such application of funds.-Emerson v. Fisher, U. S. C. C. A., 246 Fed. 642.

33.

-Execution.-That an agent for a railroad company, in executing a contract in its behalf, used another than his official designation, held not to relieve the company from liability thereon, where he was authorized to make it.-Thrailkill V. Crosby-Southplains R. Co., U. S. C. C. A., 246 Fed. 687.

34.- Lease.-Where corporation demised all its property under agreement that lessee should make payments to stockholders, stockholders are not lessors, and can assert ho rights as such, but corporation itself by suit in its own name may in case of nonpayment recover rents due.-West End St. Ry. Co., v. Malley, U. S. C. C. A., 246 Fed 625.

35. Corporations-Contract.-Contract whereby claimant sold merchandise to co-operative company and agreed to look to proceeds of sale of its stock for payment and received proceeds of stock already subscribed for created no claim against corporation, unless breached by it.-In re Blue Earth County Co-op. Co., Minn., 166 N. W. 178.

36. Damages Intervening Agency. - Plaintiff's discharge from his employment being the purpose of defendant's slander, and resuiting, and being something which in the usual course of events would probably follow, defendant is liable therefor, notwithstanding the intervening agency of wrongful discharge by employer.-Max v. Kahn, N. J., 102 Atl. 737.

37. Death-Constributory Negligence. Where there was no question as to right of son of deceased who was entitled to recover one-half of damages awarded on account of deceased's suffering before death, together with one-half of value of his expectancy, such amounts being subject only to deduction on account of deceased's contributory negligence, award of $50 was grossly inadequate.-Huff v. Bear Creek Mill Co., Miss., 77 So. 306.

39.

Depositories-Trust Funds.-Funds paid by a county into a depository duly contracted with are not funds of the county, and not trust funds, but become the funds of the bank.-Robertson v. Bank of Batesville, Miss., 77 So. 318. 40. Descent and Distribution.-Personal Liability. Where manager of corporation received rent notes delivered by the lessee, and there was no agreement on his part as to reimburscment in case defendant was deprived of part of property demised, held, that there was no personal liability which could be asserted against the manager's widow, to whom notes descended on his death.-Dibert v. Durham, Miss., 77 So. 311.

41. Divorce Contempt.-One by removing children from state in violation of decree of chancery court of state intrusting them to his care placed himself in contempt of court.Burns v. Shapley, Ala., 77 So. 447.

42. Jurisdiction.-In case where husband and wife lived together in certain county for two years, and because of extreme cruelty wife went to another state, where she resided for about 18 months, held court of county mentioned had jurisdiction of divorce suit by wife. -Andrews v. Andrews, S. D., 166 N. W. 166.

death of plaintiff's husband, who stepped on end of a live wire and was electrocuted when he went to warn children playing on defendant's premises, held sufficient, and objections that word "children" did not clearly show that persons referred to were so immature as to be incapable of judgment is unavailing.-Atlanta & W. P. R. Co. v. Green, U. S. C. C. A., 246 Fed. 676.

45.

Eminent Domain-Necessary Property.Where another company has condemned a necessary part of land included by a water company in its project, proceedings by the latter to condemn the remaining part will be dismissed, where all the property was necessary to its project.-Ramapo Mountains Water Power & Service Co. v. Seidler, N. Y., 168 N. Y. S. 737.

46. Fixtures-Conditional Sale.-By oral conditional sale contract as to heating plant the status of the property as personal property, with right of removal in seller, was preserved as against prior mortgagee of the realty where was installed.-Barbour Plumbing, Heating & Electric Co. v. Ewing, Ala., 77 So. 430.

it

47. Fraud-Fraudulent Representation. Where an officer of a corporation handled property in which plaintiff had an interest before the corporation was formed to handle such property, and afterwards mortgaged and sold such property in the corporate name, a complaint against such officer personally for fraud in the division of the proceeds does not state a cause of action, where it is not alleged that plaintiff released the corporation, that the corporation was insolvent, or that plaintiff lost any right through fraulent representation as to the amount of the proceeds.-Mahon v. Equitable Trust Co. of New York, N. Y., 168 N. Y. S., 757. 48. Habeas Corpus Res Judicata. In habeas corpus proceedings, where defendant answers, but prays no affirmative relief, plaintiff's dismissal of petition disposes of the whole case, hence, although the ordinary thereafter heard defendant's evidence, and awarded child's custody to him, such proceedings were a nullity, so that a plea of res judicata in a subsequent habeas corpus proceeding by the same petitioner is not sustainable.-Brown v. McCarley, Ga., 94 S. E. 768.

49. Husband and Wife-Assault.-Wife's refusal to cook meals, inform husband of telephone calls, etc., though calculated to embitter and exasperate husband, held to furnish no sufficient excuse for his assault on her.-Johnsor. v. Johnson, Ala., 77 So. 335.

50.

Insurance-Burden of Proof.-In action on accident policy defendant insurer need not prove that plaintiff intentionally maimed himself beyond a reasonable doubt, although such maiming constituted criminal act.-Lamport v. Aetna Life Ins. Co., Mo., 199 S. W. 1020.

51. Forfeiture.-Where insurer by receiving without objection premiums past due led insured to believe he was entitled to reasonable time for payment after maturity, it could not claim forfeiture for failure to pay premiums on date fixed in policy.-Southern Indemnity Ass'n v. Hoffman, Ala., 77 So. 424.

52. Suicide.-Where insured's financial condition did not change, and he met his death as result of pistol wound on day when matters had reached crisis, evidence, in action on accident policy excepting liability for suicide, that insured had previously contemplated suicide, is admissible.-Brawner v. Royal Indemnity Co., U. S. C. C, A., 246 Fed. 637.

53.- -Waiver.-In action on tornado policy, where insurer by answer pleaded compromise settlement and payment of loss; it waived conditions precedent in the policy, and no prejudice resulted from failure to plead performance of such conditions.-National Union Fire Ins. Co. of Pittsburg, Pa. v. School Dist. No. 60, of Washington County, Ark., 199 S. W. 924.

54. Interest-Partial Payment.-In case of partial payments the interest rule requires application of a payment, if it exceeds accrued interest, first to discharge thereof, and then to a

reduction of principal, and if it is less than accrued interest the former principal continues as basis of computing interest.-Porten v. Peterson, Minn., 166 N. W. 183.

55. Intoxicating Liquors - Local Option. Laws 1915, p. 353, § 8, subd. 40 requiring secondclass cities to pay counties same part of dramshop licenses as other cities in county pay, is inoperative as to city collecting such license fees, where no other city in county collects such taxes nor can fees collected by such other cities before adopting local option be used as standard.--State ex rel. Green County v. Gideon, Mo., 199 S. W. 948.

57.

Libel and Slander-Evidence. In an action against a newspaper for libel, in which the truth and fairness of an account of a proceeding in court was not assailed, but only the fairness of comment and criticism, it was proper to inquire into the circumstances surrounding plaintiff.-Light Pub. Co. v. Huntress, Tex., 199 S. W. 1168.

58. Slander per se.-Language, if used attributing to another an uncontrollable sexual desire that caused her to commit an unmannerly and unwomanly act, is slanderous.-Macke v. Jungles, Neb., 166 N. W. 191.

59. Pleading.-Declaration for libel, consisting of communication to Department of Commerce, from which plaintiff had license, that plaintiff had been so intoxicated that he could not make certain trip, held to state cause of action. Powell v. American Towing & Lighterage Co., Md., 102 Atl. 747.

60. Livery Stable and Garage KeepersPrincipal and Agent.-Where defendant motor company's night watchman, who had no authority to hire cars for it or employ chauffeurs, let out car of another which was stored in defendant's garage and employed a chauffeur for owner, defendant was not liable for death of hirer due to negligence of chauffeur or defective condition of car.-Spradlin v. Wright Motorcar Co., Ky., 199 S. W. 1087.

61.

will

Mandamus-Discretion.-Mandamus not lie, except to compel a public officer's discharge of a duty clearly imposed upon him by law, and will not lie to control a discretion reposed in such officer.-Boyle v. Hugo, N. Y. 168 N. Y. S. 789.

62. Master and Servant-Employers' Liability Act. A track 300 feet to 400 feet long, made with steel rails 20 to 25 feet apart, used exclusively for moving a "coke pusher machine," mounted on wheels operated by electric. motor and used for leveling, from oven to oven, is not a "railway," or "any part of the track of a railway," under Employers' Liability Act (Code 1907, § 3910, subd. 5), since it is neither used nor intended to be used for the transportation of products, freight, or passengers.-Woodward Iron Co. v. Hubbard, Ala., 77 So. 400.

63. Employment.-Where resident of North Dakota entered into contract in Minnesota with Minnesota corporation having place of business therein, to solicit business in both states, and was injured in course of his employment in North Dakota, Minnesota Compensation Act applies.-State v. District Court, Hennepin County, Minn., 166 N. W. 185.

64. Instructions.-An instruction telling the jury that if they found that a saw was so placed that it was dangerous to plaintiff while working, as employed sawyer thereabout, or that at the time and prior to plaintiff's injury, if any, it was possible for defendant to have safely guarded said saw, but that defendant failed and neglected to thus guard it, etc., is sufficient, and once to tell the jury that it must be so guarded as not to interfere with its opera

tion was not necessary; the word "possible" as used, putting that issue before the jury.-Henderson v. Heman Const. Co., Mo., 199 S. W. 1045.

65. Wrongful Discharge.-While a superintendent is not so strictly accountable for his time as a clerk or laborer, his voluntary absence from duty without reasonable necessity when his presence is necessary to the employ: er's business is ground for his discharge.Farmer v. First Trust Co., U. S. C. C. A., 246 Fed. 671.

66. Mines and Minerals-Contract.-Where oil producer gave a pipe owner a bond for $100,000, entitling producer to proportion of price of oil delivered to pipe owner and to protect pipe owner against adverse claims against producer, fact that such claims existed after payment of $90,000 afforded no ground for refusal to pay balance due on bond.-Atlas Oil Co. v. Standard Oil Co., Ala., 77 So. 471.

67. Municipal Corporations - Contributory Negligence.-Traveler who went upon unusually smooth concrete sidewalk which was sloping at angle, so that many slipped, cannot, where there was nothing in its nature to particularly indicate danger, be deemed guilty of contributory negligence.-City of Lebanon v. Graves, Ky., 199 S. W. 1064.

68.- -Negligence.-In an action against a city and its contractor for injury from falling into an open sewer trench, near a cross-walk, held that the defendant's negligence was for the jury-Williams v. Arthur A. Dobson Co., Minn., 166 N. W. 189.

who

69. Negligence - Rescue.-Landowner, leaves on his premises which are frequented by children, an unguarded dangerous agency, is liable to a third person who, without negligence on his part, is injured in an attempt to rescue child or children in peril.-Atlanta & W. P. R. · Co. v. Green, U. S. C. C. A., 246 Fed. 676.

70. Partnership-Profits.-Where N. was to have one half interest in partnership deal, and S. Bros. the other half, and an interest in the profits, subsequently given a third party, was purchased by N. with firm assets, S. Bros. held entitled to one-half of profits, but not to onehalf of such third party's interest in addition thereto.-Smith v. Newhouse, Mo., 199 S. W. 938. 71. Ratification.-Partner's ratification of note, containing waiver of exemptions and provision for attorney's fees, could not rest upon constructive knowledge or on imputation of knowledge from mere notice.-Parnell v. Farmers' Bank & Trust Co., Ala., 77 So. 442.

72. Successorship.--Under à sale by one partner to the other of the retiring partner's interest, the continuing partner could not recover payments made because of the retiring partner's failure to make the transfer by a technical assignment writing where the continuing partner assumed full control of the partnership assets.-Rupe v. Kemp, Wash., 169 Pac. 855.

or

73. Railroads Crossing Accident. That one driving cattle over a private right of way negligently failed to discover approaching train was no defense to action for damages to cattle killed because of defendant's neglect to maintain proper gate in the right of way fence, where earlier discovery of train would not have prevented accident.-Scullwald V. Union Pac.

R. Co., Neb. 166 N. W. 190.

74. Spur Tracks.-A railroad cannot refuse to extend a spur track because the person desiring the spur will ship products from another state, his competitors shipping from interstate points, resulting in a decrease in revenue on account of more inequitable interstate rates.Washington & Old Dominion Ry. v. F. S. Royster Guano Co., Va., 94 S. E. 763.

75. Sales-Breach.-Where plaintiff agreed to. buy pipe for cash, and some pipe was delivered, but cash was not paid, and defendant failed to deliver the remainder of the pipe, but never stated that payment must be made within a certair time, or the contract would be rescinded, defendant could not assert a breach by plaintiff.-Pipe & Contractor's Supply Co. v. Mason & Hauger Co., N. Y., 168 N. Y. S. 740.

76.- Damages.-Where evidence showed that horses were worth at least $20 a head more than contract price, seller could not recover any substantial damages for failure of defendants to receive and pay for horses according to contract.-Love V. St. Joseph Stock Yards Co., Utah, 169 Pac. 951.

77. Notice of Delivery. Where exporter contracted for lumber with mill to be loaded on vessel chartered for purpose, within 60 days, seller knowing time required for furnishing vessel was from 15 to 30 days, it was seller's duty to have notified buyer of estimated time at which it would be ready to deliver.-McGowin Lumber & Export Co. v. Camp Lumber Co., Ala., 77 So. 433.

78. Passing Title.-Where in consideration for advances defendant was privileged to use cotton delivered to it and to make final settlement with plaintiff upon demand, the amount to be determined by the market price at the time of the demand, there was a sale and the tile passed. Knight v. Harris, Cortner & Co., Ala., 77 So. 440.

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79.-Time of Essence.-Time is of essence of unconditional contract to sell and deliver merchandise to merchant by merchant at stipulated price and at fixed time and place.--McGowin Lumber & Export Co. v. Camp Lumber Co., Ala., 77 So. 433. 80. Undisclosed Principal. Where authorized to sell plaintiff's personalty negotiated sale and delivered property, but repudiated transaction upon learning that prospective purchasers were acting for undisclosed principals who desired to make payment by setting off debt due them from plaintiff's agent, there was no completed sale preventing plaintiff from suing for conversion of personalty.-Hudson & Thompson v. Barrett, Ala., 77 So. 428.

81. Warranty.-To warrant cow sound does not of itself imply she will give milk.-Roddam v. Brown, Ala., 77 So. 403.

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82. Specific Performance-Nonsuit.-In action against administrator of a widow alleged to have been sole heir of her deceased husband, and against her heirs for specific performance of parol contract entered into by deceased husband, held that a nonsuit was properly granted. -Potts v. Mathis, Ga., 94 S. E. 767.

83.Oral Contract.-Essential to specifically enforce an oral contract for the sale of land that valuable improvements be made on the land, although the price has been paid and possession taken, and the value of the land cannot be recovered. but the price paid.-Wells v. Foreman, Tex., 199 S. W. 1174.

84. Vendor and Purchaser.-Where a vendor repudiated a contract, and claimed that purchaser in possession had no interest, and purchaser sued for specific performance in which purchaser failed. court should enter judgment determining equitable rights of vendor and purchaser, and adjudicate purchaser's equitable title resting upon vendor's legal title.-Porten v. Peterson, Minn., 166 N. W. 183.

85. Statutes-Alteration of.-Though change in language of revised statute does not necessarily alter law, nevertheless, where change is made which is clear, and does in fact modify statute in point of substance, presumption, if any, that no change was intended, must yield to facts.-In re Peterson's Will, Iowa, 166 N. W. 168.

86. Street Railroads-Collision. - One who speculates on the question of time of getting across a street car track with an automobile in front of a street car cannot recover damages occasioned by a collision.-Goan v. Ogden, L. & I. Ry. Co., Utah, 169 Pac. 949.

87. Sunday-Profit on Amusement.-The inhibition of Ky. St. $ 1321, applies whether the work forbidden to be done on Sunday is for profit or amusement, but the fact that a moving picture theater was run for profit aggravated rather than diminished the offense.-Capitol Theater Co. v. Commonwealth, Ky., 199 S. W. 1076.

88. Taxation-Burden of Proof-The presumption that public officers perform their duties does not dispense with proof that prop

erty was assessed in name of persons to whom the auditor directed the expiration notice.Deaver v. Napier, Minn., 166 N. W. 187.

89.-Tax Sale.-Where there is a legal bid-. der at a tax sale, collector must convey to him, and sale to state is void.-Thibodeaux v. Havens., Miss., 77 So. 313.

90. Telegraphs and Telephones-Facilities.Under Public Service Act, § 93, subd. 3, unincorporated telephone company operating small system for private use cannot demand connection with larger company on ground of public necessity or convenience.-State ex rel. Buffum Telephone Co. V. Public Service Commission, Mo., 199 S. W. 962,

91. Punitive Damages. Where failure to deliver telegraph message promptly prevented mother from seeing son's body or arranging burial, invasion of intangible rights as result of willful wrong in failing to deliver message warranted recovery of damages for mental suffering, though issue of punitive damages was not submitted. Western Union Telegraph Co. v. Teague, Miss., 77 So. 302.

92. Refusal to Pay Charges.-Plaintiff's expectation of realizing premium of five or ten cents on Columbian half dollar did not justify his refusal to pay exact charge for sending telegram, which he could have made by use of the half dollar.-Dale v. Western Union Telegraph Co., N. Y., 168 N. Y. S. 783.

93. Trover and Conversion — Fleading. Where household goods kept for use and not for sale, have been wrongfully converted, it is not necessary to allege that such goods have no market value as a condition to right to introduce proof of actual value.-Kimball v. Betts, Wash., 169 Pac. 849.

94.

Trusts-Reversion.-Deed conveying land to one in trust for separate use of his wife for life, with reversion to trustee or "her heirs" empowering wife to authorize trustee in writing to sell estate and reinvest proceeds, authorized trustee, when so empowered, to convey land in fee simple, though there were minor children living. Bibb County v. Jones, Ga., 94 S. E. 765.

95. Settlor.-"Then," as used by settlor in phrase of deed of trust, "if he had then died intestate," held to refer to time of settlor's death, being used to fix time for ascertainment of beneficiaries.-Hall v. Farmer, Mass., 118 N. E. 351.

96.- Tenancy by Entireties. - On issue whether wife's causing deed of property purchased by her to run to herself and husband as tenants by entireties raised resulting trust against her husband on her death, her statement that she wanted her husband to have "her" property after her death did not show trust was intended.-Haguewood v. Britain. Mo., 199 S. W. 950.

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97. Vendor and Purchaser-Executory Contract.-Vendor by executory contract to convey on full payment, who lets vendee into possession on part payment, has optional remedy on nonpayment of remainder to sue for specific performance, to bring action to recover land, or, under Laws 1913, c. 138, to foreclose vendee's rights under the contract.-Sweet v. Purinton, S. D., 166 N. W. 161.

98. Installments.-Where a purchaser was in possession of land under contract, and certain installments of purchase money were not due, the vendor could not be required to take them in advance of the due date and call in the legal title.-Porten v. Peterson, Minn., 166 N. W. 183. 99. Wills-Divise.-Under a will devising property to a husband for life and over for sale and division among testatrix's brothers' and sisters' children and three others equally, the last three took equally with each of the nephews and nieces per capita.-Neil v. Stewart, Kan., 169 Pac. 1138.

100. Jurisdiction.-Under a will merely giving the trustee power of sale with the concurrence of the first life beneficiary, the trustee has no such power after the death of such beneficiary.-Combs' Guardian v. Swigert's Ex'r, Ky., 200 S. W. 38.

Central Law Journal.

ST. LOUIS, MO., MARCH 29, 1918.

RIGHT OF PARENT TO RECOVER FOR DEATH OF CHILD EMPLOYED WITHOUT FORMER'S CONSENT.

In Kirkpatrick v. Ferguson-Palmer Co., 77 So. 803, decided by Supreme Court of Mississippi, it was held that, where a minor child was without the consent of his surviving parent in the employ of a lumber company and the child by his contributory negligence was instantly killed by a falling tree, there was no right of recovery by the parent against the company, this ruling being by a majority of three to two members of the court.

It is interesting to notice the prevailing and dissenting opinions in this case, and to compare the general theory upon which the two opinions proceed, the dissenting opinion being especially elaborate.

It was contended for plaintiff that the parent's right of recovery was that the employment at a dangerous undertaking, was without her consent and did not depend upon the statute giving to the minor's relatives a right of action for his death, but it rested upon violation of parental right to the child's services, which right was wrongly interfered with.

The defendant contended that at common law no action would lie for the death of a human being, especially where the death was instantaneous; "that the right to maintain an action under the (Mississippi) statute depends upon a real wrongful or negligent act and that the true test whether the person killed could have maintained an action * * * if death had not resulted."

15

The prevailing opinion appears, however, to recognize that some differentiation must be made between cases of minors employed with and without parental consent and holds that the effect of employment without consent is to make the employer liable

"for any injury as the result of being placed at such (dangerous) work."

This opinion also says that: "Conceding that the wrongful employment in the present case was an actionable wrong, the measure of damages under the common law could be no greater than would be the measure of damages if appellee were guilty of the wrongful or negligent killing of the boy. In other words, without our statute,

recovery would be limited to services lost during the minority and prior to the death of the child."

In this case as the death was instantaneous there would be no right of action, without the statute. The dissent combats very vigorously this proposition.

The really interesting question in the case was whether at common law any right of action survived to a parent because of death of his child wrongfully caused by another. The general rule at common law that no right of action lay for the death of a human being so far as right of inheritance is concerned, there is no obstacle in applying, because the right of inheritance itself contemplates the ensuing of death.

But suppose there is an independent right in the continuation of a life. Why should not any wrongful interference with that right be good basis for an action. Thus a child is entitled to support by parent and a parent is entitled to services of a child, each right, we will say, being determined by the child's passing his minority.

The dissent cites authority to show, that at common law a master may sue for enticing away his servant and recover according to the time of service remaining unexpired. And if a child is put at dangerous employment without the parent's consent and is injured, there may be recovery for loss of service.

But, if the right to recover is taken away by reason of a wrongdoer causing death, and not merely injury, then there is presented an anomaly in law as well as in logic. The wrongdoer is made liable for what may be a slight wrong and excused if

the wrong is more grave. Is it too broad an application of the common law rule, to say that there being no right to recover for a human life, this precludes all right to recover for the destruction of one's interest in a human life?

be deemed to express the full measure of a wrongdoer's liability therefor. And the question of the right of a parent to recover for the death of a child does not present itself so clearly as were a master suing for the death of an apprentice, in whose life no statute gave him any right.

The common law rule of no one hav

fit to his master. Just at the time he promises to be of benefit to his master, he is killed by the wrongful act of another. Why should the general principle of no right to recover for the loss of life of another cut off the master's right to action, especially if the master may recover if the apprentice merely is injured?

So take a child, who has been taken care of when of tender years. Why should not his father recover for his death wrongly caused, when he is approaching manhood?

We may conceive that there might be a

least when a tort is so severe as to extinguish that life, does not wholly satisfy the inquiry presented. When a child is injured two rights of action arise, one by a parent and another by the child himself. Why should death of the child destroy the action by the parent? It is only because a statute for its death is to be construed as covering the entire damage. Where an apprentice is killed and no statute provides for a master's recovery therefor, the death of the apprentice should not defeat all interest of the master in the contractual right which has been affected.

ture in a child's education up to the time one has lost his child, but what his services up to the time he would have attained his majority would be deemed to be worth might be different.

There is room for the rule that one may not recover for the death of another, unless

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statute otherwise prescribes, without making it embrace a special interest in another's life. In the latter case you do not seek a benefit from another's death, but you do seek reimbursement for a loss, that by contract or by relation equivalent to contract has been created.

In the case we are noticing the dissent says that the surviving parent's right and those of the next of kin "depend upon different principles and entirely separate rights." At the same time, if there be a statute giving to a surviving parent a right of action for the death of his child wrongly caused by another, the statute ought to

HABEAS CORPUS-SUMMARY ACTION IN DETENTION OF ALIEN ENEMIES.-Ex parte Graber, 247 Fed. decided by District Court, Northern Division, Middle District of Alabama, holds that the writ of habeas corpus does not lie in favor of an alien enemy restrained of his liberty by the President under the provisions of Presidential Proclamation authorized by Congress to enforce alienage act after declaration of war.

The court so holds in a case where there was no dispute as to applicant for writ of habeas being an alien as described in the law and the proclamation, but his claim was that he was not about to violate any rule or regulation promulgated by the president in his procla mation, and impliedly, he concedes that were he about so to do, he would make himself liable to restraint. Neither does he claim that he was not given reasonable opportunity to show any facts that would take him out of the scope of the proclamation. He sought merely by his petition seemingly for the first time to raise an issue of fact as to whether he was a person liable to be restrained or interned.