he was employed; in the latter of the two cases, an employee was found during his lunch hour wedged between an elevator and the clevator gate at the place where he was employed. In the case last mentioned it was the custom of the employees to eat their lunch on the second floor and to use the elevator in going from floor to floor, operating it themselves. In the former of these cases it was held not proved that the accident arose out of the employment and in the latter case it was held proved that it did so arise, apparently because the employer must have required employees to eat lunch on the premises by reason of the short lunch hour allowed.

The observation permitted by the case last referred to is that in the principal case here commented upon, because it seemed to be part of the scheme of the employer, looking to more efficient service from the telephone operators, to give periods of rest, and because it seems to have been the intention for those periods of rest to be taken on the premises, can it not be said that taking the rest was part of the employment, and that any position taken in getting the rest was one arising out of the employment? The circumstance of assuming a dangerous position goes only to making contributory negligence, which plays no part in the right of recovery (Jobst v. Indus. Com. 303 Ill. 600) unless the employee is prohibited from entering the part of the premises where the dangerous position was taken. The case where the employee sought to recover the piece of metal, by putting his hand into a dangerous place, would seem to have been of that type, and the Weis Paper Co. case was not one where the employment called for regular periods of rest to be taken by the employees to improve their efficiency.

E. M. L.

DIVERSITIES DE LA LEY

JUDICIAL PROCEDURE IN THE VIRGIN ISLANDS.-Acquisition of the Virgin Islands by the United States has brought with it the novel situation of an American appellate court reviewing causes decided in first instance under Danish procedure. By the act of March 3, 1917, establishing a temporary government for the Islands (39 Stat. c. 171), the local procedure was left in force with the provision that "in all cases now reviewable by the courts of Denmark, writs of error and appeals shall be to the Circuit Court of Appeals of the Third Circuit." The first cause with which that court had to deal, under this provision, was Clen v. Jorgensen (1920) 265 Fed. 120 (opinion per curiam), an appeal from a judgment of the District Court of St. Thomas and St. John, in an action by a landlord against a tenant, awarding to the plaintiff arrears of rent and restitution of possession. The absence of any more definite regulation of proceedings in review than that contained in the act left open to the appellee the contention that, this being an action at law, the remedy available to the aggrieved party was a writ of error, limited to review of errors of law, and that an appeal would not lie. But, with a broad grasp of the problem, the court points out that the distinction, in our sense, between law and equity was unknown to the Danish law, that the means of review under that law was an appeal concerning itself with both law and fact, and that, by virtue of the act, it had succeeded to the jurisdiction in this regard of the Supreme Court of Denmark. From these premises it draws the eminently sensible conclusion that it had authority in this case to review law and fact by means of appeal. It accordingly did so and reversed, for failure of proof, so much of the judgment as awarded restitution. Most interesting is that part of the opinion which describes the local procedure:

"From the protocol in this case made and certified by the District Court, as well as from our investigation elsewhere, it appears that in the courts of original jurisdiction in the Virgin Islands, under the continuation of Danish procedure, a cause is begun in what is known as the reconciling court. To the judge of this court the parties submit their controversy quite informally, and the judge, with equal informality, endeavors to reconcile their differences. In vindication of such informal procedure it is interesting to learn that most of the litigation in these islands is successfully ended in this court. If, however, the judge fails to compose the controversy by reconciliation, as happened in this case, the cause is then transferred to the ordinary or District Court. In this court the same judge sits (always in the presence of two court witnesses presumably representing the public) and hears the case without a jury. As we gather from the protocol before us, oral evidence is seldom presented. The case is tried on written pleas. These pleas bear no resemblance in name or number to pleadings either at common law or under code practice. They contain a recital of what the parties regard to be the evidence bearing on their respective sides,

supplemented by discursive argument. They are filed without verification, and to the admission or rejection of evidence so pleaded no exceptions are noted. When the pleadings end, the judge enters the court's judgment. From this judgment (prior to the change in sovereignty) there was an appeal to the Supreme Court of Denmark, where the whole record was reviewed de novo.

In Soto v. U. S. (1921) 273 Fed. 628 (opinion by Woolley, J.), the criminal procedure of the Islands came in question. This was an appeal from a judgment of the same District Court convicting Soto as principal and Lopez as accomplice in respect of the murder of one Dougherty on board the "Polar Star," an American merchant vessel lying in the harbor of St. Thomas. The judicial proceedings below thus appear from the opinion:

"On the day following the homicide, a Police Investigation was instituted in the Police Court of St. Thomas and St. John. The investigation was begun before Soto and Lopez had been apprehended, and was continued after their capture and production in court by repeating to them the testimony given, or 'reports' made, in their absence, and by introducing additional testimony.. The investigation continued. almost daily from September 10 to September 22. Twenty-three witnesses were examined; the prisoners alone spoke for themselves. No charge of crime was made against anyone. As to the procedure, a witness on being called gave his testimony, which afterwards was reduced to writing and read to him and, if satisfactory, was verified by his oath. The testimony of witnesses was at times read by an interpreter to the prisoners, both of whom spoke and understood nothing but the Spanish language; and at times, as the record shows, the testimony was not read to them at all. The investigation was prosecuted mainly in the presence of the prisoners, though undoubtedly the record shows that it continued at times during their absence.

"At the conclusion of the proceedings in the Police Court, that is, at the conclusion of the 'Police Investigation,' for that is what it is entitled, the judge made the following entry:

""The two accused were informed that, in case they have no further statement to give, the investigation will be closed now and the records of it sent to the Government with the request that they be tried for murder.'

"The cause was then transferred from the Police Court to the District Court by the appearance in the latter court of the Government Attorney, who had conducted the police investigation, and by the filing of 'a summons, a plea, a transcript of the police investigation in the case and the order for prosecution.' Judge Thiele (who was judge of the District Court as well as of the Police Court) thereupon issued a summons to Soto and Lopez to appear on a named day 'to answer the charges made against them and show cause why they should not be punished as recommended to the court by the prosecution in the plea filed with this court.' The 'plea' which the Government Attorney filed in the District Court recited the facts of the homicide and charged Lopez with 'intentional murder' in killing Dougherty and Soto with being an accomplice. The plea charging these crimes was later amended by adding the charge of assault and battery. The two prisoners were then brought to the bar and 'made acquainted' with the charges against them. Counsel for their defense, having but recently been appointed

by the Government, appeared for the first time and requested a postponment of the trial in order that he might familiarize himself with the transcript of the proceeding in the Police Court and prepare a plea by way of answer. Thereafter the trial proceeded by both counsel filing pleas made up entirely of discussions on the evidence taken on the police investigation. In other words, the pleas were arguments in the nature of briefs. At the trial in the District Court no witnesses were produced by the Government and no testimony taken. Similarly, no witnesses were produced by the prisoners, although at the trial (as well as at the police investigation) the defendants were afforded an opportunity of calling witnesses in their defense. The case in the District Court was tried by the District Judge and four 'co-judges,' or lay judges, whom the Judge had summoned to his aid. The five judges found the defendants guilty respectively of 'wilful and unnecessary murder' and of being accessory to that crime, and concurred in a judgment that 'the defendant Jose Lopez shall lose his life and that the defendant Jose Soto shall be punished by imprisonment in the penitentiary for six years.'

It was held by the Circuit Court of Appeals that, under the Insular Cases and other decisions of the Supreme Court, annexation extended to the Islands those constitutional guaranties which relate to natural and personal, as distinguished from remedial, rights and thus made applicable there the protection of an accused in the right to be confronted with the witnesses against him and to be tried by due process of law. The procedure followed below fell short of this constitutional measure. The trial was conducted without such confrontation and, moreover, in failing to grant the accused opportunity for cross-examination, was inconsistent with due process, which, as said in Ballard v. Hunter 204 U. S. 241, though insisting on no fixed procedure, has as its fundamental requirement that there be "an opportunity for a hearing and defense." From this result, there was, of course, no escape, but it seems to be indicated that, save in these two particulars, which admit of easy correction, the applicable constitutional guaranties offer no impediment to the maintenance of the existing criminal procedure of the Islands.

A third case was again on the civil side. This was The Edgewood: Sugar Products Co. v. Lockhart (1922) 279 Fed. 348 (opinion by Woolley, J.), an appeal which the appellate court regarded as having been taken from a judgment of an inferior tribunal, designated in the record as the "Sheriff Court." The schooner "Edgewood," sailing from Barbados to New York had put in at St. Thomas in a condition of distress and there gave rise to the litigation here in question, which was initiated by an action brought against the vessel by Lockhart as attorney for one Kinch.

"The process is in the nature of foreign attachment issuing from the Sheriff Court of St. Thomas and St. John on the plaintiff's præcipe showing the nature and amount of his action against the schooner. On the filing of an indemnifying bond, the Sheriff Court 'decreed' attachment of the schooner. The case was then transferred to the District Court of St. Thomas and St. John. Although the proceedings throughout appear to be quasi in rem, a summons issued from the District Court to the captain of the schooner (under Placard of 30 November,

1821, providing that, when the owner of property is absent from the country, suit for attachment may proceed by summons to the person in possession) commanding him to appear on a day named 'to hear demands made for the confirmation' of the attachment previously issued, and also 'to hear judgment of the aforesaid claim held by C. H. Kinch against said schooner "Edgewood" and owners, originating for disbursements made to said vessel while in the port of Barbados, for repairs and supplies amounting_to $20,941.57, U. S. currency, together with expenses incurred, say: Expenses for cable $100.14, legal services $2,100; in all for $23,141.71.' On the return of the writ of summons the plaintiff (Kinch) proved his claim, which was made up of advances for repairs to the schooner following a collision. Thereupon the District Court made a 'decision' confirming the execution, awarding the plaintiff judgment against the schooner for $20,941.57 and sundry items of interest, expenses and counsel fees, and finding the plaintiff 'entitled to execution against the schooner' if the money awards be not paid within three days.'

This judgment, the reviewing court holds, was a final one "between the parties, determining the amount of the plaintiff's claim against the schooner and the schooner's liability therefor to the plaintiff" and one reached by a method which, though different from ours, was in accordance with due process of law.

But the proceeding did not end here. The judgment not having been paid, the plaintiff appeared in the Sheriff Court, presented a copy of the judgment and applied for and obtained what is referred to in the opinion as an "execution against the schooner in the nature of an order of sale." By reason of the fact that the value of the schooner was not sufficient to satisfy the judgment, the plaintiff, alleging that the cargo was indebted to the schooner in a sum named, for demurrage at Barbados and for "distance freight," then prayed for an "extension" of the execution to the cargo. This application was opposed by the Sugar Products Company as charterer and owner of the cargo, intervening in the execution proceeding for the purpose. After a hearing, however, the Sheriff Court rendered judgment as prayed, subject to the qualification therein expressed that "it is not within the jurisdiction of the Sheriff Court to examine the correctness of the claim for demurrage and distance freight and the execution will only be given with the reservation of any preferred right that may exist." The Sugar Products Company thereupon gave a bond for the release of the cargo and took the appeal in question. Although the record failed to make plain which of the judgments was the one to which the appeal related, the court concluded that, as the Sugar Products Company was not a party to the first part of the proceedings, and as the "summons on appeal" issued from the Sheriff Court, the appeal must have been from the judgment of the Sheriff Court ex

1. "That is," as the court explains, "freight for that part of her voyage covered from Barbados to St. Thomas, her port of refuge. The latter claim is based upon a principle of Danish law quite the opposite of the general rule that no part of freight is earned by a ship unless she fulfills her contract of affreightment and delivers her cargo. The Allanwilde, 248 U. S. 377.”