reser

41. Deeds-Condition Subsequent.-A vation in a father's voluntary conveyance to his son of a right to revoke the deed if his son should become a drunkard, or cruel or abusive to parents, or hopelessly involved in debt, violates no principle of public policy and is valid; and on a breach of any of the conditions the grantor may terminate the estate.-Stewart v. Workman, W. Va., 102 S. E. 474.

42. Delivery.-It is a legal prerequisite that the delivery of a deed must be accompanied with the intent that it shall become operative as such.-Shannon v. Aagaard, Cal., 188 Pac. 317.

43.

Merger.-Insofar as a deed varies from a prior executory contract pursuant to which it is executed, such departure is presumed to represent a change mutually agreed upon, and merges all antecedent agreements, negotiations, and conversations, and is conclusive, in the absence of a showing that the variance is due to fraud or mutual mistake.-Watson-Loy Coal Co. v. Monroe Coal Mining Co., W. Va., 102 S. E. 485.

44. Ejectment-Possession as Notice.-Where from long possession the presumption of a grant to complainants in ejectment arises, it is not

necessary that they show title by paper writings. Keel v. Sutton, Tenn., 219 S. W. 351. 45. Eminent Domain Special Benefits. While Legislature, in providing for the assessment of damages in eminent domain cases, may authorize the deduction of general as well as special benefits, yet, unless the statute so provides, only special benefits will be deducted.Elks v. Board of Com'rs of Pitt County, N. C., 102 S. E. 414.

46. Evidence-Expert Testimony.-Cattlemen of many years' experience in buying and selling grass and grass land were qualified to testify as to the damage done to a pasture and grass by a fire.-Wichita Valley Ry. Co. v. Martin & Walker, Texas, 219 S. W. 559.

47. Receipt.-An acknowledgment in a deed of the receipt of the consideration is only prima facie evidence of payment which may be rebutted by proof aliunde.-Saylor's Adm'r v. Brock, Ky., 219 S. W. 441.

48. Executors and Administrators-Discretion. An executor may, in the exercise of a reasonable discretion, the creditor consenting, postpone payment of testator's negotiable note and renew such note to afford opportunity to pay it out of the assets of the estate.-First Nat. Bank of Salem v. Jacobs, W. Va., 102 S. E. 491.

49. Dormant Judgment.-Where an administrator in his representative capacity obtained a judgment against several defendants, the right to revive judgment after it became dormant was in the administrator, and not in the heirs at law. -Armstrong v. Harper, Ga., 102 S. E. 463.

50. Frauds, Statute of-Oral Promise.-If an oral promise to pay for goods furnished another creates an original liability on the part of the promisor, and credit is extended solely to him, it does not fall within the statute of frauds.Byrd v. Woods, Okla., 188 Pac. 337.

51. Fraudulent Conveyances-Good

Faith

A valuable consideration paid by a child for a transfer of land from a parent, who was in debt, is not sufficient, as in addition thereto it must appear that the purchase was in good faith and without any intent on the part of the purchaser to hinder, delay or defraud the parents' creditors. Chapman v. Critzer, Wash., 188 Pac. 412. 52. Husband and Wife.-Transactions between husband and wife to the prejudice of creditors are to be closely scanned by a jury on the trial of an issue between creditors in whose favor an execution has been levied upon property, as the property of the husband and

the wife, who claims the property.-Garner v. State Banking Co., Ga., 102 S. E. 442.

53. Gifts Intention.-Intention of donor is important in determining whether a delivery is irrevocable.-Hayes v. McKinney, Ind., 126 N. E.

497.

the

54. Homicide-Deadly Weapon.-Where killing by accused with a deadly weapon is proved or admitted, the burden shifts to defendant to show mitigation to the satisfaction of the jury.-State v. Bailey, N. C., 102 S. E. 406.

55. Immediate Punishment.—Under the statute authorizing a school teacher to punish his pupils moderately, if the punishment passes beyond that point, and is immoderate, or for the purpose of revenge, or maliciously done, the right does not exist, and the right of self-defense in the pupil obtains.-Dill v. State, Texas, 219 S. W. 481.

56. Insults. It is not every act or insulting word of a defendant that makes him an aggressor; the question depending on the character of the act and intentions of the defendant.State v. Coll, La., 83 So. 844.

57.

Husband and Wife-Coverture.-A husband may transfer his personal property in payment of his debts regardless of coverture.-Duncan v. Duncan, Pa., 109 Atl. 222.

58. Separate Property.-Where a husband conveyed an interest in a mining claim to his wife, but the consideration was not paid out of her separate property, the conveyance was not intended as a gift, and she never listed the property as her separate property, it was community property.-Cole v. Ralph, U. S. S. C., 40 Sup. Ct. 321.

59. Indemnity-Liability.-Agreement by a corporation, which acquired the business of an individual, to assume and pay all obligations of the seller "contracted in said business, now due or to become due," held a contract to pay the debts, and not one to indemnify the seller. In re H. L. Herbert & Co., U. S. C. C. A., 262 Fed. 682.

60. Insurance Application for.-In the absence of statute to the contrary, false representations in an application for insurance which the applicant warrants to be true will avoid the policy without reference to the materiality of such statements.-Modern Woodmen of America v. Atcheson, Texas, 219 S. W. 537.

61. Oral Contract.-An oral contract of insurance, which contains all the elements essential to a contract, is valid in Kentucky; such contracts being valid in the absence of a statute to the contrary.-Georgia Casualty Co. v. Bond-Foley Lumber Co., Ky., 219 S. W. 442.

62. Subrogation.-Where a third person causes a loss, a fire insurance company is, under the principles of equity, entitled to subrogation to the rights of the insured against such third person to the extent that it has paid the loss. -Lumbermen's Mut. Ins. Co. v. Southern Ry. Co., N. C., 102 S. E. 417.

Relation.-

63. Joint Adventures-Fiduciary Where one buys a piece of property on his own account and thereafter sells an interest in it to different persons pursuant to a plan to form an association to handle it, he occupies no fiduciary relation to prospective purchasers, and need not inform them what property cost him, or refrain from charging them more than a proportionate part of what he had paid for it.Withroder v. Elmore, Kan., 188 Pac. 428.

64. Landlord and Tenant-Eviction. In suit for damages from an unlawful and forcible eviction of plaintiff tenants from defendant lessor's land, proof of the expense incurred by plaintiffs was admissible on the issue of malice and consequent exemplary damages: proof of expense always being admitted on such grounds. -Evans v. Caldwell, Texas, 219 S. W. 512.

65. Larceny Presumption. — If automobile stolen was in the possession of defendant, defendant is presumed to be the thief. and the burden is on him to rebut or overcome such presumption.-State v. Weiss, Mo., 219 S. W. 368. 66. Recent Possession.-To constitute legal possession of stolen property, so as to give rise to an inference of guilt, the property need not

be in the hands, house or premises of the alleged possessor, who may have the same secreted on another person's premises, or out on the commons, and nevertheless be in actual care, control and management, in which case he is legal possessor.-Marable v. State, Tex., 219 S. W. 455.

67. Master and Servant-Assumption of Risk. -Under the federal Employers' Liability Act, it is not true, without qualification, that a servant does not assume a risk created by the master's negligence.-Chicago, R. I. & P. Ry. Co. v. Ward, U. S. S. C., 40 Sup. Ct. 275.

68. Inexperience.-The obligation to instruct an employe before putting him to work as to any of his duties which are dangerous does not necessarily follow as a matter of law from his minority when employed, his inexperience, or the fact that the service is dangerous, and that his inexperience is known to the employer.

Bibb Mfg. Co. v. Thornton, Ga., 102 S. E. 465. 69.- -Master's Direction.-If an employe doing work in a safe way is ordered to do it in an unsafe way with a threat of discharge if he refuses, and by reason of the order he enters upon the work and is injured without his fault, he can recover damages.-Jones v. D. L. Taylor & Co., N. C., 102 S. E. 397.

70. Specific Negligence.-A servant suing for injuries must show not only that he has sustained injury, but also some specific act of negligence on the part of the master; the burden to prove the connection between the injury and the negligence being on the servant.-Staley v. Wehmeier, Ky., 219 S. W. 408.

defend

71. Wrongful Discharge.-Where ants employed plaintiff for a year and he rendered services until the business was sold to a corporation, which defendants organized, the mere fact that he worked for the corporation when defendants ceased to have work for him to do did not terminate the contract as a matter of law so as to defeat recovery for discharge; and, there being evidence that he had an understanding with defendants that work for the corporation should not affect his rights under the contract, it was error to direct a verdict for defendants.-Bennett v. Brown, N. H., 109 Atl. 201.

72. Mines and Minerals-Abandonment.-A lessee's unexplained cessation of operation under an oil and gas lease may give rise to fair presumption of abandonment, and it may be that. standing alone, a court as matter of law may declare the lease abandoned.-Strange v. Hicks, Okla., 188 Pac. 347.

a

73. Location.-"Location" is the act or series of acts whereby the boundaries of a claim. are marked, etc.-Cole v. Ralph, U. S. S. C., 40 Sup. Ct. 321.

74- Rescission.-Where plaintiff did not read an oil lease, but was not prevented from so doing by any trick or device on the part of the defendant, plaintiff cannot obtain rescission of the lease on the ground that it was not as advantageous as he expected it to be.-Texas Co. v. Keeter, Tex., 219 S. W. 521.

75. Negligence Attractive Nuisance. -An owner of premises who maintains thereon objects calculated to attract children onto the premises for play must exercise due care to protect the children from injury therefrom.Morrison v. Phelps Stone Co., Mo., 219 S. W. 393. 76. Partnership-Action Against.-Where a creditor obtained a judgment against a partnership and against each partner individually, and another creditor obtained judgment against one of such partners, the holder of the senior judgment could not be required to proceed against that partner against whom he alone had a judgment where the fund in court would thereby be awarded to the junior judgment.-Love v. Goodson, Ga., 102 S. E. 429.

77.

-Termination -Where a special partnership has terminated, and one of the partners sues another concerning a matter independent of the partnership, the defendant may counterclaim for items due him out of the partnership transactions where they are few and simple. and there is no occasion for an equitable accounting.-Zimmerman v. Lehr, N. D., 176 N. W.

837.

78. Patents New Use.-Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect, without the production of something novel, is not invention. In re Smith, D. C., 262 Fed. 717.

79. Pdincipal and Agent-Accepting Benefits. -A principal cannot accept the benefits of his agent's acts and escape liability thereon.-Gardner v. City of Glendale, Cal., 188 Pac. 307.

80. Exclusive Agency. For breach of exclusive agency contract, measure of damages is not gross profits of dealer.-Orester v. Dayton Rubber Mfg. Co., N. Y., 126 N. E. 510.

81. Sales-Conditional Sale.-A seller of a sprinkler system to the owner of a building on conditional sale was not estopped to replevin the system from a lessee by reason of the fact that the tenant had bought and paid for an air compressor and other things which were attached to the system.-Automatic Sprinkler Co. of America v. Central Amusement Co., Iowa, 176 N. W. 786.

82. Implied Warranty.-In the sale of manufactured goods, where there is no opportunity for inspection by the purchaser, there is an implied warranty that the articles are merchantable-Neal v. West Winfree Tobacco Co., Ark., 219 S. W. 326.

83.Inspection.-Where a written contract for the sale of lumber provides for "final inspection to be made at the seller's mill," such inspection is not necessarily precedent to the existence of a binding contract, but is a condition precedent merely to the passing of title to the subject-matter.-G. Elias & Bro. v. Boone Timber Co., W. Va., 102 S. E. 488.

84. Remedies of Seller.-The buyer has various remedies for relief from contracts induced by fraud, among which is the right to confirm the contract after knowledge of the fraud, and reconvene for damages when sued upon the contract-Alba-Malakoff Lignite Co. v. Hercules Powder Co., Texas, 219 S. W. 554.

85. Reserving Title.-A sale contract, reserving title in the seller until all payments have been made, irrespective of an express provision to that effect, authorizes the seller to retake possession of the property on breach of the conditions without returning the payments already made.-Los Angeles Furniture Co. v. Hansen, Cal., 188 Pac. 292.

Lien

87. Vendor and Purchaser-Vendor's The vendor's lien securing a negotiable purchase-money note, like a mortgage, is incidental to the note and accompanies it in all transfers. -Pope v. Beauchamp, Texas, 219 S. W. 447.

88. Wills-Contingent Interest.-Where land was conveyed in trust for the exclusive benefit of a married woman for life, with directions that the land should go to the husband in event she died without issue, the husband took a contingent interest which would pass by devise.— Hollowell v. Manley, N. C., 102 S. E. 386.

89. Construction.-The language of a will subjected to construction must reasonably be capable of more than one interpretation.—Mosle v. Goodrich, Conn., 109 Atl. 166.

90.- -Construction.-The word "lend" used in a will passes the property to which it applies in the same manner as if the word "give" or "devise" had been used, in the absence of anything in the will having a tendency to show that it was not used in that sense.-Jarman v. Day, N. C., 102 S. E. 402.

91. Mental Capacity.-The making of a will does not require so high a degree of mental capacity as the making of deeds or contracts.Huffnagle v. Pauley, Mo., 219 S. W. 373.

92. Undue Influence.-Threats of testator's daughter to have him prosecuted and her misconduct coming to his knowledge from third persons, by reason of which he gave his propertv to others. when otherwise he would have given it to her, is not undue influence.-Stutiville's Ex'rs v. Wheeler, Ky., 219 S. W. 411.

Central Law Journal.

ST. LOUIS, MO., MAY 28, 1920.

WORK FOR THE JUDICIAL SECTION TO DO.

The United States Circuit Court of Appeals for the Fourth Circuit in the recent case of Waldron v. The Director General, April 6th, 1920, issued its declaration of freedom from the influence of State Courts in these words:

"Rique's Ad'r v. C. & O. B. R. Co., 104 Va. 476, 51 S. E. 730, and Anderson v. B. & O. R. Co., 74 W. Va. 17, 81 S. E. 579, are relied on as holding that the duty is on the shipper who receives cars from a carrier to be loaded to inspect them for the protection of his employes to the exemption of the carrier. The first case cited does not expressly so hold. The fact that the injury was to the property. of third persons not employes of the shipper may distinguish the second case. But if it be conceded that both cases hold the doctrine contended for, we think it is opposed to reason and the great weight of authority. The question being one of common law and general jurisprudence, a Federal Court must determine it for itself."

Conceding the Federal Court to be right and, if permitted to express an opinion we think it is, what about the state of the law? What about the mental attitude of the litigant when told that he would win in the Federal Court and lose in the State Court, or vice versa. What about a dual form of government admitting of such an anomalous condition? To inspire thought along that particular line is the object of this editorial. It is an effort through a concrete example to direct attention to the practical need of the Annual Conference of Appellate Judges, officially known as the "Judicial Section" of the American Bar Association. Ought not this great organization to meet oftener and continue longer in session? Ought not their discus

sions to embrace the important subject of uniformity of decision as well as uniformity of statute? We shall not be guilty of the temerity of suggesting the manner in which this shall be done.

There will be made the argument that the respective State Courts are best situated to know the law most suitable to their own jurisdictions for which reason the Federal Courts should feel constrained to follow them in questions of common law and general jurisprudence as well as where expressly required by statute. But, this is argument based upon expediency or courtesy and may be put to one side. Uniformity of decision is based upon the essential element of the contentment of the people, founded upon their faith in law as a fixed science and in Courts as its sacred exponents. The lay mind cannot comprehend government enforcing conflicting laws in the same jurisdiction. The trained lawyer understands how it happens, but not why it happens. But it is the laymen who must be satisfied.

Men who go about amongst the people and obtain first impressions of their thoughts will testify that there never was a time when the faith of the people needed reviving so badly, not excepting the days immediately following the adoption of the American Constitution as it is pictured by the letters of Adams, Jefferson, Madison, Hamilton, James Wilson and Iredell! And it is the faithful that need encouragement. The encouragement required is a certainty of law to all men, by all State and Federal Courts by statute. It will eventually be made between State and State by patriotism and self-preservation. In such a case somebody will have to surrender personal views in the interest of the general welfare. The high intelligence of the personnel gives assurance to the life of the most meritorious. That is the office of the Annual Conference of Judges.

THOMAS W. SHELTON.

THE USE OF PRECEDENT AND THE NEED FOR CODIFICATION.

The great mass of case law that is accumulating is causing the lawyers of England and America to revise their estimates of the value of many so-called precedents. Continental lawyers are not troubled by a mass of precedents or by conflicting authorities. They have their rules and principles and each case is decided by these rules without reference to the decision in some other case. This practice, which it was the custom of English and American lawyers to condemn as being unjust, is now to some extent being looked upon with favor, both in England and America.

Probably the most significant evidence of this change of opinion is a statement by Lord Dunedin in delivering the opinion in the case of McCarton v. Belfast Harbour Commissioners (1911), 2 Irish Rep. 143, a case involving the question of the liability of a master, who lends his servant to another, for the negligence of such servant while in the employ of the hirer. On this point the authorities in England are not only voluminous but very confusing. In refusing to follow the lead of diligent counsel in making fine distinctions based on the facts of all the previous cases which appeared to be in point, he said:

"Decisions are valuable for the purpose of ascertaining a rule of law. No doubt they are also useful in enabling us to see how eminent judges regard facts and deal with them, and great numbers of recorded precedents are useful in no other way. But it is an endless and unprofitable task to compare the details of one case with the details of another in order to establish that the conclusion from the evidence in the one case must be adopted in the other case. Given the rule of law, the facts in each case must be independently considered in order to see whether they bring it within the rule or not."

There seems to be only one way out of the labyrinthine maze of confusing and

conflicting precedents, and that is the codification of important branches of the law and starting all over again with the exact and carefully stated provisions of a code to guide the lawyer in advising clients and to furnish him his all-sufficient ground for offense or defense in the trial of causes, so far as the law is concerned.

We already have had experience with commercial codes and this experience has been in the main satisfactory. The Negotiable Instruments law has been the efficient means of wiping out a great mass of conflicting precedents, and if it were not for the ignorant obstinancy of some appellate judges in resurrecting the old cases to change and twist out of shape the clear meaning of the code provisions the situation would be ideal. The same thing is true with the Uniform Sales Act. Here was a mountain of precedent and the facts in all the cases were so closely analyzed in the text books that to one who could grasp the distinctions sought to be drawn from them, the so-called task of dividing a hair between its north and northwest side was child's play. The Uniform Sales Act has put into the discard all this learning of the law of sales, and the lawyer finds in the Act clearly stated principles that govern his case, which the court is able to decide without the necessity of analyzing the mental difficulties of all the judges, good, bad and indifferent, who have wrestled with the same problem.

Lawyers have not given as much credit as they should to the self-sacrificing labors of the lawyers who constitute the Conference of Commissioners on Uniform State Laws. This great body, for nearly half a century, has labored slowly, carefully and successfully in codifying those branches of the law in respect of which uniformity and certainty were most desirable.

Precedents have important uses and the propagandists of the common law will never consent to give up the principle, or fiction if you wish, that the law is a living

science, capable of growth without the aid of statute, and that justice, like truth, is a natural heritage of man, the domain of which is always open to exploration and discovery. But there can be no objection even from the most devoted admirers of the common law to have these explorations and discoveries charted, classified and indexed for the convenience of future travelers. It ought not to be necessary for the lawyer of today to undertake all the labors of previous explorers in the domain of the law in order to appropriate the definite results of their researches.

NOTES OF IMPORTANT DECISIONS.

DOES

LOSS OF HAND RESULT FROM LOSS OF FINGERS UNDER WORKMEN'S COMPENSATION LAW?—The Workmen's Compensation Law provides damages in different amounts for different degrees of injury. It becomes a question not always easy to answer exactly to what category a particular injury belongs. This question was before the Supreme Court of Oklahoma in the recent case of Bristow Cotton Oil Co. v. State Industrial Commission, 188 Pac. 658. In this case the question was whether the loss of four fingers would under the circumstances of that case be regarded as the loss of a hand and compensation allowed on that basis. In amputating the fingers a part of the palm had been removed, which the Court held amounted to the loss of the hand even though the claimant admitted that he had "some use" of the hand and could "move his thumb a little bit."

In

The decision of the Court is in line with the authorities. In Rockwell v. Lewis, 154 N. Y. Supp. 893, where the servant lost three fingers and the fourth finger was rendered stiff and practically useless, the award for permanent loss of the use of the hand was sustained. Feinman v. Albert Mfg. Co., 155 N. Y. Supp, 909, where the accident necessitated amputation of the finger at the first phalange, which resulted in stiffness, so that the remainder of the finger became practically useless, it was held that the finger must be deemed to have been lost, although not actually amputated, and an award was sustained for the entire amount that could have been recovered for the

loss of such finger. In the case of Massachusetts Employes' Ins. Ass'n, 219 Mass. 136, 106 N. E. 559, it was held that a hand "is incapable of use when the injuries are such that the hand cannot be used in the ordinary manner, and is capable of use only as a hook; it not being necessary that the incapacity be tantamount to an actual severance."

EXECUTORS

FOR

SUITS AGAINST THEIR NEGLIGENCE IN HANDLING DECEDENT'S PROPERTY.-As a usual rule claims founded on the handling of the decedent's estate by the executor are not claims and should not be presented to the executor nor allowed by the Probate Court unless the statutes of the particular state specifically provides. Such claims are against the executor himself for which he will in proper cases be allowed to take credit on final settlement. This rule applies especially to tort claims for which, except under special circumstances, the executor alone is liable and will not necessarily be allowed credit for the damages he has suffered because of his own negligence. At any rate the executor cannot object to a suit and judgment in personam based on his negligence in transacting the business of the estate and the fact that he is described as holding the property with respect to which he is charged with negligence as executor does not make the petition demurrable.

This view is emphasized by the decision of the Supreme Court of Washington in the recent case of Fisher v. McNeely, 180 Pac. Rep. 478. In this case plaintiffs recovered a judgment for damages against defendant for her negligence in operating a logging railroad belonging to the estate of her deceased husband, of which she was the executrix. The defendant alleged as a ground for a new trial the overruling of her demurrer to the petition on the ground that the claim should have been presented in the usual way and allowed against the estate. The Supreme Court denied the contention on the theory that this was not a claim against the estate but against the executrix personally even though defendant was alleged in the petition to be operating the road as executrix, this latter allegation being mere descriptio personae.

The case of Belvins' Executors v. French, 84 Va. 81, 3 S. E. Rep. 891, is a case almost "on all fours" with the facts in the principal case. In sustaining a recovery against the administrator the Supreme Court of Appeals of Virginia said: