NOTES OF RECENT CASES Sup. Ct. — In McMeill v. Railway Co., 26 Sup. Ct. 722, the statutes of North Carolina, vesting in the corporation commission of that state power to control and supervise all railroad corporations, and to make rules governing railroad companies in the placing of cars for loading and unloading, etc., are held to be without efficacy to give the corporation commission power to make regula tions affecting interstate commerce. In exercis ing the authority conferred upon it by the statutes mentioned, the corporation commission issued an order compelling a railroad company engaged in interstate commerce to deliver cars containing interstate shipments beyond its right of way to a private siding. This, it is held, is an unlawful interference with interstate commerce, whether viewed as an assertion by the commission of its general powers over carriers or of its power to make the order in a particular case in favor of a given person or corporation. The suit was brought against the corporation commission to restrain it from interfering with the interstate business of the railway company, and it was con tended that as the powers which the corporation commission sought to exercise were conferred upon it by a state statute, and as the denial of these powers must be upon the ground that the statute was in conflict with the federal constitution, the suit was in effect one against the state. This contention is negatived by the holding that the unauthorized and illegal action of the corpora tion commission was the thing complained of, so that the fact that this action was sought to be justified under the statute did not render the suit one against the state. In support of this deci sion the cases of Scott v. Donald, 17 Sup. Ct. 262, and Fitts v. McGhee, 19 Sup. Ct. 269, are cited. JURY (Right to Jury Trial — Wrongful Attachment in Porto Rico). U. S. Sup. Ct. — The provisions of the Porto Rico Code of Civil Proced ure relative to the ascertainment by a certain special proceeding of the damages resulting from a wrongful attachment, are held in Perez v. Fer nandez, 26 Sup. Ct. Rep. 561, not to be in con flict with the provisions of the Federal Constitution securing the right to a jury trial. The court does not admit that these provisions are applicable to Porto Rico, stating that the decision of this ques tion is unnecessary to a determination of the case, but holds that even conceding that they are applicable, nevertheless the proceeding is not a suit at common law, but simply a method of ascer taining damages in a special proceeding in which property has been wrongfully seized. It is also held that the general provision of the U. S. Rev. St. § 648 (U. S. Comp. St. 1901, p. 525) providing for jury trials and issues of fact in circuit courts,
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excepting actions of admiralty and equity juris diction, do not necessarily interfere with the enforcement of the special statutory provisions as to assessment for damages and attachment pro ceedings. The laws and ordinances of Porto Rico are by statute continued in force so far as they are not inconsistent or in conflict with the statutes of the United States, and this provision it is held is sufficient to authorize adherence to the provisions of the Porto Rican Code as to the ascer tainment of damages in special attachment pro ceedings. MASTER AND SERVANT (Defective Appli ances — Promise to Repair). N. J. — A rather pronounced position on the question of assump tion of risk is taken by the New Jersey Court of Errors and Appeals in Andrecsik v. New Jersey Tube Co., 63 Atl. 719. The action was by a ser vant for personal injuries, and the evidence showed that plaintiff complained to the superintendent at about ten o'clock in the forenoon, that the machine upon which he was working was out of order. The defect was obvious and the super intendent told plaintiff to go ahead with the work and that the machine would be repaired at noon. The repair was not made at noon but plaintiff resumed work upon the defective machine and at three o'clock was injured by reason of the defect. Under these circumstances the court by Judge Dill lays down the principle that a servant as sumes not only the ordinary risks incident to the employment, but as well all risks arising and becoming known to him during his service, and that the master by promising to repair a defect as an inducement to the servant to continue work, takes from the servant the risk and during the period for repair assumes it himself. Where the promise is general and indefinite the master's undertaking to repair runs for a reasonable time, but where it is to repair at a fixed time it runs only until the expiration of the time fixed. The case is regarded as different from a general promise to repair only because the time set for repair is made definite, so that when this time has expired the servant is in precisely the same position that he would be after the expiration of a reasonable time for repair when the promise made is indefinite. Upon this point the court cites the following authorities: Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152; Ill. Steel Co. v. Mann, 170 Ill. 200, 48 N. E. 417, 40 L. R. A. 781, 62 Am. St. Rep. 370; Gunning System v. Lapointe, 212 Ill. 274, 72 N. E. 393; Burns v. Windfall Mfg. Co.,. 146 Ind. 261, 45 N. E. 188; Breckenridge Co. v* Hicks, 94 Ky. 362, 22 S. W. 554, 42 Am. St. Rep361; Stalzer v. Packing Co., 84 Mo. App. 565; Gulf, etc. R. Co. v. Brentford, 79 Tex. 619, 15 S. W.
