there is an absence of proof in support of such defense.-Behan V. Metropolitan St. Ry. Co., Kan., 118 Pac. 73. between 19. Presumption.-A collision street cars, causing injury to a passenger on one of them, raises a presumption of actionable negligence.-Indiana Union Traction Co. Maher, Ind., 95 N. E. 1012. 20. V. Constitutional Law-Mechanics' Liens.Mechanic's Lien Law 1903, in so far as it confers on a subcontractor or a materialman a right to a mechanics' lien when the same has been waived by the original contractor before the debt was incurred, is unconstitutional.— Kelly v. Johnson, Ill., 95 N. E. 1068. 21. -Workmen's Compensation Act. The question of the constitutionality of the industrial insurance law may be raised by the State Auditor in mandamus to compel the issuance of a warrant to the State Treasurer.-State Clausen, Wash., 117 Pac. 1101. V. 22. Contracts-Agreement of Minds. The due execution of a contract requires the assent of at least two minds to all of the essentials of the agreement.-Jules Levy & Bro. V. A. Mautz & Co., Cal., 117 Pac. 936. 23. Building Contracts.-Where a building contract made the architect's decision conclusive on all matters referred to him, the owner could not recover damages for defective plastering if the plaster work was approved by the architect after completion.-Trustees of Seventh Baptist Church of Baltimore V. Andrew & Thomas, Md., 81 Atl. 1. 24. Estoppel.-The owner held not entitled to retain the benefits of a construction contract, and at the same time defeat recovery by the contractor, on the ground that he had not performed according to the contract.-Chariott v. McMullen, Conn., 81 Atl. 65. 25. Pari Delicto.-Equity will not aid one party or another to an illegal transaction where they stand in pari delicto, but will leave them to settle the controversy without the aid of the court.-Colby v. Title Ins. & Trust Co., Cal., 117 Pac. 913. 26. Restraint of Trade.-A contract in restraint of trade will be sustained only when no more extensive thon reasonably required to protect covenantee's interest in the property sold, and when it does not create a monopoly. -Barrone v. Moseley Bros., Ky., 139 S. W. 869. 27.- -Waiver.-A person may waive where benefit of a statutory provision, rights of third parties are not involved, unless such waiver violates public policy. Mutual Life Ins. Co. of New York v. Durden, Ga., 72 S. E. 295. the the 30. Liability of Stockholder.-Knowledge of a stockholder in a failing corporation that a purchaser from him of his stock was insolvent is material, as bearing upon his fraudulent intention of escaping liability.-Utica Fire Alarm Telegraph Co. v. Waggoner Watchman Clock Co., Mich., 132 N. W. 502. 31. Paid-up Stock.-Where paid-up stock is in good faith issued in payment for property delivered to a corporation, at a fair valuation, the holder is not liable for corporate debts.Utica Fire Alarm Telegraph Co. v. Waggoner Watchman Clock Co., Mich., 132 N. W. 502. 32. Presumption.-Where a corporation's deed is executed by its president and secretary, who are the proper officers therefor, and was authenticated by the seal of the corporation, the law presumes that such officers were authorized to execute the deed.-Milton v. Crawford, Wash., 118 Pac. 32. 33. Release from Subscription.-A stockholder may not be released from liability on his contract of subscription without the consent of his fellow stockholders, as well as that of the creditors of the corporation.-Thomas v. Wentworth Hotel Co., Cal., 117 Pac. 1041. 34. Salary of Officer.-Where one was elected secretary of a corporation, held, that no contract could be implied entitling him to receive the same compensation as his predecessor.-Carver v. San Joaquin Cigar Co., Cal., 118 Pac. 91. 37. Damages-Impaired Earning Capacity.Any allowance for future loss due to impairment of earning capacity must be capitalized, and brought down to its present worth.-Bockelcamp v. Lackawanna & W. V. R. Co., Pa., 81 Atl. 93. 38. Mental Suffering. The rule that damages are not recoverable for mental suffering unaccompanied by physical injury held inapplicable when the wrong complained of is a willful one.-Davidson v. Lee, Tex., 139 S. W. 904. 39. Pecuniary Injury.-Damages, the result of negligence, unaccompanied by injury to the person or pecuniary loss, are not recoverable. -Green v. Southern Ry. Co., Ga., 72 S. E. 190. 40. Special Damages. Where plaintiff claims special damages, he must furnish data sufficient to enable the jury to estimate the amount with reasonable certainty.-National Refrigerator & Butchers' Supply Co. v. Parmalee, Ga., 72 S. E. 191. 41. Dedication-Acts Constituting.-The owner of land, by conveying lots, abutting on land shown on plats made by him as a street, retaining the fee thereof in himself, held to dedicate the land shown as a street to the public use. Bloede v. City of Baltimore, Md., 81 Atl. 67. 42. Acts Constituting.-Where platted lots sold with reference to the plat were separated from a lot designated thereon as a "park" by other lots and a street, held, that there was no presumptive dedication of the "park" lot as a public park.-Stover v. Steffey, Md., 81 Atl. 33. 43.-Diversion from Use.-Where land is dedicated to the public for a highway, a municipality embracing the same may not grant a franchise to another for the use of the soil, for a purpose not incidental to the effective use of the land by the public for travel.-Gurnsey v. Northern California Power Co., Cal., 117 Pac. 906. 44. Deeds-Building 55.-Probate Matters.-A court of equity will not administer a decedent's estate except in extraordinary cases.-Patterson V. Patterson, Ill., 95 N. E. 1051. 56.--Reentry at Law. That a vendee's rights were subject to forfeiture at law and that the vendor's entry was lawful did not finin ally determine the rights of the parties Restrictions.-Where equity.--John v. McNeal, Mich., 132 N. W. 508. those making a residential addition to a city placed in the deeds of all the purchasers covenants which fixed a building line and prohibited the sale of intoxicants upon the purchased property, the covenants inured to the benefit of all of the owners.-Fete v. Foerstel, Mo., 139 S. W. 820. 45. Inadequacy of Consideration.-Gross inadequacy of price furnishes the strongest presumption of fraud when there are other ingredients in the case of a suspicious nature.-Moore v. National Oil & Development Co., Okl., 117 Pac. 1093. 16.--- Parol Evidence.- Parol evidence to justify a transfer of title to real estate must establish the facts so convincingly as to leave no reasonable doubt in the mind of the court.Patterson v. Patterson, Ill., 95 N. E. 1051. 47. Reversion.-Where a deed was absolute on its face, title would not revert on the grantee's failure to perform consideration covenants. Odom v. Odom, Tex., 139 S. W. 900. 48. Dismissal and Nonsuit- -Right to Take.At common law, plaintiff could, as a matter of right, take a nonsuit at any time during the trial. Hutchings v. Royal Bakery & Confectionery Co., Or.. 118 Pac. 185. 49. Dower Correction of Deed.-Wife of grantor held not entitled to dower in land conveyed by husband before marriage, on reformation of deed because of improper description.Melton v. Lane, Okl., 118 Pac. 141. 50. Embezzlement-Guardian and Ward.-A guardian who converts the estate of his ward is guilty of embezzlement, though he has not made final settlement.-Edmondson V. State. Neb., 132 N. W. 527. 51. Eminent Domain-Additional Servitude.Erection of electric power poles and wires along a highway, without the consent of or the payment of compensation to abutting owners, held an additional servitude, for which the owners of the soil were entitled to redress.-Gurnsey v. Northern California Power Co., Cal., 117 Pac. 906. 52. -Delay in Condemnation. A petitioner in condemnation proceedings is not required to delay condemnation because of a dispute between the defendants as to a division of the award. Chicago & N. W. Ry. Co. v. Miller, Ill., 95 N. E. 1027. 53.- -Statutory Right.-A subordinate ageney can exercise the power of eminent domain only when it is expressly granted by legislative authority:-Neitzel v. Spokane International Ry. Co., Wash., 117 Pac. 864. 37. Evidence-Latent Ambiguity.-Parol evidence is admissible to show that the parties to a contract for the sale of land used a description with reference to a known condition of the land.-Milton v. Crawford, Wash., 118 Pac. 32. 58. Opinions.-Witnesses, in a suit to contest a will may give their opinion as to whether testatrix had mind enough, during the time they were acquainted with her, to know what property she had, or who her relatives were.— Voodry v. Trustees of University of Illinois, III., 95 N. E. 1034. V. 59. Original Entry.-One of three original slips showing a sale and delivery of lumber made by an automatic register at the same time held admissible as the original entry of the transaction.-Federal Union Surety Co. Indiana Lumber & Mfg. Co., Ind., 95 N. E. 1104. 60. Execution-Purchase at Sale.-Execution creditors purchasing property at execution sale under an agreement that their interests shall be pro rata held joint owners, and bound by the acts of each other.-Murphy v. Teutsch, N. D., 132 N. W. 435. 61. Executors and Administrators-Overpayment by Administrator.-An administrator may recover as an individual from the real estate of the estate the amount overpaid by him in his accounting as administrator, if the payments were properly chargeable against the estate.State v. Graham, Md., 81 Atl. 31. 62.Sale to Self.-A sale by an administrator to himself of decedent's property held voidable at the election of a beneficiary.-In re McClear's Will, Wis., 132 N. W. 539. 63. of False Imprisonment-Measure Damages. In an action for false imprisonment in procuring plaintiff's commitment for refusal to recognize as a witness, plaintiff held entitled to recover the expense of habeas corpus proceedings taken to procure his release.-Bates Kitchel, Mich., 132 N. W. 459. V. 68. Gifts--Law of Place.-The validity of a gift causa mortis is determined by the law of the place where it is made, without reference to the domicile of the donor.-O'Neil v. First Nat. Bank, Mont., 117 Pac. 889. 69. Habeas Corpus-Interest of Child.—Custody of minor child will be determined on the basis of his best welfare.-Hickey v. Thayer, Kan., 70. of -Right of Parent.--In the absence statute, a father has no absolute right to the custody and services of his child, and the court may in its discretion deprive the father of its custody, and award the child to its mother.Breene v. People, Colo., 117 Pac. 1000. 71. Homestead-Right to Claim.-The right of either the husband or wife to claim a homestead in property is not defeated by its conveyance from one of them to the other for the purpose of keeping the property from creditors.Bowman v. Sherill, Or., 117 Pac. 1122. on 72. Husband and Wife-Purchase by Wife.That goods sold by a wife were charged to her the merchant's books would not estop him to claim that they were sold on the husband's credit.-H. Leonard & Sons v. Stowe, Mich., 132 N. W. 454. 73. Indictment and Information--Bill of Particulars.--The bill of particulars is not part of the information, and it cannot change the offense charged in the information.-State v. Boone, Wash., 118 Pac. 46. 74. Insurance Suicide.- Procurement of life insurance on promise not to commit suicide when it was the intention of the insured to commit suicide held a fraud rendering the contract void and against public policy.-Mutual Life Ins. Co. of New York v. Durden, Ga., 72 S. E. 295. 75. Intoxicating Liquors--Burden of Proof.On trial for selling liquor, accused held to have burden of showing how, when, and from whom he obtained the liquor, where he alleges that he acted simply as agent.-Cheatwood v. City of Buchanan, Ga., 72 S. E. 284. 76. Judgment-Default.-Where a clerk of court is authorized to enter judgment upon default, but makes a mistake as to the amount due plaintiff, the judgment is not void, but only erroneous.-Hodgdon V. Goodspeed, 118 Pac. 167. Or., void 77. Collateral Attack.-A judgment, for want of jurisdiction of the parties, is subject to collateral attack.-Empire Ranch & Cattle Co. v. Coldren, Colo., 117 Pac. 1005. 78. Default asd Inquiry.-A defendant making a default in an action for damages held entitled to be heard on the question of damages. -Plaff v. Pacific Express Co., Ill., 95 N. E. 1089. 79. Justices of the Peace-Jurisdiction.-Running book account held not separable for purpose of bringing each part within jurisdiction of justice's court.-Johnson V. Klassett, Ga., 72 S. E. 174. 80. Larceny Intent to Steal.-To constitute larceny of estray, animus furandi must exist when the animal is taken.-Ex parte Millsap, Okl., 118 Pac. 135. 81. Life Estates--Improvements.-A life tenant may not charge the corpus of the estate with improvements, and is not entitled to compensation therefor, except in the case of an infant, where the income is invested in permanent improvements by order of court.-Gray's Adm'x. v. Gray, Ky., 139 S. W. 838. 82. Limitation of Actions New Starting Point-Payment on a note by one of two obligors in behalf of the other held not to affect the running of limitations as against the agent.Elmore v. Fanning, Kan., 117 Pac. 1019. 83. Marriage-Incapacity to Contract.-On an issue as to the validity of a marriage, proof of the celebration of the marriage gives to the party disputing its validity the burden of snowing incapacity of one of the parties by Teason of a prior subsisting mariage.-Winter v. Dibble, il, 95 N. E. 1993. 84. Master and Servant-Burden of Proof.-' Where there was no evidence as to how plaintits intestate came in contact with a fuse box in a power house, if he did so, plaintiff Lalled to sustain, the burden of snowing that her intestate uid not negligently contribute to the injury which caused his death.-Fournier York Mig. Co., Me., 81 Atl. 52. V. ას.. Prox mate Cause.--It must appear that an unquestioned order was the impeling cause of the act before it will relieve a servant from assumption of a risk, or from contributory negligence in doing the thing ordered. -Waterman v. Skokomish Timber Co., Wash., 118 Pac. 36. 87.--Safe Appliances.-Failure of master to furnish servant safe place to work held to authorize action for injury, though negligence of fellow servant contributed to the injury.-Columbus Mfg. Co. v. Gray, Ga., 72 S. E. 273. 88. Mechanics Liens-Lighting Fixtures.Lighting fixtures designed especially for use in a hotel building and regularly attached thereto held material for which a lien could be had. -California Portland Cement Co. v. Wentworth Hotel Co., Cal., 118 Pac. 103. and 89.-Public Building.-Subcontractors materialmen on a public building have no lien on the building, nor is a lien created by the statute requiring a bond from a contractor.— Ford v. State Board of Education, Mich., 132 N. W. 467. 90. Recording Contract.-A private memorandum by which a contractor agreed to complete a building for an amount less than that specified in the recorded contract held a part of the contract, and, not having been recorded, the entire contract was unenforecable, under Code Civ. Proc. § 1183.-Condon v. Donohue, Cal., 118 Pac. 113. 91. Subcontractors.--An original contractor may by a modification of the original contract waive his right to a lien, so that no person rendering services or furnishing materials thereafter is entitled to a lien.--Kelly v. Johnson, Ill., 95 N. E. 1068. 92.- Variance.-Variance between second initial of defendant's name in claim of lien and that given in the complaint, which alleges that the person named in the complaint and in the lien are the same person, does not affect the sufficiency of the complaint.-Shaw v. Martin, Idaho, 117 Pac. 853. 93. Mortgages Equity.-Whether equity will treat a contract for the sale of real estate as a mortgage depends on the intention of the parties to create a mortgage.- Arnold v. Fraser, Mont., 117 Pac. 1064. 94. Parol Evidence. A deed must speak for itself. and a condition cannot be ingrafted upon a deed absolute in form by parol evidence. Harmon v. Grants Pass Banking & Trust Co., Or., 118 Pac. 188. 95. Municipal Corporations-Care of Streets. --A municipal corporation is not an insurer against accidents to pedestrians along its streets, but is only required to use ordinary care to keep its streets reasonably safe for ordinary travel by persons using ordinary care.— Boender v. City of Harvey, Ill., 95 Atl. 1084. 96. Negligence.-A municipal corporation, though not liable for mere consequential damages resulting from ordinarily careful administration of a reasonably prudent plan of street improvement, is liable for negligence or maladministration in the execution of a public work. Giaconi v. City of Astoria, Or., 118 Pac. 180. 97. Policeman.--A policeman can recover damages from the city for injuries caused by its neglect in keeping a highway in proper repair.--Kennedy v. City of Savannah, Ga., 72 S. E. 160. 98. Rights of Pedestrians.-Pedestrians at street crossings bewildered by the approach of an automobile held not, as a matter of law, guilty of contributory ncgligence.-Smith v. Coon, Neb., 132 N. W. 535. Negligence.-Where 99. Negligence-Joint the joint negligence of two or more persons results in injury to another, and the negligence of each of such persons is a concurring proximate cause of such injury, then each is liable in damages for the injuries so caused by the joint acts of all.-Spear v. United Railroads of San Francisco, Cal., 117 Pac. 956. 100. Jury Question. To make plaintiff guilty of contributory negligence as a matter of law, his conduct must have been so reckless as to preclude a difference of opinion as to its character.-McCarthy v. Clarke, Md., 81 Atl. 12. 101. Verdict on Conjecture.-The rule that, where plaintiff's evidence is consistent, both with defendant's negligence and absence of negligence, plaintiff cannot prevail, held to apply only where plaintiff's evidence, when considered alone, has such an effect.-James v. Robertson. Utah, 117 Pac. 1068. 102. Officers-Judicial Functions.-Quasi judicial officers cannot be held personally liable for errors while honestly exercising within their jurisdiction the judicial functions of their offices, however erroneous their judgment may be. Salt Lake County v. Clinton, Utah, 117 Pac. 1075. of es 103. Partnership-Real Estate.-Articles copartnership may provide that firm real tate may be treated as personalty, and sold by the surviving partner for the settlement of the firm debts.-Sherrod v. Mayo, N. C., 72 S. E. 216. 104.- -Test of Relation.-An agreement to share losses, so as to create a partnership, may be inferred from other provisions of the partnership contract, the nature of the business, and the relation of the parties to it.-Haswell v. Standring, Iowa, 132 N. W. 417. 105. Plending-Amendment.-Where action has been brought against a corporation, the record cannot be amended by naming as defendant a partnership of the same name.-Girardi v. Laquin Lumber Co., Pa., 81 Atl. 63. 106. Principal and Agent-Fidelity of Agent. -The relation of principal and agent is one of trust, and the principal may rely upon the agent's faithfulness, until receiv'ng notice that he is not trustworthy.-Haswell V. Standring, Iowa. 132 N. W. 417. 107. Railroads -Railroad Commission.-A railroad commission must have express authority for its acts, as no authority will be implied. -State v. Corvallis & E. R. Co., Or., 117 Pac. 980. railroad 108. Railroad Commission.-If companies are required by statute to erect suitable depots, the power to determine when they should be required to erect a depot at a particular place may be delegated to a railroad commission.-State v. Corvallis & E. R. Co.. Or., 117 Pac. 980. 109. Receivership-Liability for Costs.--One procuring a receiver of a corporation on false allegations held chargeable with the expenses and compensation of the receiver.-Hall v. Wilson, Wash., 118 Pac. 16. 110. Reformation of Instruments-Right of Action.-To sustain a suit to reform a deed, it is essential that the antecedent contract be based on a valuable consideration, and that those seeking reformation are not mere volunteers.Harvey v. Hand, Ind., 95 N. E. 1020. deliv through fraud or misrepresentations.-Lax-Fos Co. v. Rowlett, Ky., 139 S. W. 836. 112. Sales-Executed Contract.-The ery of samples from which goods ordered are selected does not make the contract executed within rule as to right to maintain action for price after notice by buyer of refusal to accept the goods.-L. Black Co. v. Kaplan, Ga., 72 S. E. 303. 113. -Measure of Recovery.Where price of goods not delivered is to be subsequently ascertained, the contract is not enforceable until the price is agreed on.-Jules Levy & Bro. v. A. Mautz & Co., Cal., 117 Pac. 936. the 114. Offer to Return.-In an action on a note given for the price of machinery, it is error to charge that defendant could not assert failure of consideration because of defects, unless he offered to restore plaintiff to his former status.-Toole v. Daniel, Ga., 72 S. E. 270. 115. Refusal by Buyer.-Where there was no market value at the time and place of a buyer's wrongful refusal to accept the goods, the seller could hold them for a reasonable time, or seek a market within a reasonable time.-Piowaty v. Sheldon, Mich., 132 N. W. and 119. Set-off and Counterclaim-Bills Notes. The maker of a note may, as a set-off, show that the payee was, at the time of making, and still is, his debtor.-Carver v. San Joaquin Cigar Co., Cal., 118 Pac. 92. 120.- Shareholder in Corporation.-A stockholder who purchased his stock for less than par held not entitled to set off payment of a note of the corporation as a payment upon his subscription.-Utica Fire Alarm, Telegraph Co. v. Waggoner Watchman Clock Co., Mich., 132 N. W. 502. 121. Taxation-Right of Grantee to Pay.A grantee can pay the tax against the conveyed premises upon the grantor's refusal to do so, and was not bound to wait until the property was sold in order to sue for breach of warranty.-George A. Lowe Co. v. Simmons Warehouse Co., Utah, 117 Pac. 874. 122. Tenancy in Common-Possession by One Tenant.-Possession of one tenant in common is the possession of the other cotenants, especially where all of the parties derive title from the same deed or from the same ancestor.-Long v. Morrison, Ill., 95 N. E. 1075. 123. -Rights of Tenants Inter Sese.-A tenant in common, having sold the land at a specified rate, held the agent of his cotenant, and therefore required to account to him for the amount actually secured for the common property. Shaw v. Shaw, Cal., 117 Pac. 1048. 124. Trusts-Statute of Frauds.-A constructive trust in land arising out of fraud is not within the statute of frauds.-Orr v. Perky Inv. Co., Wash., 118 Pac. 19. 125. Vendor and Purchaser-Reasonable Time. -Where time is not of the essence of a contract between vendor and purchaser, the vendor is entitled to a reasonable time in which to correct a technical defect in the title.-Milton v. Crawford, Wash., 118 Pac. 32. 126. Rescission.-A vendor who has waived payment cannot exercise right to rescind without first tendering a proper deed, and demanding paymest.-Dillingham V. Kerr, Tex., 139 S. W. 911. TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEADING PONDENCE AND BOOK REVIEWS IN VOL. 73. A separate subject-index for the "Digest of Current Opinions" will be found on page...... ACCIDENT, auto intoxication and accident insurance, 68. ACCIDENT INSURANCE, auto intoxication and accident insurance, 68. ACTIONS. injury to person and property from same ADULTERATION, the original package question resurrected the pure food law v. the trade-mark law, ALIENS. construction of Chinese exclusion act, 220. AMICUS CURIAE, governors as amici curiae, 219-267. APPEAL AND ERROR, making t the ty of the Supreme Court ATTAINDER, bill of attainder by judicial decree under MAIL, validity of a contract to indemnify bail, BANKS AND BANKING, check of collecting bank on itself as pay- BAR ASSOCIATIONS, see Law and Lawyers. BENEFIT SOCIETIES, order of forfeitures by acceptance of assess- estoppel against fraternal insurance com- rule of construction in favor of assured ap- BILL OF ATTAINDER, See Attainder. BILLS AND NOTES, negligence of drawer occasioning forgery BONDS, See officers and offices. BOOKS RECEIVED, 32, 85, 195, 232, 267, 327, 362, 417. *RIDGES, See Eminent Domain. BRITISH DECISIONS, See English Decisions. liability of the initial carrier under the in-' measure of liability where carrier is im- CARRIERS OF PASSENGERS, ejection of passenger for error in issuance CEMETERIES, See dead bodies. COMMERCE, See Rate Regulation. liability of the initial carrier under the in- the right of a state to control its highways, application of safety appliance act to cars equitable jurisdiction of commerce court federal statute as to transportation of bill of attainder by judicial decree under power of congress to require cars moving |