reached by the father's creditors. Stumbaugh v. Anderson, 46 Kan. 541; Bell v. Hallenback, 1 Wright (Ohio) 751. The principal case follows the weight of authority, Atwood v. Holcomb, 39 Conn. 270; Stanley v. National Bank, 115 N. Y. 122; Wambold v. Vick, 50 Wis. 456. The courts of New Jersey are unanimous in upholding this decision. Costello v. Prospect Brewing Co., 152 N. J. Eq. 557; Peterson v. Mulford, 36 N. J. Eq. 481.

INSURANCE-Application—AUTHORITY OF Agent to Waive Payment of PREMIUM.-RUSSELL V. PRUDENTIAL INS. Co., 68 N. E. 252 (N. Y.).—A general agent delivered policy to the insured, extending payment of premium contrary to the provisions of the contract. Held, that, in the absence of proof of agent's express authority to waive payment, beneficiary could not recover. Haight, J., dissenting.

The decision is based on the signature by the insured of an application, subsequently embodied in the policy, making payment of first premium a condition precedent to its validity. Where there is no previous subscription to the substantial terms of the contract, the weight of authority is that agents can waive provisions of policy relative to first payment. Boehen v. Ins. Co., 35 N. Y. 131; Dunn v. Ins. Co., 69 N. H. 224; Richards on Insurance, p. 93. Acceptance by agent of a note and a further extension after its maturity has been held to constitute a waiver of cash payment stipulations in application and policy. Stewart v. Ins. Co., 155 N. Y. 257, an opinion which is based, however, upon the assumption that the company is estopped from denying a ratification after the lapse of a reasonable period of time. The dissenting opinion in the present case contends that the ruling of the majority will result in defrauding the insuring public. It is the prevailing custom of insurance agents to extend payment of premiums regardless of contract stipulations. It is also true that the insured generally attaches his signature to the application under such conditions as to make it impracticable for him to familiarize himself with all of its terms. In view of these considerations, the dissenting position seems well taken, and is in line with the decision in Mathews v. Acc. Ass'n, 78 Wis. 588; Jones v. Ins. Co., 168 Mass. 245.

OF

LIFE INSURANCE-POLICY-APPlication-WARRANTIES-AUTHORITY INSURANCE AGENT.-DIMICK V. METROPOLITAN LIFE INS. Co., 55 ATL. 291 (N. J.).—Where an insurance company makes the answers in its application blanks warranties and certain agents of the insurer write answers different from those given by the applicant, which they know to be false, held, that such answers constitute a breach of warranty, nullifying the policy.

This is the first case decided where a policy was vitiated through the writing of false answers by both the insurance and medical solicitors. The case most nearly in point, Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13, holds the contrary, where the medical examiner answered falsely; but it is not controlling here, since no question was raised concerning the truth of the solicitor's answers. In the latter cases it has been held that false answers vitiate the policy; Van Shoick v. Niagara Fire Ins. Co., 68 N. Y. 434; O'Brien v. Home Benefit Society, 117 N. Y. 310; but the prevailing authority in New York is otherwise. The decision rests upon the doctrine that the principal is not bound by acts of the agent in excess of authority.

Contra, Wood v. American Fire Ins. Co., 149 N. Y. 382; Insurance Co. v. Wilkinson, 13 Wall. 222-the latter case being decided on the express ground that no notice of agent's limitation of authority came to the assured's knowledge, though the weight of authority is contrary. The other ground of the decision is that parol evidence may not be introduced to vary the effect of a written contract. Martin v. Franklin Fire Ins. Co., 40 N. J. Law 568.

Manslaughter-Verdict-SUFFICIENCY-FORMER JEOPARDY.-Mahany v. PEOPLE, 73 PAC. 26, (COL.).—Held, that where a verdict of manslaughter was void because the jury failed to designate whether it was voluntary or involuntary, as required by statute, but the defendant made no objection to the discharge of the jury, merely excepting to the verdict in the usual form, he cannot plead former jeopardy on a subsequent trial.

As to what constitutes jeopardy there are two widely variant rules. The courts of some States hold that when a person has been placed on trial on a valid indictment and the jury has been sworn, he is in jeopardy. 17 Am. & Eng. Enc. of Law (2d ed.), 584; 1 Bish., Crim. Law (5th ed.), 1016. But the greater weight of authority supports the rule that jeopardy does not attach until a valid verdict, for conviction or acquittal, has been rendered. U. S. v. Gilbert, 2 Sumn. 60; People v. Goodwin, 18 John. 187; 17 Am. & Eng. Enc. of Law (2d ed.), 585. The courts of Colorado follow the latter rule. Two alternative processes of reasoning are used to justify the granting of a new trial. First: A defective verdict is a nullity and, therefore, the prisoner never has suffered actual jeopardy. Kearney v. People, 11 Col. 258; U. S. v. Haskill, 4 Wash. C. C. 409; U. S. v. Coolidge, 2 Gall. 364; Wharton's Crim. Law, 573-587. Second: A failure on the part of the prisoner to object to the discharge of the jury and to ask for a correction of the verdict, involves an implied waiver of the privilege of subsequently pleading previous jeopardy. This reasoning is equally well supported. Carpenter v. State, 62 Ark. 286; Murphy v. State, 7 Cold. (Tenn.) 516; Com. v. Call, 21 Pick. 506. Thus, notwithstanding the two very different rules defining jeopardy, it seems beyond dispute that when a defective verdict is rendered and the prisoner makes no objection to the discharge of the jury, he cannot plead former jeopardy at a new trial.

MARTIAL LAW-DUTY OF SOLDIER-HOMICIDE.-COMM. EX REL. WADSWORTH V. SHORTALL, 55 ATL 952 (Pa.).—Held, that where a militiaman, called out to suppress disorder, without malice, in performance of his duty, and under orders, commits a homicide, he is excusable, unless he manifestly exceeded his authority and knew the act to be illegal.

The issue by a governor of a general order, calling out the militia to maintain order in a certain district, is a declaration of qualified martial law. This is contrary to the ruling of the Supreme Court of the United States in Ex parte Milligan, 71 U. S. 2, that martial law cannot exist in time of peace. 1 Bl., Com., 413; Johnson v. Jones, 44 Ill. 157. But many authorities hold that it exists wherever soldiers are called out to suppress disorder. However, the necessity must be urgent. Bryan v. Walker, 64 N. C. 141; Koonce v. Davis, 72 N. C. 218; Merritt v. Nashville, 5 Cold. (Tenn.) 95For acts done in the suppression of public disorder, a commander is liable, civilly and criminally. Mitchell v. Harmony, 13 How. 115; Milligan v. Hovey,

3 Biss. 13. A soldier is bound to obey the orders of his superior where they are not clearly illegal and such orders will be a protection to him. Riggs v. State, 43 Tenn. 85; Sampson v. Smith, 15 Mass. 365.

MASTER AND SERVANT-SAFE PLACE TO WORK-NEGLIGENCE OF MasterPenn R. R. v. Jones, 123 Fed. 753 (Pa.).—An employe was killed by the backing of a train off a stub switch which had no bumper. Held, that failure to protect the end of the switch rendered the railroad liable for negligence. Archibald, J., dissenting.

This ruling is directly contradictory to R. R. v. Driscoll, 176 Ill. 330. But the general weight of decisions is as above. Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314 (Ky.). The question is whether such absence of bumper is a part of the general plan of the road or a defect in the road. A master need not use the newest and safest appliances. R. R. v. Lonergan, 118 Ill. 41. It is for him to decide how railroad shall be built. Tuttle v. R. R., 122 U. S. 189. On the other hand he must construct the road so that it may be safe to work upon. Trask v. Cal., etc., R. R., 63 Cal. 96. R. R. v. Swett, 45 Ill. 197. He is liable for death of employe between two cars where buffers failed to meet. Ellis v. R. R., 95 N. Y. 546. These decisions imply that lack of bumper should be held a defect.

MONOPOLIES-Copyright-Illegal RESTRICTION OF COMPETITION.-STRAUSS v. Aм. Pub. Ass'n, 83 N. Y. Supp. 271.—Defendants, composed of 95 per cent. of the book publishers in the United States and Canada, formed a combination, the purpose of which was to compel all retailers to sell copyrighted books at a certain price fixed by the association. Held, that, under the N. Y. Statute (Laws 1899, c. 690, sec. 1) prohibiting contracts creating a monopoly, the combination was illegal. Van Brunt. P.J., and McLaughlin, J., dissenting.

This decision is directly contrary to the ruling in Park Co. v. Druggists' Ass'n, 175 N. Y. 1, which held that manufacturers of copyrighted goods can combine for the purpose of dictating prices at which the articles shall be sold and of requiring dealers to maintain such prices. The Park case, however, arose prior to the enactment of the present statute; but the statute is a substantial codification of the principles of the common law and must be construed as a continuation thereof. In re Davis, 168 N. Y. 89. This agreement does not fix the price at which the publishers must sell their books. They can name the price to the consumer now as they could before, the validity of a contract between manufacturers and purchasers to sell at a stipulated price being well determined. Garst v. Harris, 177 Mass. 72; Fowler v. Park, 131 U. S. 88; Walsh v. Dwight, 40 App. Div. 513. The decision in the present case would not seem to be maintainable. As the dissenting justices indicate, it is difficult to comprehend why a seller of property in respect to which he has a monopoly cannot impose any conditions as to its resale that he may desire.

MUNICIPAL CORPORATIONS-DE FACTO CLERK-PAYMENT OF SALARYRIGHT OF DE JURE CLERK.-Martin v. CITY OF NEW YORK, 68 N. E. 640 (N. Y.).—Plaintiff, a clerk in municipal employ, was irregularly dismissed, but was later reinstated by mandamus proceedings. Held, he can not recover salary

paid to a de facto clerk who performed the duties of the position during the interval.

The case of Higgins v. The Mayor, 131 N. Y. 128, is directly in point, and following Terhune V. The Mayor, 80 N. Y. 185, holds that payment to another who actually did the work is a good defense to such an action by a municipal corporation. The general rule is to the contrary. Dillon, Mun. Corps., sec. 235. The salary of a public office is incident to the title and wrongful payment to a de facto officer is no defense to an action by a de jure officer. Dorsey v. Smith, 28 Cal. 21. A municipal corporation wrongfully removing an officer is liable for his salary. Shaw v. Macon, 19 Ga. 468. The amount of salary received by a de facto officer is the measure of damages receivable by a de jure officer for deprivation from office. United States v. Addison, 6 Wall. 291.

TITLE TO ANIMAL SKINS-BURDEN OF PROOF-PRESUMPTION.-LINDEN V. MCCORMICK ET al., 96 N. W. 785 (MINN.).—Held, that where the plaintiff purchased deer skins for commercial purposes, it is to be presumed the game was lawfully killed and the skins came lawfully into his possession.

No previous adjudication of the point involved has been found. It is probably the first time it has come before the court for determination. Sec. 33, chap. 22, Gen. Laws, Minn., declares that no person can acquire title to game except by proving the killing of it at the time, and in the manner authorized. This statute was declared constitutional in State v. Rodman, 58 Minn. 393. In the present case the court distinguished between the title to game and the title to the product thereof, id est, the skins. The burden of proving that the skins were not legally obtained is on the State. James v. Wood, 82 Me. 173. Thomas v. Northern Pacific Express Co., 73 Minn. 185. The modern tendency as set forth in this case is, that "a person in good faith may acquire a valid title to skins of wild animals although the same may have been killed contrary to law."

USE OF STREETS-ADDITIONAL SERVITUDE-TELEPHONES.-KIRBY V. CITIZENS' TEL. Co., 97 N .W. 3 (S. D.).-Held, that the construction and maintenance of a telephone system on the streets of a city in such a manner as not to cause unnecessary injury is not an additional servitude for which an abutting property owner is entitled to compensation.

The decision in the principal case is based upon the principle that telephones are a means of communication. The reasonable use of the streets of a city for the necessary equipment of a telephone system is not a new and additional burden for which the abutting property owner is entitled to compensation. Anerach v. Tel. Co., 70 Ohio N. P. 633. Other courts hold that telephones were not in contemplation when highways were constructed. Pacific Cable Co. v. Irvine, 49 Fed. 113. The construction of a telephone line is an additional burden for which the abutting owner is entitled to compensation. Eels v. Am. Tel. Co., 143 N. Y. 133; Board of Trade v. Barnett, 107 Ill. 507; Willis v. Erie Telegraph & Tel. Co., 37 Minn. 347; Stowerson v. Tel. Co., 68 Miss. 559.

WATERCOURSES—Subterranean Channels-PERCOLATING WATERS-ADJOINING OWNERS-Waste-InJUNCTION.-BARCLAY V. ABRAHam et al, 96 N.

W. 1080 (Iowa.)—Held, that a landowner who dug a well, thereby diverting percolating waters and cutting off the supply from neighboring wells may be enjoined from wasting for pure malice the full flow of water thus obtained.

This follows the common law rule. Greenleaf v. Francis, 17 Pick. 117; Chatfield v. Wilson, 28 Vt. 49; Wheatley v. Baugh, 25 Pa. 528; Frasier v. Brown, 12 Ohio St. 294. Contra, Huber v. Merkel, 94 N. W. (Wis.) 354, holding that one is not liable for wasting water drawn from percolations, and that malice is not a factor even though his acts may stop the flow of neighboring wells. This is an extreme interpretation of the doctrine that percolating waters are property. All other recent decisions tend to qualify the doctrine of earliest decisions to the extent that even in the absence of malicious intent, percolating waters may not be used for pure profit, if such an act diminishes the flow of neighboring wells, to the detriment of their owners. Stillwater Water Co. v. Farmer, 93 N. W. (Minn.) 907; Forbell v. City of New York, 164 N. Y. 522; Smith v. City of Brooklyn, 160 N. Y. 357. Reason in the use of the property seems to be a criterion of the decisions on this point. 12 Yale Law Journal, 253, 459.