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defendant had exclusive opportunity, evidence that the prosecutrix was seen away from her home with other men at about the time in question was inadmissable.-State v. Tetrault, N. H., 95 Atl. 669.

93. Receivers Appointment.-Where a mortgage creditor of a business corporation provokes the appointment of a receiver, and other mortgage creditors acquiesce in the appointment, they are estopped to deny that supplies furnished the receiver should be paid for in preference to the debt due them.-Teutonia Bank & Trust Co. v. Security Brewing Co., La., 69 So. 833.

94. Reformation of Instruments-Parties.One who is both executor and trustee of his father's estate has no interest as trustee to sue for the reformation of a deed by which part of decedent's property was conveyed, in order to avoid liability for breach of warranty title to that part included by mistake.-De Veer v. Pierson, Mass., 110 N. E. 154.

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95. Sales-Warranty.-A buyer, who claimed that the seller breached a warranty as to the seaworthiness of coal barges, held to have the burden of proving that their unseaworthiness was not discovered before a given date.Marmet Coal Co. v. People's Coal Co., U. S. C. C. A., 226 Fed. 646.

96. Specific Performance Beneficiary.-The right of a wife, with whom deceased had made an antenuptial agreement to make her beneficiary of death benefit certificate, to a quasi specific performance against the beneficiary actually named in the certificate, could not be enforced after death of the husband, unless the named beneficiary was volunteer a had knowledge of the agreement.-Ryan v. Boston Letter Carriers' Mut. Ben. Ass'n of Boston, Mass., 110 N. E. 281.

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97. Street Railroads Emergency. In an action for personal injury in collision with street car, plaintiff's error of judgment prompted by fear of imminent injury did not absolve the motorman, under the humanitarian rule, from exercising reasonable care to avoid injury. Michaels v. Harvey, Mo. App., 179 S. W. 735.

98. Indebtedness.-A constituent company in a consolidation agreement, which has paid money for stock in the other company, held liable for the indebtedness of the selling company created in raising funds used for the benefit of the purchaser.-Norton v. Union Traction. Co. of Indiana, Ind., 110 N. E. 113.

99.- Look and Listen.-Driver approaching street car tracks held bound to look for cars and stop in place of safety if one was approaching, making it dangerous to cross.-Guffey v. Harvey, Mo. App., 179 S. W. 729.

100. Receivers.-Where a street railroad is operated by receivers they alone, and not the company itself, are responsible for personal injuries due to the negligence of the company's servants.-Ingino v. Metropolitan St. Ry. Co., Mo. App., 179 S. W. 771.

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102.- -Inheritance.-Those entitled to property upon failure to exercise power of appointment held entitled to elect to take under will creating the power, thereby defeating the inheritance tax, though donee of power gave part of the property to others.In re Slosson's Estate, N. Y., 110 N. E. 166, 216 N. Y. 79.

103. Transfer Tax.-Where a husband conveyed property to himself and wife as tenants of the entirety, held, that transfer taxes of his death could be assessed against only one-half of the property. In re Klatzl's Estate, N. Y., 110 N. E. 181, 216 N. Y. 83.

104. Trade-Marks and Trade Names-Adoption. A property right inhering in a trademark is perfected by its adoption, or adoption and use, and a later appropriator is a trespasser, though the prior claimant had not extended his trade into the territory of the later appropriator.-Theodore Rectanus Co. v. United Drug Co., U. S. C. C. A., 226 Fed. 545.

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105. Imitation.-Word "Wearever," stamped on aluminum ware, though expressive durability, held also distinctive, and entitled to protection from imitation by other makers of such ware under Comp. St. 1913, § 9490.-Aluminum Cooking Utensil Co. v. National Aluminum Works, U. S. D. C., 226 Fed. 815.

106. -Registration.-Registration

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words "Old Crow" as a trade-mark in connection with whiskey held valid under the act of 1905.-W. A. Gaines & Co. v. Rock Spring Distilling Co., U. S. C. C. A., 226 Fed. 531. 107. Trusts-Attorney Fee. Allowance of attorney's fees out of a trust estate will not be sustained on appeal, where the allowance is made up of several items in the aggregate, and without testimony as to the value of each of them. In re Clark, Iowa, 154 N. W. 759.

108. -Declaration of Trust.-Under a declaration of trust, held that, on the death of the settlor while his brother and nephew were living, the absolute ownership of corporate stock given in trust vested in the brother.-Wood v. Paul, Pa., 95 Atl. 720.

109.- -Equity.-A bank, whose cashier used its funds in paying another institution from which he had borrowed money, and delivered a note made by deefndants as collateral, held to have no equitable lien on the note on the theory of resulting trust; the cashier having no rights therein.-Pensacola State Bank v. Thornby, U. S. C. C. A., 226 Fed. 611.

110. Vendor and Purchaser-Constructive Notice. A recorded deed containing the name of E. forged as grantee held not to give constructive notice of E.'s alleged title to the land. -Nesland v. Eddy, Minn., 154 N. W. 661.

111. Rescission.-Where an agreement for the sale of land contained no provision as to retention of payments on default, and the vendor, who rescinded, was able to sell the land at the original price, the purchaser, who defaulted, is entitled to recover his payments.Chamberlain v. Ft. Smith Lumber Co., Mo. App.. 179 S. W. 740.

112. -Rescission.-Where plaintiff, after discovering the falsity of representations by which he was induced to purchase land, remained in possession and then leased the premises before beginning suit, his delay precluded rescission. -Cooper v. Hillsboro Garden Tracts, Or., 152 Pac. 488.

113. Waters and Waters Courses-Well Defined Channel.-Where water, after heavy rains

and melting snow, is regularly discharged through a well-defined channel that the force of the water has made for itself, the channel is an ancient natural water course.-Vandalia R. Co. v. Yeager, Ind. App., 110 N. E. 230.

114. Wills Construction.-Words in a will will not be given an unusual meaining, except where evidenced by the connection in which used and necessary to effectuate the intention of testator as gleaned from whole instrument. -Sims v. Ratcliff, Ind. App., 110 N. E. 122.

115.- -Deed.-An instrument in the form of a warranty deed, conveying certain land on condition that it was to go into effect only after the death of the grantors, the survivor to have possession during his or her natural life only, and that the grantee agreed to pay certain money within six months after the survivor's death, held a deed.-Trumbauer v. Rust, S. D., 154 N. W. 801.

116. -Residuary Estate. Will, providing that if residuary estate should amount to $4,500 "one half of this sum' was given to one charitable institution and the remaining half to others, held to give the whole residuary estate to such institutions.-Miller v. Idaho Industrial Institute, Mass., 110 N. E. 274.

117. Trust.-Where a will creates a life estate in trust, with remainder over at death of life tenant, the devisees take a vested fee in the remainder, subject to be defeated by their death prior to that of the life tenant.-Johnson v. Whitcomb, Ky., 179 S. W. 821.

118. Vested Interest.-Where testator bequeathed his residuary estate for life, with remainder over to his five children, the life tenant being granted power of disposition with the consent of the children, the remainder of a child was nevertheless vested.-Caples v. Ward, Texas, 179 S. W. 856.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 11, 1916.

A WELL BALANCED AMERICAN COURT.

An ideal judge, from the lawyer's standpoint, is a man whose mind is well stored with the principles of jurisprudence and able to apply them to progress in changing times and conditions. It has seemed axiomatic for them that the com

mon law as shown in its precedents is broad and deep enough for the solution, or to point to the solution, of all our problems so far as their claim to inherent justice is concerned. But whether we approve of these precedents or of the system under which they were created, our civilization has been built upon them, and recognition. of them as presenting a uniform rule has been demanded.

There is presumption, as a rule, of construction, behind constitutional and statutory enactment and behind acts and contracts and in their evolution in all of these things, which is referable to our common law. To think of growth with no tying clause to what has gone before, is to imagine something in the history of a people that has never taken place. If this should be attempted, no code of laws or rules of conduct could be framed to control every exigency in human affairs. Something must be left to be settled by tacit understanding arising out of the way people have formerly felt and thought and acted.

A competent judge, then, must be he who knows the precedents of former times, on which our people have builded, and he must be possessed of a mind trained to apply them in new circumstances. He must feel that these, being just as principles, will work out just in detail. But for this detail the legally informed mind may have little of original or acquired aptitude. In

deed, its intense absorption in devotion to principles may have unfitted it, to some extent, for initiative in practiced application. It will decide very rightly, if a proposed application is made, but, if it rejects it, it may not be able to suggest a proper substitute. It is intensely receptive, and it is not intended that it should be creative. What it creates it is partial to and objectors would not obtain a fair hearing on the merits of what a judge has worked out for himself. But this distinction has not been observed so far as the duties we have cast upon the judicial office is concerned. We have created courts, not only to decide questions of intimate justice in given situations, but we have made it their duty, when condemning situations, to supply others that would be lawful, and expedient.

This feature is illustrated in the various things a judge is called upon to do in the mere detail of his office. For example, a trial judge must see to the proper running of his court, which of itself should not be any great matter, where statutes are full and definite on this subject. But there are many things which discretion must provide. for and the judge must in discretion lay down rules which aim at practical results.

Suppose an injunction is sought against a corporation alleged to be insolvent and pending litigation a receivership is instituted. The corporation has extensive interests and litigation to a final decree promises to be of long duration. A prime reason for the cause of insolvency is alleged to lie in mismanagement by directors. Does the judge go any further than appoint the receiver and leave him to work out proper administration? If the judge is not a very practical man or versed in affairs in which the corporation is engaged, this might be the best thing to do. But, if he is a practical man and so versed, his hand ought to be a directing hand, and every step taken should be under his eye.

But the administrative feature goes further in our law, than in the preservation of property pending litigation. Some final de

crees direct how business shall be conducted so as to comply with the law, for disregard of which a business has been adjudged to fall under its ban. This observation is especially applicable to our trust legislation, and no more memorable case may be referred to than that whereby administrative direction was given in the Standard Oil

case.

The suit in which the Standard Oil was called to bar sought relief from monopolistic conditions. The relief was awarded. An adjudged monopoly was ordered dissolved. Ever since then it has been greatly debated whether or not the public has been served or the monopoly suffered by the decree. Here was a matter in which administrative ability to enforce the benefit adjudged, or to end permanently the injury declared, was imperatively needed.

It was a judicial act to declare that an unlawful combination existed and that the units of which it was made up must all act independently of each other. But there was more involved than the interests of the parties before the court. The combination could not vanish into thin air, without injury to those who had not had their day in court. There must be a modus vivendi which the court in its administrative capacity must provide, and a plan formulated to release property from the entanglement in which it had been involved.

Every one of these trust suits, where proceedings are brought by the government, involve, in a measure, like questions as in the Standard Oil case. The judicial faculty needs to be informed by business experience and assisted by expert knowledge.

But the states have similar problems in their courts. They may reach conclusions purely judicial in their nature. But complicated situations and commercial interrelationship demand wise practical management of a situation judicial conclusions

create.

But, even if equity courts proceed along ancient lines, there is something apparently

in our civilization that makes it necessary for discretion to be advised from a practical standpoint.

Let us suppose that an express trust or an implied trust or a trust ex maleficio is found to exist. Its long standing has drawn in other interests or complications have arisen which make the immediate carrying into effect of a legal conclusion productive of injustice. Administrative discretion is needed to obtain adequate, or as nearly adequate as may be, justice to all parties.

Our bankruptcy statute and our insolvency laws may be pointed to generally as efforts in the way of remedies of a cy pres character. These peculiarly need the administrative rather than the judicial faculty.

Finally, we suggest that all of our special quasi-judicial tribunals involve the thought we are discussing and proclaim that legislation recognizes the existence of what we are urging. It seems to us, therefore, that if we are to continue to impose on judges these administrative duties, a bench of two or more should have men not only with special talents as jurisprudents, but also with the practical knowledge of worldly affairs to round out the justice of their conclusions.

NOTES OF IMPORTANT DECISIONS.

CORPORATION-RIGHT TO FIX CAPITAL STOCK AT LESS THAN TRUE VALUE IN ARTICLES OF INCORPORATION.—In Missouri charter fees are graduated according to the amount of capital stock, starting with $50,000 as a minimum and charging so much additional according to each $10,000 in excess thereof. Incorporators listed their assets at cash $1,000 and personal property $90,000 and asked for incorporation with an authorized capital stock of $50,000. Fees were tendered for this amount, but the Secretary refused to grant letters of incorporation. Mandamus was asked to compel him to grant certificate of incorporation and the preliminary writ was quashed on

demurrer by a majority of four to three. State ex rel. v. Roach, 181 S. W. 90.

The theory upon which the prevailing opinion goes is that the measure is one, primarily, at least, for revenue, and the state is interested in the true value of the capitalization being stated at the inception of a corporation's operations.

The court says information required to be given by incorporators "is of two-fold importance; one in the protection of the public, that no corporation may be organized in which property is taken as capital stock unless the value of the same is equal to the proposed capitalization; the other in the interest of the state, in the exercise of its taxing power, that a corporation may not be organized for a less amount than is shown by the sworn statement of its officers and directors to be the cash value of its property proposed to be taken as the capital stock, which would result in the state being deprived of the corporation tax on the excess of value of the property above the proposed capitalization."

If there is any reason for graduating the fee or tax for incorporation, that reason is entitled to protection. If it is because a corporate entity with enlarged capital has a privilege of enhanced value, the state is entitled to charge for the enhancement. If it may be related to its operations so far as there might arise conflict between stockholders and creditors is concerned, the purpose is one for protection, just as in cases where there is overvaluation. And if this tends to prevent confusion as to what may be deemed donation and capital stock so far as excess above authorized capitalization is concerned, the record should be kept clear on this subejct.

It is true the state is more particularly interested for the benefit of the public that property used for corporate purposes should not be overvalued, but why in an authorized capital stock of $50,000 in cash paid in, should the corporators be allowed to pay in $100,000 and be allowed to call it the former? They get, by indirection, a privilege of enhanced value to that obtained if they only paid in $50,000.

WILLS COMPUTATION OF DEGREES OF KINSHIP BY DISCREDITED RULE.-In Wheat v. Hill, 227 Fed. 984, decided by Fifth Circuit Court of Appeals, a clause in a will reading: "I hereby will, bequeath and devise to each of my relatives and kindred by blood of the first and second degree, the sum of five thousand dollars ($5,000) in cash," came

up for construction. It was held that to ascertain who were entitled, resort should be had to the canon law of England rather than the civil law, this being, as the court thought, the intent of the testator.

The canon law of England was never a part of the common law of this country, for the reason that, among other things, it provided for primogeniture and estates male tail as preferred to estates female tail. As a pure computation it was never in force even in England. The civil law as a rule of computation was generally adopted in this country and it was based upon blood as well. In Texas, as we gather from statement in the opinion, there is no legal distinction between the half and the whole blood. The court's ruling, however, was in favor of uncles and aunt instead of a sister of the half-blood. It was only by canon computation that the uncles came under the second degree. Why should the court conclude that a discredited way of computation should be taken at all? If it had never been in existence anywhere there would be no way of showing an uncle stood in the second degree. Is it not, as if it had never existed anywhere? What existed in England as common law not applicable to our condition, ought to be the same as if it were non-existent, so far as America is concerned. Is it not better to go upon the theory that a testator knows the law of his own state putting half and whole blood on the same footing?

HOMESTEAD-GRANT OF RIGHT OF WAY WITHOUT JOINDER BY WIFE.-In Eng v. Oken, 155 N. W. 796, decided by Nebraska Supreme Court, it was held that a lease for 99 years of a right of way across a homestead unacknowledged by the wife was void.

There is diversity of opinion on this subject. Cases recognizing validity of such a conveyance considering, that a lease is merely the management of a homestead, while the other view is that public policy exemplified in homestead laws looks to the complete integrity of the interest provided for, unless any conveyance at all affecting the rights of the family observes strict statutory requirements. When it is remembered, that it is so easy to procure a properly acknowledged instrument to affect a homestead, it hardly seems there is any reason to protect those who neglect to protect themselves.

Some cases, notably those from Iowa, which were followed in Texas, hold that a conveyance of a right of way across a homstead does not

"defeat the substantial enjoyment of the homestead as such." But this is speech in a relative way and the rule ought to be firm on the line of principle. In a Mississippi case it was said that "a right of way for a railroad company is from its essential nature an interest in land and to the extent of the land taken is a direct dimination of the homestead." It is not perceptible wherein a grant of the right of way for any other purpose would differ in principle from the grant of railroad right of way.

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STATUTE FOR PROTECTION OF MIGRA TORY GAME BIRDS.-It has been held by two courts and to the contrary by a third, that federal statute for the protection of migratory game birds was unconstitutional, and Kansas now comes forward in a fourth case and agrees with the two decisions above referred to. State v. McCullagh, 153 Pac. 557.

It is interesting to note the reasoning of this court. It says: "The natural flight of wild fowl from one point to another does not constitute 'commerce,' unless that word be expanded beyond any significance heretofore given it. Whatever other element may be spared from a definition of this term, it has not been heretofore directed or affected by human intelligence. But, if the fact were otherwise, the circumstance that birds of a particular species do not habitually remain throughout the year in the same state could hardly bring them within the control of Congress, on the theory that they were thereby impressed with a national character as the subject of interstate The habit of migration does not vest in the federal government the title to the animal possessing it. Wild animals are declared to be subject to the control of the state to belong to the people of the stateand the rule has been repeatedly applied to migratory birds."

commerce.

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But this reasoning does not seem very conclusive. The state may have title to migratory birds, but, as they are ferae naturae, a captor acquires property in them, though he may be punished for taking them out of season.

Suppose, however, it was of some aid to commerce that migratory birds be legislated about. Congress would have the right to do the legislating.

But independently of this, it was held in considering the White Slave cases, that the government might exercise a police power in regard to the flight of women from one state to another, and why not in regard to the flight of birds? It may be remembered, too, that the Lottery Law was held to be constitutional.

THE NEUTRAL IN THE BRITISH PRIZE COURTS.

The main principles of international law, in their application to the circumstances of the present war, have by this time been settled by the Prize Court; the bigger part of that tribunal's work has been performed, for the British navy has done its work effectually; and the Prize Court will not be asked any more to adjudicate on enemy captures for the simple reason that there are no enemy craft on the high seas to afford subjects of capture. The work of the court in the future will probably be wholly concerned with questions affecting neutrals, who may be endeavoring to trade with the central European powers. We propose, there

fore, to state how hitherto the Prize Court has dealt with neutral interests, and to leave readers of this journal to form their own opinions as to the rightness in international law of the judgments given. In our survey we shall include decisions of the Prize Courts set up in the British Dominions and colonies as well as of the Chief Court in London.

By article 40 of the Declaration of London "a vessel carrying contraband may be condemned if the contraband forms more than half the cargo." The Lorenzo, the property of the New York and Porto Rico Steamship Company, was condemned in the Court of St. Lucia as lawful prize, notwithstanding that her owners had no knowledge that she was being employed in carrying contraband. The same judicature condemned the Thor, a Norwegian vessel, in the following circumstances. Prior to the declaration of war she left an American port ostensibly bound for a South American port with a cargo of coal, but unknown to her owners the charterers changed her course, sending her to coal German warships. While on this mission she was, several weeks after the outbreak of the war, captured by a British cruiser. It was proved that the ar

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