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such a strict duty as to actively dangerous things generally; in other places not.

(5) A person who invites another person to put himself or his belongings into a place of danger must take such precautions as reasonableness requires, if any, to protect him against the danger. This is sometimes spoken of as a duty to make the place safe or to provide a safe place; but that is not in general a correct statement of the duty. In many cases the duty may be performed in that way. That will often be the most convenient, or sometimes the only practicable, way of performing it; but if the place is not or cannot be made safe, the taking of other precautions may be a sufficient compliance with the duty. Sometimes giving warning to the invitee is enough. This duty is owed only to invitees, not to persons who come into the place by right, nor to licensees or trespassers. But there seems to be a more limited duty to licensees, to use care to protect them against concealed danger in the nature of traps.

(6) Bailees of things or services owe certain duties of active care, even aside from contract, breaches of which may give ground for actions of tort.

(7) Such duties may be created by contract.

(8) Such duties arise from certain relations, such as that of husband and wife or parent and child. These are often imperfect duties. Public officers may have such duties.

(9) Many equitable duties are of this kind, e.g., duties of trustees as to the trust property, which resemble duties of bailees.

Henry T. Terry.



HE large number of equity causes commenced in the United


States Courts since the new Federal Equity Rules became effective (February 1, 1913), in which these rules have been called to the attention of the courts for interpretation, particularly during the second year, enable more definite conclusions to be drawn as to their effectiveness in securing the results sought by their promulgation, and the practitioner to determine more or less definitely how to proceed under them.

The reported cases alone, all of which, so far as I have been able to ascertain, are referred to herein (to say nothing of those unreported), indicate the vast amount of work that has been done by the federal judges and the attorneys practicing before them in determining the meaning of various of these rules and the mode of applying them.

It is certain that the federal courts generally are doing their best to apply these rules in such a manner as to secure the most efficacious results for litigants and meet their needs under local conditions. There is, however, a divergence in the application of and procedure under certain of the rules in different districts. In some districts the court has prepared, and in others is now formulating, local rules 1 supplementary to the general Equity Rules necessary to be complied with in practice before the particular court making them.

During the first year under the new rules the courts were lenient in permitting cases, pending at the time these rules became effective, to be carried on under the practice then existing, and, for that reason, the second year's test of these rules is a better one than that of the first year.

The many clearly defined opinions of the courts in interpreting the meaning and scope of the rules show numerous differing, and, in some instances, irreconcilable decisions. This condition makes it essential for the attorney to familiarize himself with the interpretation of these rules by the different judges in each locality, as

1 Under Federal Equity Rule 79.

well as to be acquainted with the local supplementary rules of the different District Courts, in order to safeguard his clients' in


The end of the first year under the Equity Rules showed quite a diminution in the number of pending causes in certain districts, as some of the courts insisted on these cases being put upon the trial calendar, and, if not ready for trial, dismissed them under Rule 57, which resulted in a final disposition of a large number of causes of old standing and where the issues had long been dead.

The end of the second year's period fails to show a corresponding decrease in the number of pending causes in most districts.

Where attorneys on both sides are disposed to try their cases promptly, it now often takes as long to have a case disposed of on final hearing, whether the evidence is taken in open court or otherwise, as under the old rules.

The inability in such cases to reach a more speedy determination of equity causes is due largely to the crowded condition of the trial calendars and the necessity of disposing of cases generally in their regular order rather than by special assignment when the case is ready for submission on final hearing, as was quite common under the old procedure. The practicability of the new Equity Rule which has brought about the most radical departure from the old equity practice requiring that "in all trials in equity, the testimony of witnesses shall be taken orally in open court" and that "the courts shall pass upon the admissibility of all evidence offered as in actions at law" has not been satisfactorily demonstrated, for, in some instances, the trial of these equity causes in open court is requiring the constant attendance of a judge for many weeks of continuous, close and confining work.

Within the three months preceding June 1, 1915, in the Southern District of New York, where the practice of compelling the trial of equity causes in open court has been rigidly adhered to, one case consumed the entire time of one of the judges for a period of over six weeks, and, at that time, the end was not in sight. In another equity case being tried simultaneously, the entire time of

2 Federal Equity Rule 46.

another judge in New York City was completely occupied for four weeks, after which, extensive briefs were permitted to be filed requiring the further consideration of the court. Likewise in New Jersey, during the past spring, a single equity case occupied more than eight weeks of the time of the court in hearing the evidence and arguments, aside from the time which must be and is now being consumed in reading briefs.

It is true that the taking of evidence in open court in equity causes is conducive to the elimination of some immaterial matters from the record, and the actual period of time during which the evidence is being taken is usually somewhat less than under the former procedure. The judges are working to their utmost capacity to speed the causes and render prompt decisions after the close of these open court trials, notwithstanding which it is impossible for them to dispose of as large a number of cases in a given period of time on final hearing as under the old practice, because so much time is consumed in attending while the evidence is being taken.

In the Southern District of New York there are probably more equity cases brought than in any other district in the United States. During the past year twenty District judges have been especially assigned from other circuits to assist in the disposition of causes pending in New York City.3 In addition, two Circuit

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judges formerly of the Commerce Court and five District judges from other districts within the Second Circuit have spent more or less time in the trial of cases in New York. The different members of the Court of Appeals of the Second Circuit have also rendered assistance where it has been possible for them to act, to dispose of preliminary motions and the like. Notwithstanding all this assistance and the extremely high pressure under which the judges are constantly and conscientiously working, and the high average number of days of holding court maintained by them, it takes from

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• The record of the U. S. District Court, So. Dist. N. Y., for the year 1913, shows that one of the judges actually presided in court one hundred and eighty days, and other judges for nearly as many, including one day each week for naturalization hearings and bankruptcy motions, but exclusive of numerous days when the judges were in court to hear motions especially set down, either on Saturdays or days when they would otherwise be in chambers; nor does it show the several days' attendance of some of the judges in other districts in the Second Circuit. (Judge Holt in New Haven; Judge Mayer in Jamestown, Judge Hand in Vermont.) In addition to this, at least one judge has been present in chambers transacting ex parte business on practically every business day during the year and the other resident judges have been present in chambers, when not sitting in court, except when kept busy by illness or court business in other districts or during the vacation session.

The judges of the Circuit Court of Appeals also sat in the District Court a total of fifty days, which is in addition to the work done by them in the Circuit Court of Appeals. The total number of days of regular sessions of the District Court with judges present and presiding, held during the calendar year of 1913 at New York City, was nine hundred and thirty-three. These figures, of course, include the trial of all kinds of cases, but do not include the time spent by judges in writing opinions, hearing various matters in chambers, in conferences, and in arranging for the various hearings, which is necessarily largely done by the judges outside of the time occupied in court.

In 1914, certain of the judges in New York were actually present and presided at the regular sessions of the court held during that year, one hundred and seventy days, and, due to the large number of outside judges who sat in the Southern District of New York, by special assignment, the total number of days that the judges sat in the United States District Court during the year 1914 was ten hundred and eighty-seven, and, for the first four months of 1915, this total number was five hundred and eighty-four. (Information obtained through the courtesy of Judge Learned Hand and Deputy Clerk William Tallman.)

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