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include the power to prohibit, and such amusements can be prohibited only when a nuisance. -Nahser v. City of Chicago, Ill., 111 N. E. 119.

91.

Torts-Nuisance.-Where

citizens, without malice and in honest belief of power of board to act, presented petition to aldermen to revoke merchant's license on ground that his store was a nuisance, they were not liable for damage caused to plaintiff by illegal revocation. -McKee v. Hughes, Tenn., 181 S. W. 930.

92. Trusts-Trustees.-Where one of two or more trustees disclaims, the remaining trustee or trustees are vested with all the powers of the trust necessary to carry out the purpose. -Stein v. Safe Deposit & Trust Co. of Baltimore, Md., 96 Atl. 349.

93. Vendor and Purchaser-Fraud.-Where one who has obtained a title by fraud conveys it to a third person to discharge a pre-existing debt, the latter is a purchaser for value, in the absence of bad faith and notice.-Sutton v. Ford, Ga., 87 S. E. 799.

94. Waters and Water Courses-Appurtenance.--A conveyance of land on a nonnavigable river, describing the land as beginning and ending on the bank, without a closing call, did not pass title to the river bed as an appurtenance of an ice plant then on the land, as an easement, but not title, may pass without express words as an incident to a grant.-Whittier v. Montpelier Ice Co., Vt., 96 Atl. 378.

95. Flood.-A flood not shown to have been higher than previous floods, but which plaintiff claimed injured his premises because the defendant railroad company had partially filled in trestles of a dirt embankment causing the water to back up, is not an act of God excusing the railroad company from liability.-Galveston, H. & S. A. Ry. Co. v. Vogt, Tex. Civ. App., 181 S. W. 841.

96. -Servient Tenement.-The proprietor of lower land is not bound to receive surface waters which naturally flow from the estate above, but the right to occupy and improve land by changing the surface is not restricted by the fact that the change will cause water to flow over adjacent land, or to stand thereon in unusual quantities.-Rutkoski V. Zalaski, Conn., 96 Atl. 365.

97.

Surface Water-A railroad company whose roadbed was properly constructed with an opening for surface waters, on allowing debris to wash off of its tracks and obstruct the drain, held liable for the inundation of adjoining lands.-Yazoo & M. V. R. Co. v. Scott, Miss., 70 So. 459.

98. Wills-Attestation.-Will of blind testator, signed by witnesses but four feet from him, he having the opportunity to hear they were signing the paper he had signed, held not invalid, as having been signed by the witnesses out of his presence.-In re Allred's Will, N. C., 86 S. E. 1047.

99.- -Bequest.-A clause of a will giving a fund to be "divided equally among the legatees in N., B.'s, W.'s, B.'s, and H.'s," is not to be construed as a bequest to families, rather than to individual legatees elsewhere named, because of the "s" added to the names.-Higgins v. Safe Deposit & Trust Co. of Baltimore, Md., 96 Atl. 322.

100. Canonical Law.-A bequest to "relatives and kindred by blood of the first and second degree" held to be construed by the canonical law. Wheat v. Hill, U. S. C. C. A., 227 Fed. 984.

101. Construction.-A provision in the fifth item of a will giving one grandchild $1,000 "in addition to the equal portion" of the estate, held not to show a testamentary scheme that the special devise to another grandchild, mentioned in item six, should not be additional to a devise to such grandchild of an equal division among testator's children and grandchildren.— Jefferson v. Phone, Ga., 87 S. E. 665.

102. Construction.-Where real property was devised in trust with directions to the

trustees to pay the income in testator's children and to divide the property on death of the last of the children among the testator's legal heirs, the estate vested at the time of the testator's death, and not at the deah of the last life tenant.-Blume v. Kimball, Mass., 110 N. E.

1036.

103. -Construction.-A bequest "to my cousins" held to mean first cousins only.-Walker v. Chambers, N. J. Ch., 96 Atl. 359.

104.- -Directions to scrivener.-Testimony of the scrivener as to the directions testator gave him and what he supposed was the effect of the language he used in executing those directions cannot be considered in, construing the will. Wyatt v. Henry, Ark., 181 S. W. 297.

105.- -Donation.-A bequest by a wife to her husband, of her entire property "to use as he may see fit (during) his lifetime" is a donation of the usufruct.-Rice v. Key, La., 70 So. 483. 106. Election.-Since election in wills implies inconsistent benefits, a husband who is made trustee of his wife's estate cannot elect to take only as trustee and waive his statutory estate, which is not inconsistent with the trusteeship. Studebaker Bros. Mfg. Co. v. De Moss, Ind. App., 111 N. E. 26.

107. Limitation of Estate.-Where testator devised a fee-simple estate of inheritance at common law, any attempt on his part to cut it down to a life estate in the devisee, with remainder over to her issue surviving her, and if none then to others, could not limit the estate devised.-Ashby v. McKinlock, Ill., 111 N. E.

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109.- -Notice of interest. Where plaintiff who asserted an equitable interest in land, contended that he told defendant of his interest and warned him he was, puying a lawsuit, such information is notice of plaintiff's interest.-Bell v. Bell, S. C., 87.S. E. 540.

110. Remaindermen.-Where testator devised land to his granddaughter for life, remainder to her body heirs, and in default to his great-grandchildren, the class who take are to be determined on the death of the life tenant and not at the death of the testator.-Drury v. Drury, Ill., 111 N. E. 140.

111 -Testamentary Character.-Where testator's will, besides testamentary clauses, also contained a provision that the executors, who were also devisees, should take care of testator and his wife so long as they lived, the instrument was valid, being properly executed, despite its containing a clause concerning matters not of a testamentary nat 're.-Owens v. Douglas, Ark., 181 S. W. 896.

112. Testamentary Capacity. One having the capacity to make a will is of sound and disposing mind. There is no distinction between a person of sound mind and one of disposing mind, and a person mentally diseased does not possess a disposing mind.-Allen v. North, Ill., 110 N. E. 1027.

113. Testamentary Capacity.-That a testator who dictated his will while in his last illness made grammatical errors, and may have used expressions which were not applicable to his estate, does not show his want of mental capacity.-State v. Goodman, Tenn., 181 S. W.

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In the early days of New York its highest court, was called, by its short name, Court of Errors, and was dubbed by its successor, the Court of Appeals, "a multitudinous court." And well it might have been thus called, as its personnel consisted of more than thirty members.

In Wells v. Navigation Co., 2 N. Y. (2 Const.), 1. c. 208, decided in 1849, we find the following:

"It is true that the judgment in Alexander v. Greene was reversed by the Court of Errors. But what particular point or principle of law was decided by the court, or what a majority of the members thought upon any particular question of law, no one can tell. It a pears by the reporter's headnote that he cold not tell; and from his note at the end of the case, it is apparent that the court itself could not tell. Two merchants and two lawyers thought the defendants (tow boat owners) were common carriers, while other senators expressed a different opinion and went upon . other grounds; and it does not appear that more than four of the seventeen senators who voted for the reve"sal were agreed concerning any one of the questions in the case. Two efforts were made at the time to ascertain the ground of the judgment, but both proved abortive, and thus the majority virtually said, that although the judgment was reversed, no point or principle was settled by the decision. It happened in that case, as it has happened on other occasions, that a majority of the members of that multi tudinous court made up their minds to re verse a judgment and they did it; but not being able to agree concerning the ground

of their action, they plainly enough admit ted that nothing was settled by the decision. The case is not an authority for anything. It could only have been reported for the purpose of preserving the reasons of those who delivered opinions."

Jurisdiction in matter of law is broad, deep and restless as the sea. But the winds that lash the sea into foam and even swell its billows mountain high, leave its profoundest depths untroubled. It is the same if they blow in cross-currents, or even blow from every point of the compass. Nature's laws will move in serene certainty as before.

In

When jurisdiction in law depends on human effort, its restlessness may be the best proof of its reason for existence. applying its principles to new conditions, it not only progresses according to the needs of men and government, but it tests their fitness to them. But the winds of doctrine that blow across its face are not like windthat blow over the sea. Its principles are its ingredients and false doctrine usurps their place. If they are even plausibly challenged. the exercise of jurisdiction is weakened.

Furthermore, and this is the point we wish to stress, these principles only need to be not unmoral. It is not essential that they conform to abstract right. If they are once established as recognized law, it ought to be thought as harmful to weaken their force as to oppose recognized rules of conduct under a moral code.

This leads us to the thought that judges have a higher duty to ward off uncertainty than to decide rightly. If a court's speech may set a precedent, it should look more closely to the rights of the absent public than to those of a clamoring litigant Macaulay thought Charles II a most in iquitous king, because he could not look over the heads of his courtiers to the com mon people beyond.

The question, then, of administering jus tice has a two-fold aspect: first, we must

keep its precedents clear and, secondly, apply them to particular instances. Giving or refusing a judgment to a suitor is of secondary consideration. Do courts do this when their members write voluminous opinions, which decide no principle of law? And is it of any advantage for its members to state inharmonious reasons to the same conclusions? Or is it of any profit for one judge to set forth argumentation which has not the support of at least a majority of the court? Should opinions in such cases find a place in the reports, or even in the files, of courts? The New York court appeared to favor a negative answer to all of these inquiries. And why is not that the correct answer?

In the first place, if the judgment of a court must be received as a lawful settlement of a question, back of it should not appear any inconsistency. This detracts from its dignity, and, therefore, from loyal respect for it.

In the second place, if two or three judges agree in conclusion but disagree as to governing principles from which the conclusion is drawn, this depreciates the value of established precedent by the confusing opinion of a single judge or of a minority of the court. A minority should. no more be allowed to proclaim controlling reasons for their judgment than they should be allowed to pronounce the judgment of the court. As we said, a judgment is of secondary importance. It is the principle behind it that counts. If a majority cannot formulate it, it ought to remain unstated. The case should be decided without any principle being announced. A memorandum opinion should suffice, unless there is reversal, when enough, if possible, should be stated to guide the lower court. This and nothing more.

We have heard that some judges write opinions because of pride in their own opinion, or they feel the necessity of stating their reasons in this way to settle their own minds and some, for other reasons. why make their vanity a burden to lawyers?

But

Or why is it necessary to preserve their manuscript if they cannot get brother judges to agree to their reasoning? Why

"Pile Pelion on Olympus"

before we have thoroughly mastered Olympus or confuse us as to our conception, if we think we have? Statute should provide that no reasons in an opinion which are not concurred in by a majority of a court shall constitute a part of its files or be published in its reports. Judges should not deem themselves educators, but merely administrators. If they wish to print their views for private circulation, no one should object, provided they pay the expense.

N. C. C.

NOTES OF IMPORTANT DECISIONS.

SEAL

NECESSITY OF ACTUALLY AFFIXING TO MAKE CONVEYANCE VALID.-In some states it is ruled that the placing of a seal upon an instrument, for example, a deed conveying land, is necessary to its validity for any purpose, and a late decision by the Supreme Judicial Court of Maine is an illustration of how this ruling is perpetuated. Maddocks v. Keene, 96 Atl. 785.

Another state has ruled that though a deed be unsealed, it at least vests in the grantee an equitable title to the extent of what a grantor then possesses. First Nat. Bank v. Gage, Oregon, 142 Pac. 539.

It seems to us that the requirement of a seal as at common law is one of the things that should not be observed in modern times. The reason therefor does not now exist and the reason for the rule ceasing ought to make the rule cease. In common law times a seal was made of wax and an impression must be made thereon. Then a scroll was held sufficient to take its place, or a wafer with adhesive substance on it was enough. But it was not held sufficient that one might solemnly declare that he signed and sealed the instrument. Why if there could be a substitution for the wax with its impression, by a scroll or wafer, there might not be a solemn declaration of a sealing, and both sufficient, it is difficult to see.

But, furthermore, the requirement of attestation before an officer ought better to import solemnity and deliberation, than the adding of a scroll or a wafer to one's name. All statutes

which seek proof of identity of signer with that of professed grantor impliedly repeal, it seems to us, the common law requirement of a seal. It was not really the wax that counted in that day, but the impression thereon. It had an individuality, which a wafer could not carry, and so it might be as to a scroll. These identifying impressions have passed from usage, and signatures have taken their place. But courts which rule as to the necessity of a seal, but not of the impression, seem not to enforce the spirit of the common law requirement.

In the Maine case, supra, it was argued that the deed must have been sealed because "the grantor in writing her name was obliged to write the last two letters of her name off the line and between the two seals (persumptively there when she signed) to avoid writing upon the seals." The deed, therefore, was admitted in evidence. But what kind of seals were they? It was assumed they were sufficient.

COMMERCE-STATE TAX OF COMPANY QUALIFIED TO BE SURETY ON RECOG NIZANCE TO GOVERNMENT.-In 79 Cent. L. J., 147, we noticed decision by Pennsylvania Supreme Court, that act of Congress permitting certain corporations to qualify as sureties on bonds payable to the United States did not make them federal agencies, so as to prevent state taxation thereof, and we expressed our concurrence with that view. In the federal Supreme Court that decision has been affirmed. Fidelity & Deposit Co. v. Pennsylvania, 36 Sup. Ct. 298.

Justice McReynolds said: "These contracts between private corporations and the United States do not necessarily render the former essential governmental agencies and confer freedom from state control. Moreover, whatever be their status, if the pertinent statute discloses the intention of Congress that such corporations, contracting under it with the federal government, shall not be exempt from state regulation and taxation, they must submit thereto. * Neither circumstances nor language of the act indicate design or necessity to limit application by the several states of a well-established system of licensing and taxing bonding companies not incorporated under their own statutes."

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It would have been more interesting to treat this question as one under congressional power than to have declared upon the intent of a congressional act. It would extend the commerce clause very greatly to say it meant to authorize Congress to interfere with state power in the way contended under the theory

that there was an indirect burden on commerce authorizing legislation to remove it. This would not seem indirect in the way that allows Congress to displace state law or state regulation. It seems rather a case for the maxim causa proxima, et non remota, spectata est. The indirection ought not to go so far as to include an accident of an accident.

TRADE-MARKS-PROFITS

IN UNFAIR COMPETITION.-In 82 Cent. L. J., 169, we spoke of the unsatisfactory status remaining in American decision as to distinction in recovery for infringement of trade-mark and unfair competition as exhibited in the late case of Hamilton Brown Shoe Co. v. Wolf Bros. & Co., 36 Sup. Ct. 269.

Now appears the case of Straus v. Notaseme Hosiery Co., 36 Sup. Ct. 288, in which Justice Holmes speaks for a majority of the court, Justices McKenna and Pitney dissenting, but without opinion. This case appears to extend the vagueness to which we referred.

In this case, profits were adjudged "from a reasonable time after the defendants had notice of the similarity of the two designs" for hosiery. The Supreme Court says: "That it was unfair to continue the use of a label so similar in general character to the plaintiff's we are not disposed to deny. But it does not follow that the defendants are chargeable with profits as a matter of course. Very possibly, the statutory rule for wrongful use of a trademark may be extended by analogy to unfair competition in a proper case."

There is something here of expression leaving much to be desired. The lower court found there was a similarity of design, notice to defendant and recovery revert back only to the time of notice. Why, if there could be unfair competition in the case at all, are not all the elements of a basis for recovery given? And why does the court speak of analogy to a statutory rule for wrongful use of trademark? He refers to a federal statute, which merely gives protection by way of penalty. But trademark rights are under state law and so are rights under unfair competition. Where can be any analogy between a law for a penalty and a law for the recovery for infringement of a common law right or for damages in unfair competition, also a common law right?

But notice to a violator of the right of fair competition is further denuded of its value as the following language shows. "They (defendants) had been advertising their goods by name and using the design in connection with the name. The natural interpretation is not that they wanted to steal the plaintiff's good

will, of which they then learned for the first time, but that they wished to preserve their own. When they stood upon their rights, of course, they made themselves responsible for the continued use of a label that might be held likely to deceive, and if it should be held manifestly to have that tendency, they would be chargeable for what, in contemplation of law, was an intentional wrong, a fraud, although the case is wholly devoid of any indication of actual intent to deceive or to steal a reputation of the plaintiff's goods. If the defendants' conduct was a wrong, as we have assumed, it was a wrong knowingly, but no further inference against the defendants can be drawn from the fact." No further inference than what? If there was "intentional wrong or a fraud," must the wrongdoer separate the profits he obtains or are all to belong to the plaintiff? The opinion of the court indicates this burden is on the plaintiff.

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. PREVENTING UNNECESSARY LITIGATION AT THE SOURCE.

The State Bar Association of New York has joined forces with the New York Chamber of Commerce for the purpose of devising plans to prevent unnecessary litigation at the source.

"At the source" is the distinguishing part of the title of this new committee, the one thing that differentiates it from the usual standing committee in every bar association.

Backed by the brains of the New York bar and the money of the New York merchant, the committee has succeeded in compiling some very interesting statistics showing the major subjects of law most. litigated and the principal causes of such litigation.

The researches of the committee included all of the reported cases in New York, and the results of the investigation are incorporated in a tabular statement showing the twenty-five major subjects of law which according to the New York reports occasion the most litigation. In this table, which we here subjoin, the most liti

17.

It will be observed that the first subject, ranking in volume of litigation, is "wills." The analysis of all the above cases covering wills makes a remarkable showing. Seventythree per cent of the litigation concerning wills arises from disputes as to their meaning and legal effect and nine per cent involves their execution, revocation and alteration. These two items taken together clearly show that eighty-two per cent of all litigation relating to wills is of a preventable nature.

Each of the twenty-five subjects is analyzed in this way. The committee offers to send the analysis on any subject

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