would be overtaken and passed by fast train, held unreasonable in view of revenue, service of other roads, and large installation expense necessary. Railroad Commission of Alabama v. St. Louis & S. F. R. Co., Ala., 70 So. 645.

88.- -Signals.-Where the automatic bell, which a railroad required by ordinance at a crossing failed to ring on approach of a train, traveling at an excessive rate of speed, the road was guilty of negligence sufficient to sustain a verdict for death of one killed at the crossing. -Headley v. Denver & R. G. R. Co., Colo., 154 Pac. 731.

89. Reformation of Instruments-Estoppel. -In suit to reform a note secured by mortgage for mistake of the draftsman, where defendants did not change their position to their prejudice, giving only what they originally agreed to in the original transaction, plaintiff was not estopped to maintain his suit by his delay in discovering the mistake.-Kinman v. Hill, Iowa, 156 N. W. 168.

90. Release Rescission.-That the carrier's physician made a physical examination and falsely stated to the passenger that he was not seriously injured held to entitle the passenger to rescind a settlement made in reliance thereon, though the falsity of the statements was unknown to the physician.-Jacobson v. Chicago, M. & St. P. Ry. Co., Minn., 156 N. W.

251.

93. Set-Off and Counterclaim-Unliquidated Damages.-A counterclaim for unliquidated damages from plaintiff's breach of his undertaking to accept certain property in payment of the note sued on, under a later contract made by plaintiff presumably after maturity of the note, held not maintainable.-Copeland v. White, Ga. App., 87 S. E. 846.

94. Sheriffs and Constables-Search-Warrant. -A search warrant fair on its face protects the officer executing it, and those called by him to assist, though the complaint is insufficient.McSherry v. Heimer, Minn., 156 N. W. 130.

95. Statutes-Pleading.-A servant suing for injuries need not refer in his petition to the federal Employer's Liability Act, if the facts alleged bring the action within it, since state as well as federal courts are presumed to be cognizant of its enactment, and to know that it supersedes the state law upon that subject. -Hartman v. Chicago, B. & Q. R. Co., Mo. App., 182 S. W. 148.

a

96. Subrogation-Surety.-A surety on bond who pays only part of the obligation secured is not subrogated to a right of action of the obligee against one wrongfully causing the liability.-United States Fidelity & Guaranty Co. v. Union Bank & Trust Co., U. S. C. C. A., 228 Fed. 448.

97. Taxation-Remainder Interest.-For the purposes of taxation under the inheritance tax act (Acts 1913, p. 91), the remainder estate should be estimated, in determining its present value, as if the corpus were to remain undisposed of.-Martin v. Pollock, Ga., 87 S. E. 793.

98. Royalties.-Rents and royalties to accrue on mining leases are not taxable as "credits."-State v. Royal Mineral Ass'n, Minn., 156 N. W. 128.

99. Telegraphs and Telephones-Acquiescence. -Any irregularity in signature to permit for erection of telegraph poles and wires in street held made good by acquiescence in the of the street for 25 years.-Postal Telegraph

use

Cable Co. v. Ingraham, U. S. D. C., 228 Fed. 392.

100.- -Exclusive Use.- The state can recover compensation for the special and exclusive use of part of a bridge forming part of its highways by a telegraph company for carrying its wires.-Postal Telegraph-Cable Co. v. State Roads Commission, Md., 96 Atl. 439.

101. Tenancy in Common-Forfeiture.— Where an agreement of tenants in common was that in case of default by either in payments for the common property the one paying should take the whole title, the forfeiture could not be effected unless one party defaulted in all payments due by him, since any other construction would be inequitable.-Hardee Alexander, Tex. Civ. App., 182 S. W. 57.

V.

102. Partition.-Where, in partition by tenants in common out of possession against a cotenant in possession, the latter claims title by adverse possession, he should allege an open renunciation of the tenancy and actual or constructive notice of same, and that the possession continued thereafter for the prescriptive period. -Gracy v. Fielding, Fla., 70 So. 625.

103. Torts-False Representation.-The owner of mortgaged realty could recover against an attorney who made false representations to the buyer of the equity of redemption from the owner to induce him to abandon his contract with the owner to redeem the property, only if the misrepresentations induced the buyer to abandon to the owner's damage, while he would otherwise have performed.-Kock v. Burgess, Iowa, 156 N. W. 174.

104. Trover and Conversion-Sufficiency of Title. Where plaintiff held legal title to a safe under a bill of sale intended to operate as a chattel mortgage, he had such title as would enable him to recover damages for its conversion.-Sheldon v. McFee, N. Y., 111 N. E.

220.

105. Vendor and Purchaser-Option.-Where upon part payment of his option to purchase land involving assumption of mortgage plaintiff obtained supplemental agreement allowing him to anticipate the contract and obtain good and sumcient deed to such portion of property as he might select upon payment therefor. such agreement was a unilateral option entitling to a terms, plaintiff on compliance with its deed to selected portion free from incumbrance of prior mortgage.-Lombard v. Kies, Or., 154 Pac. 757.

106. Venue-Real Action.-An action will not be considered a real action for the purpose of determining its venue unless title or interest in real property is involved.-Terry v. Rivergarden Farms Co., Cal. App., 154 Pac. 476.

107. Water and Water Courses-Prior Appropriation. In an action by a junior appropriator of irrigating waters for an adjudication of priority, alleging abandonment of their prior rights by defendants. the owners of all junior priorities in the water district were not, in the absence of statute, necessary parties.-Affolter V. Rough & Ready Irrigating Ditch Co., Colo., 154

Pac. 738.

an an

108. Wills-Annuity.-A bequest of nuity which was merely a succession of legacies of a certain amount each cannot be charged against a specific devise of real estate.-Bennett v. Piatt. N. J. Ch. Ct., 96 Atl. 482.

109. Wills Attestation.-Under the statute requiring wills to be attested in the presence of the testator by two or more credible witnesses, such witnesses must be persons at that time competent in law to testify concerning the subject-matter.-Scott V. Couch, 111, 111

N. E. 272.

110. Delivery of Deed.—Where sick grantor, to recompense stepmother for nursing, executed deeds and handed them to her, but immediately retook possession, with intention of retaining title until his death, she thereupon to record deeds and have title, there was not legal delivery vesting title, but a mere inoperative at tempt at testamentary disposition.-Tewksbury.

v. Tewksbury, Mass., 111 N. E. 394.

Central Law Journal.

ST. LOUIS, MO., APRIL 28, 1916.

VALIDITY OF LICENSE TAX ON THE USE OF TRADING STAMPS.

It is provided by Florida statute that "merchants using trade stamps shall pay a license tax of two hundred and fifty dollars for each place of business where they use such stamps." In Rast, Collector, v. Van Deman & Lewis Co., et al., 36 Sup. Ct. 370, the United Supreme Court, in an unanimous opinion, sustains the validity of the statute, both from the standpoint of its not being an interference with the commerce clause and its not being opposed to the constitutional right of free contract.

On the same day on which the opinion was handed down in the above case there was a similar ruling as to a statute of the State of Washington, which imposed a license fee of $6,000 on any person who shall use or furnish to another for use any stamps entitling a purchaser of goods to receive from another any goods free of charge or for less than their retail market value. Use of such stamps without obtaining a license is made a "gross misdemeanor." Tanner, Attorney-General v. Little, et al., 36 Sup. Ct. 379.

The opinions in these cases by Justice McKenna, are very interesting, but it is only in the former case that the question is treated as or not coming under the shelter of the interstate commerce clause, and he describes the schemes for stamp distribution as follows:

"The first is 'where the Florida merchant issues his own coupon *** and himself makes payment or redemption of same, sometimes by the delivery of some valuable article of merchandise and sometimes by the payment of cash or the allow ance of credit on account of purchases.'

The court said: "As to the second and third schemes, they are only executed through the purchase at retail. In other words, they are not designed for or executed through a sale of the original package of importation, but in the packages of retail and sale to the individual purchaser and consumer. This fixes their character as transactions within the state and not as transactions in interstate commerce, and this is conceded as to the first scheme; it is true as to the second and third schemes. All of the schemes have their influence and effect within the state. Nor is such influence and effect changed or lessened by the redemption of the tokens outside of the state."

It

This final clause appears to us to present the crucial question in the case. would appear, that, if these coupons or stamps were sent direct to the ultimate consumer and offered to him for a con

sideration, the transaction would be in interstate commerce. When they are sent through a local merchant, inclosed in a package and intended for the ultimate consumer, why does this make a difference? Would not the local merchant seem to be a mere agent of the foreign manufacturer to deliver the stamps? He would not be justified in opening the package and taking stamps therefrom or, at least, it is not contemplated that he should do this.

The court says as to this: "There is shipment to Florida merchants but for the disposition of the merchandise in retail

trade. *** Detach the importations from the retail sale, consider only the transportation to the State of merchandise in the original package, being sold therein in such package, and there may, indeed, be interstate commerce; but so detached and so considered, the importations are left without purpose, the schemes without execution. Indeed, complainants contend for the right not only of importations in the original package containing the coupons, but the disposition of the goods and coupons through the retail merchant. This, we repeat, has no protection in the commerce clause." We do not think this necessarily embraces the point of agency in the local merchant to deliver the coupon to the ultimate consumer. He acts only for himself in delivering the merchandise. whom does he act in delivering the stamps?

For

It was further claimed that Congress had specifically provided for such shipments in interstate commerce by prescribing what a package in commerce should be. But the court said Congress only provided what packages should not contain and went no further than this. Besides, it was said: "The statute of Florida does not seek to control the interstate transportation of the packages; it controls only their sale in the State through the retail merchant." But he does not sell the stamps to the consumer. Who does, if anybody? The consumer, it is true, gets title to the stamps by purchasing the package from the consumer. By purchasing the principal thing, he acquires title to the incident.

More interesting seems the discussion regarding the opposition of the statute to the contract and due process clauses of the Constitution. It is said that: "The statute must be held to have prospective operation," but "as the business is subject to regulation, the contracts made in its conduct are subject to such regulation."

The above applying to the contract clause of the Constitution, the learned justice proceeds to inquire, if it is an unlawful interference with business liberty.

It was claimed that here was "but a method of advertising, and, as such, mere allurements to customers, not detrimental in any way to the public health or morals, nor obstructive of the public welfare," and interference was "an illegal intermeddling with a lawful calling and a deprivation of freedom of contract."

The court said that this reasoning but "regards the mere mechanism of the schemes alone and does not give enough force to their influence upon conduct, and habit, not enough to their insidious potentialities. As to all of which not courts, but legislatures may be the best judges, and, it may be the conclusive judges. No refinement of reason is necessary to demonstrate the broad power of the legislature over the transactions of men. There are many lawful restrictions upon liberty of contract in business."

Speaking of the particular allurements held out, it was said: "They tempt by a promise of a value greater than in the article sold and apparently not represented in its price and hence it may be thought that, thus by an appeal to cupidity, lure to improvidence. This may not be called in an exact sense a 'lottery,' may not be called 'gaming,' it may, however, be considered as having the seduction and evil of such."

It really looks like a statute like this has so very little to rest upon in the way of guarding morals, it ought rather to be deemed a revenue statute than anything else. There is no element of chance or gambling in the scheme, and how any demoralization could be supposed to arise, or any cupidity in the way of getting something for nothing be excited, it is difficult even to imagine. As a revenue statute pure and simple, we gather it would be held unconstitutional. As a criminal offense cannot be raised by construction, so it would seem, in a measure, at least, ought to be interpretation of statutes which suppose evil influences as justification for the exertion of the police power.

NOTES OF IMPORTANT DECISIONS.

BREACH OF MARRIAGE PROMISE-ILL HEALTH AS EXCUSE.-Iowa Supreme Court by a majority of five to two declares, that, where a man engaged to marry subsequently becomes so afflicted by disease, that performance of his marriage duties would aggravate his disease and hasten his death, non-performance is exused. In re Oldfield's Estate, 156 N. W. 977. This conclusion is arrived at from a review conflicting authority, but the court holds to ne view that one may refuse to perform in either of three cases, (1) when he becomes afflicted with a loathsome disease which may be communicated to the other or their offspring; (2) when he becomes afflicted with a fatal and incurable malady and its consummation would hasten his or her death, and (3) when he or she is stricken with a fatal malady and the evidence makes it reasonably certain that he has but a few days or weeks or months to live.

There seems substantial agreement in the authorities, that public policy would excuse performance in the first of the above suppositions, and in the other cases damages might be mitigated. The able dissenting opinion, citing cases and distinguishing those relied on by the majority demonstrates, we think, that such an interposition, if not objected to by the other party, offers no defense for a refusal to perform or answer in damages.

The majority reasoning says that: "There is implied in every contract to marry, that the parties will not endanger life or health in the consummation of the marriage, and that where illness or disease comes upon one after making the contract to marry, such as would render marriage dangerous to his life, a breach of the contract, based on such unavoidable and such unanticipated condition is excusable. *** Where the malady is of such a fatal character that he cannot enter into the marriage relation and receive any of the benefits which grow out, and are involved in, the relationship established by the consummation of the marriage, he is excused."

The dissenting opinion says, very strongly: "The theory of failure of consideration is not persuasive. This is the first time it has been invoked for the one who is unable to furnish the full consideration. It involves a confusion of the parties."

One of the dissenting judges contents himself with saying that: "To subject such contracts to such a condition as a continuing and necessary qualification thereof is to declare a

measure of disability. This is a purely legis lative prerogative and not a judicial one."

sue.

If the majority reasoning is good, then it would be going but a step further, for the courts to declare, that, if one marries not knowing that his spouse is afflicted with a disease which soon after develops a deadly malady, he may sue for annulment or the other party may It seems to us that the two ought to bear the other's affliction when married and if she elects to do this while engaged to him, espousal gives her this option. Whatever peculiarity there may exist in a marriage contract, it should be reflected to some extent, at least, in an engagement to marry. The latter is but anticipatory of the former as to supposed affection and if one is mercenary, the other also may be, and in the same way. At all events, what the second dissenting judge says about legislative prerogative should be given more heed by theorizing judges than it often is. Let it be remembered that espousal ought to be deemed to take on some confidential relationship between a man and a woman just as marriage does.

COURTS-PRESUMPTION OF REGULARITY OF JUDGMENT DOES NOT EXTEND TO SPECIAL JUDGE.-In Cain v. King, 155 Pac. 1176, decided by Supreme Court of Oklahoma, it is held that where a judgment has been rendered by one purporting to sit as special judge, and the record fails to show that he has authority to sit as such judge, the judgment will not be recognized on appeal as a determination of the cause before the court from which the appeal has been taken.

The Oklahoma court, citing cases from Missouri and the Federal Supreme Court and going upon the theory that the Supreme Court takes judicial notice of who are judges of lower courts in the state, holds that when another appears to have acted as judge than one within such judicial notice, authority must appear on the face of the proceedings for him thus to

act.

In the Missouri cases is shown exactly how the special judges came to sit. If this statement disproves his authority to sit, this is a different proposition than where this does not appear. In the Oklahoma case the ruling is entirely on the fact of one sitting as judge not being judicially known to the upper court to be such a judge. To displace his judgment for such a reason appears to us to militate against another presumption, omnia presumuntur rite acta, except that as this came from what is called a "county court," it may be a court of such limited jurisdiction, that nothing

is presumed in its favor. As against this thought, however, seems to be the general reasoning of the Supreme Court. It does not dispute that this "county court" as to a cause within its jurisdiction, is a court of general jurisdiction. It seems doubtful to us, that the course taken by the Supreme Court is in accordance with accepted principles. It sent the case back for a new trial. It ought to have dismissed the appeal, because no judgment recognizable in law had been entered. If there was a trial, that could be considered at all, it ought to have been considered on its merits.

PRINCIPAL AND SURETY-NOTICE TO SURETY OF EMPLOYE'S DISHONESTY.—In Farmers' Bank of Deepwater v. Ogden, 182 S. W. 501, decided by Kansas City (Mo.) Court of Appeals, the facts show, that the bond of a surety company conditioned continuance of the surety's liability on the assured, a bank, giving the surety immediate notice of any act, fact or information coming to the knowledge of the bank or any of its officers "tending to indicate that the employe is or may be unreliable, deceitful, dishonest or unworthy of confidence."

The president of the bank was bonded by the surety company and it set up to an action for loss suffered by a forgéry, whereby the president had obtained a credit card of the bank's correspondent bank, that prior to the commission of such offense the bank had become possessed of information tending to indicate that the president was unreliable, deceitful, dishonest and unworthy of confidence, and failed to give the surety notice thereof.

The evidence as to this showed that "the following incident came to the knowledge of plaintiff's officers in October, 1912: "Some time in December, 1911, Ogden forged a note for $1800, payable to plaintiff bank purporting to be executed by George O'Hare. He negotiated this note to the Lowery City Bank, indorsing it with his own name as president of plaintiff's bank, and also signing or indorsing the name of plaintiff's cashier thereon." The cashier of the Lowery City Bank spoke to the cashier of plaintiff bank about this note and he denied having indorsed the note. It was shown to him and he looked only at the back and returned it to the other cashier, saying he would see Ogden about it the next morning. A few days afterwards Ogden paid the note. Plaintiff's cashier spoke of the matter to the vice-president and to one of the directors, but no notice was given to the surety company. The trial court submitted to the jury the question whether the information given

was such as would lead a reasonably prudent person to believe that Ogden was unreliable, deceitful, dishonest or unworthy of confidence. There was verdict against the surety company. The court said: "Justification for this view is said to be found in testimony by the officers and others that Ogden was thought to be a man of high character; that he had everybody's confidence; that he was a man of great egotism and self-assertion, who made himself the head and front of every transaction with which he was connected; and that these officers attributed the act of signing the name of the cashier of a bank of which he was president boldly, without attempt at disguising handwriting, to such characteristic."

This appears to us very extraordinary reasoning. In the first place, there was a plain crime committed; secondly, it was concealed from the cashier for ten months, when he accidentally heard of it, and, thirdly, there was nothing to show that, either before or intermediately, he pretended to sign the cashier's name to any other paper, either with or without his consent. Whatever the president's egotism and self-assertion, it is not pretended he did not know he did what he was not authorized to do.

But laying all of these things aside, what room was there for a jury to judge that this conduct did not tend to indicate unreliability, dishonesty, or that Ogden was not worthy of confidence? Is it to be supposed that the surety company was contracting upon some peculiar views the other officers of the bank might entertain of Ogden's character, when the surety company was asking for notice of any act that, at least, needed some explanation. Why did the cashier mention it to the other officers, if it was of no particular importance, and why did he call Ogden's attention to the matter if he regarded it as a trivial matter? The surety company wanted information about facts and the privilege of judging of their ef fect for itself, and this the bank agreed to give to it.

NOTES OF RECENT DECISIONS IN THE THE BRITISH COURTS.

A branch of law which recently has developed considerably is that relating to the doctrine of ultra vires and the reason for this is not far to seek. The epoch of social reform legislation here, which preceded the war, resulted in the establishment of many administrative bodies to whom were committed power to issue regulations and by-laws, and not seldom some of the interests affected by rules so made have challenged their validity in the courts on the