the grantors' consent, such grantors could have the deed canceled as a cloud on their title.Moore v. Moye, Ark., 184 S. W. 63. 46. Evidence. That the grantor made no investigation of the mortgaged land and did not have the assignments of mortgage recorded tens to negative his claim that misrepresentations were made as to the value of the mortgage security and that he relied on them.Tiagwell v. Bouma, Iowa, 157 N. W. 200. 47. Voidable. A deed, though secured by fraud and voidable at the instance of the grantor, conveys his entire interest in the land, and he cannot reconvey to another until the ded has been set aside as fraudulent.-Cochran Timber Co. v. Fisher, Mich., 157 N. W. 282. 48. Divorce Cruel Treatment.-Cruel and inhuman treatment does not necessarily involve a' finding of physical violence.-Pooley Pooley, lowa, 157 N. W. 129. V. divorce 49. -Custody of Children. In a case, the children of the parties are wards of the court, which is concerned with their welfare and not with the wishes of either of the parents, and which has the power and the duty το see to their welfare when the matter is properly brought to its attention.-Houghton v. Houghton, S. D., 157 N. W, 316. 50.- -Habitual Drunkenness.-Where a husband, who had used liquor moderately before marriage, thereafter became a habitual drunkard, the wife is entitled to a divorce.-Bill v. Bill, Iowa, 157 N. W. 158. a 51. Domicile Change of. The rule that domicile once fixed remains until another is acquired does not apply to a change from a domicile of choice to that of origin, in which case the domicile of origin is acquired the moment the other is given up.-Denny v. Sumner County, Tenn., 184 S. W. 14. 52. Drains Taxation. Drainage districts cannot exercise the right of taxation to aid purely private enterprises.-Elsberry Drainage Dist. v. Harris, Mo., 184 S. W. 89. 53. Easements-Parol Evidence. Where parol evidence showing a verbal gift of a rightof-way is not admissible to establish an easement, it is admissible to show that one using such easement did SO adversely.-Heard V. Bowen, Tex. Civ. App., 184 S. W. 234. a 54.- -Prescription.-The owner of property, served with water through pipe running across an adjoining lot, who used such pipe for more than 10 years, it being invisible and the use unknown, could not claim an easement by prescription to maintain the pipe.-Davison v. Columbia Lodge No. 8, K. P., Wash., 156 Pac. 383. 55. Election of Remedies-Estoppel in Pais. -An "election" differs from an "estoppel in pais" in that it need not be acted upon by the other party to his detriment.-Phillips v. Rooker, Tenn., 184 S. W. 12. 56. Where a Embezzlement-Accounting. landowner for whom accused applied and obtained a loan directed that the funds be transmitted to accused, the latter was charged with the duty of accounting to the landowner, and his appropriation of the funds was embezzlement. State v. McWilliams, Mo., 184 S. W. 96. 57.Agent.-An insurance agent receives premiums under his employment, and may not appropriate them to his own use, so that failure of the applicant to sign a new application as required would not affect his guilt in appropriating the premiums.-Meredith v. State, Tex. Cr. App., 184 S. W. 204. 60. Right-of-Way.-In proceedings to condemn a right-of-way for a street railroad, the depreciation in value of the property in consequence of the poles and trolley wires projecting into the street, being unsightly and a source of danger to persons, was an element to be considered in fixing damages.-Wadsworth Land Co. v. Charlotte Electric Co., N. C., 88 S. E. 439. 61. Equity-Clean Hands.-The maxim that "he who comes into equity must come with clean hands" cannot be applied to complainant in a suit to quiet title on the ground that he secured a deed thereto by fraud, where the suit is between him and a subsequent grantee, who took with knowledge of the fraud.-Cochran Timber Co. v. Fisher, Mich., 157 N. W. 282. 62. Executors and Administrators-Mortgage. Where notes and a mortgage were executed by a debtor and his wife to the creditor's widow and her son, who assigned them to the creditor's administrator, the maker could not, in the administrator's action to foreclose the mortgage, question his authority to accept an assignment of the notes-Chambers v. Cunningham, Ark., 184 S. W. 49. a nonpreferred 63. Preference.-Where claim was joined with a claim for funeral charges, and a judgment entered for the aggregate amount, and the order for judgment separately stated the amounts due on each cause of action, the preference due the funeral charge was not lost.-Elton v. Lamb, N. D., 157 N. W. 288. 64. False Imprisonment-False Arrest.-Deputy sheriff, who, in response to telephone message from another officer, detained plaintiff in jail because he answered the description given of an offender, and only until it was ascertained that he was not the party wanted, held not liable for a false arrest and imprisonment.— Kittredge v. Frothingham, Me., 96 Atl. 1063. 65. Fraud-Damages.-The buyer of a motion picture theater, induced thereto by the misrepresentations of the seller as to his right to asign the lease and as to the receipts of the show, could recover the benefit of his bargain as an element of damages, in addition to the price paid, unless the loss of business arose from the buyer's lack of skill, experience or industry.-Harmon v. Dickerson, Mo. App., 184 S. W. 139. 66. Fraudulent and Conveyances-Husband Wife. A wife whose claim to personal property under a bill of sale from her husband was not in good faith, or who permitted him to hold the property out to creditors as his own, could not claim it as against such creditors who might enforce their claims by execution.-Bank of Almyra v. Laur, Ark., 184 S. W. 39. 67. Inquiry.-Creditor, taking a conveyance for fair consideration from his debtor with knowledge of a four-year-old suit pending against the latter, was not under duty to make any inquiry as to any fraudulent design of the debtor toward the plaintiff in the suit.-National Bank of Slatington v. Massopust, N. J., 96 Atl. 1071. 68. Husband and Wife-Alienation of Affections. In action for alienation of affections, burden is on plaintiff to show that defendant was pursuer, not merely pursued, and that defendant deliberately influenced plaintiff's husband. Stewart v. Hagerty, Pa., 96 Atl. 1099. 69. Indictment and Information-Defects.Notaries public held without authority to administer oaths in connection with criminal prosecutions, and hence information made on oath of persons whose affidavits, taken before notaries public, were annexed was defective.United States v. Schallinger Produce Co., U. S. D. C., 230 Fed. 290. 70. insured, Insurance-Extension. Where having procured a loan for the full value of the policy, defaulted in payment of premiums, interest and principal of loan, the insurance was not automatically extended under a provision for extension after payment of full three premiums in case the policy was free from debt. -Fidelity Mut. Ins. Co. v. Oliver, Miss., 71 So. 302. a 71. Forfeiture.-If a letter reminding an insured of his of nonpayment premium amounts simply to an expression of willingness to reinstate a forfeited policy upon payment, there is no waiver of default; but, if it indicates an intention to treat the policy as in force, there is a waiver.-Noem v. Equitable Life Ins. Co. of Iowa, S. D., 157 N. W. 308. 72. Notice to Agent.-Knowledge acquired by an insurance agent while acting in connection with a matter in which he is authorized to act will be imputed to the company or presumed to have been communicated by him to it. -West v. National Casualty Co., Ind. App., 112 N. E. 115. re 73. -Temporary Insurance.-A printed ceipt for the first premium on a life policy reciting that the applicant was insured from its date, if accepted as an insurable risk, was a contract of temporary insurance from that date, although the applicant died before receiving the policy which provided for a larger premium.Kempf v. Equitable Life Assur. Soc. of United States, Mo. App., 184 S. W. 133. 74. -Total Loss.-The question of total or partial loss is to be decided by the present condition of the building and whether it has lost its identity as a building, rather than its use after being repaired.-Brown V. Connecticut Fire Ins. Co. of Hartford, Conn., Mo. App., 184 S. W. 122. 75.- -Waiver.-Where insured relies on the act of an agent as waiver, he must show, either that the agent had express authority to make the waiver, or that the insurer, with knowledge of the facts, ratified the agent's acts.Union Mut. Ins. Co. v. Huntsberry, Okla., 156 Pac. 327. 76. Libel and Slander-Damages. In action for libel alleging damage to value of plaintiff's lease of a hotel property, the correct measure of damages would be the diminution of the net income from hotel business, and not the lessening of the gross receipts after publication of alleged libel.-Adams v. Scott, S. D., 157 N. W. 321. 77. Innuendo. A newspaper interview, stating that plaintiff had under an assumed name "trailed" defendant and her daughter to a summer resort, and that "when he had left a diamond pin she had was gone," is actionable per se, with allegations, by way of innuendo, that it meant to accuse plaintiff of larceny.Davis v. Kelly, N. Y. Sup. Ct., 158 N. Y. Supp. 145. 79. is not Mandamus-Discretion.-Relator entitled to mandamus to compel placing of name on official ballot unless act is one which law enjoins as duty resulting from office, trust, or station.-State v. Lloyd, Ohio, 112 N. E. 141. 80. Master and Servant-Employers' Liability Act.-A contract by which an interstate railway carrier employs another to handle the coal required for its engines, and which provides that the carrier reserves no control over such person except as to the results to be accomplished, does not create the relation of master and servant so as to render the Employers' Liability Act applicable to the employes of such contractor.-Chicago, R. I. & P. Ry. Co. v. Bond, U. S. Sup. Ct., 36 Sup. Ct. 403. 81. Evidence.-The state rules as to sufficiency of evidence to prove negligence apply in actions under the federal Employers' Liability Act, as that act contains no specific provisions as to quantity or method of proof of negligence.-Mulligan v. Atlantic Coast Line R. Co., S. C., 88 S. E. 445. 82. who con-Respondeat Superior.-One tracted with a licensed truckman to make deliveries held not liable for injuries resulting from the negligence of the driver of the truck, selected, hired and paid by the truckman, who alone could discharge him.-Miranker v. Williams, N. Y. Sup. Ct., 158 N. Y. Supp. 273. 83. Mines and Minerals Extra Lateral Rights. In an action to determine extra lateral mining rights if the planes as drawn in an order of injunction pendente lite were employed mere ly as a means of describing the territory to be protected, and if the defendant was not injured thereby, the order should be affirmed, even though not technically justified.-Anaconda Copper Mining Co. v. Pilot-Butte Mining Co., Mont., 156 Pac. 409. 84. Monopolies Breach of Contract.-New York fashion company selling patterns to Texas buyer and fixing prices, etc., so that the contract was partially violative of the Texas AntiTrust Act, could not recover for the buyer's breach. Segal v. McCall Co., Tex., 184 S. W. 188. 85. Mortgages-Practical Construction.-The practical construction by the parties cannot effect the priority of mortgages which are definite and certain in themselves.-Stanley v. True, Me., 96 Atl. 1057. 86. Municipal Corporations-Improvement. The use to which property is put cannot of itself determine the question of benefits from an improvement; the usual test being the increase of value for any use to which the land might be adapted. City of Vancouver v. Corporation of Catholic Bishop of Nisqually, Wash., 156 Pac. 383. 87.- Obstruction of Street.-A paving contractor has the right to occupy the streets with a truck bearing a concrete mixer, and the inere fact that it thereby obstructs travel does not make him a wrongdoer or liable for the inconvenience to the public or individuals-Law Bryant Asphaltic Paving Co., Iowa, 157 N. W. 175. V. 88. Sidewalks.-Where a city established the grade of a street and placed lights and signs thereon and permitted pedestrians for years to use a portion of it as a sidewalk at the point where plaintiff was injured, the city was liable for failure to maintain the sidewalk. -Proctor v. City of Poplar Bluff, Mo. App., 184 S. W. 123. 89.- Sidewalks.-An irregularity of nearly four inches in the sidewalk, two sections of which were not on the same level, cannot be held a defect of so trivial a character that no recovery for injuries occasioned by reason of the defect could be had.-Merwin v. City of Utica, N. Y. Sup. Ct., 158 N. Y. Supp. 257. re 90. Negligence-Comparative. The comparative negligence rule established by the Employer's Liability Act is not applicable to the case of a rear brakeman who, after going back to signal a train approaching from the rear, mained in the caboose until a collision occurred; his negligence being the sole cause of the injury. Great Northern Ry. Co. v. Wiles, U. S. Sup. Ct., 36 Sup. Ct. 406. 91. Minor.-The conduct of a boy 15 years old was not to be measured by that of the ordinarily prudent man of mature years, and his age was to be considered.-Marshall v. United Rys. Co. of St. Louis, Mo., Ap., 184 S. W. 159. The 98. Post-Office-Scheme to Defraud. mailing of letters in execution of a scheme to defraud could be made a criminal offense, as was done by Cr. Code, § 215, though the fraudulent scheme be outside the jurisdiction of Congress. Badders v. United States, U. S. Sup. Ct., 36 Sup. Ct. 367. 99. Principal and Agent-Notice.-Where the driver who had charge of mules of a firm had knowledge of their diseased condition and the liability of such disease being communicated to other animals, the partners are charged with the agent's knowledge.-M. C. Brown & Co. v. Bennett, Ark., 184 S. W. 35. 100. Scope of Authority.-Where an agent authorized to buy cotton bought cotton for future delivery in violation of his instruction, the principal is liable, the seller having no notice of the limitation on the agent's apparent authority. Mann v. Bell, Tex. Civ. App., 184 S. W. 320. 101.- -Collateral Agreement.-The contract of plaintiff to secure free leases for a company. and of the company to build and operate a smelter, or return the money paid for the leases. being legal, the collateral matter, that part of the money was unlawfully obtained from cities does not avail the company's sureties.-TriBullion Smelting & Development Co. v. McLain, Colo., 156 Pac. 133. 102.- Collateral Agreement.-A surety company insures only the original contract, and not contract substituted by the parties to the original agreement.-Thomas Drug Store v. National Surety Co., S. C., 88 S. E. 442. a ca 105. -Receivership.-The agent of the receivers of a railway corporation is not its agent for the service of process, though before appointment he served the road in the same pacity as he serves the receivers at the time of service of citation upon him.-Webster v. International & G. N. Ry. Co., Tex. Civ. App., 184 S. W. 295. 106. Sales Agency.-Where plaintiff bought and took title to stock at defendant's solicitation, defendant agreeing to take stock later and pay plaintiff cost thereof with interest. transaction was one of agency and not sale.Foley v. Nimocks, 157 N. W. 178. 107. Conditional Sale.-In a seller's action to replevin a typewriter sold under a conditional sale contract, evidence of breach of an implied warranty of fitness, without evidence of damages therefrom equal to or in excess of the installments due, presented no defense.Remington Typewriter Co. v. Rutherford, Okla., 156 Pac. 166. 108. Contract.-Where plaintiff who bought corn from a farmer disposed of part of it to defendants, the fact that defendants had a conдо Аләләр әці лог ләшләш әці чим зовл the same corn does not excuse them from paying plaintiff the purchase money; defendants not having paid the farmer. McDowell V. 291 emo " e a sua mog N. W. 173. 109.- -Delivery.-Where plaintiff agreed to sell cotton for delivery on or about a certain date, and defendant accepted a portion delivered at a subsequent date, the time of delivery was not of the essence of the contract, and failure to deliver on the exact date stipulated did not defeat plaintiff's right to recover for the defendants' refusal to accept the remainder of the cotton.-Bain v. Polasek, Tex. Civ. App., 184 S. W. 279. 110. Specific Performance-Decree.-A contract for the sale of realty incapable of specific performance cannot be the basis of a valid claim to an interest therein, against which, when asserted, the owner is entitled to a decree quieting his title.-Crane v. Roach, Cal. App., 156 Pac. 375. 111. Statutes-Computation of Time.-Where statute requires act to be performed a fixed number of days previous to specified day, last day should be excluded and first day included. -State Board of Deputy State Supervisors and Inspectors of Elections of Montgomery County, Ohio, 112 N. E. 136. Where the 112. Taxation-Discrimination. assessing department of a state uniformly applies different standards of valuation to different classes of property, the result is necessarily inequality and discrimination in taxation, which must be presumed to have been intentional.Louisville & N. R. Co. v. Bosworth, U. S. D. C., 230 Fed. 191. 113. Domicile.-"Domicile" and "residence" are not synonymous as applied to situs for taxation; "domicile" importing a legal relation between a person and a particular place, based on actual residence with intention to remain there. -Denny v. Sumner County, Tenn., 184 S. W. 14. 114. Vendor and -A Purchaser-Election. written lease of the land by the vendor, after the purchaser's default, is an election to retain the land and entitles the purchaser to a return of his cash payment.-Jicha v. Dance, Iowa, 157 N. W. 159. 115.- -Fraud.-Where a grantee knew before he acquired the property, of a prior unrecorded deed, which the grantor claimed was secured through fraud, he could not, in suit by the prior grantee avail himself of the defense of fraud, which is purely equitable and available only to the grantor. Cochran Timber Co. v. Fisher, Mich., 157 N. W. 282. 116. Waters and Water Courses-Beneficial Use. The government, like an individual. can appropriate only so much water as it applies to beneficial uses, and can only restrain a diversion which operates to its prejudice.-United States v. West Side Irrigating Co., U. S. D. C., 230 Fed. 284. 118. Survivorship.-Provision that, if testator's daughter becomes possessed under an executory devise, and die "without heirs," then the land shall go to the heirs of testator's nephew, means without surviving children.Pitzer v. Morrison, Ill., 111 N. E. 1017. 119. within Witnesses Examination.-It is the sound discretion of the trial judge to call any witness and examine him, so that it is not error for the court on its own motion to call in an expert alienist, using care not to prejudice the rights of the defendant thereby.-State v. Horne, N. C., 88 S. E. 433. 120. Subpoena.-A subpoena, served without the district and more than 100 miles from the place of holding court, has no potency, and a witness attending pursuant thereto is regarded as attending voluntarily.-United States v. Southern Pac. Co., U. S. D. C., 230 Fed. 270. TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEADING SPONDENCE AND BOOK REVIEWS IN VOL. 82. A separate subject-index for the "Digest of Current Opinions" will be found on page 462, stitute of Criminal Law, 324. notes of interest to members of the Illinois program of meeting of the Iowa Bar Asso- banquet of the Kansas City Bar Association, program of the meeting of the Louisiana program of the meeting of the Pennsyl- program of the meeting of the Texas Bar program of annual meeting of the Wiscon- report of the meeting of the Kansas Bar report of the meeting of the Connecticut Bar Commission, 378. Federal Trade Hughes' the Law Restated, 190. Orth's readings on the relation of govern- reviews of reports and selected cases, Notes to Indiana Statutes, 1915, 378. Dos Passos' Commercial Mortmain, 307. Ripley's Trusts, Pools and Corporations, Voorhees' the Law of Arrest, 109. COMMERCE, constitutionality of statute regulating lia- federal employers' liability act superseding initial carriers bound by Carmack Amend- recovery under workmen's compensation act state tax of company qualified to be surety to what extent does the Carmack Amend- exemplary damages-a heretical and ill-de- mental suffering without other injury as an punitive damages reduced because com- DEATH BY WRONGFUL ACT, casual connect .. in conjecture of death, DEEDS. necessity of actually affixing seal to make DIVORCE, see MARRIAGE AND DIVORCE. |