in a position to know the ins and outs of the whole case and should be best fitted to determine the minor matters of procedure as they arise.

Of course there are disadvantages attending any loosening of our procedure. But despatch is an essential of justice just as is stability. It is a significant sign when public sentiment favors doing away with many of the technical protections thrown about the accused, and feels safe in looking for substantial justice at the hands of our judges. The allowing of a prisoner to waive, by mere voluntary absence or otherwise, his right to be present at the rendition of the verdict seems in line with this general trend of sentiment.

INTERSTATE COMMERCE-REBATES UNDER THE EILKIN'S LAW OF 1903.

Interstate commerce as coming within the purview of the constitutional provision that "Congress shall have power to regulate commerce with foreign nations, among the several states. and with the Indian tribes," has been the subject of various litigations, and perhaps equally as varied dicta by the courts. The judicial construction of this clause begins in 1824 with the case of Gibbons v. Ogden, wherein Chief Justice Marshall declared that the power to regulate, being the power to prescribe rules by which commerce is to be governed, is complete as vested in Congress and acknowledges no limitations other than as prescribed in the constitution. The line of demarcation between interstate and intra-state commerce being under the control of the individual state, was laid down by the "original package" rule, first stated in 1827 in the case of Brown v. Maryland. This line of difference involving the power of the state to legislate upon interstate commerce; in the absence of any regulation by Congress, not being decided, remained a vexata quaestio until 1851, when the jurisdiction of the state courts was confined to those questions of local interest included under police regulations, and that, too, only in the absence of any regulations by Congress. This view was not universally adopted. The Granger cases held state regulations of interstate rates valid in case of the absence of legislation by Congress. But in 1886 the Supreme Court of United States reversed the Supreme Court of Illinois in Wabash R. Co. v. Ill., 118 U. S. 557, denying to the states the power to any such regulations whatever. In the same year the Tennessee drummer case denied the power of the state to impose any tax whatever upon interstate commerce. It was then in the absence of statutory regulations whatever, except the Act of 1866, Revised Statutes, Section 5258, authorizing the formation of continuous lines and through shipments by agreements, that the Interstate Commerce Act was passed on Feb. 4, 1887.

The wide diversity of opinions during the debates in Congress, giving rise to the caustic characterization of the act as one which "nobody understands, nobody wants, and everybody is going to vote for," was fully warranted by subsequent judicial interpretation of its provisions, especially as to what were the "substantially similar circumstances and conditions" of the fourth section. Subsequent

amendments have at least proved that it did not meet the demands of the situation, among which was the Elkin's Act of 1903, providing that, "Every person or corporation who shall offer, grant or give, or solicit, accept or receive any such rebates, concessions or discriminations, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars."

This Act was brought before the courts in the case of United States v. The Standard Oil Co. of Ind., 155 Fed. 305, upon an indictment on 1903 counts, each charging the movement of one car of oil as an interstate shipment. The constitutionality of the Act was sustained against the contention of the defendant to the effect that: (1) the natural and inherent right to make a private contract was involved, (2) authorizing common carriers to fix such rates as when published shall become binding, is a delegation of legislative power, (3) judicial power vests in the commission in that it is to pass upon the ultimate reasonableness or unreasonableness of the rate charged, (4) the "commerce clause" of the constitution does not empower Congress to forbid and make criminal the act of defendant in accepting a rate less than that fixed and filed as required by the Act. The first contentions of defendant above was denied on the ground of the public character of railroads as declared by frequent holdings of the courts. Louisville & N. R. Co. v. Brown, 123 Fed. 946; Commonwealth v. Interstate Consol. St. Ry. Co., (Mass.), 73 N. E. 530. The Supreme Court of United States has frequently ruled adversely to contention (2) of defendant. Chicago & N. W. R. Co. v. Dey, 35 Fed. 866. Railroad Commission Cases, 116 U. S. 307. The courts have ruled against (3) above, in that common law remedies are not barred by the statute. Gen. Sts. 1901, section 5998. Mo. Pac. R. Co. v. State, 77 P. (Kan.) 286. Contention (4) of defendant is denied and the receiving of rebates thereby made a criminal offense on the ground that Congress, having the right to establish uniformity in rates, may adopt whatever remedial measures may be necessary to enforce them. Congress has primary power to protect interstate commerce. Charge to Grand Jury, 2 Sprague (U. S.) 279.

The question of rebates, though perhaps for the first time the subject of legislation in the Interstate Commerce Act, is by no means a new one to the American courts. The more general term, discrimination, as involving rebates, has for a long time been the subject of litigation. There are dicta in the English cases and many cases may be found to sustain this view, that at common law, common carriers were bound to make reasonable, but not equal charges, and that one of whom a fair compensation was exacted had no cause of complaint because another obtained a similar service for less. Branley v. Southeastern R. Co., 12 C. B. (N. S.) 63, 75; Oxlade v. N. E. Ry. Co., 40 Law & Eq. 234. So it has been usual in English railroad charters to insert clauses expressly requiring reasonable facilities to be afforded to all on equal terms and enacting special remedies for unjust discriminations. McDufee v. Portland & Rochester R., 52 N. H. 430. So the "equality clause" in 8 and 9

Vict. .c 20, section 9, that tolls shall be charged equally to all persons and after the same rate in respect to all goods of the same description passing over the same portion of the same line under the same circumstances supplements whatever defect there may have been in the common law in the prohibition of unreasonable discriminations. The most recent decisions which have passed upon the obligations of railway companies to the public have been almost uniform in following the principles of the common law, not only prohibiting discriminations, but requiring the strictest impartiality in the conduct of their business, as declared by Supreme Court of U. S. in 1901, in Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92; Pierce on Law of Railroads, p. 498. Since, upon the question of discrimination, this Act is in the main only an enumeration of the common law provisions, its purpose was the prevention of a specific violation of the imposition of specific penalties. We find then that Judge Tandis follows the real spirit of the Act in exercising the discretion entrusted to the judiciary by imposing a fine of $29,240,000 upon the defendant. This discretion is not a power which may or may not be exercised acording to the peculiar inclination of the particular occupant of the bench, but is a part of the duty of the judge as a trial court. Goodwin v. State, 51 S. E. (Ga.) 598.

IS THE ACTION BY A DEPOSITOR AGAINST A BANK FOR WRONGFUL

REFUSAL TO HONOR A CHECK, EX CONTRACTU OR EX DELICTO? While all courts are agreed that when a bank has sufficient funds of a depositor in its possession to honor the depositor's checks drawn on it, and such funds are not subject to any lien or claim, the bank is liable to an action by the depositor for its neglect or refusal to honor his checks, Wiley v. Bunker Hil National Bank, 183 Mass. 495, yet they are far from being in harmony as to whether the action is one ex contractu or one ex delicto.

In the recent case of Lorick v. Palmetto National Bank of Columbia, 57 S. E. (S. C.) 527, the plaintiff brought action against the defendant Bank for damages for wrongfully refusing to honor the plaintiff's check. Pending the suit the plaintiff died, and the suit was continued in her behalf by her administrator. The question arose whether the action was one ex contractu and survived to the administrator, or whether it was one ex delicto and did not. The court held that, although the plaintiff had attempted to bring her action in tort and had failed, yet she should not be deprived of her relief on account of the technicality, and as she had stated facts sufficient to constitute a cause of action ex contractu she was entitled to pursue her relief in that form of an action, and such right of action survived to her administrator.

Some decisions are based upon the nature of the wrong done; that is, the breach of contract, or the tort. Others are based upon the extent of the injury; that is, the measure of damages in either There are three different opinions as to the nature of such an action. Some courts hold that it is strictly an action ex contractu. This view obtains in California, Kansas, Kentucky, Massachusetts and Nebraska. Others hold that the action is one essentially ex

case.

delicto. This is the rule in Georgia, Illinois, Minnesota, Pennsylvania and Tennessee. The third view is that an action lies either in contract or tort, which obtains in New York, and, by the recent case, in South Carolina.

The English courts have a rather peculiar theory of such an action, as is shown in the pioneer English case on the subject, Marzetti v. Williams, 1 Barnewall & Adolphus Reports, 415. The court in this case held that, although it is immaterial whether the action be in form, in contract or in tort, yet it is substantially founded on the implied contract between the bank and the depositor. Damages were allowed as for breach of contract. The court was aware, too, of the injury to the depositor's credit. This decision has been followed by the English courts except in the case of Rolin v. Steward, 18 Jur. Pt. 1, p. 536, where the court said the action was one in

tort.

These cases are based on the theory that when a person deposits money in a bank he thereby immediately assumes a relation with the bank which is fixed and determined by law. This relation is that of debtor and creditor, and that only. If the depositor has sufficient funds in the bank, which are not subject to any liens or claims, the law implies a contract on the part of the bank to pay out these funds upon the depositor's orders and according to his directions. When the depositor has sufficient funds in the bank to meet the check and the bank, without authority, wrongfully refuses or neglects to honor the same, a right of action immediately accrues to the depositor for the breach of the implied contract. The bank is liable to the extent and for the same reason that other persons are liable for the nonperformance of their contracts. As to the measure of damages the courts have generally adopted the rule set forth in the case of Hadley v. Baxendale, 9 Ex. 353, and awarded compensation for such damages which may fairly and reasonably be considered as naturally arising from the breach of the contract according to the usual course of things. Wiley v. Bunker Hill National Bank, supra; Kleopfer v. First National Bank, 65 Kans. 774.

The decisions that such an action is properly one ex delicto are the result of an entirely different line of reasoning. The great natural right which every government recognizes and protects is that of personal security, by which one is entitled to complete immunity from attack and injury. Thus is one's reputation made secure, and he who deservedly stands in good repute has the right to, and it is the duty of all others, which may be enforced in all jurisdictions, to abstain from interfering with the uninterrupted enjoyment of a good reputation. When a bank wrongfully refuses or neglects to honor a depositor's check, it thereby charges him with insolvency, dishonesty, or bad faith, and not only injures his reputation, but also impairs his credit. There is something more than a mere breach of the contract implied by law between the parties. To impute insolvency to a trader is a most effectual way of slandering him and is actionable, and he can recover general damages therefore. Schaffner v. Ehrman, 139 Ill. 109; Svendsen v. State Bank of Duluth, 64 Minn. 40; J. M. James Company v. Continental National

Bank, 105 Tenn. 1. And it is immaterial whether the depositor is a natural person or corporation. Metropolitan Supply Company v. Garden City Banking Company, 114 Ill. App. 318.

It is objected by some courts that as a corporation cannot speak except through its agents, it cannot be guilty of slander, the agents themselves being personally liable in such cases. Eichner v. Bowery

Bank, 24 App. Div. 63 (overruled). But such courts fail to see the analogy between oral slander and slander by act or deed. The latter is just as effective as the former in accomplishing the same ends. J. M. James Company v. Continental National Bank, supra. It is also objected in a great many cases that the refusal is not malicious, and as malice is the gist of slander, there is no slander. Though the wrong is unintentional, the refusal to pay was intentional and without just excuse, and legal malice will be presumed. Schaffner v. Ehrman, supra; Metropolitan Supply Company v. Garden City Banking Company, supra.

There is another ground upon which the decision that such an action is properly one ex delicto, is based. It is the broad ground of public policy. A bank is a quasi-public corporation whose duty imposed by the government by charter, is to safely hold all moneys deposited therewith. Banking facilities are absolutely essential to business, and banks would have the public at their mercy were the damages for their wrongful refusal to honor a check limited to those resulting from a mere breach of contract. A rule of this kind might hinder commerce. First National Bank of Lock Haven v. Mason, 95 Pa. St. 113; Patterson v. Marine National Bank, 130 Pa. St. 419.

New York allows the action to be brought either ex contractu or er delicto, for the same reasons that other states permit the one or the other to be brought. The earlier New York courts favored solely an action ex contractu. Brooke v. Tradesmen's National Bank, 23 N. Y. Supp. 802; Eichner v. Bowery Bank, supra.

But the present doctrine is recognized in the cases of Borroughs v. Tradesmen's National Bank, 33 Ñ. Y. Supp. 864; Davis v. Standard National Bank, 50 App. Div. 210; Clark Company v. Mount Morris Bank, 85 App. Div. 362; Citizen's National Bank v. Importers' & Traders' National Bank, 119 N. Y. 195.

Although, previous to the recent South Carolina decision, New York was the only state in which such a rule obtained, still it seems the most equitable and just rule. The wrongful refusal of a bank to honor a depositor's check involves not only the right arising from the contract implied by law between the parties, but also the natural right to security in his reputation. Such an act by the bank is a violation of both rights at one and the same time. The depositor is wronged, and is entitled to his remedy regardless of the form of the action by which he seeks to obtain it, and he should not be deprived of his remedy for having brought his action in one form if he has stated facts sufficient to constitute a cause of action in the other form. The New York rule not only satisfies the requirements of good pleading, but it also does that which is of far greater importance, in that it removes the technicalities of pleading and makes the redress to the depositor for the violation of his right, to which he is so justly entitled, most certain and secure.