cretions thereto when a later shift restored the eroded land and added to it.-Maw v. Bruneau, S. D., 156 N. W. 792.

95. Negligence-Invitee.-The duty of one who invites another to come on his premises to use ordinary care to make the premises reasonably safe includes the duty to have the railing of a balcony in a reasonably safe condition. Sefler v. Vanderbeck & Sons, N. J., 96 Atl. 1009.

96. Negligence per se.-The facts which will excuse the technical violation of a statute or ordinance which would otherwise constitute negligence per se must result from causes or things beyond the control of the violator.Conder v. Griffith, Ind. App., 111 N. E. 816. 97. Newspapers Libel and Slander.-The general manager of an unincorporated news association held not the principal in the business, and not liable for libelous articles published and communicated by a reporter employed by the association.-Waldheimer v. Hardenbergh, N. Y., 111 N. E. 826, 217 N. Y. 264.

98. Nuisance-Injunction. That plaintiff's apartment house and dwelling were in a district devoted to commercial enterprises, in which the use of spur switches was essential to successful operation, does not affect his right to enjoin the nuisance of constructing railway tracks in the street in front of his property.-Kurtz v. Southern Pac. Co., Ore., 155 Pac. 367.

Residence

99. Vibration from Noise. owner affected by noise and vibration of modern factory is not entitled to injunction or damages where house is unsubstantially constructed, and noise is not injurious to normal person. Cremidas v. Fenton, Mass., 111 N. E. 855.

100. Partnership-Test of.-Merely to share profits and bear losses does not always determine the question of partnership.-Morgan v. Child, Cole & Co., Utah, 155 Pac. 451.

101. Party Walls-Easement.-A use for more than 21 years of a party wall located on the land of an adjoining owner held presumably a license which ripened into an easement restricted to the buildings existing when the easement was created.-Brown & Hamilton Co. v. Johnson, Pa., 96 Atl. 823.

102. Principal and Agent-False Representations. An administrator selling his decedent's goods through an agent was liable for the acts of the agent done within the scope of his authority, including false representations made to the buyers as to the condition and • kind of the goods.-Harlow v. Perry, Me., 96 Atl. 775.

103.- -Implied Power.-An agent sent to introduce an unproved automobile in a community has implied power to warrant that it is suitable for the purpose intended.-International Harvester Co. v. Lawyer, Okla., 155 Pac. 617.

104. Release-Public Policy.-A release by the injured employe from all liability arising from the accident is not a contract, regulation, or device, the purpose and intent of which is to enable the carrier to exempt itself from the liability created by the federal Employers' Liability Act, so that it is valid if fair and not against public policy.-Anderson V. Oregon Short Line R. Co., Utah, 155 Pac. 446.

a

on

105. Robbery-Trespasser. -The mere fact that the person robbed was trespasser defendant's private premises would not justify defendant in robbing him.-Hardeman v. State, Ala. App., 70 So. 979.

106. Sales-Damages. — In an action for damages for defects in a motor car, plaintiff cannot recover the difference in value between the car as warranted and as delivered, and its value with defects, together with sums pended in repairing the car, though repairs were unavailing.-Studebaker Corp. of America v. Miller, Ky., 183 S. W. 256.

ex

107. Sample.-Where silk scarfs were sold by sample, the buyer, regardless of his good faith, cannot be required to accept scarfs materially shorter than the sample.-Hanhart v. Labe Importing Co., N. Y. Sup. Ct., 157 N. Y. S. 897.

108.- -Warranty.-A statement of the seller that the automobile could be driven over the roads in a certain vicinity satisfactorily held a warranty, and not the expression of a mere opinion, where the buyer knew nothing of the capacity of the automobile and the seller was an expert in handling automobiles.-International Harvester Co. v. Lawyer, Okla., 155 Pac. 617. of

109. Specific Performance-Impossibility Performance.-Specific performance cannot be adjudged where defendant had conveyed the property to one who is free from equities.Beatty v. Wintrode Land Co., Okla., 155 Pac.

574.

110. Street Railroads-Burden of Proof.-In a suit to enjoin a street railway company from constructing a power transmission line along an alley in front of plaintiff's property, the burden was on defendant to show, not only an ordinance, authorizing it to construct such line, but authority from the commonwealth, designated in its charter or in extensions to its charter route.-Curry v. Pittsburgh, H. B. & N. C. Ry. Co., Pa., 96 Atl. 821.

111. Subrogation - Privity of Contract. Where there is no privity of contract between the parties, but the demand is based on the participation of defendant in a breach of trust by a fiduciary, equity will take jurisdiction at the suit of a beneficiary or cestui que trust, or at suit of a surety of such fiduciary, and by substitution will grant relief against an intermeddler with the trust funds.-United States Fidelity & Guaranty Co. v. Home Bank for Savings, W. Va., 88 S. E. 109.

112.- -Redemption.

One advancing money to a wife to redeem a homestead from mortgage foreclosure under circumstances entitling her to subrogation to the rights of the holder of the mortgage succeeds to her rights to the extent of the sum advanced.-Hunt v. Davis, Vt., 96 Atl. 814.

113. Trusts-Parties to Action.-In proceedings affecting a trust estate the trustee and cestui que trust are SO far independent that the latter must be made a party for the decree to be binding on him; this being particularly true where the trustee is merely a naked trustee.-Primitive Methodist Church of Rhode Island v. Homer, R. I., 96 Atl. 818.

114. Waters and Water Courses-Repair of Pipe Line. Where water was furnished under a contract through a private pipe line, there being nothing in the contract to the contrary, the duty of keeping the pipe line in repair was upon the owner and not the water company. --Josey v. Beaumont Waterworks Co., Tex. Civ. App., 183 S. W. 26.

115.

Wills-Antichresis.-Where

an anti

chresis of a plantation, carrying with it obligations on the creditor to cultivate, repair, and pay taxes and charges, was bequeathed to imthat pecunious minors, held, the antichresis canceled was properly ordered by judgment rendered on the recommendation of a family meeting. In re Bennett, La., 70 So. 1011.

116.- -Construction.-Where a will gave a "life interest in" a farm "to use and occupy and control," the latter clause refers to the farm and defines the life interest.-Lingo v. Smith, Iowa, 156 N. W. 402.

117.- Construction. Where a testator bequeathed to old employes 50 per cent of the net profit of a business in which profits under their contracts they were entitled to share, held, that they could not take the 50 per cent and also the percentage due them under their contract.Starke v. Berry's Ex'rs, Va., 88 S.

E. 68.

118.- -Construction.-In a will providing that certain shares should be held in escrow until "all" of the beneficiaries thereof shall have reached their majority, held, that the word "all" meant "each," and that each child, on arriving at 21 years of age, was entitled to receive its share. Davis Trust Co. v. Price, W. Va., 88 S. E. 111.

119.- -Donee.-Where testatrix bequeathed $5,000 to the "Methodist Episcopal Hospital of of the City of Philadelphia," the bequest was good to the "Methodist Episcopal Hospital in the City of Philadelphia."-Methodist Episcopal Hospital in City of Philadelphia v. Williams, Del. Super. Ct., 96 Atl. 794.

Central Law Journal.

ST. LOUIS, MO., JUNE 2, 1916. INTRASTATE EMPLOYES UNDER PROTECTION OF FEDERAL SAFETY APPLIANCE ACTS.

In Texas & Pacific Ry. Co. v. Rigsby, 36 Sup. Ct. 482, our Federal Supreme Court holds that an employe of an interstate railway company may recover for injury occasioned by an insecure appliance under federal law, whether such employe be engaged in interstate commerce or not.

to regulation by Congress, whether the particular service being performed at the time of the injury was in interstate or intrastate commerce." Illinois C. R. Co. v. Behrens, · 233 U. S. 473, Ann. Cas. 1914C. 163. Then he says: "The doing of plaintiff's work, and his security while doing it, cannot be said to be wholly unrelated to the safety of the main track as a highway of interstate Perhaps upon the mere ground of the relation of his work to the immediate safety of the main track, plaintiff's right of action might be sustained."

commerce.

***

This seems a a reversion to the penalty idea, and while the supposition for maintenance of the action seems feeble, it appears to us better than the other, where the recovery of a penalty created by a merely

lation may be thus broad, it would seem to remain to consider what its purpose is and general terms be limited thereby. This is a fair rule of construction.

The Justice goes on to say that: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law, expressed in 1 Comyn's Dig., title action upon statute," etc.

Let us concede this to be true as to a lawmaking body, which legislates for the benefit of a class, and the question comes up, whether it applies to legislation by the Federal Congress, which may not be able to legislate except in creating penalties against an instrumentality of commerce. Rights of action for the recovery of penalties, it must be conceded, generally may be thought to depend very strictly on compliance with the terms of statutes granting them. We come back again to the purpose of the law granting the right to recover a penalty.

He goes on further to say that it has been decided that "the liability of the carrier for injuries suffered by a member of a crew in the course of its general work was subject

of one of a class.

The Justice, seemingly not fully satisfied, further says: "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper, for the protection of employes and travelers, to require certain safety appliances to be installed upon railroad cars and upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time."

Let us attempt to recast this sentence so as to more fittingly, in our opinion, represent congressional power. "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper" for keeping in perfect order its instrumentalities "to require," etc. If this is not a more consistent statement so far as regulatory legislation is concerned, we fail to grasp the significance of the words "plenary power to regulate commerce."

It may be true that such plenary power will take notice of "inconsistent laws (by States) giving redress for injuries to workmen or travelers," and inability by States to adequately take care of the matter may result in instrumentalities, Congress has a right to regulate, remaining insufficient, but

these as reasons for the exercise of a plenary power, are of little import in its actual exercise. We are wholly unable to appreciate how a power to regulate instrumentalities in commerce, has, either directly. or by implication, any police feature in its exercise. And we do not see that there is any power in Congress to drag in the protection of a citizen or a class of citizens as the sole reason for mere regulatory legislation.

A traveler or an employe in other business may, it is conceivable, be given the right to recover a penalty from the owners of an instrumentality in interstate commerce, but in theory of law and the power to legislate, by way of regulation, this should be deemed wholly fortuitous. It is not to be regarded as the causa causans the regulatory legislation. This sort of legislation may create a juggernaut for a traveler or an employe falling under its wheels, but this may be no reason for arresting their progress. And vice versa, it may declare a penalty where either is crushed, if this bears some fair relation to regulation.

for, indeed, were there a stipulation for such, it would be deemed "insurance against the commission of crime and void against sound principles of public policy." There are a number of cases cited to this proposition, as to which the cases are also cited in 80 Cent. L. J.,

supra.

In respect to the inclusion of the incontestable clause, supra, it is said: "The incontestable clause in this policy does not prevent the defendant from setting up the defense interposed in this action. By the use of the term 'incontestable,' the parties must necessarily mean that the provisions of the policy will not be contested, and not that the insurance company agrees to waive the right to defend itself against a risk which it never contracted to assume."

This reasoning follows necessarily from what is said by the court in regard to policy specifically stipulating to be bound in the event of a death so occurring. It is to be noted, also, that the court distinguishes this holding from that in the Owens case, 100 N. C. 240, 6 S. E. 794, which referred to constitutional provisions against corruption of blood and forfeiture of estates. Those cases are based on statutes of descents, dower and the like and therefore may have little of principle involved in their determination.

NOTES OF IMPORTANT DECISIONS.

INSURANCE - INCONTESTABLE CLAUSE IN POLICY NOT COVERING EXECUTION OF ASSURED FOR CRIME.-In 80 Cent. L. J. 363, there was treated the question of "Murderer Taking Under Will or by Inheritance," and now we find considered by Supreme Court of North Carolina the question whether an incontestable clause in a policy covers death of insured by execution of law. Scarborough v. American Nat. Ins. Co., 88 S. E. 482.

The clause referred to provided that, "This policy shall be incontestable two years from its date of issue for the amount due, provided premiums have been duly paid, except for fraud." Of course, the fraud referred to was in the procurement of the insurance.

The court first declares that, though an ordinary policy is silent as to death by act of law administered as a punishment for the commission of a capital felony, yet parties are not,

EVIDENCE JUDICIAL COGNIZANCE OF UNIFORMS OF EMPLOYES AND OF ENVEL OPES OF PUBLIC UTILITY.-In Phillips v. Western Union Tel. Co., 184 S. W. 958, decided by St. Louis Court of Appeals, the principle of judicial cognizance is extended quite greatly.

The facts in this case show that one apparently a messenger boy of defendant ran into plaintiff while on the street with an envelope in his hands. As to a motion to instruct for defendant, the court said: "The Western Union Telegraph Company, a public utility, is so much in the use and eye and knowledge of all our people, that we may assume that the jury will apply their knowledge of the usual course of business of this great instrumentality of public service when considering facts connected with that service. We all know that the Western Union Telegraph Company uses messengers for the delivery and taking up of messages, dispatches, telegrams. The jury, as men of ordinary intelligence, had a right to infer that Kenzell was a messenger boy in the employ of the Western Union, clothed in its usual uniform, going along the street in the direction of one of its branch offices, carrying in his hand

an envelope recognized as the envelope ordinarily used by the Western Union in the transaction of its business, that he was at the time in the discharge of the duties of his employment."

It is then observed that the defendant had it in its power to rebut the inference that might be drawn and a presumption against it arose on its failure so to do.

Judicial cognizance is quite latitudinous, but when it takes in the uniforms of employes of, and envelopes used by, a "great instrumentality of the public service," it may be said its horizon is as difficult to define as is the reach of a state's police power. The comfort the defendant may derive from this ruling is to quote the court's language in its advertising matter. There are really so many messenger boys, pages, chauffeurs, policemen and mail carriers, wearing the livery of business and snobbery, that it ought to be a little hard to tell whose uniformed servant runs into one on the street, when he is in a state of unpreparedness.

BANKRUPTCY-INDIVIDUAL PROPERTY WHERE PARTNERSHIP IS WITHOUT ASSETS. A question certified to Supreme Court by Third Circuit Court of Appeals and answered affirmatively, was: "When a partnership as such is insolvent and when each individual member is also insolvent, and when the only fund for distribution is produced by the individual estate of one member, are the individual creditors of such member entitled to priority in the distribution of the fund?" Farmers' & M. Nat. Bank v. Ridge Ave. Bank, 36 Sup. Ct. 461.

The Chief Justice shows that there is in the bankruptcy act of 1898, as in prior bankruptcy statutes, an unambiguous rule for distribution where there are both partnership and individual assets. He concedes, also, that in a case such as the question certified refers to, there was considered to exist an exception having the effect to make the fund of a partner distributable among partnership and individual creditors without priority in favor of either.

The Chief Justice says, however, that: "The Act of 1898 in the opening subsections of § 5 confers the power on courts of bankruptcy to adjudge a partnership a bankrupt and to administer the partnership estate so far as possible as any other estate-"an authority not conferred by the previous bankruptcy acts," and this is followed by a subsection, which provides that: "The court may permit proof of the claim of the partnership estate against the individual estates and vice versa, and may marshal the assets of the partnership estate and

individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates."

From this the Chief Justice deduces the conclusion that the same power granted to regard a partnership estate like any other estate, exists to regard the estate of an individual partner as of one not a partner, and, therefore, the claims against an individual partner have priority over partnership debts. This is said to mean distribution "so as to prevent preferences and secure the equitable distribution of the property of the several estates."

The opinion we have been considering shows a very important departure from prior bankruptcy statutes and appears little to regard the principle of joint and several liability being the same under ordinary contracts. Indeed, it shows that the rule in bankruptcy distribution may be very different from contractual liability at law.

ACTION-POSTHUMOUS CHILD AS PLAINTIFF.-By Nebraska statute, it is provided that a liquor dealer shall pay all damages that individuals may sustain justly attributable to his traffic in intoxicating drinks. In Phair v. Dumond, 156 N. W. 637, decided by Nebraska Supreme Court, the facts show that in May, 1909, defendant sold liquor to one who became the father of plaintiff, born in October, 1910. The mother of plaintiff was grossly abused by the father in May, 1909, and the injuries she received from him caused her to die in May, 1911. The court held that under such a statute a posthumous child had the right to re

cover.

Did this in principle cover a case of this kind? At the time of the injury this child had neither any being or potential being. It, therefore, is not a case of pre-natal injury to an unborn being, unless the consequences remaining continued suffering is a renewal of the primal offense. We have, however, never understood that suffering in the future did any more than enhance damages.

This action, however, is statutory for loss of support and suffering of the parent is not to be considered at all. Is not this right of support only in favor of those in existence or potential existence at the time injury causing damages happens or is caused? The principle of recovery by a posthumous child having a right of recovery seems not broad enough to cover the facts in this case. It means, or should mean, a posthumous child en ventre sa mere at the time of the injury causing damages.

Judge Henry Lamm, in a recent address. on the "Law's Delays," delivered before the Missouri Bar Association, said, "the greater bulk of the delays arise below"-By below meaning the circuit court.

The tax-paying public has tried and convicted the courts of nisi prius on two charges -that the business of the courts is attended with unreasonable delay and unreasonable expense. Both charges are sustained by

the evidence of experience.

Here, it is proper to observe that the feature of unreasonable expense is frequently the outgrowth of unreasonable delay.

It is the purpose of the writer to suggest some improved methods, or, perhaps rather a return to the old methods of some distinguished jurists who have adorned the bench of the Circuit Court, by which methods delay and expense may be reduced.

In some counties of Missouri,. for instance, (according to the present plan of trying cases) is there a real hearing of law questions in the Circuit Court?

In actual practice (in some counties) do not the parties depend upon an appeal to the appellate court for their real opportunity to be heard on law questions? Is this a proper method?

In truth, the trial court should have all the help that counsel are able to render, in the decision of all law questions. The trial court should accord a patient hearing of argument and authorities by counsel, regarding all law questions arising in the case. The trial judge should not leave it to his discretion to determine whether he shall hear or consider argument and authorities on a law question. He should make an inflexible, invariable rule of court, that he shall hear argument and authorities on all law questions for a certain, definite length of time on different phases in each case.

Here is an illustration of some practical rules, the adoption of which would bring about more justice, less delay, less expense,

judges.

1. Each side shall have thirty minutes, in the aggregate, to argue and submit authorities on questions arising in the law of evidence during the taking of the testimony -the jury to be excused from listening to legal discussions at the request of either party.

2. Each side shall have thirty minutes to argue and present authorities at the close of all the evidence, as to the giving and refusing of instructions.

3. Each side shall have thirty minutes to argue and present authorities on a mo

tion for a new trial.

4. The trial judge shall not, in any wise, abridge or shorten the aforesaid time of counsel-but may extend the same at the request of either party, in his discretion.

A compliance with these rules, and a full hearing of the law questions in the trial court would bring about more justice would materially reduce the number of cases appealed to higher courts, for the reason that the parties would find out that their case had been correctly decided below-would materially reduce the number of reversals in appellate courts-would materially reduce the amount of work to be done by the appellate court in considering an appealed case.

A trial judge should not be averse to a full hearing of law questions, for any reason should not be afraid that the spectators will find out that he does not know all the law-should not be ashamed to let the spectators know that the lawyers who have studied the particular case, know more about it than any judge who has not studied it should not guess at the law, rather than learn it from the authorities cited by the lawyers in their arguments. A circuit judge, who (for any reason) cannot take time to properly hear arguments and consider authorities on the law of a case, is one who cannot take time to properly perform his duties.