay one-third of net income to each of three beneficiaries for life, income of any deceased beneficiary's share to be divided equally between survivors, and on death of second beneficiary residue to be divided into two equal parts, one part to be divided between certain remaindermen and income on other half to be paid to surviving life beneficiary for life, and on his death residue to be paid over to remaindermen, held to contemplate segregation on death of second life beneficiary, and not to unlawfully suspend alienation for than two lives. In re Buttner's Will, N. Y., 152 N. E. 447. 95. Words and Phrases "Hi-Jacker." — "Hijacker" is another name for robber.-Frankiin v. State, Tex., 283 S. W. 802.

more

96. Workmen's Compensation-Aniline Poisoning. Under Workmen's Compensation Law, § 3, group 19, subd. 2, employee, to recover for occupational disease resulting from aniline poisoning must have been poisoned while engaged in a "process involving use of" aniline, which in furdyeing business involves application of dye to furs, and poisoning suffered by employee who handled furs after dyeing was complete was not compensable-"process" being a series of actions, motions, or occurrences; progressive act or transaction; continuous operation; normal or actual course of procedure: regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature.-Sokol v. Stein Fur Dyeing Co., N. Y., 216 N. Y. S. 167. 97. "Course of Employment."-Injury to emfew minutes before working ployee, sustained a hours, while passing over working premises of employer to obtain breakfast at employer's COOKhouse, where employees were required to take their meals, is sustained in course of and grows out of employment.-Pacific Employers' Ins. Co. v. Industrial Acc. Commission, Cal., 246 Pac. 825.

98. Loss of Foot or Leg.-Under Workmen's Compensation Act. compensation for amputation 7% to 8 inches above ankle joint should be for less than for loss of leg and greater than for loss of foot according to the percentage of permanent disability, under provision of Ky. St. § 4899. for "all other cases of permanent partial disability." -Mills v. Mills & Connelly, Ky., 283 S. W. 1010. 99. Notice of Injury.-Want of written notice, pursuant to Ky. St. §§ 4914, 4917, of accident resulting in injury to employee causing death, did not bar proceedings by widow for compensation, where employer's foreman had immediate knowledge of accident, company superintendent heard about it next day, and company doctor waited on employee day afterward.-Elkhorn Coal Co. v. Combs, Ky., 283 S. W. 1009.

Central Law Journal

St. Louis, September 20, 1926

EFFICIENT FEDERAL LAW ENFORCEMENT

Every citizen and especially every lawyer should be interested in the effectual enforcement of federal laws. Few people, however, aside from the legal profession, and, of course, experienced criminals, are aware of the fact that violators of federal laws are in many cases committed for nonpayment of heavy fines, serve 30 days, make application and secure their discharge, as indigent prisoners, under Section 1042, Revised Statutes. This section provides: This section provides:

"When a poor convict sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been confined in prison 30 days, solely for the non-payment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, the commissioner shall administer to him the following oath: (Convict swears he is unable to pay.) And thereupon such convict shall be discharged

Having had two years' government auditing experience in one of the departments in Washington through which accounts of United States Commissioners pass for examination and audit, the writer has reached the conclusion that the above section offers a loop-hole through which federal criminals are, in a great number of cases, evading the just punishment warranted by their criminal offenses. These offenders are fined daily thousands of dollars and instead of having to work or serve out their fine at so much per day, as many of the state laws

require (16 C. J., 1368, 3222 and 25 C. J., 1160, 25), they secure their release under the above section after having served only thirty days, regardless of the amount of the fine involved. Why should the violator of a federal law be shown such leniency? Under many of the state laws no such leniency is extended to criminals.

The above provision was no doubt originally based upon the Eighth Amendment, which prevents the levying of excessive fines or inflicting cruel and unusual punishments. Such a lenient provision, however, appears to be unwarranted, as imprisonment at the rate of a certain amount per day for failure to pay fine does not infringe the constitutional provision prohibiting cruel and unusual punishment (23 P. 374; 83 Cal. 388, 23 P. 372; 4 Wyo., 150,

33 P., 18. See also 16 C. J., 1359, 3201). The fine is considered the punishment, and committing defendant to custody is the means of enforcing it. (16 C. J., 1368, 3221.)

It cannot be said that the necessity for this statute is based upon the "poor debtor" provisions found in the statutes and constitutions of many of the states, as these provisions apply only to civil actions and not to criminal fines imposed by federal laws. (In re Sanborn, 52 Federal Reporter, 583. Also Revised Stat., U. S., 990.)

If a prisoner convicted of crime under the state laws can be compelled to labor on public works (Smith v. State, 14 Alabama, A. 103, 71 S. 937, and State v. Young, 138 N. C., 571, 50 S. E. 213), then there should be no valid excuse for showing violators of the same class of federal crimes any such leniency as is afforded by Section 1042, Re

vised Statutes. Such a section renders the effectual enforcement of federal laws an extremely difficult task, especially where the punishment involved consists of a fine alone. alone. It puts offenses of varying degree upon an equal level, as a convict fined $5,000, for instance, serves thirty days and

NOTES OF IMPORTANT DECISIONS

A CASE UNDER THE ENGLISH AIR NAVIGATION ACT, 1920.-What is believed to be the first case arising under the Air Navigation Act, 1920, came before the courts in Roedean School Ltd. v. The Cornwall Aviation Company, Ltd., Times, 3rd inst. An interlocutory motion was made before Mr. Justice Romer praying for an injunction to restrain the defendant company from flying or permitting the flight of aircraft over or near a school belonging to the plaintiff company so as to constitute a nuisance to the plaintiffs or to the staff or pupils or servants of the school. Apart from the provisions of the Air Navigation Act, 1920, it would appear that every person who flies over another person's land is in fact technically committing a trespass, since the general maxim with regard to ownership of land is "Cujus est solum, ejus est usque ad coelum." The Air Navigation Act, 1920, by s. 9 (1), provides that "No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of aircraft over any property, at a height above the ground, which having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of this Act and any Order made thereunder and of the convention are duly complied with." This immunity is, however, counter-balanced by the absolute obligation imposed on the owner of the aircraft for any damage done thereby, it being provided in the latter part of s-s. (1) of s. 9 of the Act that "where material damage or loss is caused by an aircraft in flight, taking off, or landing, or by any person in any such aircraft, or by any article falling from any such aircraft, to any person or property on land or water, damages shall be recoverable from the owner of the aircraft in respect of such damage or loss, without proof of negligence or intention or other cause of action, as though the same had been caused by his wilful act, neglect or default, except where the damage or loss was caused by or contributed to by the negligence of the person by whom the same was suffered." This absolute liability is, however, lessened to some extent by the proviso in that section, which gives the owner the right of recovering any damages he has had to pay from the person by whose wrongful or negligent action or omission the damage was caused, provided such person is not a person in the employment of the owner. It will thus be seen that this absolute liability of the owner of aircraft may be compared with the absolute liability of a person who allows noxious things to escape from his

land and do damage to a third person. It is a moot point, however, whether the absolute liability of the former is not somewhat greater than that of the latter, since it would seem that the owner of aircraft could not plead "Act of God" as a defense, and that he might therefore be liable for damage caused through the aircraft being set on fire by lightning, for example, and doing damage to the property on which it happened to descend.-The Solicitors' Journal (Eng.), July 10, 1926.

EMPTY CARS

BRAKEMAN SWITCHING ENGAGED IN INTERSTATE COMMERCE.In Youngstown & O. R. R. Co. v. Halverstodt, 12 F. (2d) 995, decided by the Circuit Court of Appeals, Sixth Circuit, it appeared that it was a part of the duty of the crew of an interstate train, of which plaintiff was a member, to switch empty cars onto a coal mine siding. The siding was too short to take all the cars, and some were placed on another siding until the return trip, when the cars on the coal siding were brought out and replaced by the other empties. During such switching operation plaintiff was injured. Held, that such service was part of the handling of the interstate train and that plaintiff, at the time of injury, was employed in interstate commerce, within Employers' Liability Act, § 1 (Comp. St. § 8657).

We quote from the Court's Opinion:

"The Behrens Case, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, is not opposed to this view. The carrier there was engaged in both kinds of commerce. But the injured employee was a member of a crew attached to a switch engine operated exclusively within the city of New Orleans, and was engaged, at the time of his injury, in moving several cars, all loaded with intrastate freight, from one point in the city to another. Railroad Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941, and Railroad Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070, involved, like the Behrens Case, employees engaged exclusively in switching, who, when injured, were handling only intrastate freight. Those cases are clearly inapplicable to a member of a crew of an interstate train, who, in handling it, cuts out of the train some intrastate cars, and in so doing is injured. As the facts in this case respecting the contents of the train and its movements were not in dispute, it was proper for the court to declare their effect in law, and tell the jury that defendant was engaged in interstate commerce."

THE INADEQUACY OF THE FEDERAL COURTS AS A BAR TO THE REMOVAL OF SUITS FROM THE STATE TO THE FEDERAL COURT.

Introduction-It is the purpose of this paper to discuss only the prohibitions to removal due to the nature of the litigation. The question of the removal under section 33 of the Judicial Code will not be discussed.1 As all of the cases are removed to the Federal District Courts, any limitations upon the jurisdiction of that court will be a limitation upon the right of removal.2

Here a word should be said concerning the part of section 28 of the Judicial Code which provides: "And no appeal or writ of error from the decision of the District Court so remanding the cause shall be allowed." This means that when the right of removal is litigated before a Federal District Court and that court decides that there is no right of removal, there can be no appeal or writ of error to the Circuit Court of Appeals or Supreme Court. It has also been held that a mandamus proceeding to force a federal district judge to allow the removal of a cause will not lie before the Supreme Court. If the question of removal is litigated before a lower state court and that court decides against the right of removal and the matter is then appealed in the state courts, the question of jurisdiction of the state court is not waived and can be reviewed by the Supreme Court upon a writ of certiorari to the highest state court, as provided in section 237(b) of the Judicial Code.

Although there are no cases on the point, it seems clear that even if the Federal District Court remanded a case to the state

(1) See discussion in Cent. L. Journal, Vol. 99, P. 167 (May 20, 1926).

(2) See sections 24, 265 and 266 of the Judicial Code.

(3) Cole v. Garland, 107 Fed. 759 (C. C. A., 1901); Gurnee v. County of Patrick, 137 U. S. 141; 34 L. Ed. 601 (1890); Chicago, St. P. M. & O. R. R. Co. v. Roberts 141 U. S. 690; 35 L. Ed. 905 (1891) Klein v. Wilson & Co. 7 F. (2) 777.

(4) Pacific Live Stock Co. v. Lewis, 241 U. S. 440: 60 L. Ed. 1084 (1916). Mandamus will lie to force the lower federal court to remand it to the state court re Winn, 213 U. S. 458; 53 L. Ed. 873 (1909).

(5) Re Winn 213 U. S. 458; 53 L. Ed. 873 (1909).

court that the Supreme Court could review the question of whether or not the cause is within the exclusive jurisdiction of the federal courts and, if found to be within the exclusive jurisdiction of the federal courts, could set aside a judgment of the state court in such a case.

The Effect of the United States Constitution The Constitution of the United States does not grant the right to have a case removed from a state court to a federal court, but as was pointed out in Tennessee v. Davis,

"The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since."

This was done in the Judiciary Act of 17897 and has continued down to date with only minor changes and is now embodied in section 28 through 39 of the Judicial Code. It is for Congress to define and describe the methods of exercising the method of removal. Judge Aldrich in the case of In re Cilleys at page 978 said:

"The Constitution declares the lines within which Congress may confer jurisdiction, but the ground and limit of actual jurisdiction to be exercised by the courts are to be found in the acts of Congress, and not in the Constitution. It is not necessary to inquire as to the extreme limit of the constitutional scope of judicial power. Within its scope, whatever that may be, Congress may confer jurisdiction, and so much of the constitutional grant of judicial power as is not bestowed upon the federal courts by legislative provision remains dormant. In other words, Congress is to define and describe to what extent the judicial power is to be exercised by the federal courts."

Suits Under Special Acts-The Federal Employers' Liability Act provides that suits brought under it in a state court of competent jurisdiction should not be re