Where

recover

105. Release Joint Tort-feasors. two of three joint tort-feasors settled with the injured party, that party can against the third only such a compensation as has not been paid by the others.-Gaetjens v. City of New York, 130 N. Y. Supp. 405.

106. Religious Societies-Finality in Decision. -Courts will accept as final decisions of church judicatories on questions of discipline, faith or ecclesiastical law,-Bethany Congregational Church v. Morse, Iowa, 132 N. W. 14.

107. Removal of Causes-Remitting from Amount. A plaintiff remitting a part of his claim in an action removed to the federal court as directed by the court on appeal held, not thereby prevented from suing in a state court on the claim remitted-Holbrook v. J. J. Quinlan & Co., Vt., 80 Atl. 339.

108. Replevin-Res Judicata.-Where a suit in replevin is brought against a party who is not in possession of the property, such suit is no bar to a subsequent action of assumpsit.Friedberg v. Bennett, Mich., 132 N. W. 84.

109. Sales-Risk of Seller.-Where a sale was not complete until delivery to the buyer, the title remained in the seller, while the goods were in the hands of a transfer company as a delivery agent for the seller.-Black v. State, Ala., 55 So. 948.

110. Rescission.-One signing an order for goods held entitled to avoid it on the ground of the fraud of the salesman procuring_it.J. Weil & Co. v. Quidnick Mfg. Co., R. I., 80 Atl. 447. 111.- -Retention of Title.-On conditional sale, where goods are delivered to the buyer and the title is retained by the seller, the risk of loss is the seller's.-Collerd v. Tully, N. J., 80 Atl. 491.

in

112. Set-off and Counterclaim-Damages Tort.-A counterclaim arising from tort has never been included in the remedy of equitable set-off.-Downing v. Wilcox, Conn., 80 Atl. 288. 113. Specific Performance-Mutual Wills. Contract to make mutual wills between a husband and wife, executed by one of them, will be specifically enforced against the survivor.— Wallace v. Wallace. 130 N. Y. Supp. 58.

114. Taxation-Inheritance Tax.-Collateral inheritance tax act held a tax on the right to succession and not on the property.-Wieting v. Morrow, Iowa, 132 N. W. 193.

115. Public Utility.-Property of a public utility becomes no less real property for the purpose of taxation because laid in the streets.

his

118. Tenancy in Common-Accounting to Cotenants.-A tenant, who ousts cotenants, and who occupies the premises under a claim of right under an invalid deed, must account to the cotenants obtaining a decree setting aside the deed. Brown v. Brown, Mass., 95 N. E. 796.

119.- Ouster-In the absence of ouster before suit brought, one tenant in common may not maintain ejectment against another.-Farr v. Perkins, Ala., 55 So. 923.

120. Trade Unions-Liability of Members.-The fact alone that a member of a labor organization pays dues for its support does not render him liable as principal for unlawful acts of its agents.-Lawlor v. Loewe, C. C. A., 187 Fed. 522.

121. Trusts Life Tenancy-On death of life tenant, terminating trust estate, no conveyance is necessary to vest the legal title in residuary devisees.--In re Sheaff's Estate, Pa., 80 Atl.

con

124. Specific Performance.-Where Ꮔ tract for the sale of real estate so described the land as to constitute a possible encroachment on the adjoining premises, specific performance will not be decreed, but the vendee may have a return of the earnest money and costs of examining title. etc.-Meadows V. Michel, 120 N. Y. Supp. 57.

125. Waters and Water Courses-Prior Appropriation. In a suit to restrain defendants' use of the waters of a river, both complainants and defendants claiming under appropriation. neither could assert that the waters the river were not subject to appropriation at all times when their rights were initiated.Andrews v. Donnelly, Or.. 116 Pac. 569.

126.

of

Wills-Ademption.-Dissolution of a corporation and reorganization with issue of stock in the new corporation held not to adeem legacies made by testator in the first corporation. Pope v. Hinckley, Mass., 95 N. E. 798.

127. Construction. The rule of construction of wills limiting the death of the first taker to death during testator's life is never applied where the will treats the legatee as living at a time after testator's death.-In re Hoopes' Estate. Pa., 80 Atl. 537.

128.- Election.-Where devisees are prejudiced by the widow's election not to take under the will and are not fully compensated out of the rejected provisions made by her, the uncompensated loss should fall on the residuary estate.-Dunlap v. McCloud, Ohio. 95 N. E. 774. 129. Witnesses-Refreshing Recollection.-A witness may testify to facts after refreshing his recollection from records regularly delivered to him in the daily course of business.-Hanrahan v. City of Baltimore, Md., 80 Atl. 312.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 17, 1911.

THE RULE OF CONSTRUCTION IN FAVOR OF ASSURED APPLIED IN FRATERNAL INSURANCE.

Judge Lamm of Missouri Supreme Court, in an opinion in Matthews v. Modern Woodmen of America, 139 S. W. 151, quotes from Judge Valliant in Dezell v. Fidelity & Casualty Co., 176 Mo. loc. cit. 265, as follows: "Courts do not favor forfeitures, nor do they favor the defeat of a meritorious cause on any purely technical ground. Insurance companies have probably realized that fact more clearly than any other class of business concerns. * * * And not only have the legislatures exerted their authority in such matters, but the courts of the country also have strained the discretion that lies in the scope of judicial interpretation to prevent a forfeiture of insurance. Sometimes the reasoning of the court in such cases is so technical that to the mind of the layman it but thinly disguises the praiseworthy determination to do justice in that particular case in spite of the letter of the contract."

Judge Lamm follows this up by remarking that: "That language is applicable to both fire and life insurance, nor have we any call to exclude fraternal benefit certificates therefrom. This because, whatever may have been the case at the origin of that form of insurance (when social and fraternal features were far in the ascendancy, from head authority down to local lodge, and insurance a mere incident) those who now propose policies for fraternal societies recognize that insurance is the principal thing, and they have come to imitate oldline insurance companies in ranging about the principal obligation rows of intricate and highly technical exceptions, provisos and limitations, that in the language of Jus- tice Williams in Boyle's Sons v. Insurance Co., 169 Pa. loc. cit. 355, 32 Atl. 556, 'stand bristling like armed sentinels around the

contract and the liability of the company thereunder, ready to impale even an honest claimant on a bare technicality.'"

In looking up the case from Pennsylvania we find that the language used by Justice Williams was in reference to a policy in an old-line, and not a fraternal, insurance case, and we doubt not Judge Lamm did not mean that any other impression should be conveyed. But, there was no imitation in that case.

Judge Lamm further says: "The insurance policy in suit is a typical one of its kind. Its elements are drawn from several sources-by-laws, application, etc. The provisions thus brought together in a bundle create ambiguities and seeming contradictions, crying aloud for elucidation and harmonizing. They must be brayed in the mortar of reason with the pestle of good sense."

Then he proceeds to criticise the application, saying: "Presumably the application was the sober and careful handiwork of the defendant," and considering application and benefit certificate as expressing the contract, just as do application and policy in an oldline company, he says the rule of solving ambiguities in favor of the assured should be applied.

Whatever justification there may be for the learned judge's comment upon the difference between fraternal insurance societies now and at the time of their origin we feel scarcely prepared to speak. He may be merely laudator temporis acti, as the suns of vanishing years throw a glow over its surface.

But whether his criticism be deserved or not seems to us not to affect the question of the soundness or error of his proposition that the same rule of construction applies to insurance in old-line and fraternal companies.

We state the proposition differently, and to our mind, advisedly so, from the way Judge Lamm does. He compares benefit certificates with insurance policies. We think the comparison should be between oldline insurance and fraternal insurance.

In the latter, the policy is the contract. In the former, compliance with the constitution and by-laws establish and preserve the contract. In old-line insurance there must either be a policy or proof that one should have been delivered, or there will exist no right of recovery. In fraternal insurance a benefit certificate need never be given and, if one is given not in conformity to the constitution and by-laws, to that extent it is brutum fulmen. If harder conditions are expressed in a benefit certificate than in the by-laws, an agreement to conform to it is nudum pactum. And so, if an application is framed that misrepresents the by-laws, some one's interpretation of the by-laws has simply gone wrong. And, if an applicant tries to conform himself to its requirements there is no consideration binding him to his answers.

We think it could as well be said, that a contract arising out of an application and benefit certificate, which is not warranted by the constitution and by-laws of a fraternal insurance society, would be binding as that it might be said a contract is binding, though it be opposed to public policy as expressed in a statute.

Are not the constitution and by-laws of a fraternal insurance society its statutes? And may its officers write up contracts with its members which are contrary thereto? May these officers relieve members from any obligation these statutes impose? And, contrariwise, may they impose on members what these statutes forbid?

If to a member a benefit certificate had never issued and his beneficiary were suing, where would a court go to ascertain the rights and obligations between that member and the society? Could not the court frame a benefit certificate for him that might not correspond at all with the usual form drafted by officers of a society? And which would the court say was a proper certificate?

It should be remembered that these benefit certificates either are prescribed as to form in the by-laws, or they are not. If the former, they are authoritative and

should be construed along with other bylaws to ascertain their meaning. If the form is not prescribed, it must be right to reject what is inconsistent with the by-laws, on the principle that some one has attempted. to frame a benefit certificate and made a poor job of his effort..

But, if the by-laws and the benefit certificate and the application are consistent, how may the learned judge say they should be construed after the manner that policies in old-line companies are construed?

In the one case members in representative assembly frame a contract inter sese, because they are the society. In the other, the parties are at arms' length and one is dictating the terms of a contract which the other accepts. In the one case each member must stand on an equal footing with others. In the other case there may be contracts as variant as the parties thereto may choose to make them.

In the one case there is no pretence of power vested in any officer to admit any applicant to membership, except as he may conform to the requirements members have prescribed for themselves. In the other, there is a business transaction between a business organization and a business man.

If the learned judge will read the constitution and by-laws of any fraternal society to discover what are the powers and duties of its general officers, we venture to say that he will, without the least difficulty, determine, that they are vested with as little discretion in the management of its affairs as it is possible to bestow. And we know he will concede that it is indisputable that the presumption is that members are acquainted with the laws which confine that

discretion.

It seems to us, that, when courts are ready to construe a statute, where two citizens are contending about its interpretation, as they construe insurance policies, then, and only then, should they likewise interpret laws which members of fraternal insurance societies have framed to define their mutual rights and obligations.

This would be true whether these societies have departed from their old ideals or not. The laws are still the laws prescribed by their members, and when they wish to alter, amend or repeal them, they have the power.

NOTES OF IMPORTANT DECISIONS

CARRIER-EJECTION

was

OF PASSENGER FOR ERROR IN ISSUANCE OF TICKET.The Fourth Circuit Court of Appeals in reasoning that a conductor was not justified in ejecting a because passenger, there enough upon the face of her ticket to show to what point she had paid her fare strikes us as greatly strained. Baltimore & O. R. Co v. Thornton, 188 Fed. 868.

Its justification may be however in the fact that the only point involved was whether the plaintiff should have sued in contract or in tort, that is to say, if the proof did not show the passenger had a ticket reading to a certain destination the action should have sounded in contract and, if it reasonably so showed, the action was properly laid in tort. The facts show that the ticket was from Newport News "to the station printed thereon, which was punched," but the selling agent failed to punch any station thereon.

The buyer, however, was allowed to check her baggage to the station that should have been punched, and the baggage agent punched "B. C." on the ticket.

The court thus reasons about that: "Conceding that the conductor was under no obligation to accept, as true, plaintiff's statement that she paid $13.75, the fare from Newport News to Parkersburg, or to resort to any other source for explanation of the ambiguity, than was indicated by the ticket itself, we yet think that the ticket contained, upon its face, information which any reasonable man, under the circumstances, would promptly, and without hesitation, have resorted to and accepted as conclusive evidence of the extent of plaintiff's right to travel on the train. The letters "B. C." punched through the ticket, were plain and of unmistakable meaning. It is attached to, and made a part of, the declaration. It is but a reasonable construction of the ticket to treat the check as a part of the evidence of the contract of carriage and to construe them together. The contract to carry the plaintiff

included the carriage of her baggage to the same point, and that this was evidenced by the check referred to on the ticket and limited to the destination of the passenger was well known to the conductor. The law imposed upon the defendant the duty to give to plaintiff, upon payment of the prescribed fare, a ticket for herself and check for her baggage, which entitled her to all of the rights and privileges of a passenger. The possession of the check is evidence that she was entitled to go to Parkersburg as a passenger. Moore on Carriers, 548. If, by reason of the negligence of defendant's agent, the ticket was ambiguous or uncertain, it was the duty of the conductor to resort to any source of information on the ticket to explain the ambiguity. 'When, from the circumstances appearing on the face of the ticket and the surrounding circumstances known to the conductor, it is probable that a mistake has been made by the company issuing the ticket, and this probability is so strong that the conductor should, under the circumstances, investigate further before ejecting the passenger,' the ticket cannot be said to be invalid. Kreuger v. Ry. Co., 68 Minn. 445, 71 N. W. 683, 64 Am. St. Rep. 487."

What strikes us as faulty about this reasoning is that, as there was no obligation on the baggage agent to check the buyer's baggage to Parkersburg, this voluntary act or mistake on his part carried no information of a conclusive nature to the conductor.

How does it relieve the ambiguity of the ticket to show that the baggage agent had done something for which there was no warrant on the face of the ticket? This method of proof is "idem per idem."

MECHANICS' LIENS-MATERIAL USED OR CONSUMED IN A STRUCTURE.-An esteemed contributor referring to note in 73 C. L. J. 293, referring to material in forms for a concrete building, invites our attention to the case of Barker & Stewart Lumber v. Marathon Paper Mills Co., 130 N. W. 866, decided by Supreme Court of Michigan, where the rule is followed that "where the life and substance (of material) have gone into the completed construction," the furnishing gives a lien.

This case, however, applies the principle more liberally than it seems to us it should be applied. Thus it appears that in the building of a coffer dam, about fifty per cent of the lumber was actually consumed. The cost of the lumber was $16 per thousand feet and the fifty per cent remaining was worth something like $5 per thousand. The Wisconsin

court thought that the salvage would amount to a paltry sum. We hardly think this.

The opinion in this distinguished the case from that of Kennedy v. Commonwealth, 182 Mass. 480, 65 N. E. 628, on the ground that there it appeared that the forms to hold concrete in place were used in several other buildings for like purposes. Thus they were like appliances, for which courts are generally agreed there is no lien. But we think this ought not to be the test, but value after use, with lien for depreciation, is the proper criterion for amount of lien. If appliance were the test, in one community there would be one rule and in another, another, merely because building of this variety would be more or less in demand.

The true test is what has been consumed to the loss of the contractor in fulfilling his contract. It may be sure that he estimates for wear and tear of appliances.

REVISION OF THE FEDERAL EQUITY RULES-REPORT OF COMMITTEE APPOINTED FOR THE SIXTH FEDERAL CIRCUIT.

To the Chief Justice and Justices Lurton and Van Devanter; Committee on the Revision of the Rules of Practice for the Courts of Equity of the United States:

In accordance with your announcement, dated June 9, 1911, and our appointment thereunder by the Circuit Court of Appeals for the Sixth Circuit, we submit herewith suggestions of changes which, in our opinion, "would, if adopted, tend to the simplification of pleading and practice and the correction of unnecessary delay and unreasonable cost resulting from practices under the rules as they now exist.

We have put our suggestions into definite shape without attempting to frame complete rules, or to re-cast the present body of rules. They have been in force for seventy years; their meaning has been settled by judicial construction, and it is therefore desirable, in our opinion, to retain them, with such amendments only as are necessary to effect the changes adopted by the Court.

In the course of our consideration of the subject we have held several meetings, have consulted members of the bar with large experience in federal practice, have attended two general meetings of the Committees appointed by the several Circuit Courts of Appeal, and

have had the benefit of the advice of the Circuit Judges of the Sixth Circuit.

They approve our suggestions as framed except No. 12. They concur in our recommendation to shorten the intervals between steps, but prefer to accomplish that result by abolishing the rule day, and adopting the theory that the clerk's office is always open, and that procedure should move along without regard to any such arbitrary period. With respect to the trial of cases on oral testimony in open court they suggest that it would be well to minimize in any way that seems practicable the possible tendency of a judge to consider his own disinclination resulting from pressure of business as "good cause" for ordering testimony to be taken in writing.

Changes in Method of Adducing Evidence and in Mode of Trial.-1. Provide that equity cases shall stand for trial as soon as they are at issue, and that they shall be tried on oral testimony in open court, and on depositions taken under the act of Congress. Give the court power, on application of a party and for good cause, to order part or all of the testimony to be taken in writing.

This recommendation, which we place first in our list because we deem it the most important, involves the amendment of rules 67 and 69. Rule 69 makes it impossible to get a trial of any equity case until three months af ter it is at issue, and rule 67 prescribes an expensive, slow and unsatisfactory method of taking the testimony, out of court. It provides that "the court may, at its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing." But it has been held that the language "may permit" does not mean "may require" or "may compel" and that the court is therefore without authority to require an unwilling party to adduce his evidence orally in open court. The change which we propose is intended to give the court the necessary authority, and to make oral hearing in oper court the rule instead of the exception.

The subject has been discussed at length at general meetings of the committees of the several circuits, and the change seems to be generally approved. The present method of taking testimony and trying equity cases in the federal courts is the principal cause of un necessary delay and cost. The trial of equity cases on oral testimony in open court is not an experiment; it has long been the regular meth

(1) Hyams v. Federal Coal & Coke Co., 152 Fed. 970 (1907), C. C. A., 4th Circuit.