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speaking for himself in a matter of this kind, as the average layman of mature years. This may be one of the most important transactions of life, yet the injured is obliged, under the present practice, to act as his own lawyer and be his own advisor, while dealing with an adversary, who is represented by skilled and trained and highly paid physicians and claim agents, whose practices have long been, and still are, a travesty upon justice.

Sections 6 and 7 provide that if any such settlement is made, contrary to the provisions of the act, the defendant is entitled to credit for the amount paid, and simply makes a release invalid to the extent that it is unjust as found by the court.

Every individual and interest is left full protection for his just claims and all his rights and just defenses. The proposition I make is simply to give each the protecting arm of the court, to which all must finally look for justice. The plan is simply to give assurance of a fair deal, in matters where, without the protection of the court or counsel, unequal adversaries have met and injustices have been practiced upon the weak by the strong, until it is a shame on the law and the law-makers of the land. Some objection was raised to my bill because of the so-called "red tape" of effecting settlements. The answer is, common practice makes it necessary. Justice cannot be sacrificed for the sake of convenience. To offset this inconvenience, however, the proposed act permitted settlements in three ways. First, With claimant's attorney. Second, Under the eye of the court. Third, Otherwise, at the risk of the debtor. Under the third class the only penalty that need apply is the invalidity of the settlement, so far as it is found unjust as to amount, when attacked in the courts. The true measure of damages should control-and not the standard of the skillful claim agent. Fair settlements would be stimulated, unfair ones overturned, and justice would triumphantly rule.

TRUST COMPANIES AND THE PRACTICE OF LAW.-The practices of certain Trust Companies seem to Mr. Corrigan as very germane to the subject of "Solicitation." He says:

Capitalists, some of whom are lawyers, have organized throughout the United States, corporations called trust companies, the word "trust" usually preceded by an adjective such as "Guaranty," "Security," "Reliable," "Fidelity," or other attractive and deceptive names. Their evident purpose is to create such confidence in the minds of the people that they will entrust, to these corporations with these high sounding titles, their savings, their legal business, the making of their wills, the disposition of their property, and the caring for their widows and orphans. The gentlemen engaged in this kind of business would be shocked if they were accused as individuals, of advertising for clients, but is that not what they are doing when they lend their names to be used in advertisements as directors or officers? Besides this, some of these corporations openly advertise for, and solicit law business.

When the members of the public, in response to these solicitations, visit trust company offices, whom do they meet, and who are they turned over to? They are turned over to lawyers.

A position of trust and confidence is a sacred one, and the duties imposed, if properly done, are never performed where the position is solicited or is taken for profit alone. This is true whether the lawyer is an individual or is an "incorporated" one.

I predict that the people in this country will not long permit trust companies to sell securities to their clients, when the purchasers are led by a

species of fraud to believe that the vendor is a fiduciary. The fact is, that these vendors now deal with their customers at arm's length and nothing more than the ordinary relation of vendor and vendee is permitted by them to exist.

These species of deception have been very profitable. There are now in New York City more than thirty trust companies so-called, all closely allied, many with interlocking directorates, that have, in the last fifteen or twenty years, made profits that are astounding, and which never could, and never should be made by fiduciaries, as lawyers understand that word. For example, the Brooklyn Trust Company is paying twenty-five per cent dividends on its stock, annually. The Central Trust Company of New York, fifty per cent; the Guaranty Trust Company of New York, twenty-eight per cent; the Metropolitan Trust Company, twenty-four per cent; United States Trust Company of New York, fifty per cent, and the United States Mortgage and Trust Company, twenty-four per cent. Many others range above twenty per cent, and but few fall below fifteen per cent. These figures are taken from "Trust Companies of the United States," a book published by the United States Mortgage & Trust Company of New York in the year 1915, so it stands as an admission against interest, and is abundant evidence of abundant "interest" in more ways than one.

As a result of their activities they have succeeded in having themselves named as trustees in a large majority of mortgages in which the savings of the whole people of the United States are involved. The powers entrusted to them under these mortgages give them a firm hold on the savings of our people, and I assert that the trust companies of New York, by reason of the facts to which I have called attention, control more capital than any other combination of men or institutions in the United States, but as is to be expected from men who come to occupy positions as trustees, as a result of solicitation, they have performed their duties questionably and to their own grossly large financial profit.

Periodically the trust companies of New York and their officers and directors have organized themselves into a self-constituted reorganization committee and have in turn solicited through advertisements and threats the deposit with themselves of bonds, held by innocent clients and investors throughout the United States. They have forced the small owner of bonds to place them in their hands for collection under contracts that are worse than those taken by pawnbrokers. Having obtained control of the bonds secured under such mortgages, they envolve a so-called plan of reorganization, the effect of which is to give them large compensation for themselves and their attorneys, and to compel other small investors to either employ them or submit themselves to the tender mercies of a foreclosure action in the Federal courts.

I respectfully submit that all trust companies and all similar organizations should be driven out of the law business, and their business otherwise regulated so as to be held strictly within proper lines.

TENDER WITH REQUEST FOR CHANGE IN THE CASE OF COMMON CARRIERS. It is a well settled principle that a tender of money must be in the exact amount; that the offer of a larger sum with a request for change is not a good tender and this rule has been applied to common carriers as well as others, though in a California case it

1 Lawson Contr. $ 437 Barker v. 489.

R. Co., 151 N. Y. 237; 35 L. R. A.

was held that a street car company which had been accustomed to make change for passengers could not refuse to do so when a passenger offered a five-dollar gold piece for a fare of five cents. But a late case in Mississippi goes far beyond this. A passenger at Gulfport in that State tendered to the ticket agent a $100 bill and asked for a ticket whose price was two dollars and one cent. The agent told him he would have to pay his fare on the train. He went aboard and when he tendered the bill to the conductor was told he would have to pay 4 cents a mile instead of 32 cents which would have been the rate had he bought a ticket at the station. The passenger refused to pay the higher rate; was ejected from the train and sued the railroad for damages. The trial court held as a matter of law that the tender at the station was not a legal one and gave judgment for the defendant. The Supreme Court rules the question of the reasonableness of the tender was one of fact for the jury and it lays it down that a passenger need not tender the exact fare, but, if he tenders a reasonable sum, the carrier must accept it and furnish change; what is a reasonable sum depending largely upon whether the carrier is a steam railroad or a street railway, and upon the ease or difficulty in handling passengers in each locality, Says the Court:

"We do not undertake to lay down any rule defining what is and what is not reasonable tender in all cases. This is a mixed question of fact and law to be determined in each case, taking into account always the size of the city, town or village, where the passage is demanded, the volume of business done and the facilities for making change. We do say, however, that in this particular case the court could not, as a matter of law, declare the $100 bill an unreasonable amount in a city life Gulfport. There is no question of the good faith of the appellant, and surely we have fallen on uncertain times if a white gentleman with a pocket full of $100 bills cannot buy first-class passage on a train operated by a common carrier doing both an interstate and intrastate business without paying a premium so to do, especially when he has transacted all business on hand and is destined for the attractive and cosmopolitan city of New Orleans. Such conduct on the part of the railway company comes near violating the constitutional guaranty accorded every citizen of the pursuit of happiness."

But Smith, C. J., dissents, saying:

"The rule which I understand my associates to announce, and with which I am in accord relative to the duty of a ticket agent of a common carrier in the making of change when the amount tendered him exceeds the amount of the fare demanded, is that laid down in 6 Cyc. p. 547, that: 'While the tender of more than the amount, with the requirement of making the change may perhaps, under the ordinary usages of such business, be sufficient, yet the person making the tender cannot expect the agent or servant of the carrier to be prepared to make change in any amount, no matter how large, and there must be a reasonable approximation of the amount tendered to the fare.' This rule seems to me to require an affirmance of the judgment of the court below, for I think that it can be said,

2 Jones v. R. Co., 68 S. 924.

as a matter of law, that a $100 bill does not reasonably approximate a fare of $2.01. To require a railroad company to keep its ticket agent supplied with sufficient money to change all bills of this amount that may be tendered them in payment of small fares will not only seriously handicap it in its business by keeping an unnecessarily large amount of its money thus tied up, but will make its ticket offices the most attractive of places for burglars and robbers; and, moreover, its agents cannot transact their business with that expedition to which the traveling public is entitled, if all or a great part of the intending passengers put them to the trouble of changing bills for large amounts tendered in payment of small fares."

LIABILITY THROUGH NEGLECT OF STATUTORY SAFEGUARDS WITHOUT OTHER EVIDENCE OF NEGLIGENCE. The decision of the Court of Appeals in the recent case of Arnberg v. Kinley authoritatively settles, says the New York Law Journal, a question as to which there has been considerable controversy in that State. Plaintiff's testator, who was in the employ of defendant, was burned to death in the latter's tannery loft, a large wooden building for drying oiled hides, the first floor of which was the ground, with two board floors above, the upper one sixteen feet from the ground. There were no fire escapes on the building. Ten minutes before the fire the deceased was seen at the elevator on the lower floor and after the fire his body was found on the ground under the place where he had been at work that day on the third floor. The New York Labor Law requires that "such fire escapes as may be deemed necessary by the Commissioner of Labor shall be provided on the outside of every factory in this State consisting of three or more stories in height." It was held that the building was a factory within the definitions of the Labor Law, and that it was for the jury to say under the circumstances disclosed whether failure to provide fire escapes was the cause of death. The court also held, determining the mooted point above referred to that it was not necessary "for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence." In the various discussions the less accurate phraseology has perhaps been more commonly used, it being argued whether failure to observe the provisions of a statute or ordinance constituted conclusive evidence, or amounted merely to some evidence of negligence.

Probably the existing weight, certainly the increasing current, of authority throughout the country, is harmonious with the present decision, which moreover effectuates justice and public expediency. In the prevailing opinion the distinction is indicated between statutes or ordinances expressly for the protection of the very person

3 N. Y. Law Jour., Apr. 26. 1915.

or class of persons who are injured and statutes which are more general in their application for public safety or benefit. As a foundation for the present decision the court goes back to Willy v. Mulledy (78 N. Y., 310), which passed upon an enactment of the first kind. It appeared "that the plaintiff's wife was suffocated in her apartments on the third story of a tenement house by reason of a fire in a lower story of the building. A statute of the State (Laws of 1873, chap. 863) required that such tenement house should be provided with fire escapes and made it a misdemeanor to violate the statute. The defendant's house had no fire escape." The Court of Appeals said:

"Here was, then, an absolute duty imposed upon the defendant by statute to provide a fire escape, and the duty was imposed for the sole benefit of the tenants of the house so that they would have a mode of escape in the case of a fire. For breach of this duty causing damage it cannot be doubted that the tenants have a remedy. It is a general rule that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative; and where a duty is imposed there must be a right to have it performed."

An enactment of the second class was considered in Marino v. Lehmaier. It appeared that section 70 of the Labor Law then in force prohibited the employment of children under the age of fourteen years in factories and made a violation a misdemeanor. A boy thirteen years and three months old was employed in defendant's printing establishment and his fingers were cut off by a cog wheel of a printing press. It was held that the fact that the proprietor of the factory was made criminally liable did not relieve him from civil liability, and in an action therefor the illegal employment is in and of itself some evidence of negligence where the accident could not have happened but for the employment. Of course, in such a case the violation of the statute through, for instance, employing a person a few weeks under the prescribed age would not be as solely or directly a procuring cause of death or injury as a neglect of fire escapes, failure to guard dangerous machinery, etc.

There is ample theoretical ground for the distinction drawn and it is entirely proper in cases of neglect of specific statutory safeguards to derive a cause of action either from the statute itself or, in other words, to treat the neglect as conclusive evidence of negli

gence.

5

A similar position has recently been taken by the Supreme Court of Nebraska. A statute of that State provides that in hotels or lodging houses a proprietor shall employ and keep at least one

4 173 N. Y., 530.

5 Strahl v. Miller, March, 1915, 151 N. W., 952.

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