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64.--Workmen's Compensation Act.-Death of a servant from drinking while at work poisonous fluid, believing it to be water, held an injury arising in the course of his employment, and resulting therefrom, within the Workmen's Compensation Act.-Archibald v. Ott, W. Va., 87 S. E. 791.
65. Mechanic's Liens-Materialman-A ma. terialman's lien being of statutory origin, its attachment and enforcement depends on compliance in all substantial matters with the statutes.--Gilbert v. Talladega Hardware Co., Ala., 70 So. 660.
66. Monopolies-Restraint of Trade.-Contracts between manufacturer and dealer in motor cars, giving him exclusive territory and limiting him thereto, held not to restrain trade or competition, in violation of federal antitrust laws or those of Texas.-Cole Motor Car Co. v. Hurst, U. S. C. C. A., 228 Fed. 280.
67. Mortgages-Foreclosure Sale.--The gross inadequacy of the price paid by the purchaser at a foreclosure sale will not of itself, even in a court of equity, invalidate or affect the sale unless it is such as to raise a presumption of fraud.–Schloss & Kahn v. Brightman, Ala., 70 So. 670.
68.—Notice of Equity.-Where a mortgagee, on taking a mortgage from plaintiff's grantor, had both actual and constructive notice of plaintiff's equities under a contract for deed, and it appeared that plaintiff never consented to the giving of the mortgage, the mortgage took subject to all plaintiff's rights under his contract.-Quaschneck v. Blodgett, N. D., 156 N. W. 216.
69.----Redemption.-That a redemption affidavit was irregular in not specifically describing the judgment of the redemptioners held not to invalidate the redemption proceedings, where the omitted matters in respect to the judgment were shown by introduction in evidence of transcript of the judgment and the writ of venditioni exponas on which the redemptioners' sale was made.-Ft. Wayne Builders' Supply Co. v. Pfeiffer, Ind. App., 111 N. E. 192.
70. Municipal Corporations—Abating Nuisance.-An incorporated town's authority conferred on it by the Legislature to prevent and abate nuisances would not justify an abatement of a thing as a nuisance which in fact was not one.- Murden v. Commissioners of Town of Lewes, Del. Super. Ct., 96 Atl. 506.
71.-Injunction.-At common law a taxpayer as such has no right of action against a public officer to restrain or prevent the waste of public funds or injury to public property, or to restrain a threatened illegal official act.-Altschul v. Ludwig, 111 N. E. 216, N. Y., 216 N. Y. 459.
72. -Last Clear Ch nce.- Where plaintiff, riding a motorcycle, overtook defendant's motor wagon and attempted to pass it on the right, in violation of an ordinance, and collided with the wagon when it was turned to the right, and the driver, after seeing plaintiff, did all
he could to prevent a collision, the doctrine of last clear chance did not apply.-Borg V. Larson, Ind. App., 111 N. E. 201.
73. --Special Assessment. That there is incidental benefit to the public from an improvement whose purpose and effect are to improve a locality does not destroy its character as a local improvement, nor will incidental local benefit make local an improvement designed to benefit the public generally:- Village of Grand Ridge v. Hays, Ill., 111 N. E. 289.
74.—Special Assessment.--Municipal dinance establishing a tax district where boundary line after running on a line not 100 feet back from the street jumped 500 feet, when it encountered an undivided tract, and that on the opposite side of the street was 150 feet or 240 feet
violates Const. Amend. 14.Gast Realty & Investment Co. v. Schneider Granite Co., U. S. Sup. Ct., 36 S. Ct. 254.
75.---Transaction of Business.-The election by the common council of a person as a member of that body is "transacting business" with
in a statute forbidding less than a quorum to transact business.-Wescott v. Scull, N. J. Sup. Ct., 96 Atl. 407.
76. Navigable Waters-Riparian Owner.Where the state by statute granted to riparian Owners on the Mississippi river the exclusive right to take and sell sand and gravel from the beds adjoining the shore lands, without granting any such right to riparian owners along other navigable streams, such grant was, at most, a privilege, subject to withdrawal at any time.-C. M. Johnson Sand & Gravel Co. V. Quarles, Ark., 182 S. W. 283.
77. Negligence-Duty of Care.- Where defendant was having plaintiff's barge pumped full of oil at 3 o'clock in the morning at a wharf from its pumping station through a pipe line, ordinary care on its part did not require that it keep some one constantly on the barge to guard against the approach of strangers near the flowing oil who might ignite it.-Texas Co. v. Charles Clarke & Co., Tex. Civ. App., 182 S. W. 351.
78. New Trial-Jury.- Where a juror admitted he had been a client of the attorney of one of the parties, and it was not shown that he concealed the recentness of the transaction, a verdict will not be set aside on the ground the juror concealed his true relations with such attorney.-Stone v. O'Neil, N. Y. Sup. Ct., 157 N. Y. S. 192.
79. Misconduct.—The conduct of the husband of plaintiff, who acted as her agent during the trial, in handing a cigar to a juror while leaving the courtroom at a recess, authorized setting aside the verdict.-Stockgrowers' Bank of Wheatland v. Gray, Wyo., 154 Pac. 593.
80. Nuisance-Buildings.-A theater building, in violation of the provisions of the Building Code, designed to secure the safety of the public and protection against fire, is a “public nuisanc.."-Altschul v. Ludwig, N. Y., 111 N. E. 216, N. Y. 459. 81.- Defined.-A "nuisance" may be
anything which essentially interferes with the enjoyment of life or property.--Murden v. Commissioners of Town of Lewes, Del. Super. Ct., 96 Atl. 506.
82. Payment-Burden of Proof.-Where an administrator against whom a decree had been rendered moved to satisfy the decree, relying
a receipt acknowledging payment of the amount of the decree, the burden was on the persons giving the receipt to disprove payment. -Hare v. Hare, Ala., 70 So. 630.
83. Perjury-Indictment.-An indictment for perjury held insufficient where it did not show how and in what manner defendant's testimony that a person charged with crime was present at a certain house at a certain time. was material to the issue.--Herndon v. State, Ga, App., 87 S. E. 812.
84. Post OfficeScheme to Defraud.—That bank, forwarding check by mail for collection, was ignorant of defendant's scheme to defraud, held not to defeat their responsibility for fraudulent use of the mails, under Criminal Code, § 215.–Spear v. United States, U. S. C. C. A., 22 Fed. 485.
85. Principal and Surety-Tender.-Sureties on note secured by second mortgage, seeking application of avails of the mortgaged property to satisfy the same, could not succeed unless they tendered the amount legally due from them as sureties.- Patch & Co. v. First Nat. Bank of Montpelier, Vt., 36 Atl. 423.
86. Railroads-Look and Listen.--Plaintiff injured at a railroad crossing where the view was practically unobstructed for 250 feet, who either did not look, or else looked so perfunctorily that he was not conscious of the approach of an engine. was guilty of contributory negligence.-Lynch v. Pennsylvania R. Co., N. J. Sup. Ct., 96 Atl. 395.
87.---Regulation.-State Railroad Commission's order for additional train each way daily to serve four towns of from 600 to 1.800 population, where already served by two fast and one local train each way daily, and new tra in
would be overtaken and passed by fast train, held unreasonable in view of revenue, service of other roads, and large installation expense necessary.-Railroad Commission of Alabama v. St. Louis & S. F. R. Co., Ala., 70 So. 645.
88.-Signals.-Where the automatic bell, which a railroad required by ordinance at a crossing failed to ring on approach of a train, traveling at an excessive rate of speed, the road was guilty of negligence sufficient to sustain a verdict for death of one killed at the crossing. -Headley v. Denver & R. G. R. Co., Colo., 154 Pac. 731,
89. Reformation of Instruments-Estoppel. -In suit to reform a note secured by mortgage for mistake of the draftsman, where defendants did not change their position to their prejudice, giving only what they originally agreed to in the original transaction, plaintiff was not estopped to maintain his suit by his delay in discovering the mistake.-Kinman v. Hill, Iowa, 156 N. W. 168.
90. Release—Rescission.—That the carrier's physician made physical examination and falsely stated to the passenger that he was not seriously injured held to entitle the passenger to rescind a settlement made in reliance thereon, though the falsity of the statements was unknown to the physician.-Jacobson v. Chicago,
M. & St. P. Ry. Co., Minn., 156 N. W. 251.
91. Religious Societies—Religious Rights.The religious rights of a church member as a communicant. even if she had appealed to the proper church authority and a decision adverse to her been given, are not enforceable in the civil courts. Carter v. Papineau, Mass., 111 N. E. 358.
92. Sales-Reliance on Representation.Where a representation is positive and relates to a matter of fact and is not an expression of opinion and the buyer believes and relies on it, it constitutes a warranty.--St. Louis Cordage Mills Western Supply Co., Okl., 154 Pac. 646.
93. Set-Off and Counterclaim-Unliquidated Damages.-A counterclaim for unliquidated damages from plaintiff's breach of his undertaking to accept certain property in payment of the note sued on, under a later contract made by plaintiff presumably after maturity of the note, held not maintainable.-Copeland v. White, Ga. App., 87 S. E. 846.
94. Sheriffs and Constables--Search - Warrant. --A search warrant fair on its face protects the officer executing it, and those called by him to assist, though the complaint is insufficient.--McSherry v. Heimer, Minn., 156 N. W. 130.
95. Statutes-Pleading.--A servant suing for injuries need not refer in his petition to the federal Employer's Liability Act, if the facts alleged bring the action within it, since state as well as federal courts are presumed to be cognizant of its enactment, and to know that it supersedes the state law upon that subject. -Hartman v. Chicago, B. & Q. R. Co., Mo. App., 182 S. W. 148.
96. Subrogation--Surety.--A surety on a bond who pays only part of the obligation secured is not subrogated to a right of action of the obligee against one wrongfully causing the liability.-United States Fidelity & Guaranty Co. v. Union Bank & Trust Co., U. S. C. C. A., 228 Fed. 448.
97. Taxation--Remainder Interest. — For the purposes of taxation under the inheritance tax act (Acts 1913, p. 91), the remainder estate should be estimated, in determining its present value, as if the corpus were to remain undisposed of.-Martin v. Pollock, Ga., 87 S. E. 793.
98.---Royalties.--Rents and royalties to accrue on mining leases are not taxable as “credits."-State V. Royal Mineral Ass'n, Minn., 156 N. W. 128.
99. Telegraphs and Telephones-Acquiescence. -Any irregularity in signature to permit for erection of telegraph poles and wires in street held made good by acquiescence in the use of the street for 25 years.--Postal Telegraph
Cable Co. v. Ingraham, U. S. D. C., 228 Fed. 392.
100. Exclusive Use. The state can cover compensation for the special and exclusive use of part of a bridge forming part of its highways by a telegraph company for carrying its wires.-Postal Telegraph-Cable Co. v. State Roads Commission, Md., 96 Atl. 439.
101. Tenancy in Common-Forfeiture.Where an agreement of tenants in common was that in case of default by either in payments for the common property the one paying should take the whole title, the forfeiture could not be effected unless one party defaulted in all payments due by him, since any other construction would
inequitable.-Hardee V. Alexander, Tex. Civ. App., 182 S. W. 57.
102.—-Partition.- Where, in partition by tenants in common out of possession against a cotenant in possession, the latter claims title by adverse possession, he should allege an open renunciation of the tenancy and actual or constructive notice of same, and that the possession continued thereafter for the prescriptive period. -Gracy v. Fielding, Fla., 70 So. 625.
103. Torts-False Representation.—The owner of mortgaged realty could recover against an attorney who made false representations to the buyer of the equity of redemption from the owner to induce him to abandon his contract with the owner to redeem the property, only if the misrepresentations induced the buy
to abandon to the owner's damage, while he would otherwise have performed.-Kock v. Burgess, Iowa, 156 N. W. 174.
104. Trover and Conversion-Sufficiency of Title.--Where plaintiff held legal title to a safe under a bill of sale intended to operate as a chattel mortgage, he had such title as would enable him to recover damages for its conversion.-Sheldon v. McFee, N. Y., 111 N. E, 220.
105. Vendor and Purchaser--Option.- Where upon part payment of his option to purchase land involving assumption of mortgage plaintiff obtained supplemental agreement allowing him to anticipate the contract and obtain good and suncient deed to such portion of property as he might select upon payment therefor, such agreement was a unilateral option entitling plaintiff on compliance with its terms, to а deed to selected portion free from incumbrance of prior mortgage.---Lombard v. Kies, Or., 154 Pac. 757.
106. Venue-Real Action.-An action will not be considered a real action for the purpose of determining its venue unless title or interest in real property is involved.-Terry v. Rivergarden Farms Co., Cal. App., 154 Pac. 476.
107. Water and Water Courses-Prior Appropriation.-In an action by a junior appropriator of irrigating waters for an adjudication of priority, alleging abandonment of their prior rights by defendants, the owners of all junior priorities in the water district were not, in the absence of statute, necessary parties.--Affolter v. Rough & Ready Irrigating Ditch Co., Colo., 154 Pac. 738.
108. Wills-Annuity.-A bequest of an annuity which was merely a succession of legacies of a certain amount each cannot be charged against a specific devise of real estate.-Bennett v. Piatt, N. J. Ch. Ct., 96 Atl. 482.
109. Wills-Attestation.-Under the statute requiring wills to be attested in the presence of the testator by two or more credible witnesses, such witnesses must be persons at that time competent in law to testify concerning the subject-matter.—Scott v. Couch, Ill., 111 N. E. 272.
110.- -Delivery of Deed. Where sick grantor. to recompense stepmother for nursing, executed deeds and handed them to her, but immediately retook possession, with intention of retaining title until his death, she thereupon to record deeds and have title, there was not legal delivery vesting title, but a mere inoperative attempt at testamentary disposition.—Tewksbury v. Tewksbury, Mass., 111 N. E. 394.
* * * The second is 'where the manufacCentral Law Journal.
turer or shipper outside of the State of Florida * * * inserts coupons in packages
of goods which he ships to Florida' and ST. LOUIS, MO., APRIL 28, 1916.
the ultimate consumer * * * returns them
to the manufacturer * * * who gives a preVALIDITY OF LICENSE TAX ON THE USE mium for them.' * * * The third is 'where OF TRADING STAMPS.
the manufacturer in a state other than Florida inserts in the packages of his goods
coupons which are taken * * * by It is provided by Florida statute that
the ultimate consumer and sent to some "merchants using trade stamps shall pay a
* to be redeemed or license tax of two hundred and fifty dollars for each place of business where they use such stamps." In Rast, Collector, v. Van The court said: “As to the second and Deman & Lewis Co., et al., 36 Sup. Ct. third schemes, they are only executed 370, the United Supreme Court, in an unan- through the purchase at retail. In other imous opinion, sustains the validity of the words, they are not designed for or exstatute, both from the standpoint of its ecuted through a sale of the original package not being an interference with the com- of importation, but in the packages of retail merce clause and its not being opposed to and sale to the individual purchaser and the constitutional right of free contract. consumer. This fixes their character as
transactions within the state and not as On the same day on which the opinion
transactions in interstate commerce, and was handed down in the above case there
this is conceded as to the first scheme; it was a similar ruling as to a statute of the
is true as to the second and third schemes. State of Washington, which imposed a
All of the schemes have their influence license fee of $6,000 on any person who
and effect within the state. Nor is such shall use or furnish to another for use any
influence and effect changed or lessened by stamps entitling a purchaser of goods to
the redemption of the tokens outside of receive from another any goods free of
the state." charge or for less than their retail market
This final clause appears to us to prevalue. Use of such stamps without obtain
sent the crucial question in the case. It ing a license is made a "gross misdemeanor." Tanner, Attorney-General v.
would appear, that, if these coupons or Little, et al., 36 Sup. Ct. 379.
stamps were sent direct to the ultimate
consumer and offered to him for a conThe opinions in these cases by Jus-sideration, the transaction would be in intice McKenna, are very interesting, but it
terstate commerce. When they are sent is only in the former case that the question
through a local merchant, inclosed in a is treated as or not coming under the shel
package and intended for the ultimate conter of the interstate commerce clause, and
sumer, why does this make a difference? he describes the schemes for stamp dis
Would not the local merchant seem to be tribution as follows:
a mere agent of the foreign manufacturer “The first is 'where the Florida mer- to deliver the stamps ? He would not be chant issues his own coupon * and justified in opening the package and taking himself makes payment or redemption of stamps therefrom or, at least, it is not same, sometimes by the delivery of some contemplated that he should do this. valuable article of merchandise and some- The court says as to this: “There is times by the payment of cash or the allow-shipment to Florida merchants but for the ance of credit on account of purchases.' | disposition of the merchandise in retail trade. * * * Detach the importations from It was claimed that here was "but a the retail sale, consider only the trans- method of advertising, and, as such, mere portation to the State of merchandise in allurements to customers, not detrimental the original package, being sold therein in in any way to the public health or morals, such package, and there may, indeed, be nor obstructive of the public welfare," and interstate commerce; but so detached and interference was "an illegal intermeddling so considered, the importations are left with a lawful calling and a deprivation of without purpose, the schemes without freedom of contract." execution. Indeed, complainants contend
The court said that this reasoning but "refor the right not only of importations in
gards the mere mechanism of the schemes the original package containing the cou
alone and does not give enough force to pons, but the disposition of the goods and
their influence upon conduct, and habit, not coupons through the retail merchant. This,
enough to their insidious potentialities. As we repeat, has no protection in the com
to all of which not courts, but legislatures merce clause." We do not think this necessarily embraces the point of agency in the
may be the best judges, and, it may be,
the conclusive judges. No refinement of local merchant to deliver the coupon to the
reason is necessary to demonstrate the ultimate consumer. He acts only for him
broad power of the legislature over the self in delivering the merchandise. For
transactions of men. There are many lawwhom does he act in delivering the stamps?
ful restrictions upon liberty of contract in It was further claimed that Congress
business." had specifically provided for such shipments in interstate commerce by prescribing
Speaking of the particular allurements what a package in commerce should be held out, it was said: "They tempt by a But the court said Congress only provided promise of a value greater than in the what packages should not contain and went
article sold and apparently not represented no further than this. Besides, it was said: in its price and hence it may be thought "The statute of Florida does not seek to that, thus by an appeal to cupidity, lure to control the interstate transportation of the improvidence. This may not be called in packages; it controls only their sale in the an exact sense a ‘lottery,' may not be called State through the retail merchant.” But 'gaming,' it may, however, be considered he does not sell the stamps to the con
as having the seduction and evil of such." sumer. Who does, if anybody ?
It really looks like a statute like this has sumer, it is true, gets title to the stamps
so very little to rest upon in the way of by purchasing the package from the con
guarding morals, it ought rather to be sumer. By purchasing the principal thing,
deemed a revenue statute than anything he acquires title to the incident.
else. There is no element of chance or More interesting seems the discussion gambling in the scheme, and how any deregarding the opposition of the statute to moralization could be supposed to arise, or the contract and due process clauses of the any cupidity in the way of getting someConstitution. It is said that: "The statute thing for nothing be excited, it is difficult must be held to have prospective opera- even to imagine. As a revenue statute tion,” but “as the business is subject to pure and simple, we gather it would be regulation, the contracts made in its con- held unconstitutional. As a criminal of duct are subject to such regulation.” fense cannot be raised by construction, so
The above applying to the contract clause it would seem, in a measure, at least, ought of the Constitution, the learned justice pro- to be interpretation of statutes which supceeds to inquire, if it is an unlawful inter- pose evil influences as justification for the ference with business liberty.
exertion of the police power.
NOTES OF IMPORTANT DECISIONS.
measure of disability. This is a purely legis. lative prerogative and not a judicial one."
If the majority reasoning is good, then it would be going but a step further, for the courts to declare, that, if one marries not knowing that his spouse is afflicted with a disease which soon after develops a deadly malady, he may sue for annulment or the other party may
It seems to us that the two ought to bear the other's affliction when married and if she elects to do this while engaged to him, espousal gives her this option. Whatever peculiarity there may exist in a marriage contract, it should be reflected to some extent, at least, in an engagement to marry. The latter is but anticipatory of the former as to supposed affection and if one is mercenary, the other also may be, and in the same way. At all events, what the second dissenting judge says about legislative prerogative should be given more heed by theorizing judges than it often is. Let it be remembered that espousal ought to be deemed to take on some confidential relationship between a man and a woman just as marriage does.
BREACH OF MARRIAGE PROMISE-ILL HEALTH AS EXCUSE.-Iowa Supreme Court by a majority of five to two declares, that, where a man engaged to marry subsequently becomes so afflicted by disease, that performance of his marriage duties would aggravate his disease and hasten his death, non-performance is excused. In re Oldfield's Estate, 156 N. W. 977.
This conclusion is arrived at from a review of conflicting authority, but the court holds to the view that one may refuse to perform in either of three cases, (1) when he becomes afflicted with a loathsome disease which may be communicated to the other or their offspring; (2) when he becomes afflicted with a fatal and incurable malady and its consummation would hasten his or her death, and (3) when he or she is stricken with a fatal malady and the evidence makes it reasonably certain that he has but a few days or weeks or months to live.
There seems substantial agreenient in the authorities, that public policy would excuse performance in the first of the above suppositions, and in the other cases damages might be mitigated. The able dissenting opinion, citing cases and distinguishing those relied on by the majority demonstrates, we think, that such an interposition, if not objected to by the other party, offers no defense for a refusal to perform or answer in damages.
The majority reasoning says that: "There is implied in every contract to marry, that the parties will not endanger life or health in the consummation of the marriage, and that where illness or disease comes upon one after making the contract to marry, such as would render marriage dangerous to his life, a breach of the contract, based on such unavoidable and such unanticipated condition is excusable. * * * Where the malady is of such a fatal character that he cannot enter into the marriage relation and receive any of the benefits which grow out, and are involved in, the relationship established by the consummation of the marriage, he is excused."
The dissenting opinion says, very strongly: “The theory of failure of consideration is not persuasive. This is the first time it has been invoked for the one who is unable to furnish the full consideration. It involves a confusion of the parties."
One of the dissenting judges contents himself with saying that: “To subject such contracts to such a condition as a continuing and necessary qualification thereof is to declare a
COURTS-PRESUMPTION OF REGULARITY OF JUDGMENT DOES NOT EXTEND TO SPECIAL JUDGE.-In Cain v. King, 155 Pac. 1176, decided by Supreme Court of Oklahoma, it is held that where a judgment has been rendered by one purporting to sit as special judge, and the record fails to show that he has authority to sit as such judge, the judgment will not be recognized on appeal as a determination of the cause before the court from which the appeal has been taken.
The Oklahoma court, citing cases from Missouri and the Federal Supreme Court and going upon the theory that the Supreme Cours takes judicial notice of who are judges of lower courts in the state, holds that when another appears to have acted as judge than one within such judicial notice, authority must appear on the face of the proceedings for him thus to act.
In the Missouri cases is shown exactly how the special judges came to sit. If this statement disproves his authority to sit, this is a different proposition than where this does not appear. In the Oklahoma case the ruling is entirely on the fact of one sitting as judge not being judicially known to the upper court to be such a judge. To displace his judgment for such a reason appears to us to militate against another presumption, omnia presumuntur rite acta, except that as this came from what is called a “county court," it may be a court of such limited jurisdiction, that nothing