that these securities are articles of commerce, and the court finds it unnecessary to decide whether this is so or not. Though they be such articles the burden is only indirect.

It is very satisfactory to see that these laws have been sustained. They should be upheld not only to protect credulous people, but also to stabilize a business becoming of increasing importance, because of the closer relations of citizens of different states. It is business that is lifted out of the domain of essentially private contracts and it is the way the business was being carried on that accentuated the evils that were bringing discredit to it. The state might feel that it could not afford that this should be done. If transactions in business are to be differentiated from mere contracts, it must be that the business has taken on something of a public character.

such power to municipalities. It is a police power necessary to the public health and comfort." Craig v. First Presbyterian Church; 88 Pa. 42, 32 Am. Rep. 417.

The instant case says: "If the maintenance of a cemetery under a valid charitable or pious trust in perpetuity should prove detrimental to the public health, that use, so far as detrimental, could be controlled or terminated by a proper exercise of the branch of sovereignty known as the police power of the state."

It would seem hardly to be a proper exercise of police power that bodies should be removed from a long-disused cemetery on the score of public health, but the necessities of progress hardly would indulge in a refinement of this sort to ascertain if there was proper exercise of police power, and if a cemetery was for a very long time not resorted to, there would hardly be left anyone to object. Pious memories not strong enough to keep a burial place in good order would not suggest to any man of this day and generation any objection to the devotion of the land to the purposes of trade.

NOTES OF IMPORTANT DECISIONS.

PERPETUITY-BURIAL LOT IN CEME TERY DEVOTED TO PIOUS USE.-The Federal District Court of Delaware discusses very learnedly and exhaustively the proposition of the right of descendants of a lot owner in a church cemetery to restrain not only the sale of the lot itself, but of the cemetery in which it is situated. Chew v. First Presbyterian Church of Wilmington, 237 Fed. 219.

We do not attempt here to reproduce the reasoning of the court as to devotion of such a lot to a charitable or pious use, and whether cessation of burials therein makes a cessation of the use, nor many other questions peculiar to the case of this cemetery, which was established by deed in 1737, but we refer to the case here as running back in its facts to very ancient history in this new land, and to advert to the fact that it is only by aid of police power that the dust of centuries may be removed from the path of progress. For example, a Pennsylvania case was referred to which ruled that "the right of the legislature to authorize the removal of the remains of the dead from cemeteries is well settled. So it may delegate

PLEADING AND PRACTICE JOINING MASTER AND SERVANT IN ONE COUNT WHERE INJURY IS FROM WILLFUL CONDUCT OF LATTER.-Louisville & N. R. Co. v. Abernathy, 73 So. 103, decided by Supreme Court of Alabama, shows a very careful treatment whether under code pleadings, in reformed procedure, a servant, whose willful conduct is averred to have caused personal injury, and a master in whose service the servant was at the time and acting in the line of duty, may be joined in a single count, conceding that both may be joined in a single suit. The ruling was, by a majority, that a single count, framed on the theory of the servant's willful and intentional misconduct, and the master's obligation as principal, sufficiently states a case against both.

This case overrules prior Alabama decision to the effect, that there ought to be separate counts against each defendant, and a dissenting opinion, concurred in by three members of the court, presents quite fairly the objection to embracing both defendants in a single count.

This dissent goes on the theory that the action against the servant is in trespass and against the master in case, and as to the practical disadvantage of joinder in one count. · it says: "The sole object of separate counts is to make single and certain the issues, and yet decide several issues on the same

trial. Each count is treated as a separate and distinet action, for the sole purpose of singleness and certainty in the issues to be tried. To show that any other system of pleading and practice is impracticable, as well as contrary to every theory and all logic of pleading, let us illustrate by applying the opposite system to the count in question: Grant that the count is in case so far as the railroad company or corporation is concerned, but is in trespass against the engineer. Then a plea of contributory negligence, or that plaintiff was a trespasser on the track, would be a defense to the whole action charged against the corporation, but no defense to the action charged against the engineer. The corporation could not plead such a defense, because it was sued jointly with the engineer. It could not plead separately, because sued jointly. If the wrong of the engineer was willful injury, he, of course, in addition to actual damages, would be liable for punitive damages, but the corporation only for actual damages. There could not be a verdict against each defendant for separate damages, because sued jointly. How, then, is the plaintiff to recover as for punitive damages, without recovering such from the corporation which is not liable therefor and against which such damages are not claimed?"

But is the master really prejudiced in the way suggested? If he is, there is a very practical objection to pleading in one count against both. The refinements to which common law pleadings paid such attention were in making distinctions between forms of action. They did not take into account the theory of "the presentation of the facts, or matter to be put in issue in an intelligent form," and then the law drawing the conclusion of liability, in the way it should be drawn, from those facts.

Where, for eample, there is averment that a servant was acting in the line of duty and the principle of respondeat superior applies, it takes away nothing from the latter that the servant acted willfully and wantonly. There may be, however, a liability on him of punitive damages not attaching to the master. Or contributory negligence possibly may be set up by one and not by the other, or the plea of trespasser might be urged in behalf of one and not by the other. We deny, however, as the court states, that the master "could not plead separately, because sued jointly."

Suppose any two alleged joint tort-feasors are sued, are they tied down to the same defenses? Certainly either could show he participated in no way in the committing of the

alleged tort, or circumstances might be present as mitigating or excusing his act, which were not present in the case of commission by another. If he could show these circumstances, if separately sued, why could he not if jointly sued?

The majority opinion by Mr. Justice Thomas cites authority from a great many states upholding the view he accedes to and which overrules the narrowness in prior Alabama decision. If it is apparently so, as the difficulties the dissent suggests, we can but think they are not real difficulties, because mere statement by a pleader plaintiff ought to bind nobody but himself, and, if in the generality of allegation he overstates his case as to one defendant, so as to embrace the other, it is merely an instance of the major embracing the minor of a proposition.

RECENT DECISIONS IN THE BRITISH COURTS.

We noticed with interest the recent reference in this journal to a case decided by the Supreme Court of Georgia in which it was held that death from sunstroke arising from exposure to heat in course of duty did not come within the terms of an accident insurance. The same troublesome point has been several times before the tribunals of this country in connection with the requirement of our Workmen's Compensation Act, that to entitle to compensation death must inter alia be due to "accident." The difficulty is of course experienced on the border line between accident and disease.

Before going further into the general question the facts of the Georgia case may be recalled and compared with a decision given on similar facts here. In the former it was decided that where a railroad fireman, occupying a position on the sunny side of his cab, was on a hot day also exposed to the heat of the engine, which he was continuously firing, became overheated, was taken with a high fever and suffered a sunstroke, his death did not come within the terms of the insurance, on the ground that there was nothing in the evidence to show that the sunstroke was due to "external, violent and accidental means," within the meaning of those terms as employed in the policy sued upon. In the corresponding decision here it was held that a ship's painter engaged in painting the side of his ship in a

tropical port, and catching sunstroke, had met with an "accident," for the special work was a special risk, inasmuch as the side of the ship focussed the sun rays on him more powerfully than he would have experienced them elsewhere.

In

We notice a tendency in later decisions to incline more to the view taken by the Georgia court. We should explain that there are certain diseases for which our act specially allows compensation, but these are of a kind specially due to certain industrial occupations, and hence are in law considered accidents. The difficulty arises in connection with disablements, or even deaths, caused by the ordinary causes to which every mortal man is subject, when these occur during a man's employment in circumstances which give color to the view that he sustained an accident. Thus, eight years ago, the House of Lords held that "heatstroke," when resulting from a boiler and affecting a stoker, was injury caused by accident. In subsequent cases the same view was taken of "sunstroke," and of "lightning-stroke." view of these decisions, one may be pardoned for expressing some surprise at the finding of the Court of Appeal recently in Pyper v. Manchester Liners. There a stoker employed on a steamer navigating the Red Sea was certified to have died from "heat-stroke" after having collapsed in the course of his employment. The evidence was that the deceased had suffered from exhaustion caused by the effects of working in a very high temperature for some days before his death, and that the final collapse was not sudden or unexpected. The County Court judge thought that "heat-stroke" necessarily implied a sudden event, and therefore that death arose from accident entitling to compensation. But the Court of Appeal has found that death was due to a voluntary submission to a well-known cause likely to af fect the deceased, and that there was no evidence of accident. It followed that the claim for compensation was dismissed. So far as we can draw any practical conclusion from this judgment it is that if the "heat-stroke" is sudden and fortuitous, it comes within the scope of the statutory provisions as to accidents, but if it is not, it is just a disease, and, being a disease, it is not an "accident."

Pyper's case was decided in England, and just recently in Scotland, too, judgment was given in a similar question in the case of Lyon v. Woodilee Coal & Coke Company, Limited, 53 S. L. R. 538; a miner having finished his work about the hour when the inspection of the pit shaft was beginning, proceeded to the

bottom of th shaft, to be raised to the surface on the upwa) d journey of the cage. The inspection, the uration of which varied according to the repairs required, was prolonged by the breakdown of the bell wire and the workman was kept standing in a current of cold air and contracted a chill, from which he died. It was held that he was not injured by accident arising out of his employment, one of the judges remarking, "Unless we could hold that all diseases contracted by a workman in the course of his employment must be regarded as personal injuries by accident within the meaning of the Workmen's Compensation Act, I do not see how we can come to a conclusion favorable to the workman here."

Turning now to a different branch of law, it is apparent that the effect of the war on contracts is becoming wider and wider, and recently we notice an interesting and, indeed, novel extension of the exception, "restraints of princes," as occurring in a shipping document (S. S. Cronstadt, 53 S. L. R. 716). There is in the general case an obligation upon charterers to pay demurrage if they fail to take delivery within the contract time. It is, however, open to them to show in defense that owing to circumstances they were not bound to do so. In the case we refer to the charterers attempted to discharge that onus. They contended that they could not discharge the ship owing to a deficiency of trucks, due to the action of the British Government in taking over all the railways and railway plant, which thus rendered fulfillment of the contract by the defendants impossible and, therefore, discharged them from their obligations. So far as that argument was based upon impossibility, the court rejected it, because the charter party containing the obligation was entered into after the outbreak of war and considerably after the government's action with regard to the railways, and the parties must be held to have contracted with the then existing circumstances fully in view. But, further, the charterers contended that they were protected by the charter party clause "arrests and restraints of princes, rules and peoples." The State, they argued, required so many trucks that a sufficient number was not left to enable the defendants to carry out their contract, and they were thus, according to their theory, restrained from carrying it out as truly as if the State had actually prohibited them. To that the ship owners replied that the clause only applied to actual direct restraint of the ship and cargo, and certainly that was the original meaning of the phrase, and the one that most lawyers would

to which we have been accustomed to look from afar as the home of hasty legislation, had 1,287 bills introduced, of which it passed 26 per cert, 336.

If we could confine our lawmaking to these less than 50 jurisdictions we might be happier; but we go further, and permit ten thousand subordinate governmental bodies, called municipal corporations, to add each its share toward this orgie of lawmaking. If we confine ourselves to those local ordinances which are of public concern and may therefore claim to be regarded as really laws, we must probably add 25,000 to the bulk of our annual legislation.

At this rate, how long can the law of one state retain any resemblance to that of another? Longer, fortunately, than these statistics would indicate; for a very large proportion of this legislation-let us set it quite conservatively at 95 per cent-has nothing to do with the ordinary law between man and man. Yet if we take only 5 per cent of the legislation-1,000 statutes a year—we are confronted with a sufficiently large element of diversity.

But this is not the only cause tending to differentiate our laws. Forty-nine courts of final jurisdiction, and perhaps twice as many inferior courts of which we have the published opinions, are deciding points of law; and the resulting "welter of decisions" as a colleague of mine has aptly called it, is a most portentous source of legal novelty.

to

Professor Warren states that the total number of pages in the regular American reports for a year was about 175,000, which must be added 5,000 pages of English reports; and he reckons that "if a professor did no writing and no thinking, but simply read reports all the time, he would have to develop and maintain a speed of 180 pages an hour, just to read the annual outpouring." But he is yet only knee-deep in his welter. We have added entire outfits of administrative courts, multiplying our old volumes of reports by three or four or five; and no lawyer can leave out of sight

the law-modifying power of Interstate Commerce Commissions or Public Utility Commissions. If, therefore, we confine our attention merely to our own country, we shall find that the forces of diversity might be conservatively described as overwhelming. If we enlarge our view, while still confining ourselves to jurisdictions which accept more or less completely the sway of the common law, we must include in our examination the statutes and decisions of England, Ireland and Scotland, of Canada, Australia and South Africa, the enormous volume of law-modifying activities in British India, the decisions, ordinances and laws of the minor British colonies, and the scattered decisions of British and American consular courts throughout the near and far Orient. But the serious student of differences in law can hardly stop here. He must examine also the phenomena of at least one other system of law, which divides with the common law the allegiance of civilization. From the time of Cicero until to-day law-modifying forces have been at work with the Roman civil law; and in at least as many separate jurisdictions as those ruled by the common law, we have legislation and court decisions at work to increase the existing differences.

Perhaps a statement of the number of volumes in a single library devoted to the legislation and decisions of these various jurisdictions may give us a more striking picture of existing conditions: