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WEEKLY DIGEST.

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with it, to the general credit of a depositor, in the absence of any special agreement import

ing a different character into the transaction. Weekly Digest of Important Opinions of the -Johnson v. Barton, Fla., 83 So. 722. State Courts of Last Resort and of the Federal

6. Bills and Notes--Transfer.-The transCourts.

feree of a negotiable paper before it is 'due Copy of Opinion in any case referred to in this digest

cannot be affected by any agreement or unmay be procured by sending 25 cents to us or to the West

derstanding between other parties thereto, unPub. Co., St. Paul, Minn,

less notice of such agreement or understand

ing is brought home to transferee.--Hart v. Arkansas.......

................2, 29, 48, 82 Metropolitan Discount Co., Ga., 102 S. E. 375. California..........

........43, 45, 53 7. Burglary-Burden of Proof.-In a proseDist. of Col. App.............

...................... 70, 71 cution for breaking and entering a railroad Florida ....

............... 5 car belonging to one company in possession Georgia.... ........6, 17, 20, 22, 26, 34, 81, 85, 86 of another, the state has the burden of showIowa.........

..7, 21, 27, 28, 35, 36 ing such possession.-State v. Dolson, Iowa, Kentucky...

..................16, 24, 25, 32 | 176 N. W. 678. Louisiana

.............55, 78 8. Carriers of Goods-Discrimination. - AlMaryland .....

..............18, 72

leged discrimination in favor of express comMassachusetts.....................................8, 30, 56, 57, 61

panies not justifying other's refusal to comMinnesota

....... 9

ply with rule as to messengers.-Director GenMississippi .. ......

...... 37

eral of Railroads v. People's Express, Mass., Missouri...............4, 10, 11, 23, 31, 42, 46, 50, 68, 73

126 N. E. 417. Nebraska ....

..............40, 47

9. Carriers of Passengers-Baggage. - The New Hampshire

......83 New Jersey

common-law rule is that a common carrier

44 North Carolina. ..................1, 51, 52, 59, 74, 77

of passengers carries the ordinary baggage of

passengers as an incident to the contract of North Dakota ......

passenger carriage; and the limitation of liaOklahoma .......

...............................

bility to a loss of baggage exclusive of merPennsylvania.

chandise follows from the nature of the consouth Carolina ..................33, 41, 62, 67

tract. --McQuat v. Cook's Taxicab & Transfer South Dakota ................

Co., Minn., 176 N. W. 763. 'Tennesse .............

.................. 84 Texas........................................12, 19, 49, 58, 64, 65, 69

10. Commerce Telegraph Messages.-In an T. S. C. C. App..

..........3, 13, 54

action for a penalty under Rev. Sr. 1909, $ United States D. C

........60, 63, 79

3330, for failure to promptly transmit and West Virginia....

.................14, 75

deliver telegraph messages, where it appeared Wisconsin.......

........................... 76, 80

that the message was sent from a point within

the state to another point within the state, 1. Bailment-Ordinary Care.-While the de

but routed through a point in another state struction or loss of property in hands of bailee from which it was relayed to its destination, is not conclusive on question of bailee's negli the message was an interstate one governed gence, the failure to return the property requires by the Laws of Congress, and the state special bailee to show that it exercised ordinary care penalty statutes were not applicable.— Foster while property was in its custody.-Beck v. Wil v. Western Union Telegraph Co., Mo., 219 S. kins-Ricks Co., N. C., 102 S. E. 313.

7. 107. 2. Bankruptcy-Adjudication. - A bankrupt

11. Compromise and Settlement-Accord and cannot waive and thus nullify the provisions of Satisfaction.-While the holder of a tax bill the bankruptcy law, an adjudication in bank offered to accept less than was due—that is, ruptcy operating not only for the benefit of the

the face of the bill exclusive of interest-but bankrupt, but also for his general creditors. withdrew the offer before any payment was Mechanics & Traders' Ins. Co. v. McVay, Ark., made thereon or even proper tender of pay219 S. W. 34.

ment, if the transaction was a compromise,

there was no sufficient settlement, if an accord, 3.— Concealment. -- Omission from a bank

no sufficient satisfaction, to make the new rupt's schedules of corporate stock having no

agreement a merger of the old demand and to possible value held not a concealment of assets

bar all action thereon.-Chapman v. Adams, which defeats the right to discharge.--In re

Mo., 219 S. W. 132. Hughes, U. S. C. C. A., 262 E, 500.

12. Contraets-Construction.- Where an in4. Preference.—Where insolvent who after

strument is susceptible of two constructions, wards became a bankrupt, having sold to de

one of which would make it legal and the fendant forged notes and mortgages purchased

other illegal, the former construction should by defendant as an investment for his wife,

always be adopted by the court.-Southland was forced to refund the payment made, evi

Life Ins. Co. v. Hopkins, Tex., 219 S. W. 254. dence held to show that such payment did not constitute a preference; defendant having no

13.- Substantial Performance.-"Substantial mcre than a suspicion that the seller was then

performance" means not doing the exact thing insolvent.--Craig v. Sharp, Mo., 219 S. W. 98.

promised, but doing something else that is

just as good, or good enough for both obligor 5. Banks and Banking-Depositor.-A bank and obligee.-Dorrance v. Barber & Co., U. S. becomes the absolute owner of money deposited IC. C. A. 262 Fed. 489.

14. Corporations-Accepting Benefits. Where a private corporation accepts the benefits of a contract made on its behalf by an unauthorized agent, and thereby ratifies the contract in its entirety, it is bound to perform the obligations provided by the contract to be performed on its part.-Chafin v. Main Island Creek Coal Co., W. Va., 102 S. E. 291.

15.--Foreign Corporation.-A foreign corporation, as such, is subject to foreign attachment.--Lehigh Coal & Navigation Co. v. Skeele Coal Co., Pa., 109 Atl. 160.

16.- Inspection of Books.-A stockholder has the right to know how the affairs of the company are conducted, and whether the capital is being prudently and profitably employed, and to inspect the books to obtain such knowledge; the right resting on the fact of ownership.-Otis-Hidden Co. v. Scherich, Ky., 219 S. W. 191.

17.- Slander.-A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation, and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.-Headley V. Maxwell Motor Sales Corporation, Ga., 102 S. E. 374.

18. Covenants-Personal.-A covenant against incumbrances is not a covenant running with the land, but in the nature of a personal covenant.—Levine v. Hull, Md., 109 Atl. 141.

19. Criminal Law-Accomplice. — An accomplice cannot be corroborated by proof of his own acts and statements in the absence of the accused, nor can an accomplice corroborate himself.-Fitzgerald v. State, Tex., 219 S. W. 199.

20.--Accomplice.-To sustain a conviction on the testimony of an accomplice, there must be corroborating circumstances which, in themselves and independently of the accomplice testimony, directly connect the defendant with the crime, or lead to the inference that he is guilty. -Roberson v. State, Ga., 102 S. E. 378.

21.- Confession.-A confession is an admission or acknowledgment of guilt of the very offense charged which may be made by accused's statement in the form of a conclusion that he is "guilty" or by his admission of the essential facts constituting the crime; but an admission of the truth of facts not in themselves sufficient to constitute the alleged offense is not a confession of guilt, although the admission as to the facts may be admissible in evidence in support of the charge.-State v. Cook, Iowa, 176 N. W. 674.

22. Damages-Mortality Tables.-In an action for damages sustained in an automobile collision, it was not error to admit in evidence the Carlisle Mortality Table, over the objections that it was irrelevant, and that there was no allegation or proof of permanent injury or reduced earning capacity, and no proof of the value of plaintiff's services.—Pidcock v. West, Ga., 102 S. E. 360.

23. Death-Eye Witness.-One instantly killed at railroad crossing, no witness seeing the tragedy, is presumed to have been in the exercise of due care; that is, such care as a reasonably prudent person, in his situation and with his knowledge, would ordinarily and reasonably exercise.--Tibbels v. Chicago Great Western R. Co., Mo., 219 S. W. 109.

24. Deeds---Conflicting Provisions. In the construction of deeds, the intention of the grantor, if it plainly appears from an inspection of the instrument, will overcome contradictory or conflicting stipulations or conditions, and control the construction absolutely. -Preston v. Wells, Ky., 219 5. W. 173.

25. - Public Policy. Where grantors had been indicted for murder, deed in consideration of grantee's agreement to get them out of trouble held void as against public policy; the consideration being an agreement to defeat the administration of criminal laws. -Mounts v. Charles, Ky., 219 S. W. 184.

26.- Trust Fund - Where a person dies owing a debt his creditors may in equity follow assets left by such person in the hands of a distributee, and where the assets received by the distributee are sufficient to pay the debt, the creditors may obtain a personal judgment against the distributee for the amount of his debt in view of Civ, Code 1910, § 3785.—Morrison V. Fidelity & Deposit Co. of Maryland, Ga., 102 S. E. 354. | 27. Divorce-Cruelty.-It is only when

cruelty becomes a danger to life that a cause of action accrues therefor.-Hickman V. Hickman, Iowa, 176 N. W. 698.

28.- Perjury.-False swearing or perjury upon the original case is not such fraud as will alone justify the vacation of a judgment and the granting of a new trial upon a petition in equity filed after the term at which judgment was entered.--Holmes v. Hoimes, Iowa. 176 N. W. 691.

29. Equity--Laches.—To make applicable the law of laches it should appear that defendants had been led into changing their cond:tion with respect to the property, so that it would be inequitable to allow plaintiffs to be preferred on their legal rights.--Lesser v. Reeves, Ark., 219 S. W. 15.

30,-- Multifariousness.—Bill by minority stockholders to restrain corporation from paying excessive salaries to directors not multifarious.-Almy v. Almy, Bigelow & Washburn. Mass., 126 N. E. 417.

31.— Relief.--Equity looks to substance rather than to form. and will not sanction an unconscionable result merely because it may have been brought about by means 'which simulate legality. (Per Walker, C. J., and Winiamson and Williams, JJ.)-Johnson v. Uni Rys. Co. of St. Louis, Mo., 219 S. W. 38.

32. Executors and Administrators Funeral Expenses.-Expenditures for publishing cards of thanks in newspapers and mailing them to sympathetic friends for the purpose of expressing appreciation constitute no part of the funeral expenses, and was not a proper charge against the estate of the deceased as a part of the "funeral expenses." -Oster's Ex'r v. Ohlman, Ky., 219 S. W. 187.

33. Frauds, Statute of-Fraud.-In order to prevent a statute intended to prevent fraud from being the means of perpetrating fraud, the law treats as a nullity a written contract fraudulently obtained.--Suber v. Parr Shoals Power Co., S. C., 102 S. E. 335.

34. Modification,-A contract which must under the statute of frauds be in writing, and which accordingly is put in writing and duly executed, cannot be subsequently modified by 2 parol agreement.-Elrod v. Camp, Flanigan & Toole, Ga., 102 S. E. 357.

35.- Partnership.--A partnership agreement for the purchase or sale of realty may be proven

by parol evidence.--Blythe, Markley, Rule & Smith v. Cummins, Iowa, 176 N. W. 688.

36. Fraudulent Conveyances. - Badge of Fraud.-The transfer of substantially all of the property of the judgment debtor when embarrassed financially: the transfer by the debtors in anticipation of a suit; failure to put conveyances on record under certain circumstances; the unexplained retention by grantors of the possession of property transferredare badges of fraud. - Central City Sav. Bank v. Snyder, lowa, 176 N. W. 695.

37. Bulk Sales Law.—A sale of a stock of goods in violation of the Bulk Sales Law is fraudulent and void.-Peters Branch International Shoe Co. v. Gunn, Miss., 83 So. 742.

38. Garnishment-Agent.-An agent of the defendant may be held as garnishee for property or moneys of the defendant in his possession.--Dakota Nat. Bank v. brogie. N. D.. 176 N. W. 738.

39. Homestead — Abandonment. -- Any duration of absence from a homestead is not in itself conclusive of the fact of abandonment.Warner v. Hopkins, S. D., 176 N. W. 746.

40.- Estoppel.-A wife who with knowledge of the material facts, and in the absence of fraud, voluntarily joins her husband in the conveyance of a homestead, is therearter estopped from asserting any right, title, or interest therein.-Laughlin v. Gardiner, Neb., 176 N. W.

727.

41. Homicide-Self-Defense.-That the Defendant had had previous difficulties with deceased, and that he may have been under a peace bond, would not deprive him of his plea of self-defense if he comes within the requirements of the self-defense law.-State v. Gibbs, S. C., 102 S. E. 333.

42. Indemnity - Liability. – An instrument acknowledging the signers to be indebted on condition that others abide the condition of their appearance bond, which was given to one who procured the bond to protect him against liability, is an obligation against liability, not of indemnity for loss and the right of action thereon accrues when his liability becomes fixed.-Bray v. Culp, Mo., 219 S. W. 129.

43. Injunction - Easement. — An injunction will lie to prevent a wrongful act, if the continuance of such acts will in time ripen into an easement in favor of defendant, which will operate to deprive plaintiff of the use of his property, or some part thereof, or where it takes from him the substance of his estate, though the immediate damage inflicted is inappreciable, --Lindsay-Strathmore Irr. Dist. v. Superior Court of Tulare County, Cal., 187 Pac. 1056.

44.--Peaceful Picketing.–Peaceful picketing engaged in for purpose of persuasion may be enjoined.-Baldwin Lumber Co. v. Local No. 560. International Brotherhood of Teamst Chauffeurs, Stablemen and Helpers of America, N. J. 109 Atl. 147.

45. Insurance-Accident.-There can be no recovery under an accident policy if the insured does a voluntary act the natural, usual. and tobe-expected result of which is to bring injury upon himself: injury or death so occurring not being produced by accidental means" in any sense of the word, legal or colloquial.-Horton v. Travelers' Ins. Co., Cal., 187 Pac. 1070.

46.-_Cancellation. Where insurer gave notice that on a fixed date it would cancel the policy, and insured accepted the notice as a cancellation and retained the unearned premium returned to him, he is bound by the acceptance.Malin v. Netherlands Ins. Co., Mo., 219 S. W. 143.

47.– Forfeiture. There is no forfeiture or denial of liability when the insurer treats the policy sued upon as a valid or binding contract. -Dodder v. Pacific Mut. Life Ins. Co. of California, Neb., 176 N. W. 730.

48.- Insurable Interest.-The owner of a vendor'g lien on real property owns an insurable interest therein, where there is no provision in the contract of insurance, providing that

the insurer shall own the exclusive or unconditional title in the property.-Farmers' Mut. Fire Ins. Ass'n v. Hodges, Ark., 219 S. W. 13.

49.- Oral Contract.-An oral contract with an insurer's agent for the renewal of a fire policy at its expiration is binding on the insurer and sufficient, although it was not reduced to writing until after the fire.-American Cent. Ins. Co. v. Robinson, Tex., 219 S. W. 277.

50.- Waiver,-Acceptance of premium after it became due could not be a waiver of such provision, where insured was sick at the time and the insurer did not know it, as a waiver cannot exist without knowledge of the facts.Wiser v. Central Business Men's Ass'n, Mo., 219 S. W. 102.

51. Judgment--Collateral Attack.-A decree of a court having jurisdiction in a proceeding, in all respects regular on its face as to parties, cannot be attacked collaterally.-Stocks v. Stocks, N. C. 102 S. E. 306.

52.-_Default.-Where the defendant was of sound mind, and, though his bodily infirmities confined him, carried on business and defended other suits, a default judgment against such defendant will not be vacated on account of excusable neglect, because of his infirmities.Jernigan v. Jernigan, N. C., 102 S. E. 310.

53.-_-Intervention.-Where a suit is brought on behalf of all persons similarly situated, such persons are quasi parties, and may intervene and make themselves actual parties when necessary for the protection of their interest, and they are bound by the decree.-Lindsay-Strathmore Irr. Dist. v. Superior Court of Tulare County, Cal., 187 Pac. 1056.

54.- Res Judicata.-A fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties, even if the second suit is for a different cause of action-Lyons v. Empire Fuel Co., M. S. C. C. A., 262 Fed. 465.

55. Landlord and Tenant - Dispossession. Where a third person officiously and mischievously attempts to dispossess a tenant by denying the lessor's title and raising doubts in minds of tenant and negro subtenants on a plantation as to whether, in view of pending or threatening litigation. they will realize anvthing from improvementt of labor, with resulting failure of lessor to receive share of crop agreed on as rental, he may recover in an action in damages.-Martin V. Sterkx, La., 83 So. 776.

56.-__Guests. Guests and members of family of tenant have no greater rights against landlord than has he.-Angevine V. Hewitson, Mass., 126 N. E. 425.

57.- Surrender. No surrender in absence of abandonment of possession by lessee.-People's Express v. Quinn, Mass., 126 N. E. 423.

58. Libel and Slander-By Innuendo.-Words not in themselves conveying any defamatory meaning may by innuendo be shown to charge commission of a crime, but for such purpose new matter cannot be introduced, and the act. ual meaning of the words cannot be enlarged. -Fuson v. Abilene Gas & Electric Co., Tex., 219 S. W. 208.

59.- Privilege.--Fair criticism of qualifications and conduct of officials and candidates for public office is qualifiedly privileged. State v. Greenville Pub. Co., N. C., 102 S. E. 318.

60. Limitation of Actions. — Discovery of Fraud.-A fraud concealed, or committed in such a way as to conceal itself, will toll the limitation statute until discovery of the fraud. -U. S. v. Woolley, U. S. D. C., 262 Fed. 518.

61.- Partial Payments.--Partial payments by maker of note not,binding on comaker for purposes of interrupting statute,-Fletcher v. Sturtevant, Mass., 126 N. E. 428.

62. Marriage-Annulment.-A marriage can be set aside on the ground of fraud only on proof of deceit touching matters constituting the essentials of the marriage relation, and a woman cannot procure annulment of a marriage

because of the falsity of the man's representa

76. Railroad-Negligence per se.--An autotions as to his character, social standing, and

mobile driver, who attempts to beat an apfortune.-Jakarv. Jakar, S. C., 102 S. E. 337.

proaching train across a crossing, is negligent 63. Master and Servant-Contributory Negli

as a matter of law. - Puhr v. Chicago & NW. gence.-The distinction between contributory

Ry. Co., Wis., 176 N. W. 767. negligence and assumption of risk depends on 77.- Signals.---The failure to give notice of whether the servant has made a careless choice

a train's approach to a much-used public crossbetween safe and unsafe ways of discharging

ing by sounding the whistle or bell is negllhis duties, or whether he has failed to take

gence.--Goff. v. Atlantic Coast Line R, Co., N.C. some precaution outside of the discharge of

102 S. E. 320. those duties.--Anzolotti v. McAdoo, U. S. D. C., 262 Fed. 568.

78. Sales-Contract.-In action for failure to 64.—-Proximate Cause. -Negligence of rail

deliver a quantity of molasses to be manufae. road employe in entering a tank car with a

tured, that defendant did not make enough motorch, causing an explosion and a fire, cannot

lasses to fill his contract is not an excuse for be regarded as the proximate cause of the death

failure to perform; the written terms of the of another servant who was injured and over

sale being unconditional and for a fixed quanheated while subsequently fighting the fire.

tity at a definite price, and it being the seller's Gulf, C. & S. F. Ry. "Co. v. Bennett, Tex., 219 S.

duty to see that the purchaser understood any W. 197.

conditions which seller wished to impose. 65.--Safe Working Place.-It is the em

Penick & Ford V. C. Lagarde Co., La., 83 So.

787. ployer's duty to use ordinary care to provide employe a safe working place.--Houston & T. 79,--Installment Deliveries. A contract for C. R. Co.' v. Long, Tex., 219 S. W. 212

sale and purchase of 12,000 tons of coal per year 66. Mechanie's Lien—Priority.--The mechan

for three years, 1.000 tons to be delivered each ic's lien which attaches prior to the purchase

month and paid for the succeeding month, and of the property is superior to the homestead

further providing that, if the mines were unclaim of the purchaser's wife.-Ketcham v.

able to operate, or output was curtailed, from Cunliff, Okla.. 187 Pac. 1095.

causes beyond seller's control, it should not be

liable for failure to make shipments "during 67. Mortgages-Estoppel. The rule that one

such periods," held severable as to each month's buying a non-negotiable security, such as a

deliveries.--Atlantic Steel Co. v. R. O. Campbell mortgage, takes it subject to all equities exist

Coal Co., U. S. D, C., 262 Fed. 555. ing between the original parties, is inapplicable

80. Sunday Completion of Contract. Where where the original parties have by their con

negotiations for a contract are made on Sunday, duct, acts, or omissions estopped themselves

and on a subsequent secular day an act is done from asserting existence of such equities.

by the parties which completes the void SunMiddleton v. Cockfield, S. C., 102 S. E. 328.

day contract, the Sunday negotlations are 68.- Setting Aside Sale.-Collusion between

deemed reaffirmed on such subsequent secular the trustee and mortgagee or management or

day, and thus form the basis of either validatthe sale to preclude fair competition in bidding,

ing the void Sunday contract or of showing lla particularly when the purpose is to favor some

bility for a tort which induced the execution of would-be purchaser, is cause for setting aside

the new or completed contract on the secular a sale by the trustee under trust deed.-Borth

day.--Mann v. Becker, Wis., 176 N. W. 765. v. Proctor, Mo., 219 S. W. 72.

81. Taxation-Domicile.—The personal prop69. Negligence, - Unavoidable Accident. ---

erty of a deceased person in the hands of his Damages for injuries proximately resulting

executors during the settlement of the estate is from unavoidable accident are damnum absque

taxable at the place of the domicile of the deceinjuria.-Crow v. McAdoo, Tex., 219 S. W. 241.

dent, if a resident of the state.-City of Blakely 70. Patents-Interference.-In patent inter V. Hilton, Ga., 102 S. E. 340. ference cases where a patent has issued to the

82. Vendor and Purchaser-Rescission-A senior party before the junior party files his ap

party who desires to rescind his contract for plication, the junior party must establish that

the purchase of land, on the ground of fraud, he is the inventor beyond reasonable doubt.

must act promptly after discovering the facts. Braun v. Wiegand, D. C., 262 Fed. 647.

-Fleming v. Harris, Ark., 219 S. W. 33. 71.- Patentability.-Failure to appreciate

83. Wills.-Acknowledgment.-Where testathe patentability of an invention does not ex

tor requested a justice of the peace to take his cuse either failure to reduce it to practice or

acknowledgment to the singnature of a will, and making timely application for letters patent.

the justice did so, appending his signature as Reichel v. Dorset, D. C., 262 Fed. 652.

justice, that the justice was of opinion that he 72. Partition-Equity.-Where there is a was not requested to sign as a witness did not partition in fact between tenants in common prevent his signature from so operating.-Tiland a part performance, court of equity will ton v. Daniels, N. H., 109 Atl. 145. enforce such partition.--Sowers v. Keedy, Md., 84.- Condition Precedent.-No particular or 109 Atl. 143.

technical words are necessary in a will to con73. Partnership-Settled Account.--A writ stitute a condition, either precedent or subseten agreement between partners concerning quent, and it is not necessary that a right of reprevious transactions in the practice of law, entering be reserved or that a forfeiture be fixing the amount due in respect to such trans- i provided in express terms.-Nolfe v Byrne, actions, examined and signed by the partners. Tenn., 219 S. W. 1. whereby one of the partners promised to pay 85.- Fee Simple.-Under a will devising tes. the balance shown to be due from him to the

tator's land to his wife. free of all charge and other, created an account stated, and not a "set

limitation for her use and benefit forever for tled" account as that term is generally under her use. to dispose of by will or otherwise as stood, since the balance was not in fact paid.

she deemed proper, she took a fee-simple title Dempsey v. McGinnis, Mo., 219 S. W. 148.

to the land and was expressly empowered to 74. Principal and Agent.Ratification. -A dispose of it by will or otherwise.-Denton T. transaction entered into by one in reference to Parsons, Ga., 102 S. E. 353. the property of another, although without au

86.---Life Estate.-A bequest to a danghter thority, must be ratified or repudiated as a

of certain property "free from all debts. liabili. whole, and a benefit cannot be accepted under

ties and obligations of any husband she may it without being subject to its burdens.--Wil

have, and after her death said property to go to kins-Ricks Co. v. Welch,'N. C., 102 S. E. 316.

her children," imported merely a life estate 75. Quieting Title Cancellation. To entitle | which was not enlarged into a ree by the one to maintain a bill for the cancellation, as a further provision, "in event that said daughter cloud on his title, of a deed purporting to con should die without children, then I invest her vey the minerals in his land, he must show him with the right to dispose of such property by self to be the owner of such minerals, Feather deed. will. or otherwise as she may think v. Baird, W. Va., 102 S. E. 294.

proper."-Mathis v. Glawson, Ga., 102 S. E. 351.

Central Law Journal.

any majority — or even a plurality – to tax the minority-or even a majority to en

rich those specially favored by the party in ST. LOUIS, MO., MAY 21, 1920.

power. CAN Y BE CONSTITUTIONALLY TAXED TO We are aware of the difficulty of PROVIDE A FARM FOR X?

setting up a test to determine what

is a public use; we are familiar with Against the tide of socialistic or quasi the fantastical argument of Justice Ladd in socialistic legislation, being proposed by 1.the celebrated case of Perry v. Keene, 56 the legislatures of many states, the courts | N. H. 514, who claimed that the Court's are setting up no serious obstacles. They idea of a public use was no better than that are construing state and federal constitu of the legislature; we appreciate Dean Rostions with a liberality that would have as- coe Pound's argument that judges must tounded the fathers.

keep step with social conditions and adapt For this observation we find an interest the law to the new demands and necessiing illustration in the recent case of State ties of the people; but taking into account v. Clausen, 188 Pac. 538, in which the all of these elements we do not believe that State Reclamation Act of the State of a court has a right to shirk its duty to inWashington was held to be constitutional. vestigate carefully the purpose for which This act created a Reclamation Board with any fund created by taxation is to be used authority to select public lands and to pur | and, if found to be for a private purpose, chase undeveloped private lands believed fearlessly to use its power to protect those to be available for settlement; to subdivide whose property is being taken away and such lands into smaller tracts suitable for given to others. farms; to improve such farms with houses, Because it is so difficult to determine barns and other accessories to a good farm; what is a public use the danger is very to sell and lease such farms on reasonable great that gradually we will be led to give terms to desirable tenants, showing prefer up those choice guarantees which are ours ence to soldiers; to extend credit on such under the Constitution and which now so purchases for a period not to exceed forty effectually protect us in the enjoyment of years; and to provide free instruction for the things we call our own. There must settlers so as to render them better qualified therefore be set up somewhere a limit befor the cultivation of their lands. To test yond which a legislature may not go in the validity of the tax levied for this pur arbitrarily defining a public use. That limit, pose a friendly suit was instituted by the it is true, will not be the same in every age. Board against the auditor to compel him The automobile for instance, has made necto issue warrants in their favor against essary great state and national highways the fund so created.

which in the day of horse traffic were not It is elementary law that a tax may be necessary. Congregation of large masses levied and collected only where the fund so of people in large cities has resulted in a created is expended for a public purpose. sharp curtailment of constitutional rights A tax which directly bestows a purely pri | of private property in favor of the comvate benefit upon some individual is clearly mon welfare and the people have been propoutside the powers of any legislature to erly taxed to remove garbage, to provide levy. This principle is fundamental; unless a water supply, and to do many things it is strictly observed, the strongest social | which, because of the great congestion and organization will fall apart. If the state dependence of the people on each other, cancan tax A to enrich B then it is possible for I not be done by each individually, but can

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