have a precise bearing on every future case of a railway servant being foolish enough to do what was done in the presentthe learned judges of the Court of Appeal, Lords Justices Swinfen Eady and Bankes and Mr. Justice Neville, felt no hesitation. Their Lordships were constrained to arrive at the conclusion that there was ample evidence before His Honor to enable him to determine the case as he did. Hereafter railway servants should allow trains to come to a standstill before entering or leaving the same if they wish to retain the protection of the Act.

In

WORKMAN INJURED BY BOMB DROPPED IN AIR RAID.-Among those of the profession interested in workman's compensation, the three comparatively recent cases of workmen injured by bombs dropped in air raids have caused considerable comment. neither of the first two cases, Allcock v. Rogers (118 L. T. Rep. 386) and Knyvett v. Williams, was compensation awarded to the dependents of the deceased workmen. The potman in the former case, whose duties necessitated that he should be on the outside of the door of the public-house in which he was employed, instead of his remaining more securely indoors as probably would otherwise have been his position, was held by the House of Lords to have been exposed thereby to no special or additional risk. Similarly, the commercial traveler in the latter case, who perambulated the streets in the performance of his employer's requirements, was treated by the Court of Appeal as being on the same footing as the potman. In the more recent case of Bird v. Keep, however, a distinction was drawn. The messenger or porter in that case who went to a buildingan oil and color warehouse-in which, therefore, particularly inflammable material was stored, and while so engaged was suffocated by the smoke from a fire caused by a bomb dropped from enemy aircraft, was regarded as being differently situated because of that fact. He was found by the learned county court judge to have been exposed to a risk not shared by other members of the public in the vicinity, whether in the streets or in the neighboring buildings. In the opinion of His Honor -an opinion in which the learned judges of the Court of Appeal unanimously concurred-the inherent condition of inflammability of the goods contained in the oil and color warehouse threw upon the building a special and additional risk of fire which exposed the persons there employed to exceptional dangers from fire. The fire was in the present case the proximate cause of the workman's death. The common danger of injury from enemy aircraft to which other persons in the streets, or in other buildings in the same locality, were subjected was vastly augmented by the readily ignitable condition of the commodities with which the oil and color warehouse was stocked. Thus was found a risk arising from a peril attached to the particular location in which by the obligation of his service the deceased workman was placed. The stipulation in the opinion pronounced by Lord Shaw in Thom (or Simpson) v. Sinclair (116 L. T. Rep. 609; (1917) A. C. 127), which has created so much stir among those concerned in workmen's compensation cases, and an entire modification of the views that were antecedently entertained, was consequently fulfilled completely. It is to be observed that in the present case the deceased workman, had he remained in the street without the building where the bomb fell and set fire to the inflammable contents of the warehouse, would doubtless have escaped suffocation by the smoke from that fire. Whether, on the other hand, the explosive force of the bomb would have affected him, as did that of the respective workmen in Allcock v. Rogers and Knyvett v. Williams cannot even be conjectured. If it had been so, then those authorities seem to establish that he would have been unable to claim the benefit of the Work

men's Compensation Act 1906 (6 Edw. 7, c. 58). And if, instead of suffering mere personal injury, his death had resulted from the accident, his dependents would have been in no better position than himself. However this may be, the effect of bombs on workmen when they fall from aircraft flown by enemy airmen-from the point of view of the workmen's right to compensation is gradually becoming more settled.

PUNCTUATION IN WILLS AND DEEDS.-The recent decision of the House of Lords in Houston v. Burns (118 L. T. Rep. 462; (1918) A. C. 337), which decided that a bequest for public purposes to be selected by a third person, though limited to a particular locality, is void for uncertainty (applying Blair v. Duncan, 86 L. T. Rep. 157; (1902) A. C. 37) is interesting on another point, namely, as calling attention to the vexed question as to the effect to be given to punctuation in the construction of wills and deeds. As is well known lawyers are not in the habit of using stops in the preparation of legal documents, but they are occasionally met with, and sometimes the law itself supplies them. In Sandford v. Raikes (1 Mer. 651) Sir William Grant, M. R., in reference to a will said: "It is from the words and from the context, and not from the punctuation that the sense must be collected"; and in Gordon v. Gordon (L. Rep. 5 H. L. 276) Lord Westbury said: "So far as punctuation is concerned I believe there is no trace of any punctuation in the original will; but, whether there be so or not, I entirely concur in the opinion expressed by Sir Willian Grant, in a case before him, (Sandford v. Raikes) that it is from the words and from the context and not from the punctuation' that the meaning of the testator is to be collected." But in Gauntlett v. Carter (17 Beav. 586) Sir John Romily, M. R., said: "I do not see how I am to reject the commas; and I shall assume that they were put in by the testator." In Manning v. Purcell (24 L. J. Ch. 523), Lord Justice Knight Bruce said that in construing a will of personal estate, judges of this court were not bound to confine their attention to the probate, but might, as he had known Lord Eldon repeatedly do, look at the original will, in the testator's handwriting, with a view to see whether anything there appearing as for instance, the mode in which it was written, how "dashed and stopped" could guide them in the true construction to be put on it. And see the observations of ViceChancellor Wood as reported in a note to Walker v. Tipping (9 Hare 803). In Houston v. Burns, Lord Finlay, L. C., after shortly referring to the foregoing authorities said: "I think that for this purpose (that is for helping in the construction of the will) the punctuation of the original will may be looked at, and reading this clause as punctuated, the words 'public, benevolent, or charitable' are clearly to be read disjunctively. It follows that the bequest is bad for uncertainty." The law itself sometimes supplies a parenthesis, or punctuation. Thus where the limitations in a marriage settlement were (after prior limitations) "to the use of all and every the child or children equally share and share alike to hold the same as tenants in common and not as joint tenants, and if but one child then to such only child, his or her heirs and assigns for ever" it was held that the words from "to hold" down to "only child," might be put into a parenthesis, so as to make the limitation run "to the use of all and every the child and children equally share and share alike his and her heirs or assigns," and thus to give estates in fee simple to the children: (Doe v. Martin, 4 T. R. 39). In Rochfort v. Fitzmaurice (2 Dr. & War. p. 15), where the limitation of a settlement by a deed was "to the use of M. and such other daughter or daughters as F. shall or may have or beget, on the body of K. his wife, if any, share and share alike, and if no other daughter save the said M., then the said premises do

go and descend to the said M., her heirs and assigns for ever," it was observed by Sugden, C., as follows: "Then come the limitations to the daughters in words which according to their grammatical construction would merely give them estates for life, unless there was only one daughter, but the cases of Owen v. Smyth (2 H. Black. 594) and Doe v. Martin (4 T. R. 39) have decided that in construing such limitations, by punctuation or by the use of a parenthesis, the words 'heirs and assigns' may be extended in their application, and instead of being confined to one daughter, may be referred to all the daughters of the marriage (see further Norton on Deeds, p. 316) if more than one."

TREATMENT BY THE GERMANS OF PRISONERS OF WAR.-The statements on oath of escaped prisoners which the British Government has accumulated since the publication last April of the report of Mr. Justice Younger's committee to inquire into the treatment by the Germans of prisoners of war prove conclusively not merely the wanton violation of the agreement concluded with the German Government in April, 1917, under which prisoners should not be employed within nineteen miles of the firing line, but likewise flagrant infractions of the first principles of international morality in the dealings of captors with prisoners of war. The Hague Rules provide that prisoners of war must be humanely treated, and that the Government into whose hands they fall are bound to maintain them. "Prisoners of war," writes Dr. Hannis Taylor, "may be employed at work not unsuited to their condition and not directly hostile to their own army and country, and this Bluntschli and Calvo construe into an authorization for their employment on distant fortifications, a claim properly condemned by Geffeken on principle. Prisoners should not be employed to strengthen their captor's military position, for this tends to release a corresponding number of his soldiers for service at the front. The more modern practice confines their labors to what contributes to their own welfare." In piquant contrast with this authoritative exposition of the relations between prisoners of war and their captors, which are in consonance with international morality, one British prisoner was made to work for two hours after he had been taken prisoner, serving a German gun with ammunition and digging out a position for it under fire, while another prisoner, with twenty others, was taken to a German battery in action and made to carry shells and make a dump of them. There is also evidence of British prisoners being compelled to work on roads and light railways for war purposes within range of the British guns, a corporal being killed and three men wounded by shell fire when working under these conditions. Again, the contrast between the rule of international morality and the treatment accorded by the Germans to British prisoners of war is striking. "If prisoners of war," writes Dr. Hannis Taylor, "desert and proffer information it may be received, but they cannot be com

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pelled to give it, or to be punished for false information when given." A British prisoner was marched for thirteen or fourteen miles without food to a German station. "Here," he deposes, "a German interpreter threatened me with a revolver, saying: 'I want you to tell me the truth; if you tell me any lies you won't leave this tent alive.' He pointed the revolver at my temple. He asked me the strength of my division, how many guns there were left, and where they would probably be." The evidence of the terrible sufferings and privations to which prisoners of war have been subjected by reason of insufficient food and clothing, and of being placed in quarters utterly unfitted for human habitation, makes exposition of the treatment to which they are entitled in accordance with international usage savor of mockery. "In the absence of a special agreement between the belligerents, prisoners of war are to be supplied with food, quarters, and clothing on the same footing with the troops of the Government which has captured them"; (Hague Second Convention, arts. 4, 7.) They cannot, of course, expect to receive better food or accommodation than the captors themselves, or to enjoy privileges which imperil their conquerors. While prisoners of war may be detained in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed limits, they can be confined only as an indispensable measure of safety: (Hague Second Convention, art. 5.) The violation by the Germans of the established usages of war gives force to the question asked by Sir Edward Carson in the House of Commons, to which no reply-a most significant circumstance-was vouchsafed, whether it would be advisable to equalize the treatment of German prisoners in England with the treatment accorded to British prisoners in Germany. The Golden Rule has little international application, for "the whole international code," observes Wheaton, "is founded on reciprocity."

Obiter Dicta

A BIRD OF A CASE.-Sparrow v. Sparrow, 171 Ky. 101. A STRANGE ANTAGONISM.-Gerli v. Mistletoe, 80 N. J. Law 128.

NOT YET READY FOR BURIAL.-Brewer v. Glass Case Co., 139 Tenn. 97.

INSINCERE?-In Miller v. Sincere, 273 Ill. 194, the court decided against the defendant's pleas.

NO LONGER GOOD LAW.-"A suffering of germens to be destroyed with beasts is waste."-22 Viner's Abr. 438.

WAS "B" FOR BAD?-In Kenneth B. Kenner v. Mary Nice Kenner, 139 Tenn. 211, an action to set aside a divorce, the court denied the plaintiff any relief.

THE NORTH CAROLINA CREED.-In State v. Creed, 171 N. Car. 837, the defendant, although but eighteen years of age, was convicted of the crime of seduction.

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NATURALLY RELUCTANT.-In Tanner v. Beers, 49 Utah 536, the complaint of the plaintiff was based on the refusal of the defendant to permit the use of water by the plaintiff.

WITHOUT BENEFIT OF CLERGY.-"The marriages of Adam and Eve and of Abraham, Isaac and Jacob were perfectly valid."— Per Robinson, J., in Woodward v. Blake, 38 N. Dak. 47.

NONESSENTIAL, HOWEVER.-"At another locality was a baseball game, which, it seems, always attracts more or less attention."-Per Prendergast, P. J., in Calyon v. State, 76 Tex. Crim. 86.

MEANING LAWYERS AND JUDGES RESPECTIVELY.-"There are some people who know everything. There are others who, conscious of human limitations, speak with caution.”—Per Fraser, J., in State v. McNeal, 103 S. Car. 197.

A "FEARLESS" JUDGE.-"I would prefer to follow the progressive humanitarian court of last resort of Wisconsin rather than the conservative court of New York."-Per Wanamaker, J., dissenting, in American Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305.

SELF-CONVICTED.-Boos v. State, 181 Ind. 562, and Commonwealth v. Mixer, 207 Mass. 141 were prosecutions for violating the liquor laws; Gunn v. State, 89 Ga. 341 was a prosecution for violating the game laws; and State v. Wolff, 173 Iowa 187 was a prosecution for killing a dog.

THE CAUSE OF THE DISCORD.-In Martin v. Vansant, 99 Wash. 166, a man by the euphonious name of "Melody Choir" seems to have been the proximate cause of all the trouble between the litigants. A prerogative of choirs generally, we might add, whether melodious or otherwise.

THE FIRST EUGENIC.-"The line between permissible overreaching and punishable fraud is illy defined and so it has been from the time Jacob demonstrated the profitable potentialities. of the science of eugenics at the expense of Laban, even unto this day. Genesis xxx, 31-45."-Per Batts, J., in Peeples v. Georgia Iron, etc., Co., 248 Fed. 886.

THE LIMIT. The propensity of judges to dissent leads then far, but we think the limit is about in sight when we find a judge dissenting from himself. In Campbell v. Board of County Commissioners, 97 Kan. 68, Johnston, C. J., wrote the prevailing opinion in which all of the other members of the court concurred, and Johnston, C. J., likewise, without a word of explanation or excuse, wrote a dissenting opinion, concurred in by himself only. A CONUNDRUM.-In Gray v. Finch, 23 Conn. 495, the trial court charged the jury as follows: "Now you have heard their evidence, and the remarks of their counsel, and as it regards the points of law claimed by the defendants, you are fully competent to decide more correctly than I am myself." Partly because the trial court knew no better than to give such an instruction, and partly because of other errors committed by him during the trial, the appellate court reversed the judgment. Both the judge and the jury being thus reversed, the question arises whether the statement by the judge to the jury was correct or incorrect.

OLD TOM.-In Boord & Son v. Bagots, Hutton & Co., [1916] 2 A. C. 382, a mystery which has puzzled us for many years is finally solved. We have often wondered at the significance of "Old Tom" as a name for gin and it is with a distinct sense of relief that our mind is set at rest. In handing the explanation along to our readers, we are deeply sensible of the fact that

only a small minority of the profession are any longer interested in such subjects, but it was not always so, and a suitable respect for the dead, so to speak, may serve as a justification for the appearance of the explanation in this column. In the case referred to, it was sought to prevent the registration of a trade mark on the ground that it would be calculated to deceive. In as humorous a vein as could be expected from an English judge, Lord Buckmaster explained the situation as follows: "The trade in question is the trade of selling gin, and the respondents' mark is one which has as its prominent feature the picture of a cat sitting on the snow, attired in the fancy garments usually associated with puss in boots, and pouring the last drops out of what appears to be an empty gin bottle. The mark of a cat in connection with sweetened and cordialized gin in this country has been long established and used by many persons and firms. It appears to have arisen from the fact that a Mr. Thomas Chamberlain, some time in the eighteenth century, devised a particular form of sweetened gin which attained great popularity; and after his death, in his affectionate remembrance, this drink was described and sold as 'Old Tom.' Whether it was that, as the memory of this inventor became more faint, 'Old Tom' conveyed the idea of a cat and not of a human being, or whether, as the appellants assert, the idea was conceived of a punning use of the name by applying it to a cat, and thus making the animal symbolize the liquor, does not arise here for decision."

Correspondence

GERMAN PROPAGANDA IN AMERICAN NEWSPAPERS.

To the Editor of LAW NOTES:

SIR: I have of late noticed that German propaganda, coming by the way of Amsterdam, is being published in the American newspapers without being so designated, for instance, the saying that the first eleven Americans captured said they did not know for what they were fighting. This condition, in my opinion, will greatly hamper America when it comes to a peace settlement, and will give pacifists and the like an opportunity to urge a premature peace. Will you kindly give this matter the attention you think it deserves in LAW NOTES, and warn readers to beware of any news coming by way of Amsterdam.

IF F there is a patriotic lawyer in the United States who has time, between questionnaires, liberty loans and the like, to wonder whether he is doing his bit, there is another field of service for which the members of the bar are particularly fitted. The war offensive of the enemy has been broken past the power of rehabilitation. But his But his peace offensive is no less dangerous, no less a part of the same diabolical system. It was not the power of German arms that wrecked Russia, but delusive peace talk taken at its face value by well meaning but ignorant people. Failing to conquer us by arms the enemy will inevitably try to trick us by pretense. If he cannot deceive the national authorities he will try at least to weaken the enthusiasm and determination of the people. Here is where the lawyers of America should form an impregnable line of defense through which no enemy propaganda can pass. They are the natural advisers of their communities in public affairs. They are by training fitted to detect trickery and subterfuge and to impress their convictions on those less discerning. They know, as no body of men unversed in public affairs can know, that a bargained peace to-day would be a crime against the generations to come, that "they enslave their children's children who make compromise with sin." The lawyers of America should join the "Unconditional Surrender Club." To those thousands of our fellow lawyers who have gone to the front the formula of duty is plain and straightforward. The enemy before them must surrender or be killed. Those who remain need not envy them their opportunity, for they can serve the nation, yea and the world, just as truly if they will attune their thought, their talk, their influence, to the soldier's simple formula.

Lawyers as Nonessential.

SUBSCRIBER Writes to take issue with the contention A made in a recent issue that the legal profession was wisely omitted from the "work or fight" order. The matter is in its last analysis a personal one. The national crisis puts to every man the stern question of his usefulness, and none will cavil at those who answer in a spirit of modesty. Moreover the writer, whose years debar him from military service, is not without sympathy for the view that the younger generation at the bar are a useless lot anyhow. But our subscriber does "touch us on the raw" by suggesting that our use of the term "essential" in this connection is inaccurate and that "productive" is the correct word. It is true that this is the expression used in the "work or fight" order. But the classification of employments for the purposes of the draft has not been the subject of precise official nomenclature. Three distinct classes are recognized, those which are so necessary to the maintenance of the national industrial life that the president may give them deferred classification by reason of occupation alone; those entitled to no occupational deferment but entitled to claim deferred classification on other grounds, and those to whom all deferred classification is denied. To the second of these classes the legal profession belongs; the third is that created by the "work or fight order." It is obvious enough that to no one of these classes can the term "productive" be accurately applied. There is no industry which is not productive of something; the occupations to which it is most difficult to apply are those of the physician, the clergyman and the teacher, whose preferential status is rarely questioned. So it is not at all a question of the productiveness of an industry but of the nature of its product as essential to the maintenance of that domestic life on which our first line of battle depends.

War Time Prohibition.

I'time prohibition act becomes a law without the

F, as at the present writing seems probable, the war amendment, said to have been suggested by Secretary Lansing to avoid conflict with existing treaties, permitting the importation of foreign wines, some very interesting questions will arise. A treaty and an act of Congress being placed by the constitution on the same footing, a statute is not invalid because of its conflict with a prior treaty. Horner v. U. S., 143 U. S. 570. The power to pass such a law is therefore unquestionable. But the United States has never been an advocate of the theory that a treaty is a scrap of paper or that obligations of honor are not binding on nations. The recent repeal of the canal tolls act is a striking example of our regard for our international obligations. The fact that the principal nations whose imports are excluded by this bill are our brothers in arms in the world struggle adds a sentimental obligation to the moral duty by which we are bound. In any walk of life the fanatic is a dangerous guide. Always in his disordered imagination the end justifies the means. Whether it is antagonism to the "Demon Rum" or devotion to "Deutschland über Alles" which inspires him, he flatters his colossal vanity with the idea of a divinely fostered mission and holds the pledged faith of nations at naught. Incidentally the hypocrisy of the pharisees is plainly exposed by the rejection of the amendment in ques

tion. The hue and cry has been that prohibition is necessary to save raw materials needed in the war. But the amendment did not permit the use of an ounce of domestic raw materials. It did not add to the burdens of shipping, for vessels come back empty from Europe. It contained some possibilities of helping in the war, involving as it did purchases from our allies. The fact is made plain that the pretense of the prohibitionists about aiding to win the war is nothing but pretense. The question of prohibition is a domestic issue. It should be settled as a domestic issue by being reserved to a time when more important questions are not before the public and then put to a fair popular vote on its merits. Of a decision reached in that way no good American will complain. A decision reached in any other way stultifies the theory of popular govern

ment.

The Common Law.

S°

o much of nonsense is perpetrated by way of eulogy of the common law that it is refreshing to see an occasional judicial recognition of its crudity. In Peeples v. Georgia Iron & Coal Co., 248 Fed. 886, it was said: "The common law is a product of more vigor than refinement. . . . The development of equity has made modifications in its crude vigor; but equity, as administered in the courts, is the output of the same peoples who made the common law, and its principles have not yet reached the lofty ideals of early Christianity, nor even the refined justice of the civil law. The line between permissible overreaching and punishable fraud is illy defined, and so it has been from the time Jacob demonstrated the profitable potentialities of the science of eugenics at the expense of Laban, even unto this day." Old things are not always outworn. We can join with Justice Lumpkin in the praise of old wine and old wives without becoming "cerf adscript to things obsolete." Some institutions, arising in times of crisis, come into being with a light of idealism which is dimmed by the passing years. A crisis is merely a time when a long period of evolution comes into fruition. It is the crest of a wave, marking a high point from which civilization appears to recede while it is gathering force for a yet greater advance. Such a high point in history, for example, was the foundation of the American republic. But the common law had no such birth. Its growth was gradual, marking from generation to generation the crude ideals of a crude people. If a rule expressive of the best thought of a past century is to-day a law which fits our aspirations and ideals, it is because the years which lie behind us have been wasted.

Discouraging Technicalities.

CASUAL examination of the English reports will disA close that cumulative rulings on points which are well settled are rare, and that the American practice of presenting a great number of contentions, most of them of no merit, in the hope that one of them may meet with the approval of the bench, is practically unknown. As a result the courts in that jurisdiction are habitually up to date with their calendars. The reason is not far to seek. In that country the judges will not listen to a frivolous contention. The counsel who attempts by a mass of alleged trivial errors to speculate on the chance of a reversal meets with a rebuke which does not tempt him to try it again.

Some additional force is given to such a rebuke by the fact that it is known to the solicitors, by whom counsel is employed, and tends strongly to the disadvantage of any counsel who is not deemed to carry weight in the courts. There is nothing in the law to prevent American courts adopting a like attitude. a like attitude. When a court in its opinion cites a long line of its previous decisions squarely supporting the ruling, it means infallibly that the court has suffered its time to be wasted by contentions that should never have been made. There has been much agitation in favor of shorter opinions, and it is certain that the accumulated mass of case law is becoming intolerable. The useless verbiage in the opinions is 'but the dust in the balance compared to the space consumed in deciding cases that should never have been taken to the appellate court. Colonial codes, being freed from many elements of local self interest, often contain reforms which are denied to the mother country. The Philippine Code of Procedure, enacted in 1901, contains the following provision in respect to appeals to the Supreme Court: "But, if the is frivolous and not made in good faith, it may impose Supreme Court shall be of the opinion that the exception double or treble additional costs upon the excepting party, and may order them to be paid by counsel prosecuting the bill of exceptions, if in its opinion justice so requires." Sec. 497, subdiv. 3. Such a provision, fearlessly executed, would relieve overworked courts and cut down the volume of the reports, and incidentally would discourage the wealthy litigant who seeks by repeated appeals to wear out his opponent.

Unsettled Law.

F ROM the viewpoint of the layman the uncertainties of the law are trying enough at their best. There certainly is no need to try to make them worse, yet several of the states have so established their judicial systems that some questions may remain forever unsettled. At least one populous commonwealth has eight judges on its court of last resort. When, as must occasionally happen, these are equally divided in opinion, the decision appealed from stands affirmed, and a contrary decision by another trial judge is likewise affirmed. In other words, till there is a change in the personnel the right of appeal is rendered useless so far as that particular question is concerned. Even more provocative of confusion is the establishment of two appellate courts the decision of each of which is final, even on constitutional questions, in cases within its jurisdiction. For example in Texas the legislature passed an act authorizing counties by a local vote to put into effect a prohibition of pool rooms. Certain counties adopted the act, and the Court of Criminal Appeals held it to be valid. Ex parte Francis, 165 S. W. 147. Then, as is narrated in an opinion of Judge Davidson (79 Tex. Cr. 559, 585), the keepers of pool rooms went out of business. A little later the Supreme Court held the act to be unconstitutional (Ex parte Mitchell, 177 S. W. 953), and the pool rooms reopened. Whereupon the Court of Criminal Appeals in Ex parte Mode, 180 S. W. 708, reiterated its decision in the Francis case and affirmed the conviction of a pool room keeper who had rashly relied on the decision in the Mitchell case. One district judge attempted to cut the Gordian knot by enjoining the county attorney from prosecuting under the act but the Court of Criminal Appeals held the injunction to be void (State v. Clark, 79 Tex.