It

which seek proof of identity of signer with that of professed grantor impliedly repeal, it seems to us, the common law requirement of a seal. It was not really the wax that counted in that day, but the impression thereon. had an individuality, which a wafer could not carry, and so it might be as to a scroll. These identifying impressions have passed from usage, and signatures have taken their place. But courts which rule as to the necessity of a seal, but not of the impression, seem not to enforce the spirit of the common law requirement.

In the Maine case, supra, it was argued that the deed must have been sealed because "the grantor in writing her name was obliged to write the last two letters of her name off the line and between the two seals (persumptively there when she signed) to avoid writing upon the seals." The deed, therefore, was admitted in evidence. But what kind of seals were they? It was assumed they were sufficient.

COMMERCE-STATE TAX OF COMPANY QUALIFIED TO BE SURETY ON RECOGNIZANCE TO GOVERNMENT.-In 79 Cent. L. J., 147, we noticed decision by Pennsylvania Supreme Court, that act of Congress permitting certain corporations to qualify as sureties on bonds payable to the United States did not make them federal agencies, so as to prevent state taxation thereof, and we expressed our concurrence with that view. In the federal Supreme Court that decision has been affirmed. Fidelity & Deposit Co. v. Pennsylvania, 36 Sup. Ct. 298.

Justice McReynolds said: "These contracts between private corporations and the United States do not necessarily render the former essential governmental agencies and confer freedom from state control. Moreover, whatever be their status, if the pertinent statute discloses the intention of Congress that such corporations, contracting under it with the federal government, shall not be exempt from state regulation and taxation, they must submit thereto. * * * Neither circumstances nor language of the act indicate design or necessity to limit application by the several states of a well-established system of licensing and taxing bonding companies not incorporated under their own statutes."

It would have been more interesting to treat this question as one under congressional power than to have declared upon the intent of a congressional act. It would extend the commerce clause very greatly to say it meant to authorize Congress to interfere with state power in the way contended under the theory

COMPETITION.-In 82 Cent. L. J., 169, we spoke of the unsatisfactory status remaining in American decision as to distinction in recovery for infringement of trade-mark and unfair competition as exhibited in the late case of Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 36 Sup. Ct. 269.

Now appears the case of Straus v. Notaseme Hosiery Co., 36 Sup. Ct. 288, in which Justice Holmes speaks for a majority of the court, Justices McKenna and Pitney dissenting, but without opinion. This case appears to extend the vagueness to which we referred.

In this case, profits were adjudged "from a reasonable time after the defendants had notice of the similarity of the two designs" for hosiery. The Supreme Court says: "That it was unfair to continue the use of a label so similar in general character to the plaintiff's we are not disposed to deny. But it does not follow that the defendants are chargeable with profits as a matter of course. Very possibly, the statutory rule for wrongful use of a trademark may be extended by analogy to unfair competition in a proper case."

There is something here of expression leaving much to be desired. The lower court found there was a similarity of design, notice to defendant and recovery revert back only to the time of notice. Why, if there could be unfair competition in the case at all, are not all the elements of a basis for recovery given? And why does the court speak of analogy to a statutory rule for wrongful use of trademark? He refers to a federal statute, which merely gives protection by way of penalty. But trademark rights are under state law and so are rights under unfair competition. Where can be any analogy between a law for a penalty and a law for the recovery for infringement of a common law right or for damages in unfair competition, also a common law right?

But notice to a violator of the right of fair competition is further denuded of its value as the following language shows. "They (defendants) had been advertising their goods by name and using the design in connection with the name. The natural interpretation is not that they wanted to steal the plaintiff's good

will, of which they then learned for the first time, but that they wished to preserve their own. When they stood upon their rights, of course, they made themselves responsible for the continued use of a label that might be held likely to deceive, and if it should be held manifestly to have that tendency, they would be chargeable for what, in contemplation of law, was an intentional wrong, a fraud, although the case is wholly devoid of any indication of actual intent to deceive or to steal a reputation of the plaintiff's goods. If the defendants' conduct was a wrong, as we have assumed, it was a wrong knowingly, but no further inference against the defendants can be drawn from the fact." No further inference than what? If there was "intentional wrong or a fraud," must the wrongdoer separate the profits he obtains or are all to belong to the plaintiff? The opinion of the court indicates this burden is on the plaintiff.

PREVENTING UNNECESSARY LITIGATION AT THE SOURCE.

The State Bar Association of New York has joined forces with the New York Chamber of Commerce for the purpose of devising plans to prevent unnecessary litigation at the source.

"At the source" is the distinguishing part of the title of this new committee, the one thing that differentiates it from the usual standing committee in every bar association.

Backed by the brains of the New York bar and the money of the New York merchant, the committee has succeeded in compiling some very interesting statistics. showing the major subjects of law most litigated and the principal causes of such litigation.

The researches of the committee included all of the reported cases in New York, and the results of the investigation are incorporated in a tabular statement showing the twenty-five major subjects of law which according to the New York reports occasion the most litigation. In this table, which we here subjoin, the most liti

It will be observed that the first subject, ranking in volume of litigation, is "wills." The analysis of all the above cases covering wills makes a remarkable showing. Seventythree per cent of the litigation concerning wills arises from disputes as to their meaning and legal effect and nine per cent involves their execution, revocation and alteration. These two items taken together clearly show that eighty-two per cent of all litigation relating to wills is of a preventable nature.

Each of the twenty-five subjects is analyzed in this way. The committee offers to send the analysis on any subject

to any person interested, who makes request of the secretary, Mr. Charles T. Gwynne, 65 Liberty St., New York, N. Y.

The purpose of this joint committee is not only to discover the causes of litigation, but if possible to discover remedies which will tend to decrease its volume. We also learn from a letter received from Mr. Daniel S. Remsen, chairman of the Bar Association Committee, that one of the most beneficial results of the committee's deliberations is likely to be the discovery of some workable scheme of arbitration and conciliation as a means of preventing litigation.

INTERSTATE

A. H. ROBBINS.

RAILROAD EMPLOYES AND WORKMEN'S COMPENSATION ACT.

By the Act of April 22, 1908, Congress undertook to provide a new remedy for a person "suffering injury while he is employed by" an interstate carrier, by railroad in interstate or foreign commerce, and also, in case of his death gave a new remedy to his personal representative for the benefit of . . . . [his] surviving widow.... and children, and if none then of . . . . [his] parents, and if none, then to the next of kin dependent upon. . [him] for . . . . [his] injury or death, resulting in whole or in part from the negligence of any of its officers, agents, or an employe of such carrier, or by reason of any defect or insufficiency due to negligence in its cars, engine, appliances, machinery, track, roadbed, ways or works."

According to the latest expression of the Supreme Court of the United States this "Act of Congress created the only obligation that has existed since its enactment for an employe covered by its provisions, whatever similar ones for

merly may have been found under local law emanating from a different source."

At first the legal profession did not. generally grasp the fact that the only remedy an employe engaged in the interstate commerce of an interstate railway company, injured by reason of its negligence or of its officers or employes had was that given by the Federal statute. It has taken many decisions to thoroughly drive this fact home.2

(1) Atlantic Coast Line R. Co. v. Burnett, 36 Sup. Ct. Rep. 75, reversing 163 N. C. 186; 79 S. E. 414. In the case in the state court it was held that the fact that action was brought more than two years after the injury was inflicted must be presented by answer, like a plea of the statute of limitations, and if no such plea was filed that defense was not available, even though the complaint or declaration showed that more than two years had elapsed between the injury and the time the suit was brought. The Federal Supreme Court reversed the case on the ground that the plaintiff must show he had brought his action within two years after he received his injury. The same rule has been declared by the Supreme Court of Tennessee. Vaught v. Virginia & S. W. R. Co., 179 S. W. 314.

(2) Mondu v. N. S. N. H. & H. R. Co., 223 U. S. 1, 32 S. C. 169; 56 L. Ed. 327; 38 L. R. A. (N. S.) 44; 1 N. C. C. 875, reversing 82 Conn. 352; 73 Atl. 754; St. Louis S. F. & T. R. Co. v. Seale, 229 U. S. 156; 33 Sup. Ct. 651; 57 L. Ed. 1129.

Wabash Ry. Co. v. Hayes, 234 U. S. 86; 34 Sup. Ct. 729; 58 L. Ed. 1126, affirming 186 Ill. App. 511.

St. Louis St. Ry. v. Hesterly, 228 U. S. 702; 33 Sup. Ct. 703; 576 L. Ed. 1031, reversing 94 Ark. 240; 135 S. W. 874; Taylor v. Taylor, 232 U. S. 363; 34 Sup. Ct. 350; 58 L. Ed. 638. Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59; 33 Sup. Ct. 192; 57 L. Ed. 417, reversing 189 Fed. 495. Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570; 33 Sup. Ct. 135; 157 L. Ed. 274, affirming 192 Fed. 919; 113 C. C. A. 665.

Grand Trunk R. Co. v. Lindsay, 233 U. S. 42; 34 Sup. Ct. 581; 58 L. Ed. 828, affirming 201 Fed. 836; 120 C. C. A. 166. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492; 34 Sup. Ct. 635; 58 L. Ed., reversing 162 N. C. 424; 78 S. E. 494. N. Carolina R. Co. v. Factory, 232 U. S. 248; 34 Sup. Ct. 305; 58 L. Ed. 591, reversing 156 N. C. 496; 72 S. E. 858. Niles v. Central Vt. R. Co., 87 Vt. 356; 89 Atl. 629. Louisville & N. R. Co. v. Kemp, 140 Ga. 657; 79 S. E. 558. Bromlett's Southern R. Co., 98 S. C. 319; 82 S. E. 501. C. & C. v. St. Louis & S. F. R. Co., 92 Kan. 132; 139 Pac. 1177. La Crosse v. New Orleans, T. & M. R. Co., 135 La. 129; 64 So. 1012. Wagner v. Chicago & S. R. Co., 265 Ill. 245; 106 N. E. 809. Rich v. St. Louis & S. F. R. Co., 163 Mo. App. 379; 148 S. W. 1011.

So exclusive in its character is the Federal Act that no action can be maintained under it for the benefit of relatives other than those specified by it."

If a state statute allows an administrator to maintain an action because of the death of an employe engaged in interstate commerce, for one whom the Federal Act does not name as entitled to receive a benefit, the action cannot be maintained on the Federal statute, for that statute has limited the number of persons for whose benefit action may be maintained. This conclusion is reached in another way the statute was necessary to enable an action to be maintained for the benefit of the persons designated, and without it none could be maintained; and, therefore, one cannot be maintained for the benefit of a person not designated by the statute, for no cause of action has been created for the benefit of such a person.*

Whether or not in such an instance an action can be maintained on a state statute for the benefit of such omitted beneficiary has not, I believe, been decided; but I do not think it can, for the reason that Congress has designated in cases of fatal negligent injuries those only for whose benefit actions can be maintained under Federal statute, and this is equivalent to a declaration by it that no other action shall be brought for the benefit of a person not designated by the Federal statute by reason of the negligent fatal injury of an interstate employe."

(4) In Tonsellito v. New York & H. R. R. Co. (N. J.) 94 Atl, 804, it was held that a father could maintain an action. under the Federal statute for the loss of service of his infant child where the child survives the injury-a very doubtful decision.

(5) In Atlantic Coast Line R. Co. v. Burnett, 36 Sup. Ct. 75 (reversing 163 N. C. 186, 79 S. E. 414) Justice Holmes says: "In dealing with enactments of a paramount authority, such as Congress is, within its sphere over the states, we are not to be curious in nomenclature if Congress has made its will plain, nor to allow substantive rights to be impaired under the name of procedure. But irrespective of the fact that the

A recovery of damages is given only in case of an injury occasioned by negli gence. "It was the intention of Congress to place the action upon negligence only, and to exclude responsibility of the carrier to the employes for defects and insufficiencies not attributable to negligence."

Damages for a willful injury, therefore, cannot be recovered under the federal statute; and, to recover them resort must be had to the common law or a state statute. As Congress' did not pretend to provide for a recovery in the case of a willful injury by the enactment of the statute of 1908, it did not prohibit a recovery of damages for such an injury.

The federal statute in no way limits the amount of damages recoverable when the injured employe himself brings the action; it simply says that the interstate carrier by railroad "shall be liable

act of Congress is paramount, when a law that is relied on as a source of an obligation in tort sets a limit to the existence of what it creates, other jurisdictions naturally have been disinThere clined to press the obligation further. may be special reasons for regarding such obligations imposed upon railroads by the statute of the United States as so limited. At all events. the act of Congress creates the only obligation that has existed since the enactment in acts like this, whatever similar ones formerly may have been found under local law emerging from a different source. If it be available in a state court to found a right and the record shows a lapse of time after which the act says no action shall be maintained, the action must fail in the courts of a state as in those of the United States."

(6) Seaboard Air Line R. Co. v. Horton, 233 U. S. 492; 34 Sup. Ct. 635, 58 L. Ed. 1062, reversing 162 N. C. 424, 78 S. E. 499; Wabash R. Co. v. Hayes, 234 U. S. 86; 34 Sup. Ct. 728, 58 L. Ed. 1226.

(7) "The title clearly indicates that it does not cover all the grounds of liability, but that the act relates only to the particular case formerly provided for in it. The provisions of the act relate solely to liability on account of negli gence. The several states, therefore, in the exercise of their police power, may make such laws and regulations for the protection of labor within the state as may seem best, unhampered by the Federal Employers' Liability Act, except so far as they attempt to prescribe a liability for negligence or the remedies therefor in interstate commerse." Winfield v. N. York Cent. & H. R. Co., 153 N. Y. Supp. 499: 168 App. Div. 351.

in damages to any person suffering injury while he is employed by such carrier in such interstate commerce or, in case of the death of such employe, to his or her personal representative for the benefit of the surviving widow or husband or children of such employe," etc. A state statute fixing the amount of recovery in case of death, therefore, has no application to an action under this. statute. When the action was brought by the administrator of the deceased for the deceased's beneficiaries for an injury received prior to April 5, 1910, when the supplemental section nine was adopted, the amount of damages recoverable under the interpretation of the Federal Supreme Court was actual pecuniary loss the beneficiary had suffered in the death of the deceased employe-the deceased's right of action having died with him-but the amendment of 1910 preserved the deceased's right of action for the benefit of the beneficiaries, and the amount now recoverable by the administrator is not limited merely to the pecuniary loss they have suffered by the employe's death. It will then be seen that Congress has practically legislated upon the question of damages; and, therefore, state legislation upon that subject is superseded by the federal statute.

Can, then, an interstate employe claim the benefit of the usual state workmen's compensation acts when he has been negligently injured, or can the interstate railroad insist that it is liable only under such acts?

This question has been answered in several states. Thus, in California it has been held that the Workmen's Compensation Act of that state had no application to an employe killed while engaged

in the interstate commerce of a railroad carrier or to such an employe when merely injured."

(8) Southern Pac. Co. v. Pillsbury (Cal.) 151 Pac. 277.

(9) Smith v. Industrial Accident Co. (Cal.) 147 Pac. 600.

In Illinois the Supreme Court held that the Workmen's Compensation Act of 1911 of that state had no application to a deceased employe killed when engaged at the time of his injury in interstate commerce, and that "the recovery must be had, if at all, under and subject to the provision of the Federal Employers' Liability Act." But it should be observed that this Illinois statute especially excepted such an employe from its provisions.10 The decision, however, is not based really upon this exception in the statute. But in New Jersey, the contrary, it would seem, has been decided.11

The New York Workmen's Compensation Act, by its provisions, is made applicable "to employes and employers engaged in interstate commerce, and also in interstate or or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that this mutual connection with interstate work may. and shall be clearly separable and distinguishable from interstate and foreign commerce, except that such employer and his employes working only in the state may, subject to the approval and in the manner provided by the Commission, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employes."

In the construction of this section the Court of Appeals declared that "the legislature said that it did not intend to enter

any field from which it had been or should be excluded by the action of the Congress of the United States."

An employe that was injured was employed in unloading a steamship which

(10) Staley v. Illinois Cent. R. Co. (Ill.) 109 N. E. 342, reversing 186 Ill. App. 593.

(11) West Jersey Trust Co. v. Philadelphia R. R. Co. (N. J. Supp.) 95 Atl. 753; Rousonville v. Central Co., 94 Atl. 392.