"The Court ruled in that case that, if Plass was cutting the grass and weeds simply to comply with the state statute, he was not engaged in interstate commerce. So in this case, if plaintiff, when injured, was solely engaged in preventing fire spreading to the adjoining proprietor's hay, he was not then engaged in interstate commerce."

property; but it did not by reason of that fact become the property of the first who seized it but became the property of the owner of the land which had been covered by the lease, and on which it was located. Archers Oil & Gas, 150 and 163; 1 Thornton, Oil & Gas, 349; Shellar v. Shivers, supra."

"ANY TIME" MEANS REASONABLE TIME WITHIN OIL LEASE ALLOWING REMOVAL OF FIXTURES.-Under an oil lease providing that the lessee may remove fixtures "at any time," the lessee has only a reasonable time in which to remove such fixtures. So held by the Appellate Court of Indiana, in Michaels v. Pontius, 137 N. E. 579, in which the Court in part said:

"Appellees call our attention to the fact that the lease provides that the company should have the right to remove any machinery, fixtures, or buildings placed on said premises by it at any time,' and assert that they are within their rights, in seeking to obtain possession of the property in suit, by reason of this provision. This Court has held that such a right is not unlimited as to time, but is limited to a reasonable time after the expiration of the lease. Perry v. Acme Oil Co. (1909), 44 Ind. App. 207, 88 N. E. 859. The undisputed evidence establishes facts which show that such time had expired long prior to the date on which appellees claim to have acquired title to such property, and hence the provision cited is not available to them. This is in harmony with the decision reached by the Court in the well-considered case of Shellar v. Shivers, 171 Pa. 569, 33 Atl. 95. Having reached the conclusion that the undisputed evidence shows that the lease had been terminated by abandonment, and that the property in suit had not been removed within a reasonable time thereafter, we must hold that the lessee, and any one claiming through it, has lost all rights thereto. We therefore conclude that the verdict is not sustained by the evidence.

"Appellees contend, among other things, that if the property in suit was abandoned property when they seized it, then it was thereafter no longer abandoned, and appellees right of possession would be superior to that of appellants. The evidence, however, does not show that the property was abandoned in a sense that would give appellees contention effect. True, the lessee in abandoning its lease, and failing to remove its property therefrom within a reasonable time thereafter, thereby abandoned such

PLAINTIFF NOT BOUND AS BY AN ADMISSION WHEN TESTIFYING AS MÁTTER OF OPINION.-In Rowe v. United Rys. Co., 247 S. W. 443, decided by the St. Louis Court of Appeals (Missouri), which was an action by one who was riding in a truck when the truck was struck by a street car, one of the plaintiff's points of negligence was that the street car was exceeding the rate of speed fixed by ordinanec-fifteen miles an hour. Plaintiff testified that the street car was moving 15 miles an hour, while there was testimony given for him that it was exceeding that rate. The defendant contended that the plaintiff was bound by his own testimony as to the speed, as by an admission, and that accordingly he had no right to go to the jury on this assignment of negligence. The Court held, however, that in so testifying, the plaintiff was giving his opinion as to the rate of speed, and was not bound thereby. In part the Court, said:

"The general rule that a party plaintiff testifying in his own behalf as to the exist ence of a fact is absolutely concluded thereby, and that his adversary may with confidence rely upon the admissions made as conclusive as against the maker thereof, unless he makes a correction thereof giving some excuse of mistake, oversight, misunderstanding, or lack of definite recollection, is not, in our opinion, intended to cover testimony of a party plaintiff which is but an expression of opinion of the witness, but can be applied only where the witness has testified to a fact. In other words, in a case such as we have before us, the testimony of plaintiff, as a witness in his own behalf, as to the speed of the street car and the distance it was away from him at a given moment are but mere expressions of his opinion and mere conclusions on his part, and not statements of fact, and, being opinion evidence, does not come within the rule here sought to be relied upon by appellant railways company."

"The next person who interrupts the proceed. ings will be sent home," declared the frate judge.

"Hurray!" yelled the prisoner. Upper Iowa Collegian.

THE OCEAN OF DECISION "SERV-
ICE THROUGH ANNOTATION”
By James M. Kerr

In the law, as practiced today, there exists an embarrassment of "authorities" to support or controvert almost any position. taken before a court by an attorney in a cause; much as there is an embarrassment of trees in a virgin forest, among which, one, who is not an experienced "woodsman," may readily lose his way. Many a man uninured to the deceptions of a dense forest-travel has found himself progressing in a circle, bringing himself time and again to the same point of departure, hopelessly confounded, and unable to extricate himself from his bewilderment. By experience and observation a man must acquire the knowledge of the moss and fungi the lichens-upon the bark of all the trees uniformly is found upon the "weather side" of the trees, and be guided thereby in the course of his journey; otherwise he is a "lost 'un" if he ventures into the virgin ambrosial shade without the company of a skilled pilot. The same is true in the case of the forest of case-law" for the average practitioner, who has not by experience acquired a knowledge of the "weather side" of the "cases," cannot follow the "lichen line of the law"; and for such the "experienced guide" is the skillful annotator, who affords a "safe conduct" to the desired point in legal decision, to the rule governing in a given intricate cause.

In the Sea of Decided Cases there are many "derelict" decisions which are dangerous to practitioners in "briefing," the same as there are many derelict hulls in old ocean's broad expanse which are dangerous to sailors navigating the watery main. In both instances the "derelicts" are to be studiously avoided, where a successful voyage is to be accomplished or triumph in a cause attained. Some of these "derelict decisions"

never were

are

tion and limitation, or directly overruled by later decisions in the same court, or perchance rendered inapplicable by changed conditions or statutory enactments; some mere dicta of judges which never should have been enunciated, not called for or warranted by the facts and circumstances in the cause in which put forthsometimes not only useless excrescences in the decision where found, but unsound on fundamental principle. To search out and "chart" all these dangerous "derelict" decisions is as difficult a task as it is to locate and chart on the ocean routes the death-dealing derelict hulls, each requiring special aptitude, knowledge and skill, as

well as enormous labor.

The Ocean of Decision in its present stage is at flood-tide of output. Never before was the wilderness of decision so numerous and embarrassing in current output, Silurian fosilization and silhouetted monstrosities; and the increasing onrush of decision by Tom, Dick and Harry of unknown ability or probity, possibly of under-qualification and unreliability,

where not influenced by unjudicial motive -all piling pellmell into the great reservoir of "precedent" from which the practitioner must draw and select, weed out and appraise, the "cases" which he uses to bolster up an opinion given or fortifies a "point" presented.

Within the memory of many of the older practictioners there has been a radical change in the attitude toward, and the value assigned to, case-law. A fundamental misconception has grown up regarding the character and authority and usefulness of decisions" of the courts; the same as there appears to be a fundamental change in the once-prevailing healthful doctrine that in this nation, and in the various states composing the nation, the polity is "a government of laws, and not of men,'' and a drifting into a polity of government by "commissions" and "func

1. Marbury v. Madison, 5 U. S. (1 Cr.) 137, 163, Works, pp. 188-209; 85 Cent. L. J. 197, 217, 270.

2.

The Constitutional Review

tionaries" unknown to the various constitutions, state and federal, which exercises authority and power supra all statute law, and not unfrequently in contravention to the provisions and limitations and inhibitions of the Constitution.3 The conception that a "court opinion" is law simply because it is a "delivery" from the bench, and therefore a "precedent" to be subsequently slavishly adhered to and unquestioningly followed in subsequent causes, is fundamentally wrong and manifestly vicious. The decision of a court may be "persuasive" in other causes under a similar state of facts and circumstances involving substantially the same or the identical question to be determined, but it is not "law" in any proper sense of that term; it is at best-and this is all that can be said truthfully of any "decision"simply an application of the law, wise or otherwise. Properly speaking, the "law". is the fundamental principle, or interlocking fundamental principles, underlying and which should govern the decision in any given cause not the "decision" by the Court made in that particular cause.

Placing "decisions" on a pedestal and requiring all to bow down before them with bared heads and reverential mien, as heathens before a hideous image or an idol, is not only violative of all "law," rationally understood and applied, but of common sense and the everyday experience of men as well. The "decision" is never superior to the intelligence and attainments, character and motif, of the man who writes it; it is to be carefully scrutinized, weighed in the balance of sound jurisprudence, appraised at its true worth, applied or rejected according to its intrinsic merits. This deification of pronunciamientoes from. the wool-sack, simply because so delivered,

3. The "imbecile though insolent", princess of the House of Stuart (Ceasy's English Constitution, p. 249), who outraged the laws of England and oppressed the people from the accession of James I in March. 1607, until the flight of James II in June, 1688. exacting pre-judged opinions from the judges, packing the bench with servile and pliant judges, "fining and imprisoning any juror who dared to return a verdict against the wishes of the Crown" (Ceasy, id., p. 248), had recourse to "commissions and functionaries" to work their sweet and tyrannous will-Ceasy Eng. Const., pp. 250 et seq.

has placed upon the shoulders of the practitioner an enormous and unnecessary burden. No man in active practice can possibly keep abreast of the flood of decisions swamping the profession; yet, under the prevalent method of practice, he cannot safely overlook any one of the myriad of "cases," however negligible it may be as to intrinsic merit, lest he lose his cause and possibly his client.

By reason of these facts and conditions, and largely because of them, a new branch of the legal profession has arisen in this country in recent years. Men of legal learning and technical skill, trained in the work of searching-out, co-ordinating and collecting in a single place, all the decisions of the courts, of whatever degree of merit the particular decision may be, and appraising these decisions, upon distinct and narrow points, to the end that the practitioner may there find ready to his hand all the authorities, when confronted with a cause involving the particular point of law or practice there treated. This is a labor which no active practitioner can find the requisite time to do for himself, even should he possess "adaptability" for such work and the necessary industry for its successful accomplishment; where the labor is delegated to the ordinary "briefing clerk" it is too often indifferently and insufficiently done, either through lack of time or requisite skill in research work. The systematic and exhaustive "annotations" are "finger-boards" pointing the way surely and unerringly to the "precedent" wanted. It is then up to the practitioner to carefully consider the material presented to him, appraise and truly value the same, and determine the character and weight to be given to each particular "precedent" presented.

There are far too many instances-like the number of Christians reported in apostolic times, "myriads"-in which there are two lines of decision upon the same point of law involved, and under substantially the same state of facts and circumstances.

Both of these lines of decision cannot be equally good law. One or the other must of necessity be faulty and wrong upon fundamental principles or in the logical processes in arriving at a conclusion. It is up to the practitioner to ascertain for himself, and demonstrate to the court, which line of decision is fundamentally right and to be followed, which erroneous and to be rejected. In this the practitioner is greatly assisted, in many instances his labors conspicuously lightened, by the in telligent and industrious annotator. Before pointing out some of the instances of the character and extent of the aid furnished by conscientious and intelligent annotation, it may be well to indicate some of the causes of, or reasons for, divergence of decision leading to wrong determinations in some lines of decision, and a confusion in the "doctrine of the cases.' "" It sometimes will be found that this cause or reason is the fact that in the "decision" at the fountain-head of one line of decision followed as a "precedent," the judge failed to comprehend or misapplied the doctrine of the decision he relied upon. There are cases in which a line of decision is founded upon a dictum which contravenes the decision actually made in the cause, or upon a dissenting opinion in a cause. There is one flagrant instance in which the courts of this country followed as a "precedent," from the time of the organization of our government, the Philpot Case, which, while a determination by a corrupt judge at the behest of the profligate and tyrannical Charles I, was never a decision filed in court, published in any law report, and never became the law in England. This error of our judges, and the long line of false doctrine which had, in of that error, grown up in this country, was overturned in 1907.5 In one instance the courts were misled into error by a note appended by the reporter, Fitzherbert,

consequence

4. Attorney-General v Philpot, found only in Moore's "History of the Fore-Shore," p. 262.

purporting to be the abstract of a decision of the court, which was never rendered."

It is the purpose of this article merely to illustrate by example the character and value of the assistance rendered to the profession by annotation, not to give an exhaustive resume of the numerous instances in which such assistance is to be found. In a splendidly-written annotation to the case of Mayer v. Thompson-Hutchinson Building Company," the annotator demonstrates very clearly that the case of Lane v. Cotton, which has been cited again and again by leading text-book writers in this country, and by our eminent jurists, as a support to the doctrine, as stated by Francis Wharton in his treatise on Agency,9 "by the Anglo-American law a servant who, by negligence in the discharge of his duties, injuries a third person is not liable in damages to such person," never decided anything of the kind, and that the whole doctrine, and the long line of cases supporting it, is founded upon a mere dictum by Lord Holt, found in that case. And in a later annotation appended to the recent case of Emery and Company v. American Refrigerator Transit Company,10 it is clearly shown that the dictum in question seeks to draw an unwarranted distinction between malfeasance and misfeasance, on one hand, and nonfeasance on the other hand; and points out that this fictitious distinction is the potent source of all the confusion. It must not be overlooked, in considering this evil in doctrine on fundamental principle, that the dictum was not even pertinent to the matter before the court, but has led some of our best text writers and learned judges far-a-field by reason of their failure to realize that the rule propagated is not the doctrine of the decision in the cause,-merely an impertinent dictum of Lord Holt. Even such a careful writer as Joseph Story11 gives the

5. Town of Brookhaven v. Smith, 188 N. Y. 74, li Ann. Cas. 1, 9, L. R. A. (B. E. S.) 326, 80 N. E. 665.

9.

12 Mod. 488, 88 Eng. Repr. 1466. Section 535.

10.

11.

193 Iowa -, 20 A. L. R. 86, 184 N. W. 750. Story on Law of Agency, section 308.

doctrine credence and formulates his rule of law upon it, much the same as did Francis Wharton, writing at a later date, as above set out. The annotator points out that, notwithstanding the fact that in 1894 it was conclusively shown by Burdett A. Rich that the text writers and courts were in error in drawing a distinction between malfeasance and misfeasance, as contradistinguished from nonfeasance, supposing that distinction to have been drawn in the decision in Lane v. Cotton, whereas as a matter of fact the distinction rests merely upon a dictum in that case, a dictum not entitled either to consideration or weight, because not pertinent to the point before the court or justified by the facts and circumstances that notwithstanding all this, the courts have gone on, many of them at least, applying the erroneous distinction as though the error had never been pointed out of them. Hence it was appropriate and necessary that in this latter annotation Mr. Henry P. Farnham should recur to the same subject and reinforce upon the attention of the courts and the profession the fundamental error in doctrine, and repoint out its source and the necessity for the overthrow of the long line of decision supporting the long-prevailing but erroneous doctrine. This is real constructive work in juristic authorship. By careful differentiation of the subject treated, limiting the discussion to the fundamental principles in all the aspects of occurrence in every-day life, divorced from the confusion incident to lugging-in inter-related subjects and juristic principles of a similar general nature; by clear-cut definitions and trenchant criticism of definitions the ground is cleared for establishing beyond peradventure that nonfeasance is misfeasance in all relations in which an agent or servant owes a duty, in his status as agent or servant, to another or to the public, and injury results from non-performance of that duty owed; demonstrating clearly and satisfactorily that where an agent, in his status as agent, owes a duty to a third

person or to the public not privy to the contract between the agent and his employer, this owed duty arising out of the status as agent is in no way impaired or relieved against by the contract between the agent and his employer.

These two annotations quite effectually "lay" the ghost of a very troublesome confusion originating in a superfluous dictum and the careless assumption that such dietum was the "law of that case," whereas the real decision is irreconcilable with the dictum.

Another instance of the beneficial and helpful effect of a conscientious, exhaustive and scholarly annotation is to be found in the overturning, as a result of that annotation, of the vicious doctrine that an assignee, in due course and for value, of a bill of lading with draft attached, who receives payment of the draft. is liable for a return of the money in case the property covered by the bill of lading, when delivered, does not comply with the terms. of the contract between the buyer and the assignor of the bill of lading. That doctrine having been laid down by the Supreme Court of North Carolina in the case of Finch v. Gregg,12 following the doctrine in the earlier case of Lewis v. Rountree,13 and which doctrine was approved by the Alabama Supreme Court in Haas v. Citizen's Bank.14 Both of these cases were fully annotated in the Lawyers' Reports Annotated, showing convincingly the doctrine anounced to be, in substance, a repudiation of the established rule under law-merchant governing negotiable drafts. The result was that, while the doctrine in the North Carolina case was followed in a few other states, the annotation put up such an invulnerable barrier against the spread of the doctrine that it was quickly overruled in Alabama 15 and in North Carolina,16 and is now completely dead.17

12. 126 N. C. 176, 49 L. R. A. 674, 35 S. E. 251. 13. 78 N. C. 323.

14. 144 Ala. 562. 1 L. R. A. (N. S.) 242, 39 So. 128. 15. Cosmos Cotton Co. v. First Nat. Bank, 171 Ala. 392. 32 L. R. A. (N. S.) 1173, 54 So. 621. 16. Mason v. Ne'son, 148 N. C. 492, 18 L. R. A. (N. S. 1221. 63 S. E. 625. 17.

See Springs v. Hanover Nat. Bank, 209 N. Y. 224, 52 L. R. A. (N. S.) 241, 103H.E.156.