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misdemeanor.-Lummus v. State, Ga. App., 87

S. E. 147.

69. Insane Persons-Devastavit.-The act of a guardian of an insane person in using the ward's funds or in loaning them to a firm of which he was a member, was a devastavit for which he was accountable.-McGowan v. Milner, Ala., 70 So. 175.

70. Insurance Accident. - Where germs causing blood poisoning entered abrasion caused by accident, death held to have resulted directly and without intervening cause from bodily injury, within an accident policy.-Ballagh Interstate Business Men's Acc. Ass'n, Iowa, 155 N. W. 241.

V.

71. Application For.-Where the insured at the time of applying for a benefit certificate had chronic rheumatism, she did not have an "ailment" within the meaning of the application for the policy. National Americans v. Ritch, Ark., 180 S. W. 488.

72. Insurable Interest.-The insured has an unlimited insurable interest in his own life, so that any one may take out a policy on his own life and make it payable to whom he will.-Afro-American Life Ins. Co. v. Adams, Ala., 70 So. 119.

73-Material Statements.-Where, during the examination provided for in a fire insurance policy, insured refused to answer material questions, he could not recover on the policy, though at the close of his testimony at such examination he stated that he would not refuse to answer any reasonable question.-Conn. Fire Ins. Co. of Hartford, Conn. v. George, Okl., 153 Pac. 116.

74. Standard Policy.-An insurance agent cannot bind the company without its authority by an agreement to extend a standard policy_on its expiration.-Oklahoma Fire Ins. Co. v. Fay Mercantile Co., Okl., 153 Pac. 127.

75. Judgment-Res Judicata.-That a passenger who was unlawfully arrested and expelled from a train, due to failure of the carrier's servants to protect him, was convicted and imprisoned by the arresting officer, a justice of the -peace, held not to preclude him from recovering damages against the carrier.-Anania Norfolk & W. Ry. Co., W. V., S. E. 167.

V.

76. Jury-Trial By.-State courts may take jurisdiction of actions under the federal Employers' Liability Act, though the verdict may be rendered by a less number of the jury than the full panel, as guaranteed by Const. U. S. Amend. 7, preserving inviolate the right to trial by jury.-Chesapeake & O. Ry. Co. v. Kornhoff, Ky., 180 S. W. 523.

82. Malicious Prosecution-Advice of Counsel.-Malice of defendant's district agent, in causing prosecution of discharged local agent for refusing to account until claim against defendant was adjusted, held imputable to defendant, who directed the district agent to be guided by an attorney's advice.-White v. International Text-Book Co., Iowa, 155 N. W. 298.

83. Mandamus-Building Permit.-Owner of land who on petition in mandamus obtained an order requiring a city building inspector to issue him a building permit for specified purposes, could not use the building for other purposes without obtaining permit, as that would be fraud on the court.-Stubbs v. Scott, Md., 95 Atl. 1060.

84. Master and Servant-Assumption of Risk. -Under the federal Employers' Liability Act, a railroad employe does not assume risk of injury from negligence of a fellow servant in not excluding a tall car from the train, or in not cautioning him regarding its height.-Portland Terminal Co. v. Jarvis, U. S. C. C. A., 227 Fed.

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85.-Burden of Proof.-The federal Employers' Liability Act does not permit recovery upon a mere showing that the employe was injured while engaged in interstate commerce, regardless of whether it was in the course of his employment, but the usual rules for such recovery apply.-Byram v. Illinois Cent. R. Co., Iowa, 154 N. W. 1006.

86. -Incompetent Employe.-Railroad company not negligent in employing incompetent physician is not liable to injured employe for negligence of physician.-Boring v. Chicago & E. R. Co., Ind., 110 N. E. 545.

87. Proximate Cause.-Railroad, whose freight train conductor, after notice that car's brake beam was defective, failed to stop the train, the beam derailing it, killing a track walker standing 15 feet away to let the train go by, was liable for the death.-Cincinnati, N. O. & T. P. Ry. Co. v. Strunk's Adm'x, Ky., 180 S. W. 528.

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88.- -Volunteer.-Plaintiff, who went to fire on defendant's plant out of curiosity, and voluntarily assisted in putting it out without any contract of employment with defendant's superintendent, and was injured when a ladder on which he was standing broke, had no cause of action against the defendant.-Smedley v. Mashek Chemical & Iron Co., Mich., 155 N. W. 357.

89. -Workmen's Compensation Act.-Where a city employe was injured while loading gravel used for improving and repairing streets, held that, though the employment may an have been

77. Landlord and Tenant-Liability.-In action against a landlord for injuries to a tenant's child in falling through a defective porch railing, evidence of the landlord's agreement to repair held admissible.-Miller v. Geeser, Mo. App., 180 S. W. 3.

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78.-Reasonable Care.-Defendant, nished house on his farm for his tenant, whose small children were impliedly invited and were likely to go into toolhouse where explosive dynamite caps were kept, held not an insurer, but bound to a care commensurate with the danger from the explosives.-Bryan v. Stewart, Ala., 70 So. 123.

79. Libel and Slander-Libel per se.-Article referring to a patent nerve tonic, for the German manufacturer of which plaintiff was the sole agent in the United States, as plain cottage cheese prepared in powdered form, held not libelous per se as to plaintiff.-Hehmeyer v. Harper's Weekly Corporation, N. Y. Sup., 156 N. Y. S. 98.

80.- -Newspaper Publication. Ordinarily, the editor of a newspaper is responsible for libels printed therein as much as the publisher. -Leuch v. Berger, Wis., 155 N. W. 148. held 81.--Publication.-A publication not libelous per se where it did not charge plaintiff with any moral or legal delinquency or reflect on his character, and the acts and purposes imputed to him as a legislator and political leader were not corrupt, or such as are generally regarded as dishonorable from the viewpoint of practical politics.-Lydiard v. Wingate, Minn., 155 N. W. 212.

casual, it was in the usual course of the city's business, and under Gen. St. 1913, § 8202, the Workmen's Compensation Act applied.-State v. District Court, Rice County, Minn., 155 N. W. 103.

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91.

Municipal Corporation-Defective Sidewalk. Where one using a sidewalk was injured by slipping on rough, rounded, and uneven snow and ice accumulated there by travel, the municipality was liable.-Rose v. City of Ft. Dodge, Iowa, 155 N. W. 170.

92. Governmental Function.-A city cannot escape liability for negligence of its servants in failing to remove a garbage can from a sidewalk which was their duty, on the ground that in that act the city was engaged in a governmental function.-City of Louisville v. Hans, Ky., 180 S. W. 65.

93. Indebtedness.-A debt represented by funding bonds issued with the assent of the electors to take up a floating indebtedness incurred without such assent is an indebtedness incurred without the assent of the electors, within the law limiting the indebtedness which may be thus incurred.-Schuldice v. City of Pittsburg, Pa., 95 Atl. 938.

94.Law of the Road.-Defendant turning on to left side of road to avoid collision with plaintiff, which nevertheless ensued, held not liable for violating the law of the road.

Skene v. Graham, Me., 95 Atl. 950.

95. Navigable Waters-Shore.--The word "shore," in conveyances of land by tidewaters, is construed to mean the land between the high and low water mark.-McLellan v. McFadden, Me., 95 Atl. 1025.

96. Negligence-Attracting Children.-Where a landowner, knowing of the attractions of its property and that children habitually play there, permits them to continue, he must keep it in reasonably safe condition for the use to which the children will put it.-Lyttle v. Harlan Town Coal Co., Ky., 180 S. W. 519.

97. Obscenity-Commerce.-The character of the transaction, as commerce, where defendant sold an obscene book, and sent it by interstate express, billed to a person of the name given him by the buyer, is not affected by the name being fictitious.-Hanish v. United States, T. S. C. C. A., 227 Fed. 584.

98. Officers-Regulation of Fees.-While the office of sheriff is a constitutional office, the regulation of its fees is within the control of the Legislature, and they may be changed or reduced during his term.-Mills v. Deaton, N. C., 87 S. E. 123.

99.

Patents--Combination. The joinder of two elements of a patented combination into one integral part, which accomplishes the purpose of both without changing the principle of operation of the combination, does not avoid infringement.-Parker v. Automatic Mach. Co., U. S. D. C., 227 Fed. 449.

100.- -Independent Claim.-Each claim of a patent is supposed to embody a complete invention, and is in effect an independent patent for the device it covers, and a limitation contained in one claim cannot be read into other.-Veneer Machinery Co. v. Grand Rapids Chair Co., U. S. C. C. A., 227 Fed. 419.

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ically performed.-Ferguson v. Omaha & S. W. R. Co., U. S. C. C. A., 227 Fed. 513. 108.

Receivers Appointment.-The propriety or legality of a receiver's appointment cannot be questioned, nor can his eligibility be attacked in any subsequent proceeding.-New Britain Mach. Co. v. Watt, Tex. Civ. App., 180 S. W. 624.

109. Rewards-Recovery of Lost Article.Plaintiff, who gave information leading to recovery of lost articles through criminal proceedings, was not entitled to reward offered for return of property, "no questions asked."Simpson v. Twenty-Eighth St. Co., N. Y. Sup., 156 N. Y. S. 87.

110. Sales-Acceptance and Rejection.Where a purchaser buys a job lot of goods, and on delivery, the lot contains more goods than represented, the buyer must accept and pay for all, or return all-Rubenstein v. GrossmanWinfield Millinery Co., Miss., 70 So. 210.

111. Delivery.-Where goods sold were not delivered to the buyer during the time allowed by the contract, and possession remained in the seller relieved of any contract, an extension of the time for delivery under the original contract to be valid would require a new consideration. -Napier Iron Works v. Caldwell & Drake Iron Works, Ind. App., 110 N. E. 714. 112.- -Printed Conditions.-In order for goods, conflict between written and printed provisions as to date of delivery held not to nullify printed condition requiring acknowledgment of the order.-Poel v. Brunswick-Balke-Collender Co. of New York, N. Y., 110 N. E. 619.

113.

Privilege. In the absence of insolvency or fraud, and except in case of agricultural products where a buver of movable property on credit sells and delivers it to one knowing he has not paid for same, the original seller loses his privilege therefor.-Dreyfous V. Cade, La., 70 So. 231.

114. Searches and Seizures Disorderly House. The seizure of a hotel register and cashbook openly displayed on the counter at time of defendant's arrest on the charge of keen- · ing a disorderly house. held not a seizure in violation of Const. art. 1, § 6, relating to rights and privileges.-State v. Mausert, N. J., 95 Atl. 991.

115. Street Railroads-Injunction.-The court will not enjoin the action of a state corporation commission in directing a street railway to double track its line in the absence of a clear case of confiscatory action.-Phoenix Ry. Co. of Arizona v. Geary, U. S. Sup, Ct. 36 S.

Ct. 45. v. Dorrance, U. S. D. C., 227 Fed.

103. Physicians and Surgeons-Evidence.On trial for practicing medicine without a lian instruction, containing the thought that defendant did not tell patients that he could cure or heal them, was properly refused. -State v. Booher, Iowa, 155 N. W. 167.

104. Principal and Agent-General Agent.The general authority of an agent to sell sewing machines gave him no apparent authority to bind his principal by an agreement to furnish a salesman to resell machines for the buyer commission.-Forehand V. White Sewing Mach. Co., Ala., 70 So. 147.

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105.- -Statements by Agent.-Where a principal accepts and fills an order through its agent, it is bound by his representation as to the contents of the order, made in order to secure the buyer's signature, regardless of whether the agent had authority to make the representation.-Whipple v. Brown Bros. Co., N. Y. Sup., 156 N. Y. S. 63.

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106. Quieting Title Burden of Where defendant in suit to quiet title had previously several times treated with plaintiffs as owners for the purchase of the land, the burden was upon defendant to overcome, by proper means, the prima facie case so conceded plaintiffs.-Service v. West, Colo., 153 Pac. 446.

107. Railroads-Right of Way.-Agreement in a right of way deed to maintain a wagon road for use of the grantor held a Covenant running with the land, which the successors in title of the grantor were entitled to have specif

116. Taxation-Public Service CorporationThe personal property owned and operated by a public service corporation is assessable without regard to its situs, whether connected with or disassociated from the immediate use and operation of property employed in serving the public-Ohio Fuel Oil Co. v. Price, W. Va., 87 S. E. 202.

117. Torts-Action For.-One who induces another to forfeit his bond to appear in court is liable for damage thereby caused to persons under contract to his knowledge, to indemnifv the sureties.-Wakin v. Wakin, Ark., 180 S. W'.

471.

118. Trusts-Judicial Discretion.—The court. when necessary for the preservation of the estate. may approve a trustee's departure from the direction of the will as to the investment of moneys accumulated in excecz of the demands. of the trust.-Fisher v. Fisher, N. C., 87 S. E. 113.

119. Wills-Vesting-The Jaw favors the early resting of remainders, and in the absence of a clearly expressed contrary intention presumes that words postponing the estate relate to the enjoyment, and not the vesting of the estate.-Reeder v. Antrim, Ind. App., 110 N. E

568.

120 Witnesses - Impeachment.-A witness may be impeached by proof that on A former occasion under like circumstances where it was his duty to state the whole truth he omitted to state material forts which he now states. State v. Perkins, N. M.,.153 Pac. 258.

Central Law Journal.

ST. LOUIS MO., MARCH 3, 1916.

THE OLD LAW, THE MISCHIEF AND THE REMEDY AS ENTERING INTO CONSTRUCTION OF UNIFORM STATE LAWS.

So greatly has it seemed to us that the purpose underlying the scheme of uniform state laws been hindered by our courts, that this Journal frequently has animadverted to such obstructions. Particularly have we complained of this in 77 Cent. L. J., 279, in an editorial by way of introduction to two articles in our issue of that date by Hon. Amasa M. Eaton under the titles: "The Attitude of the Bench and the Bar Toward the Uniform Negotiable Instruments Law" and "The Negotiable Instruments in the United States Courts-A Criticism of Methods of Construing Uniform Laws." 77 ibid. 282, 287. These articles were followed by another by Mr. Eaton under the title: "The Negotiable Instruments Law in the Courts of Louisiana-An Illustration as to What is Happening in Other States." 78 ibid. 130.

In 79 Ibid. 255, we had the good fortune to print a fourth article by Mr. Eaton under the title: "The Uniform Negotiable Instruments Law in the Courts of Missouri."

In 79 ibid. 370, our editor contributed an article under the title: "The Rule of Construction Back of Uniform Laws" and therein it was sought to emphasize the evil of state and lower Federal courts harking back to priror state construction of local decision, and common law rulings as well, which produced a conflict almost as serious. as before uniform statutes appeared. Among the greatest sinners in this respect were found to be the lower Federal courts, whom we had supposed would have been most earnest for uniformity for many reasons in those several articles pointed out. These courts have referred to the law Merchant as coming within their independent construction of general law, but they never took the Negotiable Instruments Law as

so expressive in this country as is the Law Merchant. There hardly has been a state in the union recognizing that law and we believe there is hardly a state that has not adopted the Uniform Negotiable Instruments Law.

In this "confusion worse confounded" we delight very greatly to notice what the United States Supreme Court has to say in regard to the Uniform Warehouse Receipts Act, in a unanimous opinion delivered by Justice Hughes in Commercial Nat. Bank v. Canal-Louisiana B. & T. Co., 36 Sup. Ct. 194, in which the Supreme Court of Louisiana is reversed.

Recurring a moment to 78 Cent. L. J. 130, discussion by Mr. Eaton of the Louisiana. cases decided since the Negotiable Instruments Law was there adopted, we find its Supreme Court citing the law in some cases and ignoring its existence in other cases, causing our author to observe that: "The capricious way in which judges and lawyers sometimes treat the N. I. L. is remarkable."

The Commercial National Bank case supra, offers Justice Hughes an opportunity to justify Mr. Eaton's charge of "capriciousness" against the Louisiana court with respect to its construction of the Uniform Warehouse Receipts Act.

He said: "It is said that under the law of Louisiana, as it stood prior to the enactment of the Uniform Warehouse Receipts Act, the Commercial Bank would not have taken title as against the Canal-Louisiana Bank, and it is urged that the new statute is but a step in the development of the law, and that decisions under the former state statutes are safe guides to its construction. We do not find it necessary to review these decisions. It is apparent that if these uniform acts are construed in the several states adopting them according to local views upon analogous subjects, we shall miss the desired uniformity and we shall erect upon the foundation of uniform language separate legal structures as distinct as were the former varying laws. It was to prevent this result that the Uniform

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cery is tried and determined. If not the entire, the full substance of the entire evidence must be brought to this court; and, while we will defer somewhat to the findings of fact made by the trial court, yet we are not arbitrarily bound thereby. The trial in this court is practically de novo, and after due consideration given to all evidence, this court will accept, modify or reject the findings of the circuit court and make such finding as the law and evidence may warrant. *** The same is true of the findings of the commission in this class of cases."

Thereupon the court goes into a very involved statement of facts, and pursues an argumenta. tion in regard to them in which it disagrees with the findings of fact made by the commis

If Justice Hughes does not here pointed- sion and reverses its holding. It is not said at

ly declare that no aid whatever is to be
given by all prior decisions upon local
statutes we fail entirely to comprehend
him. It may be, that there is some source
in which precedents may be found for con-
struction of our uniform state laws, but
certainly that source is not in any interpre-
tation of former local law, these uniform
laws not being steps in the develop-
ment of
of local law. If there is in
our common law some aid to their con-
struction, this is to be looked to, but a care-
ful winnowing of state cases to separate
the chaff of construction of local law
should be observed.

NOTES OF IMPORTANT DECISIONS.

PUBLIC SERVICE COMMISSION-REVIEW BY COURT OF FINDINGS OF FACT.-By the Public Service Commission Act of Missouri it is provided, that the commission shall preserve all the maps, plats, letters, documents and evidence introduced at the trial of a case and upon its transfer to a Circuit Court for review, the court shall hear it "on the evidence and exhibits introduced before the commission," and the case "shall be tried and determined" by the court "as suits in equity." When it goes on appeal, the Supreme Court hears it upon the same record. The point was urged by the commission's counsel that its findings of fact are conclusive upon the court. Railroad v. Public Service Commission, 181 S. W. 61.

Missouri Supreme Court said in answer to this contention that: "Every court and jurist of the state understands how a cause in chan

all that no substantial evidence was submitted to the commission, but the court merely fails to look at the effect of the facts as the commission did.

It seems to us that the court pursues an exceedingly literal method of construction of the statute. While a case is to be "tried and determined" by the court "as suits its equity," this does not mean, necessarily, that evidence or the lack of it shall be looked at in the same way. For example, suppose it were said in the body of the act that hearsay evidence, might be received. This would be respected, though in an ordinary trial in equity it would be disregarded.

It seems to us the court ought to have regarded the general purpose of the law as vesting in the commission, as a merely administrative body, the right to pronounce conclusions and have them respected as those of a tribunal of specially informed men. If you do not presuppose some such power granted, you get nowhere in the appointment of such a commission. It is supposed to build up rules like courts build up rules for their own government.

What seems to us was intended was, that, if a commission is shown to violate some rule of law, by appeal to the courts it may be kept in line, and the entire record sent to a court for its full understanding, as applied to the evidence, of the importance of any alleged infraction of statute or constitutional law. The court's ruling appears to us very like a sticking in the bark.

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portation in interstate commerce, in consideration of settlement of a damage suit, came under subsequent regulation forbidding its being carried out. The vested right obtained by the contract was held to be upon notice that it might be affected by the regulatory power of commerce under the commerce clause to be exercised as already exercised.

In this case it was said: "Whether, without enforcing the contract in suit, the defendants in error may, by some form of proceeding against the railroad company, recover or restore the rights they had when the railroad collision occurred, is a question not before us, and we express no opinion upon it." The same court does pass an opinion on this question in the case of N. Y. C. & H. R. R. Co. v. Gray, 36 Sup. Ct. 176.

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In this case defendant in error had a contract with a railroad to pay it so much cash and so much transportation to be used in travel on its line into another state, for a map to be made for the railroad by the defendant in error. It paid the cash and partly fulfilled the other part of its contract, when the Hepburn act was passed making transportation upon such a consideration unlawful. The railroad thereupon refused further performance. It was sued for recovery in money for the value of the unperformed part of the contract. There was recovery and this is affirmed in an unanimous opinion. It was said: "In the present case the railroad company acted strictly in accordance with the law, when it refused any longer to furnish transportation to defendant in error in performance of the contract of November, 1900. But from this it by no means follows that it could refuse to make compensation in money for the unpaid purchase price of the map. The judgment of the state proceeded upon the ground that since the contract had been fully performed by Gray, so that the railroad company had received the entire benefit of it and since the delivery of the particular consideration stipulated for had been prohibited by the act of Congress, the company thereupon became bound upon general principles of justice to pay him an equivalent in money for the balance of the consideration. In so holding the court was simply administering the applicable principles of state law and did not run counter to the act of Congress."

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as we see it, that though a law arresting performance of a contract is that of Congress, yet state law decides its true effect. This does not seem entirely consistent.

HOMESTEAD-EQUITABLE LIEN ARISING OUT OF PROMISE TO APPLY INSURANCE ON LOSS TO DEBTS OF PROMISSOR.-In Implement Co. v. Mord en, 228 Fed. 111, decided by Fifth Circuit Court of Appeals, it was held, that, where a bankrupt whose stock in trade was destroyed by fire, wrote some and told others of his creditors before proceedings in voluntary bankruptcy were begun, that he would pay them out of his insurance as far as it would go, he thereby created an equitable lien on the fund superior to his claim of homestead in property in which the fund was invested.

The court in reaching this conclusion cites cases in which there were contests between creditors regarding claims by some of them, but it finds no case involving the precise point it was adjudicating. It starts out by stating matter in the way of an estoppel against the claimant and supposedly those who claim an interest under him.

Thus it is said: "As matters stood when these statements were made, it was open to the creditors by attachment or garnishment proceedings to subject the policies of insurance or amounts payable on them, to liens in their favor. The debtor's voluntary undertaking to dedicate to the payment of his debts the collections to be made on these choses in action was calculated to induce his creditors to forego legal proceedings looking to the same end. What he did stands on a different footing from a mere promise by him to pay his debts unaccompanied by a reference to specified property and a manifestation of an intent to charge it. Under familiar principles, a court of equity gives to an agreement that certain property shall be appropriated to the payment of an indebtedness the effect of creating a charge upon that property."

Without discussing the question whether there is sufficient in the promise made to create an equitable lien in favor of one creditor over another, we yet greatly doubt whether the principle that would do this is broad enough to cut out the operation of homestead laws, giving to these the liberal construction approved by courts. Certainly no argument in the way of estoppel could operate, because the homestead is for the benefit of a debtor's fam ily. And even if his creditors were led to forego their remedies, had they have exercised them they would not have been able to avoid the debtor's right to a homestead. His promise

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