In Pocahontas Consol. Colleries Co. v. Johnson, 244 Fed. 368, decided by Fourth Circuit Court of Appeals, it is ruled, that the fact that an employe knows of a viola tion by his employer of a penal statute requiring a specific appliance deemed by statute necessary for his safety, and which violation was the proximate cause of injury, does not make him assume risk of injury. In this case the employe was a mine worker and for the safety of the workers it was provided by Virginia statute that: "On all haulways where hauling is done by machinery of any kind, the mine foreman shall provide a proper system of signals and for the carrying of a conspicuous light on the front, and a light or flag on the rear of every trip or train of cars when in motion."

The court said: "There is no doubt that Ross (decedent) knew that the defendant's method of work was to push the loaded cars to the tipple without a light in front; and the court was requested, but refused, to charge that if he had that knowledge he assumed all risk incident to the absence of the light. Thus arises the question whether an employe assumes the risk of known violations by the employer of a penal statute requiring a specific appliance deemed by the Legislature necessary for the safety of employes. Our conviction, supported by the great and growing current of authority, is clear that he does not, though the decisions are in hopeless conflict on the subject. Neither the Supreme Court of the United States nor the Supreme Court of Appeals of Virginia have directly passed on the question." To this ruling there was dissent by one of the three judges deciding the cause on appeal.

The majority opinion in support of its conclusion says: "Penal statutes requiring safeguards for laborers rest on the care of the state for the employe, for the sake of himself, of the persons dependent upon him, and of the community. The primary and insistent necessity for their enactment is that men will work in mines and other dangerous places at the constant risk of death or injury, whether such precautions be taken for their safety or not. The Legislature assumed that men will work in the mines without the protection of the required lights; otherwise the enactment would not have been necessary. *** The proposition that the violation by the master of a penal statute intended for the protection of the servant as a matter of public policy is nothing more than ordinary negligence, and stands on same footing as common law negligence, seems to us obviously and fundamentally unsound."

The circuit judge, dissenting, spoke of the decedent being in the company's employ for a number of years, and of his being fully aware of the statute not being complied with. The opinion says: "To my mind the defense of assumption of risk is no more based upon acknowledgment of fault than is the defense of contributory negligence, which admittedly may be interposed, although the cause of action sued on is the violation of a penal statute. The latter defense rests upon the employe's acts, the former upon his knowledge, but neither of them depends upon the assertion of a breach of duty. What the defendant in this case says is, that Ross had full knowledge of the fact upon which its negligence is predicated, namely the habitual omission of a light on the forward car; that he was at all times cognizant of whatever danger resulted from that omission, and that he was therefore chargeable with assuming the risk of which he was perfectly aware."

It surely seems true, that if the omission in this case made work appear so imminently dangerous, that no one would engage in it, one engaging in it would be held to

assume the risk, whatever any statute might require in the way of observance, or whatever penalty might flow from non-obsery

ance.

Whether, however, mere knowledge of a violation, where imminent danger or the appearance thereof, is not brought about, ever may operate to take away the defense of assumption of risk is another question. It seems to us, that a statute of this kind is intended to remove from the category of things certain things coming up among the hazards encountered by an employe who enters service. As to other hazards, he assumes risk; as to what a statute provides against, he does not. And knowledge by the employe cuts no figure in his employment. It seems to us, that an employe is not expected to dictate to his employer conditions upon which he will continue in employment, especially when the statute seeks to ameliorate those conditions. He may always expect that his employer will obey the law, and no prior neglect in that regard creates any presumption as to the future.

NOTES OF IMPORTANT DECISIONS.

COURTS-CHANGING RULE OF LAW ON SECOND APPEAL.-In Brewer v. Browning, 76 So. 519, decided by Supreme Court of Mississippi, the power of that court is challenged as to its right to change the law of a case as declared on a former appeal, as by ruling it assumed to do in this case by a decision rendered in July, 1917, and rehearing being had and disposed of in October following. For former opinion see 76 So. 267.

In that former opinion, on this second appeal, it was said: "Whether or not the former decision of this court constitutes the law of the case in such sense as this court on this appeal is bound to follow, it is not free from difficulty, because of the well-recognized rule that the court, ordinarily, after having laid down principles governing a case on one appeal, will not review its holdings on a subsequent appeal, but will ordinarily adhere to its former decision and not inquire into its cor

rectness. We do not think, however, that this rule is so fixed and binding upon the court, that it may not depart from its former decision on a subsequent appeal, if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results, where the facts are the same, and where there has been no change of conditions or situations as that a change of decision would work wrong and injustice, the court may on a subsequent appeal, correct its former deci sion where it is manifestly wrong."

In disposing of the motion for rehearing it is said: "The suggestion of error filed in this case challenges the power of the court to change the decision on the first appeal, on the ground of the want of power in the court under Constitutional grant of jurisdiction to the court." In overruling this suggestion the constitution is referred to and the constitutional grant of jurisdiction is spoken of as being plenary, that is to say, without restriction. But this does not seem to us to meet the objection urged. That objection is, as we understand it, that the court, having jurisdiction to settle the law of a case on the former appeal, has performed its duty, and that so far as that is concerned, the matter is res judicata.

This is not a question of stare decisis or of standing by precedents, when they are deemed to work an injustice. It reaches deeper than that. It is rather of standing by a decision judicially made. The granting of jurisdiction to dispose of appeals is not granting jurisdiction to dispose of what is not ap pealable. Nor is it giving a right to reargue in the appellate court, on a second appeal, that which has been constitutionally declared to have become settled in that court as between the same parties. There is no inherent right to an appeal, and vesting courts with jurisdiction to hear appeals is a grant subject to limitations as to right of parties to appeal. If the appellate court deems it has committed an error on a former appeal, yet if it constitutionally determined the question, he in whose favor it was determined has a vested right in the decision.

WITNESSES REJECTING TESTIMONY UNDER RULE OF EXCLUSION.-We heartily agree with Supreme Court of North Carolina, that trial courts are vested with wide discretion in the enforcement of a rule excluding witnesses from testifying, where they are within the court and listening to other witnesses testify. The court rightly says, speaking by Clark, C. J., that: "No harm can come from

the separation of witnesses, and much injury might result if it is not done, when it is made to appear to the presiding judge that there may be collusion among the witnesses tracking each other's testimony, like sheep jumping over a fence." But we fail to find anything in a recent case, where there was mere inadvertence in summoning a physician to give expert evidence after a rule for exclusion was made and not notifying him in regard to the rule, of any danger of collusion or tracking. Lee v. Thornton, 93 S. E. 788.

In this case it does not appear that any other expert was called to testify and it was proposed to show by a physician that he had had frequent conversations with one whose deed was attacked for incapacity to make same; that his mind was clear in respect to the conveyance and in the opinion of the physician the grantor was competent to make such a conveyance and understood the value of what was conveyed. The court said: "Besides the testimony which it was claimed that he would have given as to the mental capacity of Lee could have been given by any other person who knew him sufficiently well."

The court evidently felt that some reason ought to be stated for bolstering up the ruling of the trial judge in excluding this physician, who was admitted to be present innocently and not intentionally by the party summoning him. Was there, under the circumstances, any material waiver by counsel's inadvertence in failing to have this expert excluded from the court room? And is it any answer for the court to say that any other person, expert or non-expert, knowing the grantor sufficiently well, could have been called to give this testimony?

The grantor in this case was dead. There was no intentional violation of the court's order. There was a mere inadvertence arising out of stress of the trial. The witness whom he heard testify was testifying for the other party. He may have been called to contradict his testimony, but certainly not to track it like "sheep jumping over a fence." And between the expert and this witness there was no possible collusion, as he was for the other side. A rule of court is for reasonable construction and not to be enforced to inflict a mere penalty for a mistake honestly committed by a party. If this physician was the sole expert he could do no tracking.

jure may be held liable for its debts, neither may those of a corporation de facto, where there has been an honest attempt to comply with statutory requirements in the formation of a corporation de jure. But does this apply to owners of a concern who made no attempt to organize a corporation upon the supposition, that, under the circumstances, nothing was required by statute to effect incorporation, assuming that this supposition though honestly entertained was erroneous? North Carolina Supreme Court ruled that such a body holding itself out to the public as a corporation was such de facto and not a partnership. Pocahontas Fuel Co. v. Tarboro Cotton Factory, 93 S. E. 790.

In this case under statute a corporation organized as Tarboro Cotton Mill was put through a process of dissolution. It was provided that purchasers of its property should be stockholders in a successor corporation in the ratio of purchase money contributed by them respectively, the successor corporation to be vested with the same franchises and subject to all the conditions, limitations and penalties of the old corporation. It is also said that the new corporation shall file a certificate with the secretary of state, giving its name, amount of capital stock and the names of its president and directors which, when recorded, shall constitute its charter.

In this case there was a meeting of purchasers, an apportionment of stock in a new corporation, but no selection of name and no certificate filed with the secretary and, of course, no record made that would stand for a charter, and none was directed to be made nor filed and recorded, but in some way it came to be called Tarboro Cotton Factory, instead of Tarboro Cotton Mill.

There being no stockholder liability as to such a corporation, a suit by a creditor against it and the purchasers, as a partnership, was held not sustainable. Was there an attempt in good faith to create a corporation sufficient to make it, if not a corporation de jure, at least one de facto? The court held there was.

It seems to us the court was in error in its ruling. It cannot be denied that a single person could purchase assets at such a sale and he need not form a corporation unless he so desired. But undoubtedly three or more could by such a sale acquire stock for a new organization. This was their privilege merely. But publicity of a binding character must be made to effectuate this purpose. This was not directed nor attempted.

Furthermore there is a time limit set by statute for this to be done. All preliminary

acts to organization, within this period, therefore, are tentative-creating a locus poenitentiae subject to retraction if not duly perfected. Minutes, or so-called minutes, are not minutes of a corporation and, if binding at all, are only so inter sese the purchasers. It is going a great length, it seems to us, to say that where there has been no attempt whatever to comply with a statute for the forming of a corporation, a court will allow a mistaken view of the law to take the place of such attempt.

INDUSTRIAL COURTS.

From the time of the oldest law code of Hammurabi (2270 B. C.) to the latest code of A. D. 1915 by Remington is a lapse of more than forty centuries, but the fundamental principles of the ancient code bear a striking resemblance to the law of today. For instance, Section 45 of Hammurabi: “If a man let his field to another at a fixed rent, but the storms come and destroy the crops, the loss falls upon the tenant." There are other sections that indicate there

has been little difference in applying the leading principles of law as relating to business, during all these years.

Where property rights are concerned, there is less severity now in the treatment of offenders and the punishment of trespassers. Life is held more sacred and more important; private redress of wrongs is prohibited nowadays, while in the days of Hammurabi each person sought and had a legal right to redress his own grievances to some extent. The most noticeable difference between these codes is the fact that a larger social sense is discernible in the code of our time. In a rude society the individual is exalted; as society progresses the individual's rights must of necessity give way, for it is axiomatic that the whole of the community, to preserve itself must have greater rights than any one of its members. Or, as Benthan expressed it: "The greatest good of the greatest number" should be the purpose and object of the law. It is evi

dent by comparing the laws of different centuries that progress has been slow but continuous. In all probability advancement has been as speedy as the evolution of social institutions would permit; for it is self-evident that law is for the purpose of serving the wants of the people, and cannot in the nature of things precede, but must follow progress. Any law to be serviceable and enforceable must meet the substantial approval of the people subject to its mandates, or its enforcement is difficult, if not impossible.

It is noteworthy that the laity for ages past have complained of the "law's delay" as Hamlet put it. Whether such is the fault of the administration of the law or whether it is inherent in the subject, is perhaps debatable. There is no doubt, however, that much has been done in our day to expedite judicial action. In this state cases may with ordinary diligence be prosecuted from service of process to a finality in the Supreme. Court within one year, which is certainly expeditious if we consider that a score of years ago, cases would be pending in the United States Supreme Court from two to five years. Lord Eldon in 1813 procured the passage of a bill "for the purpose of relieving the court of chancery where appeals and writs of error had accumulated so that it was many years behind in its judicial business."1

Thus the most pessimistic must admit that we have progressed, are progressing, and will continue to do so indefinitely. Laws are more or less dependent on what is expedient; therefore, as the views and conditions of a people change the law must of necessity change likewise, if it is to be adapted to the wants of the people. When we contemplate the enormous advance in science; that one may make a contract by telegraph with a resident of another continent and across the seas, or may instantly enter into a binding obliga

(1) A Great Chancellor, by High, p. 68.

gation by telephone where one party is in Seattle, and the other in North Yakima, yet, if any dispute should arise out of these transactions, so speedily arranged, is it to be wondered at that the parties complain of delay in our law courts, if the ancient method of slowness and dilatoriness prevail?

There is no doubt that there is a real and urgent demand that the machinery for the adjudication of controversies be readjusted, and that new methods be adopted in order to obtain quicker results, and that business disputes be more promptly settled. It is an old saying "Delay of justice is often a denial of right."

That the public are demanding improvement in legal procedure is evident from the following:

"Chairman Hurley, of the Federal Trade Commission, is fond of saying that most of the business lawsuits probably would have been avoided if the disputants had gotten together around a table with some friendly advisers. There is undoubtedly a large class of cases, just too difficult for the parties themselves to settle, but not sufficiently knotty to require the precise and lengthy treatment of the law courts; cases which other business men, sitting as an informal business court, might quickly and inexpensively adjust. It is to handle such cases as these that the Chicago Association of Credit Men has undertaken to establish an arbitration bureau. The Merchant's Association of New York has for a number of years been doing a similar work."

Here is a paragraph from 82 Central Law Journal, page 280:

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

A lay periodical contains this:

"A board of arbitration to which liti

gants could present their case without the need of employing counsel is another change advocated by Judge W. C. Harris, of Emporia, Kansas. A board of perhaps

(2) The System, June, 1916.

three would hear the facts of cases brought before it, no lawyers would appear, both men would meet with the board, and all would discuss the case informally."

There are quotations from widely different publications of today, which bear out the assertion that the people of this country are greatly interested in adapting the machinery of the courts to present day needs and ideals. To say that it is folly to go to law about trifles does not answer nor dispose of the question. If a person has rights that he considers infringed, he should have an opportunity for speedy redress at nominal expenses and least inconvenience.

For the purpose of demonstrating how other nations have partly solved this problem, and settled collective labor troubles in a fairly satisfactory way, this article is written. When this nation came into existence, most of the people were engaged in agriculture. Commerce, manufacturing and transportation were insignificant. The problems of life and business were few and simple. The system that suited and satisfied the public a century ago is mostly inapplicable or inadequate to accomplish results in keeping with present conditions. Several nations with large industrial populations have established tribunals known as industrial courts for these purposes:

1st. To adjudicate private rights between employer and worker, or between workers.

2nd. To settle and adjust collective disputes which involve employers and large bodies of workers, concerning wages, hours of employment, and other problems of modern industrial life; thus, avoiding strikes, lockouts and boycotts.

The scheme originated in France under the name of Conseil de prud' hommesCouncil of Wise Men-in 1806. It was adopted by Belgium in 1859, Austria in 1869, Switzerland in 1882, Germany in 1890, Italy in 1893, 1893, and Spain

(3) Literary Digest, April 22, 1916, p. 1158.