Page:Harvard Law Review Volume 9.djvu/246

2i8 HARVARD LAW REVIEW, of Congress. As to the existence of a federal common law, however, authorities are as widely at variance as ever. The adherents of its exist- ence from Du Ponceau down are at least equally matched by its oppo- nents [see authorities collected in 63 N. W. R. z^Z(),supra If, then, the existence of a federal common law is not firmly enough tstablirshcd to afford escape from the results of the doctrines of the principal cases, escape may siiil be found in controverting the view that the power to control interstate commerce, which was reserved to Congress by the Con- stitution, excludes, even before legislation, the Siate common law on the subject. There is a possibility that this contentitm may prevail. The exclusiveness of the power of Congress to control depends, accord- ing to the test given in Cooley v. Wardens^ 12 How. 299, on whether the nature of the matters to be controlled makes necessary a uniform rule throughout the States. Accordingly States may pass bankruptcy laws in the silence of Congress on the subject ; but not statutes controlhng inter- state commerce [ Wabash Ry. Co. v. Illinois, 118 U. S. 557]. The above test, at first thought final and confidently applied, has been more recently questioned, and the tendency of the United States Supreme Court is toward a greater hesitancy to discover the necessity of a uniform rule [2 Thayer's Cases on Const. Law, 2190, note]. In fact, though the last decided cases on the point are hostile to any control by the states of interstate commerce in the absence of congressional legislation, it would not be suprising to see the law circle back to the position taken by Matthews, J., in the case of Smith v. Alabama, 124 U. S. 465. He stated that the duties and liabilities of interstate carriers, before Act of Congress, are enforceable only under State common law, and *' the failure of Con- gress to legislate can be construed only as an intention not to disturb what already exists, and is the mode by which it adopts, for cases wi hin the scope of its power, the rule of the State law." Certainly, the last word on this confused subject is far from said. RECENT CASES. Agency — Insurance Policy issued by Interested Party. — Defendant com- pany's agent, who issued an insurance policy to the plaintiff corporation, was a stock- holder and officer in that corporation. On that ground defendant company refused 10 pay plaintiff corporation's loss for the recovery of which this action is brought. Held^ that the defendant company is j ustified in his refusal to be bound by thepolicy. Green wood Ice 6^ Coal Co. v. Georgia Home Ins. Co., 17 So. Rep. 83 (Miss ). This decision seems clearly right and in accord with authority. New York Central Ins. Co.y. National Protection Ins. Co., 14 N. Y. 85. The agent for the one party ap- pears from the statement of facts to have been in effect the agent of the other also, and this relation of parties cannot exist, owing to the antagonistic interests represented. The exception made in the case of auctioneer's clerks does not apply here, as in that case the clerk is agent for a simple ministerial purpose, and it is a custom well under- stood by all parties concerned. In general, an agent for one party cannot act in the same transaction for the other party, and in such a case the contract is voidable. I Biddle on Insurance, § 497. Banks and Banking — Insolvency of Collecting Bank — Trust Funds. — A bank received a note for collection and remittance, but, instead of remitting, credited its correspondent with the proceeds, and three days latei failed. At the time of failure the cash on hand was lesG than the amount collected, but the receiver realized from the assets enough to pay all preferred claims. iTIf/of, plaintiff has a lien on cash on hand