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condemnation proceeding in which part of an abutting owner's lot is taken.-Oil Fields & S. F. Ry. Co. v. Treese Cotton Co., Okla., 187 Pac. 201. 40.

Executors and Administrators-Consideration. A written instrument, assuming debt of a female servant, on consideration of faithful services and "other valuable considerations," supported by affidavit of correctness on filing instrument as claim against estate of promisor, cannot be defeated on theory of want of consideration, decedent having a perfect right to direct disposition of his estate.-Brickell v. Hendricks, Miss., 83 So. 609.

41.- -Estoppel.-An executor or administrator by his acts or omission may raise an estoppel against the estate.-Baber V. Houston Nat. Exch. Bank, Tex., 218 S. W. 156.

42. Explosives-Failure to Guard.-Leaving dynamite caps exposed and unguarded in an open drainage dipper near a public highway, where many persons were liable to pass, justified a jury finding of negligence.-Erickson v. W. J. Gleason & Co., Minn., 176 N. W. 199.

43. Fraud-Reliance.-One making false assertions or representations as to the character of land, which are unqualified and without reservation, and of a character to induce reliance thereon, is liable, though acting in good faith. -Perkins v. Orfield, Minn., 176 N. W. 157.

44. Frauds, Statute of-Party Wall.-Where an oral agreement between adjoining owners that one of them might build a party wall on the division line and own the whole wall until the other paid one-half of the cost had been fully executed by the parties building the wall, and they were in possession as owners, equity would recognize and protect their rights, though the agreement was within the statute of frauds. -Hanson v. Beaulieu, Minn., 176 N. W. 178.

45. Gifts-Condition.-That donor, in making gift of money with intent that it should be an absolute gift, required the donee to pay her interest on the sum given during her lifetime, or even give her back some of the principal if desired, did not affect the validity of the gift. -Gould v. Van Horne, Cal., 187 Pac. 35.

46. Fiduciary Relation.-One who occupied a fiduciary relation to the donor and was in control of the donor's property has the burden of showing that a gift was free and voluntary. -Giltz v. O'Malley, Md., 108 Atl. 878.

47. Good Will Stockholder.-A stockholder in a corporation has no interest in the good will of the corporation which he can sell-Wylie V. Wylie Permanent Camping Co., Mont., 187 Pac. 279.

48. Husband and Wife-Coercion by Husband. -There is no longer a presumption as at common law that a married woman who commits a crime conjointly with or in the presence of her husband acts under his corercion, since Ky. St. §§ 2127, 2128, providing that wife holds and owns all of her separate estate and may contract, etc., destroy such presumption.-King v. City of Owensboro, Ky., 218 S. W. 297.

49. Estoppel.-A wife who allows her husband to use her property for a long time as his own land will not be allowed to claim it as against his creditors.-Irwin v. Dugger, Ark., 218 S. W. 177.

50. Indictment and Information-Signing by Stamp-Attachment of prosecutor's name to affidavit by rubber stamp sufficient.-Zoller State, Ind., 126 N. E. 1.

V.

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53.

Mortgagee.-Where a mortgagee insures his own interest at his own expense, payment of a loss before the mortgage is paid is not a payment on the mortgage, and, conversely, a mortgagor, insuring his separate interest, is entitled to the insurance proceeds, but, where the mortgagor effects insurance payable to the mortgagee as his interest may appear, the policy is for the benefit of both parties.— Sisk v. Rapuano, Conn., 108 Atl. 858.

54. Interest-Damages for Breach.-While interest will, in absence of contract therefor, be allowed after maturity for an obligation to pay money, it is so allowed for damages for the breach of the obligation, while interest before maturity rests solely upon contract, and can never be collected, unless the obligor has contracted to pay the same.-Lines v. Potter, S. D., 176 N. W. 150. 55. Intoxicating PossesLiquors-Unlawful sion. Mere possession not made unlawful by statutes.-Reed v. State, Ind., 126 N., E. 6.

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58. Landlord and

Tenant-Abandonment.Where tenants paid rent up to the time they abandoned their contract, the abandonment sufficiently terminated the lease without giving days' notice.-Lee v. Sumter Pine & Cypress Co., S. C., 102 S. E. 2.

59. Assignment of Lease. No assignee of a lease or subtenant can be heard to say that he was ignorant of the terms on which the lessee held possession.-Smith v. Roberts, Tex., 218 S. W. 27.

60.- -Eviction.-There was no eviction of tenant under a lease providing he might carry on a general retail liquor business, a permissive rather than a restrictive provision, by an ordinance of the city rendering it impossible for the tenant to conduct a liquor business; he not being restricted in the use of the premises for other businesses.--Security Trust & Savings Bank v. Claussen, Cal., 187 Pac. 140.

67. Termination of Tenancy.-In order to terminate a tenancy from year to year the law only requires reasonable notice. Robison v. Barton, S. C., 102 S. E. 16.

62.- -Undisclosed Principal.-Where

agent

who did not have authority in writing as required by Rev. St. 1909, §§ 2781-2783, leased realty of his undisclosed principals for a term greater than one year, the contract was not void, but created an estate at will, which by reason of entry and payment of rental by the month made a valid lease from month to month, binding upon the principals.-Kreppelt v. Greer, Mo., 218 S. W. 354.

63. Libel and Slander-Printed Defamation.Defamatory matter printed and published may be per se actionable, while the same matter orally published would not be so.-Baker v. Clark, Ky., 218 S. W. 280.

64. Limitation of Actions-Tolling Statute.Payment of interest after running of limitations removes bar.-Spencer v. McCune, Ind., N. E. 30.

126

65. Malicious Prosecution-Malice.-Out of the commencement and prosecution of a causeless action by one person against another, the presumption of malice may arise from proof of the fact of a want of probable cause for the institution of such action.-Black v. Knight, Cal., 187 Pac. 89.

66. Probable Cause. Want of probable cause cannot be inferred from malice.-Cammander v. Provident Relief Ass'n, Va., 102 S. E. 89.

67. Mandamus Administrative Body-Will not lie to usurp functions vested in adminis

trative bodies.-Luginbuhl v. State, Ohio, 126 N. E. 71.

68. Inspection by Stockholder-Remedy not afforded stockholder desiring access to books except in case of serious prejudice by denial.— Shea v. Parker, Mass., 126 N. E. 47.

69. Master and Servant--Assumption of Risk. -Where there is no negligence on the part of the master, assumption of risk has no place in the case. Southern Pac. Co. v. Stevenson, Tex.. 218 S. W. 151.

70. Malicious Acts.-A master is liable for the wanton or malicious acts of his servant if committed when the servant is acting in the execution of his authority and within the course of his employment, but the master is not liable where the servant is not acting in the execution of his authority and without the course of his employment.-Archuleta v. Floersheim Mercantile Co., N. M., 187 Pac. 272.

71. Municipal Corporations-Police Power.— Whether an ordinance enacted in the exercise of the police power is calculated to promote the object of its enactment, or the municipal legislative will has been clearly expressed, is not a question for the Court.-Ex parte Lerner, Mo., 218 S. W. 331.

72.- -Ratification.-Ratification of a contract binding a city can only be by the city council acting as a body and may be effected by any action or contract which gives to the contract the stamp of approval, and this may be done by acquiescence with knowledge of the facts.Tracy Cement Tile Co. v. City of Tracy, Minn, 176 N. W. 189.

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73. Negligence Attractive Nuisance. - An open, unguarded stope in a dark abandoned mining tunnel, connected with a new tunnel, with a track for small push cars, left outside of the tunnels, unfastened and uninclosed held to constitute an attractive nuisance, rendering the mine owner liable for the death of a boy 11 years old, who fell into the stope while playing on the cars.-Faylor V. Great Eastern Quicksilver Mining Co., Cal., 187 Pac. 101.

74. Child.-Child of five not guilty of contributory negligence. -Terre Haute, I. & E. Traction Co. v. Stevenson, Ind., 126 N. E. 31.

75.- -Licensee.-Persons soliciting one for the use of his automobile to take them to picnic grounds and return are mere licensees, to whom he owed only the duty of refraining from wantonly or willfully injuring them. — Lutvin Dopkus, N. J., 108 Atl. 862.

V.

76.- -Statutory Violation.--It is essential to the maintenance of an action for damages for personal injury, founded on the violation of a statute, to establish not only the violation, but that such violation was the proximate cause of the injury.-Waterman Lumber Co. v. Beatty, Tex., 218 S. W. 363.

77.-Ultimate Purchaser.-The manufacturer of an automobile, who fails to use reasonable care in inspecting and testing the wheels, is liable to a purchaser, injured by the breaking of a defective wheel, though such purchaser bought from a dealer.-Johnson v. Cadillac Motor Car Co., U. S. C. C. A., 261 Fed. 878.

78. Parent and Child-Negligence of Child. Parent not liable for personal injury by an automobile negligently driven by son on the ground of agency.-Elms v. Flick, Ohio, 126 N. E. 66.

79. Partnership-Individual Act.-The working member of a nontrading partnership to grow potatoes could not bind the firm by his individual act in borrowing money for it and incumbering its property.-Gordon v. Aumiller, Wash., 187 Pac. 354.

80. Principal and Agent-Declarations by Agent.- Declarations of agent inadmissible to prove authority.-Bankers' Surety Co. v. GerInvestment & Securities Co., Ind., 126 N.

man E. 6.

81.- -Retaining Benefits.-A principal retaining the benefits obtained for him by his agent cannot repudiate the acts of the agent inducing the other party to the contract to enter into it on the ground that such acts were unauthorized, as by accepting the contract he takes it w whatever taint attached to its origin, and by retaining the benefits he assumes the same responsibility therefor as though such acts had

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83. Principal and Surety-Release of Surety. -If owner made a side agrement with contractor modifying the building contract as to making of payments, but did not disclose existence of such agreement to contractor's surety, the side agreement would be a fraud upon and would release surety.-Union Oil Co. of California v. Pacific Surety Co., Cal., 187 Pac. 14.

84. Railroads--Custom and Usage.-Custom and usage of railroads using a yard not to require warning signals that cars on a general delivery track were being repaired did not excuse the repair man of a road in voluntarily and unnecessarily risking the known and obvious danger of having a car moved upon him by the other road in switching, by getting under it without displaying the usual repair signals.Lavelle's Adm'r v. Central Vt. Ry. Co., Vt., 10% Atl. 918.

85.-Trespasser.-Railroad's duty to trespasser on tracks is merely to exercise ordinary care for his preservation after discovery of his peril, and to refrain from inflicting willful or wanton injury.-Carr v. United Rys. & Electric Co. of Baltimore, Md., 108 Atl. 872.

86. Sales-Conditional Sale.-A conditional vendee cannot, before title is vested in him, recover general damages for a breach of warranty. Baca v. Fleming, N. M., 187 Pac. 277.

87.-Executory Contract.-An executory contract for the future sale of a commodity is not enforceable, unless by the terms of the contract it is so intended, and there is certainty as to the subject-matter and price.-Tift v. Shiver & Aultman, Ga., 102 S. E. 47.

88.- -Express Warranty.-A warranty is 'express" when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase Hausken v. Hodson-Feenaughty Co., Wash., 187 Pac. 319.

89. Specific Performance-Injunction.-Where a married woman's suit for specific performance of a land contract is pending, and defendant sues out a warrant to evict plaintiff's husband, with whom plaintiff resides as a tenant holding over, injunction will issue at plaintiff's instance to restrain execution of the warrant, if it appears that the specific performance suit is prosecuted in good faith and is well founded.Dowling v. Doyle, Ga., 102 S. E. 27.

90. Street Railroads Last Clear Chance.If a pedestrian, about to cross the track of a street railroad. sees a car coming at such distance that he has reasonable ground to suppose that he can cross in safety, he is justified in making the attempt; and if the operator of the car sees him, it is his duty to give him a reasonable opportunity to cross. Brooklyn Heights R. Co., U. S. C. C.

854.

Ploxin v A., 261 Fed.

91. Theaters and Shows-Police Power-As the amusement business is a private business. and not a business affected with a public interest, it may be exercised under the police power of the state.-O'Neil v. Providence Amusemnt Co., R. I., 108 Atl. 887.

92. Trusts-Trust Fund.-A cestui que trust may trace and recover trust funds unlawfully diverted by his trustee.-Stokes v. Burlington Count Trust Co., N. J., 108 Atl. 863.

93. Usury-Pari Delicto.-The parties to a uusurious transaction are not regarded in equity as in pari delicto.-Ice v. Barlow, W. Va., 102 S. E. 127.

94. Wills-Ademption.-Where the purchaser's rights were based upon a written agreement to convey and not upon a codicil subse quently executed by the vendor, the fact that the vendor agreed to convey to another after making his codicil does not defeat the purchas er's contract rights under the principle of ademption.-Lynam v. Harvey, Del., 108 Atl. 850

Central Law Journal.

ST. LOUIS, MO., APRIL 23, 1920.

SHOULD THE FEDERAL INHERITANCE

TAX BE DEDUCTED BEFORE COMPUT-
ING THE STATE TAX ON INHERIT-
ANCES?

The lawyers of New York and Massachusetts are debating the question whether in computing the state inheritance tax on a legacy it is proper first to allow a deduction of the federal tax on inheritances. In Massachusetts the practice is to allow such a deduction; in New York it has been held by the Court of Appeals that "our tax is to such a fraction of the gross estate as is arrived at by making calculations in which the federal tax is not declared."

A writer in the Massachusetts Law Quarterly calls attention to the injustice that results from this lack of uniformity in the computation of the inheritance tax where in one case the federal tax is deducted and in another, it is not. He wishes to know whether a federal question is presented by such a situation. He says:

"Suppose the act of congress had said in so many words the federal estate tax hereby imposed is intended as an excise, or cutting out, from the entire estate of an amount which shall be deducted before any similar taxes are imposed by the state. Could congress say this effectively under the Federal Constitution as part of the supreme law of the land binding upon the State of New York? Has it said so? The question whether it has said so seems to be a federal question as to the proper interpretation of the federal statute imposing the estate tax. If it has said so, the question whether it can say so legally seems to be a federal question under the Constitution of the United States. On this question of power, while it has been decided that "excises," etc., must be "uniform" only in a geographical sense, I do not understand that congress cannot so provide that they shall be uniform in some other sense. Has not Congress the power to protect from double

taxation in this way even if not required to do so? Perhaps these are the real federal questions which may arise, the only other question being whether the New York court will continue to construe the state statute as ignoring the federal tax as a proper deduction, regardless of the unjust results which follow that decision, when the practice in other states, as in Massachusetts, for instance, allows the federal tax as a reasonable and a proper deduction."

In 90 Cent. L. J. p. 39 (issue of Jan. 16, 1920) we called attention to the opinion of Justice Hand in the case of Prentiss v. Eisner, 260 Fed. 589. In this case the peculiar character of the tax on inheritances is explained. The chief peculiarity of this form of taxation is that it is not against the legatee or the legacy but is a reservation to be held out of the estate before it is transferred to the legatee and such reservation is a condition to the vest

ing of the legacy. In other words a legatee does not inherit the amount of the legacy as fixed by the testator, and a distributee does not receive the amount fixed by the Statute of Descents and Distributions, but in either case the legacy or distributive share is the amount so fixed in the will or statute after first deducting the amount of the tax. In the case of a devise the devisee in effect gets only an equity, the inheritance tax being a prior lien on the property so devised and not a charge imposed upon the devisee. This is also the view taken by the New York Court of Appeals in Matter of Swift, 137 N. Y. 77, where that Court declares that by virtue of the inheritance tax, "the state reaches out and appropriates for its use a portion of the property at the moment of its owner's decease, allowing only the balance to pass in the way directed by the testator mitted by its intestate law."

or

per

We do not see that a federal question is created by the construction of the New York courts in refusing to permit a deduction of the federal inheritance tax before computing the state tax. Both taxes

operate in the same way, on the same estate at the same time. Both demand the reservation of a fixed amount from a legacy or distributive share before it can properly become the property of the legatee or distributee. The right of inheritance and the right to take under a will are privileges created by law and can be made subject to whatever conditions the legislatures, both federal and state, having jurisdiction over the property of the decedent, may seek to impose. The jurisdiction of the federal government is co-ordinate with that of the state government and neither is restricted by the action of the other. The tax is computed in whatever way each jurisdiction may determine without regard to what the other may do.

We believe that this conclusion is sustained by the decision of the Supreme Court in United States vs. Perkins, 163 U. S. 625. In this case a testator domiciled in New York gave a legacy to the United States. New York sought to impose an inheritance tax on the legacy, which was resisted as a tax on the federal government. The Supreme Court denied the contention of the government on the ground that the tax. was not imposed on the United States but on the New York testator's right to dispose of his estate. The Court declared that "the legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax."

It seems therefore clear that the state in assessing and computing an inheritance tax is in no way concerned with the fact that the federal government also exacts a similar tax upon the same rights and privileges. There is no rule of priority to be observed but each jurisdiction proceeds independent of the other. The fact that this results in double taxation is no objection to the legality of the tax, although it might be a proper basis for an appeal to the legislature or to Congress.

It is desirable, however, that in the matter of assessing inheritance taxes the states should adopt a uniform practice on the question of deducting the federal tax before assessing the state tax. The Conference of Commissioners on Uniform State Laws might very properly be asked to recommend a uniform law establishing the practice in this regard to be observed by all the states.

NOTES OF IMPORTANT DECISIONS.

IS AN ORDER OF A COURT OF BANKRUPTCY, DENYING A MOTION TO DISMISS A PETITION, REVIEWABLE BY AN APPEAL OR A PETITION TO REVISE?-Whether one who is aggrieved by the action of the District Court in a bankruptcy proceeding has a right of appeal to the Circuit Court of Appeals (Sec. 24a) or is limited to a petition to revise (Sec. 24b) is not infrequently a difficult question to decide. The right of appeal is given in respect to any decision of a controversy arising in bankruptcy proceedings of which the Court of Appeals would have had appellate jurisdiction if it had arisen in any other case in a federal Court. The right to revise is a summary jurisdiction given to the Court of Appeals to correct the errors of law of the District Court in bankruptcy proceedings, that is, the ordinary steps taken in such a proceeding to determine the fact of bankruptcy and administer the estate of the bankrupt.

The difficulty in determining the proper remedy in such cases is illustrated by the recent decision of the U. S. Court of Appeals (2nd Cir.) in the case of In re Dressler Producing Corpora tion, 262 Fed. Rep. 257. In this case appellant, Marie Dressler, owning one half of the stock of the alleged bankrupt corporation, instituted a proceeding in the New York Supreme Court to dissolve the corporation and to appoint a receiver. The directors subsequently filed in the federal Court an admission of bankruptcy, and asked to be declared a bankrupt. They further prayed that the proceedings in the state Court be stayed. The District Court, against the prayer in the intervening petition of appellant, assumed jurisdiction and stayed the proceedings in the state Court. The ground of appellant's intervening petition was that the

corporation was not insolvent and that the admission of bankruptcy was made for the fraudulent purpose of defeating the state Court's jurisdiction. The appellant sought a review

of the trial Court's action and filed both an appeal and a petition to revise. On the question of the proper appellate procedure the Court of Appeals held that a defeated party in a bankruptcy proceeding could not take advantage of both remedies for review but must choose the proper one. In this case the Court held that the proper method of review was by petition to revise, which brought up only questions of law. On this interesting point, the Court said:

"We have considered the cause as coming to us pursuant to a petition to revise, rather than an appeal. Summary proceedings are reviewable only by a petition to revise. In re Goldstein, 216 Fed. 887, 133 C. C. A. 91; Gibbons v. Goldsmith, 222 Fed. 826, 138 C. C. A. 252. Where the Court of bankruptcy has erroneously retained jurisdiction to adjudicate the rights of an adverse claimant itself, the action may be reviewed by a petition to revise. Mueller

v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405; Shea v. Lewis, 206 Fed. 877, 124 C. C. A. 537; In re Gill, 190 Fed. 726, 111 C. C. A. 454; In re Vanoscope Co., 233 Fed. 54, 147 C. C. A. 123. There is a clear distinction between 'controversies arising in bankruptcy proceedings' and 'bankruptcy proceedings.' Bankruptcy proceedings, broadly speaking, cover questions between the alleged bankrupt and include the matters of administration generally, such as appointments of receivers and trustees, allowance of claims, and matters to be disposed of summarily. All of these matters occur in the settlement of the estate. In re Friend, 134 Fed. 778, 67 C. C. A. 500. The determining factor or the important considerations for ascertaining to which class the particular application belongs is to determine the object and character of the proceedings sought to be reviewed. If it is a controversy arising in bankruptcy proceedings, the Circuit Courts of Appeals exercise their jurisdiction as in other cases, under section 24a (Comp. St. § 9608). If the controversy pertains to proceedings in bankruptcy relative to the adjudication and the subsequent steps in bankruptcy, it is one which may be reviewed in matters of law upon notice and a petition by the aggrieved party."

In the earlier cases these two remedies for review of bankruptcy proceedings were regard. ed as cumulative and not exclusive. In re Lee, 182 Fed. 579; In re Flatland, 196 Fed. 310; In re Holmes, 142 Fed. 391. In the Lee case it was said that "an aggrieved party often has a choice of these methods." But the later authorities hold that the remedies are exclusive. Salsburg v. Blackford, 204 Fed. 438; Barnes v. Pampel, 192 Fed. 525; Bothwell v. Fitzgerald, 219 Fed. 408. In Moody v. Century Savings Bank, 239 U. S. 374, 36 Sup. Ct. 111,

the distinction between the two remedies is carefully set forth. The Court said:

"Whether the Circuit Court of Appeals rightly sustained its jurisdiction turns upon whether this is one of those 'controversies arising in bankruptcy proceedings' over which the Circuit Courts of Appeals are invested, by section 24a of the Bankruptcy Act, with the same appellate jurisdiction that they possess in other cases under Judicial Code, § 128 (Comp. St. § 1120), or is a mere step in bankruptcy proceedings the appellate review of which is regulated by other provisions of the Bankruptcy Act? If it is a controversy arising in bankruptcy proceedings, the jurisdiction of that Court was properly invoked, as is also that of this Court. We entertain no doubt that it is such a controversy. It has every attribute of a suit in equity for the marshaling of assets, the sale of the incumbered property, and the application of the proceeds to the liens in the order and mode ultimatey fixed by the decree. True, it was begun by the trustees and not by an adverse claimant; but this is immaterial, for the mortgagees, who claimed adversely to the trustees, not only appeared in response to notice 'of the trustees' petition, but asserted their mortgage liens and sought to have them enforced against the proceeds of the property conformably to the contentions before stated. This was the equivalent of an affirmative intervention, and, when taken in connection with the trustees' petition, brought into the bankruptcy proceedings a controversy which was quite apart from the ordinary steps in such proceedings and well within the letter and spirit of section 24a."

A WIFE RECEIVING SEPARATE MAINTENANCE CAN RECOVER UNDER WORKMEN'S COMPENSATION ACT.-The Workmen's Compensation Acts usually provide that compensation in the event of workman's death, shall be paid to his dependents; and among those usually listed in the catagory of dependents is a wife "living with her husband or for whose support such husband was legally liable at the time of his death." It was recently contended that this language did not include a wife living apart from her husband with a decree for separate maintenance but the Supreme Court of California held that since the husband, by virtue of the decree of maintenance, is "legally liable" for his wife's support, the wife in such a case is entitled to the benefits of the Workmen's Compensation Act as a dependent. The Court said:

"There are cited in petitioner's behalf authorities to the effect that, when there has been a divorce a mensa et thoro with a decree of maintenance to the wife, the common-law obligation of the husband is supplanted by the obli gation of the decree and the husband's respon sibility is measured by the decree. This is true in the sense that the husband's obligation, previously indefinite as to the amount of sup

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