benefit to her estate by settlement agreement of client who forebore to sue for accounting, or to follow joint property of husband and wife, and she was not in such case husband's surety.McKay v. Corwine, Ind., 118 N. E. 978.

55. Injunction-Negative Covenant.-Court of equity will infer negative covenant in contract of employment, where equity and justice require; but such covenant, to be interfered with by injunction, must be clearly implied and understood by all parties, and should not be implied unless indispensable to carry out their intention. Kennerly v. Simonds, U. S. D. C., 247 Fed. 822.

56. Sureties on Bond.-Sureties on bond of administratrix, sued jointly with her on distributee's judgment obtained on citation against her, might show that the judgment was obtained by collusion and fraud, and that she had lawfully paid over distributee's share, or had lawfully expended it, so that there was no ground for restraining suit on the judgment.-Shipp v. McCowen, Ga., 95 S. E. 251.

57. Insane Persons-Attorney and Client.Where an incompetent hires more attorneys than are reasonably necessary to fully protect his interest no recovery can be had for the excessive services, but a single allowance may be made and apportioned.-Fitzpatrick's Committee v. Dundon, Ky., 201 S. W. 339.

58. Insurance Continuing Representation.Stipulation in application for life insurance that policy shall not take effect until first premium is paid "during my insurability" was not continuing representation that applicant would remain in good health until application was accepted.-American Nat. Ins. Co. v. Brown, Ky., 201 S. W. 326.

59. Estoppel.-Where the property owner, on learning that a fire policy was in her divorced husband's name, sent her agent to the insurer's agent, who advised her to get an assignment, but said that the policy was all right, the insurer was estopped to defend under clause of policy avoiding it if the insured's interest were other than as therein stated.-Mercer v. Germania Fire Ins. Co., Ore., 171 Pac. 412.

60. Explosion. -Fire policy provision against liability from explosions, unless fire ensues, and in such event for fire damage only, does not exempt from liability for loss where fire preceded and proximately caused explosion. -Western Ins. Co. of Pittsburgh, Pa., v. Skass, Colo., 171 Pac. 358.

61.- -Insolvency.-Where insurance commissioner has charge of insolvent insurance company he may bring one suit for benefit of creditors to collect all unpaid subscriptions to capital stock, and if properly brought in county or residence of some of defendants others of same class may be joined, although not residents.-McKey v. Wright, Ga., 95 S. E. 217.

62. -Proofs of Loss.-That plaintiffs in their proof of loss to defendant insurer had placed value of furniture before fire and amount of loss at higher figure than found by jury, would not, as a matter of law, show plaintiff's fraud or false swearing.-Royal Ins. Co. of Liverpool, England, v. Humphrey, Tex., 201 S. W. 426.

63. Interest - Computation.

- In calculating interest on note in case of partial payments, interest should be calculated on demand to first payment, added to principal, and payment deducted, then interest should be cast on remainder to second payment, interest added, and second payment deducted, etc., unless interest up to any payment shall exceed it, when payment is to be deducted from interest, and excess interest carried forward without casting interest to next payment that will discharge excess.-Sutton v. Libby, Mo., 201 S. W. 615.

64. Libel and Slander-Injurious Publication. -In suit for publishing article stating that plaintiff had leprosy, that court modified defendant's requested instruction that "word 'obloquy' is defined as blame, reprehension" by adding "a clause of disgrace or reproach" constitutes no cause for complaint.-Lewis v. Hayes, Cal., 171 Pac. 293.

65. Life Estates-Remainderman. Adverse possession as to an easement does not run against a remainderman until the death of the life tenant, where legal title to property bur

dened with easement was in trustee holding for life tenant's use, and remainderman derived title from power of appointment exercised by life tenant by will.-Greenbaum v. Harrison, Md., 103 Atl. 84.

66. Rentals.-Where father and son leased land, it was competent for father's widow, to whom he devised life estate in all his property, instead of demanding possession, to permit lessee to continue in possession, in which case she would be entitled to rental which would have been her husband's had he survived.-In re Doore's Estate, Iowa, 166 N. W. 763.

67. Malicious Mischief Criminal Law. If reasonably prudent man would have deemed it necessary to drive automobile into dangerous place to escape more dangerous collision with driver of another car, driver of other car is criminally responsible for act which he rendered necessary.-State v. Abney, S. C., 95 S. E. 179.

68. Mandamus-Warrant Holder.-Where warrant of irrigation district is accepted in payment of its debt, warrant holder's remedy, if there are no funds to pay warrant and proper officers fail to certify necessary amount and make levy therefor, is exclusively by mandamus. -Rio Grande Junction Ry. Co. v. Orchard Mesa Irr. Dist., Colo., 171 Fac. 367.

69. Master and Servant-Agency.-A foreman, in full charge of the employes in a room, is an "agent," within Rev. St. c. 50, § 30, whose knowledge of an accident makes written notice by servant unnecessary. In re Simmons, Me., 103 Atl. 68.

70. Assumption of Risk.-Where plaintiff servant, having been ordered to carry wood, inspected it, thought it too heavy, and so told foreman, who replied that he needed it and to get it if plaintiff cared about his job, and servant tried to carry log, and thereby suffered hernia, he assumed the risk and could not recover.Ehrenberger v. Chicago, R. 1. & P. Ry. Co., Iowa, 166 N. W. 735.

71. Federal Employers' Liability Act.Where conductor, injured by rear-end collision when his train stopped,, relied on rear brakeman to do his duty in back-flagging, negligence in this respect on brakeman's part would be chargeable to railroad company, and not conductor, under federal Employers' Liability Act. -Eley v. Chicago Great Western R. Co., Iowa, 166 N. W. 739.

72. Ordinary Care.-Pedestrian is not bound to guard against another's negligence in operating his automobile, but has a right to presume that ordinary care will be used to protect him from injury.-Oelrich v. Kent, Pa., 103 Atl. 109.

73. Protection of Employes.-Where an employer makes a rule for the protection of employes, he admits the reasonable necessity for the conduct thereby prescribed, and a violation of the rule can be found to be negligence, and the master cannot assert that the rule is not necessary. Topore v. Boston & M. R. R., N. H., 103 Atl. 72.

74. Res Ipsa Loquitur.-That section hand replacing old ties in defendant's railroad track stumbled over fence posts scattered along right of way and covered with grass did not show negligence of defendant.-Baker v. Lusk, Mo., 201 S. W. 357.

75. Respondeat Superior.-Where telegraph operator, while off duty, was injured by defect in roadmaster's gasoline speeder on which he was journeying to nearby town to procure supplies, on roadmaster's invitation, company was not liable to him as employe.-Glover v. Chicago, M. & St. P. Ry. Co., Mont., 171 Pac. 278. 76. Statutory Construction. Industrial Commission's rule, and award based thereon, requiring employer to pay for medical services for two weeks after employe's disability occurs, is inconsistent with Rev. St. c. 50, $ 10, requiring payment for medical services rendered during first two weeks after injury, where disability did not immediately develop.-In re McKenna, Me., 103 Atl. 69.

77. Mechanics' Liens Default. Subsequent default of building contractor who has become entitled to payment under his contract will not bar rights of a claimant who has secured lien on such earned payment by stop notice, though

contract permits owner to take over work and apply money not paid to contractor to expense of completion. Moorestown Supply Co. v. Burns, N. J., 103 Atl. 83.

78. Mortgages-Mechanics' Lien-Mortgage is entitled to priority over a mechanic's lien, though mortgage was not recorded until after work was begun, where contractor for building, claiming the lien, had knowledge that money was to be borrowed and mortgage given therefor.-Union Terminal Co. v. Turner Const. Co., U. S. C. C. A., 247 Fed. 727.

79. Municipal Corporations-Bond of Officer. -Bond of city treasurer providing that surety shall make good any loss sustained by city by any act of treasurer amounting to larceny, was sufficient; it not being necessary to detail in bond treasurer's duties.-City of Seaside V. Oregon Surety & Casualty Co., Ore., 171 Pac. 396. 80. Contributory Negligence. Plaintiff's failure to take any precaution to protect his premises, after knowledge that sewer main was of insufficient capacity, constituted contributory negligence barring recovery against defendant city for damages due to sewer water backing up into plaintiff's basement.-Hume v. City of Chilton, Wis., 166 N. W. 776.

81.- -Governmental Powers.-Town has no right in governmental capacity to land occupied by street, but it has rights as municipal corporation owning land abutting on street.-Town of Brookline v. Loring, Mass., 118 N. E. 981.

82. Independent Contractor.-Municipality was not liable for death caused by fall of a smokestack being erected under contract, where such erection was not necessarily dangerous when done with care by persons having skill, and the municipality did not know the contractor was incompetent and did not control the methods or appliances of the contractor in performing the work.-Cash v. Casey-Hedges Co., Tenn., 201 S. W. 347.

83.-Presumption.-Where plaintiff proves that the vehicle which caused his injury belonged to defendant, he makes a prima facie case, since the jury may infer that the driver was defendant's servant, and that the vehicle was being used for defendant's purposes.-West v. Kern, Ore., 171 Pac. 413.

84. Negligence-Licensee.-The implied invitation of a storekeeper is broad enough to include one who enters a general store with a vague purpose of buying if she sees anything that she wishes.-MacDonough v. F. W. Woolworth Co., N. J., 103 Atl. 74.

85.

defend

Payment-Presumption.-Where ant agreed to deliver corn to plaintiffs, and executed receipts for advancements, and he delivered corn, it should be presumed that corn received was applied to receipts, and, when their amount in value had been delivered, plaintiffs could not recover attorney's fees as provided in the receipts.-Born v. Union Elevator Co., Ind., 118 N. E. 973:

86. Physicians and Surgeons-Negligence.Where negligence charged was improper reduction of fracture, and use of improper appliances to keep fracture in position, act of defendant in his treatment of injury, not involving such charges of negligence, afforded no basis for recovery.-O'Grady v. Cadwallader, Iowa, 166 N. W.

755.

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87. Principal and Agent-Change of Employment. Where an automobile salesman was discharged, his going to work immediately on farm did not as a mater of law forfeit his right to damages, since he was not bound to secure the master's consent to change his work, though the master could show what he could have earned had he secured employment of the same general nature as selling automobiles, if it was reasonably possible to secure such employment.— Bertholf v. Fisk, Iowa, 166 N. W. 713.

88. Sales Countermanding Order. Where buyer countermanded order several months prior to delivery of goods to carrier, and notified seller that he would not accept goods, seller's remedy was by a suit for breach of contract, or under Civ. Code 1910, § 4131.-Blackstock, Hale & Morgan v. Phillips-Jones Co., Ga., 95 S. E. 265. 89. Specific Performance-Mutuality.-Where contract between publisher and author merely

gave publisher option to acquire author's later work, and did not bind publisher to purchase it, option contract cannot be enforced, as negative covenant in contract of employment, because not mutual.-Kennerley v. Simonds, U. S. D. C., 247 Fed. 822.

90.

Stipulations-Breach of.-Agreement between buyer and sellers of standing timber, each claiming title to land, made pending suit between them to determine title, requiring deposit of contract price with stakeholder, contemplated right of appeal, and buyer's withdrawal of fund after trial decision before right of appeal expired was a breach making him liable for damages.-Halstead v. New River Colleries Co., W. Va., 95 S. E. 208.

91. Street Railroads-Acquiescence.-That a borough made no effort for 12 years to question a street railway's right to occupy a highway formerly in a township from which borough had been set off was strong evidence of its acquiescence in street railway's claim to rightful occupation of the highway.-Pittsburgh Rys. Co. v. Borough of Carrick, Pa., 103 Atl. 106.

92. Negligence.-Evidence that plaintiff who intended to enter rear door of the pay-asyou-enter street car was injured by opening of front door while passing by it, etc., held not to establish street railroad's negligence.-Murray v. Cumberland County Power & Light Co., Me., 103 Atl. 66.

93. Trusts-Implied Trust.-Where agent in violation of his trust uses money of his principal, law implies trust in favor of principal, and to enforce it equity will subject property purchased to claims of principal, as against either volunteer or fraudulent grantee.-McKay v. Corwine, Ind., 118 N. E. 978.

husband

94. Resulting Trust.-Where a acting as agent for his wife exchanged land belonging to her for another tract, thereby purchasing for her the land received in exchange, but took title in himself, the wife on discovering it was entitled to have a resulting trust declared. -Pickron v. Pickron, Ga., 95 S. E. 238.

95. Wills-Contest.-Where one contesting will had at one time been in charge of estate of testator, checks drawn by contestant were admissible as bearing on whether contestant had defrauded testator, and thus tending to rebut presumption of undue influence on part of proponent.-Monahan v. Roderick, Iowa, 166 N. W.

725.

96. Lunacy.-The finding of a lunacy commission as to testator's mental state three weeks before his death and covering a period during which the will was made is only prima facie evidence of facts found, and is not conclusive.In re Coleman's Will, N. J., 103 Atl. 78.

97. Statutory Construction.-Civ. Code 1910. § 3851, providing that no one leaving a wife or child or descendants of a child shall devise over one-third of his estate to any charitable institution, prohibits a testator's exclusion of such persons, which prohibition is not made in the public interest, but only to prevent what the statute regards as a private wrong.-Monahan v. O'Byrne, Ga., 95 S. E. 210.

98. Testamentary Capacity. - Where the beneficiary under a prior will contested the proposed will for alleged lack of testamentary capacity, she could not succeed by showing that testator was always foolish and simple, but only by showing that incapacity arose between the making of the two wills.-Touhey v. Cooney, Iowa, 166 N. W. 684.

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99. -Spendthrift Trust.-Will devising residue to three children, share and share alike, with right of survivorship, and putting share of a son into hands of executor as trustee to pay income, with remainder to his heirs, created a spendthrift trust, so that trust property could not be reached by creditors of cestui que trust. -Everitt v. Haskins, Kan, 171 Pac. 632.

100. Workmen's Compensation Act-Casual Employe.-Under Workmen's Compensation Insurance, and Safety Act, § 14, a carpenter employed to erect a dwelling house, who worked for over three months at day wages, was not a casual employe.-Armstrong v. Industrial Accident Commission of State of California, Cal., 171 Pac. 321.

instant case, "inalienable rights which belong to human beings at all times and in all places," such as the right to labor for a living at the ordinary kinds of business.

When, however, a business becomes subject to regulation there are cases "which hold that the state can refuse to grant to aliens a license to engage in those trades, occupations or callings, which are subject to governmental control or regulation as a part of its police power," such as selling liquor. peddling, pawnbroking, etc.

For exercising the trade of a barber, it was held to be unconstitutional to bar an alien, as such. Templar v. State Examiners, 131 Mich. 254, 100 Am. St. Rep. 610. And so to carry on a laundry. Yick Wo v. Hopkins, 118 U. S. 220. And where a statute required employment of 80 per cent of native born citizens among a company's employes. Truax v. Raich, 239 U. S. 33, L. R. A. 1916 D, 545.

In this last case it was said, that the statute referring to every employer, whether corporation, partnership or individual "thus covers the entire field of industry. *** The purpose of this act is not only plainly shown by its provisions, but it is frankly

revealed in its title. It is there described as 'an act to protect the citizens of the United States in their employment against noncitizens of the United States in Arizona, ***But police power, within the broad range of legislative discretion does not go so far as to make it possible for the state to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the (14th) Amendment to secure."

In Commonwealth v. Hanna, 195 Mass. 272, 81 N. E. 149, 11 L. R. A. (N. S.) 799, the question was as to the validity of a statute restricting the issuance of a peddler's

license to citizens and those who had declared their intention to become citizens. The court said: "The business of peddling furnishes such opportunities for the practice of fraud that it is a proper subject for That such regulegislative regulation. lation has been practiced from early times, both in Europe and America, is shown at length by Mr. Justice Gray in Ernest v. Missouri, 156 U. S. 296. The requirement of Rev. Laws that before receiving a license the applicant shall file a certificate from the mayor of a city that to the best of his or their belief, he is of good repute for morals or integrity, is a reasonable regulation for the protection of the public. If, in the same. interest, the legislature deems it important that licenses shall be granted only to citizens of the United States, or to those who have declared their intention to become citizens, it can hardly be said that they have exceeded their constitutional right in passing a law to that effect."

lected and directed to report to defendant was avowedly for the purpose of forcing him into military service in a foreign country which plaintiff contended was contrary to the limitation of the Constitution, which provided that the power to call the national militia into federal service shall have for its sole purpose "to execute the laws of the Union, suppress insurrections and repel invasions."

Although the Supreme Court had answered this and other objections to the draft law in the Selective Draft Cases, 245 U. S. 366, Chief Justice White, succinctly summed up the reasons for upholding the rights of Congress to raise an army by conscription as follows, to-wit:

"(a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were not qualified or restricted by the provisions of the militia clause and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that from these principles it also follows that the power to call for military duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived and knew no limit deduced from a separate and for the purpose of the war power wholly incidental if not irrelevant and subordinate provision concerning the militia found in the Constitution."

PUBLIC SERVICE CORPORATIONS. DAMAGES FOR DISCRIMINATON BETWEEN COMPETITORS.-It has been established by American decision, that mere reasonableness in rates to be charged by public service companies is not the only obligation by them, but in addition, there is an anti-monopoly rule, which prevents them from favoring one individual, so that free competition between all customers might be unduly affected. A recent work on public service companies treats this question quite extensively. Collier on Public Service Companies, 1918, pages 276-283.

In Homestead Co. v. Des Moines Electric Co., 248 Fed. 439, decided by, Eighth Circuit Court of Appeals, where there was alleged a discrimination in lesser rates being charged to a competitor in business than to plaintiff and the petition claimed as damages the difference between the two rates, it was held, that the petition showed a cause of action, but the true measure of damages was expected profit

that reasonably might have been earned had there have been no interruption or depression caused by the unlawful discrimination.

Speaking of the facts in the case at bar, Sanborn, C. J., said: "The plaintiff in effect avers that, if the defendant had not unjustly discriminated against it, it would have sold the same amount of its products *** and that it would in that case have had left" a named amount in profits prevented from being realized by the unjust discrimination.

It was said: "It may be that plaintiff will have difficulty in proving * * * such or any loss of profits, under the wise and conservative rules of law which guard against speculation, uncertainty and conjecture in the determination of such losses, but the averments of the complaint are sufficient to permit it to present competent evidence of a loss of profits caused by the unjust discrimination it pleads."

Stone, C. J., concurring specially, thought that generally the measure of damages would be the difference in the two rates, but where. there are competitive conditions and these are affected by discrimination, "there is an additional consideration. The object of business is profit, when anyone by an unlawful act reduces the profit of another, the law provides for restitution of that loss. Competition limits the sale price. When a business man is given a lower rate for power or some other element entering into the fixed cost of the article he produces, it is an absolute certainty that his profit has been increased by just the amount of the reduction. It is equally certain that every competitor has been put at a disadvantage in just that sum."

But is it true that this is the only damage he suffers? The competitor captures the market. The other man cannot do business at all. If he has had an established business, it thenceforth is or may be destroyed. And must competition be confined in so strict a sense? If one competitor cannot live as cheaply as another and, therefore, must charge more in carrying on his business than the other, has not the one to whom has been accorded a preferential or lower rate, at least in the necessities of life, a great advantage in the world of competition? So many things in these days of competition and classification exist, that it is hard to tell what enters into the domain of overhead expense in business. At least we know, that omnia presumuntur contra spoliatorem, and nothing is inferred in favor of a willful wrongdoer. And there ought to spread the idea that benefits of a special kind are spoliations of public right.