for sudden decision and prompt action, can the servant, in a mistaken, but honest, belief in the existence of a state of facts which he considers entitle him to take a certain step, make his employer liable, if the employer himself, when the state of facts did in fact exist, could not lawfully have performed the same act." The decision appears to be sound and in accordance with the earlier authorities, and although it enunciates no new principle it is a useful and instructive case.

PERFORMANCE OF CONTRACT PREVENTED BY THE WAR.-The main point at issue in the recent case of Blackburn Bobbin Company Limited v. Allen and Sons (118 L. T. Rep. 222) was characterized by Mr. Justice McCardie in the opening passage of his written judgment as being one "of far-reaching importance." And when the report of that case is looked at and it is seen how frequent in occurrence may prove to be the question that the learned judge had to determine, it will be recognized that his Lordship did not place too high an estimate on that question: Had the contract in that case, which had been entered into by the parties in the circumstances that are detailed in the report, been dissolved by the outbreak of the war in August, 1914; or had it been annulled under section I of the Courts (Emergency Powers) Act 1917 (7 & 8 Geo. V, c. 25)? It was not a matter in which trading with the enemy came into consideration, as in the numerous cases that have arisen since the beginning of hostilities. For the plaintiffs were British manufacturers of bobbins for spinning at Blackburn, while the defendants were British timber merchants at Hull. Nor was there any administrative intervention by the British Government. It was simply a case in which the performance of the contract became utterly impracticable because of the war. There were, however, no war, or force majeure, or suspension provisions contained in the contract, such as have come into discussion in so many recent cases. "The vast disorganizing effect of the war on trade and transport," to which Mr. Justice McCardie made reference, is known to everyone. And that "it undoubtedly effected a revolution of circumstances and rendered it impossible for the defendants to deliver the timber in accordance with their bargain," was no more than was to be expected as things turned out. The defendants' assertion that the contract had been dissolved by the outbreak of the war was just the natural result of the predicament into which it forced them and thousands of other traders. But was that assertion maintainable? That was the difficult problem before the learned judge. And a perusal of his judgment, with its masterly review of the various decisions necessitated by the war which have been pronounced during the past three years, will prove no less interesting than instructive. His Lordship's remark that "it is obvious that the principle raised by the case is one of vital and general importance" is so unchallengeable that until the highest tribunal has been afforded an opportunity of dealing with it no really satisfactory conclusion can be regarded as having been arrived at. Suffice it to say for the present that Mr. Justice McCardie's reasoning lends strong support to the view which he took that the contract was still in force, and that its breach, involuntary though it was, rendered the plaintiff's entitled to damages. But his Lordship's allusion to Mr. Justice Atkin's recognition in Lloyd Royal Belge Societe Anonyme v. Stathtos (see 144 L. T. Jour., p. 42) and Lord Justice Pickford's in Hulton and Co. v. Chadwick and Taylor (see 144 L. T. Jour., p. 273)-that the law on the matter is undoubtedly in process of evolution-prevents any definite opinion upon it. "The point must presumably be solved upon. broad existing principles of contract law," added his Lordship. And the House of Lords alone can furnish that solution conclusively.

EMPLOYER'S OFFER TO REINSTATE INJURED WORKMAN.—A point of much practical importance in the decision of workmen's compensation cases was dealt with by the Court of Appealconsisting of Lords Justices Swinfen Eady and Bankes and Mr. Justice Neville in the recent case of Cross v. Whitehead Aircraft Limited. Their Lordships there laid it down that where an offer has been made by an employer, during the course of arbitration procedings by an injured workman for the purpose of obtaining compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), to take the workman back and to find him suitable work at his old rate of wages, it is an offer that, although declined, ought to be considered and taken into account by the County Court judge when fixing the weekly payment to the workman. The nature of the "suitable" work must, of course, be specified by the employer in order to give the workman every opportunity of making up his mind to accept it or reject it. And what is to be regarded as such has been the subject of numerous reported cases, of which Eyre v. Houghton Main Colliery Company Limited (102 L. T. Rep. 385; (1910) 1 K. B. 695) and Thompson v. John Newton and Co. (7 B. W. C. C. 703) may be cited as typical examples. There are likewise various Irish cases which may conveniently be referred to. In Eyre's case (ubi sup.), the then Master of the Rolls (Cozens-Hardy) expressed his view as to what constitutes "suitable employment." At p. 387 of 102 L. T. Rep. his Lordship said that it was a question of fact in each case for the County Court Judge, and a question of fact to be considered "having regard not merely to the physical condition of the workman, but also to the nature and character of his occupation before the accident, and the nature of the work which he is offered after the accident." Lord Justice Fletcher Moulton (as he then was) supplemented that expression of opinion by declaring that an employment cannot be considered suitable that "a reasonably careful man desirous of earning his living rightly is entitled to reject because it exposes him to risks so serious in their consequences that he feels that he is not doing his duty to himself and his family in encountering them." The decision in the present case must be read with that in Barron v. Blair and Co. Limited (8 B. W. C. C. 501; (1915) W. C. & Ins. Rep. 333), where it was made plain that an offer of light work at the hearing of the injured workman's application for compensation does not prevent the County Court judge from awarding the maximum compensation. What was dealt on in the present case was simply the necessity for His Honor to weigh carefully the employer's offer of suitable work at the workman's old rate of wages-to reinstate him, in brief. And the Court of Appeal pointed out that, although an adjournment of the case might thereby be entailed, that was readily met by an exercise of the County Court judge's power to levy costs on the party who occasioned the adjournment. It should further be remarked that in coming to the conclusion that their Lordships did in the present case they were assisted by the course which was followed in Jenkinson v. Steiner and Co. (9 B. W. C. C. 571)-the case was sent back because the employers' offer has not been duly considered.

"That every judge, in every system, has, consciously or unconsciously, as the foreign jurists assert, a current metaphysie and social philosophy which tempers and controls his juridical thinking is probably true. Otherwise the judge's application of decided cases by analogy to modern instances would be a mere traditional system of abstract logical inferences, devoid of morale and devoid of solid causative reasons ex aequo et bono."-Per Fowler, S., in Matter of Ripley, 167 N. Y. Supp. 162.

Obiter Dicta

WHEN THE DEVIL WAS WELL.-Drinkwine v. Gruelle, 120 Wis. 628.

POOR PICKING.-Oklahoma State Bank v. Buzzard (Okla.), 160 Pac. 462.

FELL DOWN A CHIMNEY?-Santa v. Industrial Accident Commission (Cal.) 165 Pac. 689.

WAS CERTAINLY SLIMMER WHEN HE GOT THROUGH.-In Slimmer v. State Bank, 134 Minn. 349, the defendant won all through the courts.

CHURCH AND STATE.-Bishop v. Greek (Tex.) 199 S. W. 367; State v. Catholic, 75 Oregon 367; Helpers of the Holy Souls v. Law, 267 Mo. 667.

WAR ECHOES.-King v. Kaiser, 126 Md. 213; Fritz v. Sims, 122 Tenn. 137; Zimmerman v. Makepeace, 152 Ind. 199; Reap v. Battle, 155 Pa. St: 267.

CAMOUFLAGED.-The agitation for prohibition seems to be turning the whole nation topsy-turvy. Note for instance its effect on the name of the defendant in Cramer v. Reeb, 89 Conn. 667.

CAUSE AND EFFECT.-In Gibbons v. Marx & Rawolle, 181 N. Y. App. Div. 142, an application for workmen's compensation, the court, referring to the injuries suffered by the workman, remarked: "On the following day he went to a physician who diagnosed his trouble as heart difficulty and prescribed for him accordingly until he died."

MANSLAUGHTER WITHOUT DEATH.-It would seem to be hardly arguable that the crime of homicide in any degree cannot be committed without an actual killing. Yet at least two state legislatures have attempted to declare that certain acts not resulting in death shall nevertheless constitute manslaughter. In each instance the crime denounced was the attempt to commit an abortion and in each instance the statute was declared invalid. (See State v. Young, 55 Kan. 349; State v. Hartley, 185 Mo. 669.) The grim humor underlying those legislative pronunciamentos doubtless escaped their sponsors but it is fortunate that the courts were wide awake. Otherwise some of us might to-day be facing the electric chair for pulling a dog's tail or spitting on the floor of a street car.

WHAT IS DUE PROCESS OF LAW BETWEEN FRIENDS?-A correspondent suggests that perhaps the readers of the Obiter Dicta column might appreciate the compliment paid to the Oregon Legislature by Chief Justice McBride in the case of Stadelman v. Miner, 83 Oregon 348-372. After referring at length to a pretended curative statute which purported to vest a good title to land in certain purchasers at an administrator's sale, although the heirs had not had an opportunity to be heard or to have their day in court, the Chief Justice said: "The legislature seems to have proceeded according to the adage of the old

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drunkard who said, 'If getting drunk interferes with your business, cut out the business.' So here, 'If the requirement of due process of law interferes with your getting this property, we will cut out due process of law.'"

EXPERIENCE TEACHETH.-In Hendrix v. State, 4 Okla. Crim. 611, Furman, P. J., said: "The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is an immoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the 'bootlegger' will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character." This, coming from a criminal judge with many years' experience in the enforcement of prohibitory laws, savors somewhat of an unwitting rebuke to a system which makes illegal sales of liquor not only possible but probable. BRIEFLY SPEAKING.-The brief of the counsel for the appelant in Reed v. Ford, 129 Ky. 471, contained, according to the official reporter, the following single sentence: "If a drunken bully can go, under the cover of darkness, to the home of a woman, and curse, abuse and threaten to kill a defenseless person in her presence and hearing and right at her door, thereby alarming her to such an extent that she was caused to take her bed for ten days, causing her great mental and physical suffering, making her sick and threatened with miscarriage, then we want to know that such action is permitted by the laws of this great State, and that the injured party has no civil remedy." Surely a touching argument, and one, forsooth, that needed no citation of authorities to bolster it up. But it never fazed the court and the counsel found out speedily what they said they wanted to know.

THE ETERNAL FEMININE.-Considerable speculation has been indulged in as to whether women as jurors could manifest a disposition to hasty prejudice for or against parties or counsel based on personal appearance or mannerisms. The first case to arise on the point leaves nothing to be desired in the way of humor. In Hanson v. Lemley, (Wash.) 171 Pac. 255, it appeared that during the noonday adjournment one woman juror sitting in the case said to another, "I just hate that lawyer with the mustache," to which the other responded that she did too. The only lawyer whose face was thus adorned being the counsel for the defendant, on a verdict for the plaintiff being rendered, this colloquy of the jurywomen was adduced as ground for a new trial. The court said: "Although the fault of the 'two women jurors' may seem grievous to appellant, and well calculated to incite counsel to a just resentment, we cannot make ourselves believe that a showing of prejudice, of which the law will take notice, has been made out. No authorities are cited in support of this assignment of error, nor have we looked for any, depending entirely on the self-evident proposition that, where there are no books of authority, it is always safe to turn the leaves of human experience. It is not made clear whether the 'two women jurors' were voicing a malice toward counsel for appellant and made reference to his mustache as a mark of identification, or were only innocently voicing the old-age prejudice against the hirsute adornment of the face, which some of the sex have nursed ever since the days of Delilah. Then again we can almost take judicial notice of the fact that the present generation is extravagant of speech. Terms in young ladies' seminaries, and even college careers, have sometimes netted no more in the way of a vocabulary, or in power of expression, than 'I just hate,' 'I just love,' 'It is perfectly grand,' 'It is perfectly lovely,' or

'perfectly terrible'-terms applied without reference to real emotion, and to things animate and inanimate from marshmallows to men, and from breakfast foods to works of art. If we were justified in relying upon our observations of human nature, we would question that part of the affidavits wherein it is alleged that the 'other disciple' of the court assented, saying 'she did, too,' for it is more likely that she manifested her approbation with the more familiar words, I should say.' No prejudice is reflected in the verdict. Prejudice against client or counsel is a thing to be inquired into on voir dire, and we cannot think that the fair jurors would 'hate' counsel to the extent, at least, of penalizing his client for a cause so trivial and harmless, and for a condition so easily removed."

Correspondence

To the Editor of LAW NOTES.

SIR: We beg to direct your attention to the plans of the U. S. Employment Service, and to the great effect which this program will have upon the industrial life of the Nation.

On August 1, the supplying of war industries with common labor will be centralized in the U. S. Employment Service of the Department of Labor, and all independent recruiting of common labor by manufacturers having a payroll of more than 100 men will be diverted to the U. S. Employment Service. This is in accordance with the decision of the War Labor Policies Board and approved by the President on June 17. (The War Labor Policies Board is composed of representatives of the War, Navy, and Agricultural Departments, the Shipping Board and the Emergency Fleet Corporation, the War Industries Board, and the Food, Fuel, and Railroad Administrations. Its chairman is Felix Frankfurter, Assistant to the Secretary of Labor.)

The above action was found necessary to overcome a perilous shortage of unskilled labor in war industries. This shortage was aggravated by an almost universal practice of labor stealing and poaching.

While the restrictions against the private employment of labor apply only to common labor at the present time, these restrictions will, as soon as possible, be extended to include skilled labor. In the meantime, recruiting of skilled labor for war production will be subject to federal regulations now being prepared.

This drastic change in the Nation's labor program has been found necessary in order to protect the employer and the employed, to conserve the labor supply of the communities and to cut down unnecessary and expensive labor turn-over (which, in some cases, is as high as 100 per cent a week), and to increase the production of essentials.

While non-essential industries will be drawn upon to supply the necessary labor for war work, the withdrawal will be conducted on an equitable basis in order to protect the individual employer as much as possible.

Under the operating methods adopted, the country has been divided into thirteen federal districts, each district in charge of a superintendent of the U. S. Employment Service. The States within each district are in turn in charge of a State Director, who has full control of the service within his State.

In each community there is being formed a local community labor board, consisting of a representative of the U. S. Employment Service, a representative of employers and a representative of the employed. This board will have jurisdiction over recruiting and distributing labor in its locality.

A survey of the labor requirements is being made, and in order that each community may be fully protected, rulings have

been issued that no labor shall be transported out of any community by the U. S. Employment Service without the approval of the State Director; nor shall any labor be removed by the Service from one state to another without the approval of the U. S. Employment Service at Washington. Every effort will be made to discourage any movements from community to community or state to state by any other service.

This labor program has the approval of all producing Departments of the Government, through the War Labor Policies Board.

It must be understood that farm labor will be protected, for the industrial program distinctly includes special efforts to keep the farmer supplied with labor.

The requirement that unskilled labor must be recruited through the sole agency of the U. S. Employment Service does not at present apply in the following five cases:

1. Labor which is not directly or indirectly solicited.

2. Labor for the railroads.

3. Farm labor-to be recruited in accordance with existing arrangement with Department of Agriculture.

4. Labor for non-war work.

5. Labor for establishments whose maximum force does not exceed one hundred.

When the survey of labor requirements has been made and the aggregate demand for unskilled labor in war work is found, each State will be assigned a quota, representing the common labor to be drawn from among men engaged in non-essential industries in that State.

These State quotas will in turn be distributed among localities. Within each locality, employers in non-war work, including those who are only partially in war work, will be asked to distribute the local quotas from time to time amongst themselves. Quotas by localities and individuals are to be accepted as readily as they are for Liberty Loan and Red Cross campaigns. plan of labor quotas is a protection for all communities.

This

The object is to keep any community from being drained of labor, and to use local supply, as far as possible, for local demand. The situation, however, is such that in certain cases some men may have to be transported over long distances.

You will note from the above outline that this is probably the most drastic action that the Government has taken since putting the National Army draft into effect. The absolute necessity for this program can be seen when it is realized that in Pittsburgh, for instance, there are advertisements calling for men to go to Detroit'; while in Detroit street cars there are posters asking men to go to Pittsburgh. This same condition is apparent all over the United States and in the consequent shifting of labor a great part of our war effort is dissipated.

Because this is one of the greatest problems facing the nation to-day, we are asking that you give this matter your careful consideration. You will probably desire to carry some comment on this basic change in the Nation's labor methods, and we would suggest that if you desire to assign one of your men to look into this situation, the facilities of the Department of Labor and the U. S. Employment Service are at your disposal. J. B. DENSMORE. Director General, U. S. Employment Service.

light of recent events on the Marne and elsewhere. But though it has happily been proven to be false, its falsity is no credit to certain well meaning "reformers" who have been engaged for years in trying to make it true. It is worth white to take note of the things which the Pharisees have been trying to prohibit and which have been found.essential to the well-being of our troops in France. Tobacco has been denounced far and wide as a "poison, yet the government, interested in the physical well-being of the men who fight for its life, has declared it to be a "necessity" for whose manufacture fuel must be supplied, and transports it across the sea with other necessities to the soldiers. Boxing has been decried as rude and brutal by old ladies both male and female, and banished by law from many states, yet the government, finding it the best of physical training, introduces the despised prize fighter as an instructor in military camps. Sunday laws do their evil utmost to make amateur athletics impossible to men bound to close employment, yet Wellington said that Waterloo was won on the cricket fields of England, and it may one day be said that France was saved from the Hun on the baseball diamonds of America. Uncle Toby bewailed that "our armies swore terribly in Flanders" and there is many an uncle Toby in the United States to-day who loses all the inspiration. of the world crisis in thinking of the possible oaths of our own heroes in that same historic land. The war has shown what it is too easy to forget that in the last analysis the national life and safety rest on hardy, resolute, redblooded manhood. Into the composition of that manhood enters much that is alien to the aesthetic, yet history shows that when the rude virtues and their invariable concomitant the rude vices are all smoothed out the barbarian comes to crush out a civilization that has grown too nice to live. So said the greatest student of humanity:

"Best men are moulded out of faults

And, for the most, become much more the better
For being a little bad."

Treason by Interned Alien.

IN N an article reprinted from the London Law Times in the August issue of LAW NOTES it is cogently argued that a prisoner of war may be guilty of treason against the nation which holds him captive. While it is improbable that any prisoners of war will be confined in the United States in the near future, we have many interned enemy aliens, and if some of them do not commit acts in aid of the enemy it will be only for lack of opportunity. It seems perfectly clear that an interned alien may be convicted and punished for treasonable acts committed during his internment. The question of allegiance was settled in Carlisle v. U. S., 16 Wall. 147. In that case the court approved and applied the following statement of Mr. Webster while Secretary of State: "Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be." After quoting the After quoting the

foregoing statement Mr. Justice Field defined the liability of the claimant, a British subject, as follows: "Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25, 1868." The question of allegiance being thus settled by the court of last resort, the status of the interned alien is peculiar only by reason of his confinement. And this question seems to be put at rest by the numerous cases holding that a person confined in prison is liable criminally for his acts committed therein.

The Government and the Telegraph Service.

T

HE action of the government in taking over the control of the telegraph companies is a logical extension of its course with respect to the railroads and will undoubtedly vindicate itself fully in practice. In fact the telegraph service is so closely allied to the postal system in nature and purpose that it is not altogether clear why it was ever permitted to be the subject of private ownership. It is of interest to recall that in 1890 it was suggested by the Post Office Department that it should enter into the business of sending telegraphic messages for the public, making contracts with the telegraph companies for their transmission similar to those made with the railroads for the carrying of the mails. But Mr. Taft, then Attorney General, ruled that the government had no power to enter into such a contract without statutory authorization, saying: "Were electrical communications a new discovery placed before the Government for adoption under its postal Department as an additional means of transmitting intelligence, to be developed and employed by the Department, the question of the power of the Department would be presented in a different light. But when the history of the development of our telegraphic system is recalled, when it is remembered that the use of the telegraph as employed by the Postmaster-General in 1845-'46 under authority of Congress was discontinued because Congress made no provision for its further use, when we consider the number, variety, and importance of the communications transmitted by its use, and when it is taken into account that private persons and corporations have been allowed for a long period to develop, extend, and control this instrumentality, the conclusion seems to be beyond argument that Congress, in clothing the Department with its existing powers, cannot be held to have granted, without specifying it, the power to provide for a telegraphic system of correspondence for the public at large." 19 Op. Atty. Gen. 650. The practical difficulty with such a contract as was then proposed is that while the carrying of the mails is but an incident of railroad operations a telegraph company performs the single function of transmitting messages. Accordingly either the company would enter into active competition with the government with the resultant temptation to give better service to its own messages than to those of the government, or it would retire from business, becoming practically an independent contractor to conduct