tains jurisdiction and some of them subsequently die, it is not thereby deprived of its jurisdiction; and while it ought not to proceed to judgment without making the representatives or successors in interest of the deceased party parties to the action, yet if it does so proceed its action is irregular only and its judgment is not void." This "voidable judgment has all the force and effect of a valid judgment until it is set aside."

But the principle that such a judgment is not void has been ruled to have no application in a judgment against a dead man after his death has been suggested of record and the action is revived against certain parties, "for the reason that after this is done, the action proceeds as if originally brought against the parties against whom it is revived." Then the court is without jurisdiction to enter "judgment affecting parties not before it." Ratterman v. Apperson, 141 Ky. 821, 133 S. W. 1005.

In Chatfield v. Jarratt, 108 Ark. 523, 158 S. W. 146, it was said that where a party dies after the rendition but before the entry of a judgment, his death cuts no figure as to when the judgment should have been appealed from. It was not essential to the enforcement of the judgment that it should be entered of record, and decedent's representatives could move the court for a nunc pro tunc entry.

It seems to be very generally true, that, if a judgment is entered against a dead man, it is not void, if he has been properly served while in life, but it ought to be corrected.

ITEMS OF PROFESSIONAL

INTEREST.

C.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS' ASSOCIATION COMMITTEE ON PROFESSIONAL ETH

ICS.

QUESTION No. 101.

Fees, Witness-Acceptance of fees for testifying as witness to will-under circumstances suggested-not disapproved.

A and B, lawyers, were engaged in individual practice. A drew up a will for a client of his. B was asked to become an attesting witness. The will was duly executed, and A and B duly witnessed the same. The testator died seven years afterward. Probate of the will was opposed on the ground of fraud, incapacity and undue influence. There was a trial in the Surrogates' Court and then again, several years afterward a protracted trial in the Supreme Court, at both of which the probate was allowed and sustained. At each of these B was put to inconvenience and loss of time as a witness or for holding himself in readiness as such. No subpoena was issued, B having voluntarily offered to be on hand on every occasion. the close of the litigation, the attorney for the executor and proponent voluntarily forwarded a check to B for $50.00.

At

Is it the opinion of your Committee that it would be unprofessional for B to accept the same?

ANSWER No. 101.

In the opinion of the Committee, it would not be improper for B to accept the check voluntarily proffered by A. B., though a lawyer, was merely a subscribing witness to the will, and testified as such. The check was not given under any agreement antecedently made or exacted, nor conditioned in any way upon the giving of particular testimony, nor upon the success of the litigation, nor made to depend upon the amount involved in the probate proceedings; but was a gratuity in partial compensation for B's loss of time while attending court.

QUESTION No. 106.

Retainer, Divorce Accepting retainer to procure divorce with knowledge that a statutory bar exists-disapproved.

A woman desires to retain me to institute an action for absolute divorce against her husband who has been living for the past two years an adulterous life with another woman.

During the conversation she confessed to me that she also has been living for the past year an adulterous life with another man. I am certain that the adultery charged against the husband was not committed with the connivance, consent, privity or procurement of the wife. I am also convinced that she has not cohabited with her husband ever since she became aware of his adulterous life nor has she condoned it. I am also certain that the husband will not interpose a defense nor will make a countercharge of adultery against the wife. Knowing all these facts, have I a moral or legal right to take and prosecute the woman's case?

ANSWER No. 106.

In the opinion of the Committee, upon the facts stated, the services of the attorney could not be successful except by concealing from the court facts which it ought to know; and therefore he ought to decline the employment. The Committee refers to New York Code of Civil Procedure, Section 1758, Subdivision 4.

BOOK REVIEW

HEMENWAY ON VETERINARY LAW.

Dr. Henry B. Hemenway, of Evanston, Ill., ventures in the field of law with a little book under the above title, with purpose to supply graduates from the veterinary schools, "the

needful information as to their duties, responsibilities and limitations of authority" in the practice of their profession. It is said that "this is a work of originality, written by one who is unusually well-posted in both law and science." He ought to be well posted to write about a subject in which there is to be given needful information as to legal duties, responsibilities and limitations. when not being himself, apparently, the possessor of a certificate that he is learned in the law. Not very many presumptions should obtain in his favor.

The book contains ten chapters under such headings as general (legal) principles, police power, due process and nuisances, regulation of veterinary practice, liabilities, compensa tion, governmental services, inspection, executive organization, ownership of animals, and bailment. Here are subjects which seem to call for a wide and accurate knowledge of legal principles and all are treated in a work of less than 300 pages of text. The author is indeed fortunate, if he is able advantageously to condense all necessary knowledge thereof into so small a compass.

The work is bound in law buckram, of good print and paper and comes from the house of T. H. Flood & Company, Chicago, 1916.

BOOKS RECEIVED.

Criminality and Economic Conditions. By William Adrian Bonger, of Amsterdam, Netherlands. Translated by Henry P. Horton, of Ithaca, N. Y.. With an Editorial Preface by Edward Lindsley, of the Warren, Pa., Bar. With an Introduction by Frank H. Norcross, Justice of the Supreme Court of Nevada, VicePresident of the American Institute of Criminal Law and Criminology. Modern Criminal Science Series. Price, $5.50, net. Boston. Little, Brown & Company. 1916. Review will follow.

A History of Continental Criminal Law. By Carl Ludwig von Bar, late Professor of Law in the University of Gottingen and others. Translated by Thomas S. Bell, of the Los Angeles Bar, and others. With an Editorial Preface by John H. Wigmore, Professor of Law in Northwestern University. Introductions by William Renwick Riddell, Judge of the High Court of Justice for Ontario; and by Edwin R. Keedy, Professor of Law in the University of Pennsylvania. Price, $4.00, net. Boston. Little, Brown & Company. 1916. Review will follow.

HUMOR OF THE LAW.

Judge "You let the burglar go to arrest an automobilist?"

Policeman-"Yes. The autoist pays a fine and adds to the resources of the state; the burglar goes to prison, and the state has to pay for his keep."-Life.

R. X. Morris, the attorney, is fond of relating what he considers the best James Whitcomb Riley story ever told.

Riley was an unwilling witness in a civil suit in which one witness was plaintiff and the other defendant. He didn't want to testify, because both men were his friends, and, besides, he had an aversion to courts and trials and all that goes with them, formed when he gave up the study of Blackstone in his early manhood. One of the lawyers in the case, a pompous fellow with a just-watch-me-settle-this-fellow'shash bearing, became angered when Riley apparently evaded answering his questions directly. He spoke to Riley sharply:

"Now, look here, Mr. Riley; this won't do. You're not answering my questions. Let's get down to facts now. You now we're entitled to know what you know about this case. You studied for the bar once and you know law. Isn't that true?"

"No," Riley drawled in reply. "I don't know any more law than you do!"

A juror out West was asked whether he had been charged by the presiding judge. "Well, squire,' said he, "the little fellow that sits up in the pulpit and kinder bosses it over the crowd, gin us a talk, but I don't know whether he charges anything or not."-St. Louis Star.

A Portland, Ore., dispatch tells of an applicant for indemnity filed under the Workmen's Compensation law of the State, by a farmhand. The blank form for the filing of claims contains two questions, evidently intended to apply to injuries sustained in mills or factories.

One of these is, "What was the nature of the machine by which you were injured?" The other question is, "Was the machine in good order at the time of your injury?" To the first of these questions the answer was, "Cross," and to the second was an enthusiastic, heavily written and boldly underlined, "Yes."

To the question, "How were you hurt?" the answer was, "I was kicked by a mule."-The Christian Herald.

made outside of court disparaging to the witness, the act is not a contempt, but an assault and battery.-In re Glenn, S. C., 88 S. E. 294.

18. Corporation - Confidential Relations. Where the president, who is also manager and stockholder of a corporation, learning that the entire corporate stock may be sold at a favorable price, sells his own and, without notifying other stockholders whom he knows to be anxious to sell, buys their stock and immediately sells it at a profit, he and one who with knowledge of all the conditions joins with him in the deal, are liable to them for such profit.-Jacquith v. Mason, Neb., 156 N. W. 1041.

19.- -Fidelity of Officer.-Agreement by director for repurchase of stock if purchaser left employment of corporation for any reason, held antagonistic to director's duties, and void.Timme v. Kopmeier, Wis., 156 N. W. 961.

20.- Slander.-A slander, uttered by manager of corporation in giving employe reason for her discharge, was within the scope of his employment.-Southwestern Telegraph and Telephone Co. v. Long, Tex. Civ. App., 183 S. W. 421. 21. Trustees.-Where majority stockholders combine to control an election and the acts of the corporation to carry out a particular policy, this constitutes them trustees in effect for minority stockholders objecting to such policy. Riley v. Callahan Mining Co., Idaho, 155 Pac. 665. 22.

of

Covenants-Restrictions.-Purchasers lots cannot enforce against other restrictive covenants in the deed of their common grantor, where such covenants were not part of the general plan of improvement, but were imposed for the benefit of other land retained by the original owner. Wright v. Pfrimmer, Neb., 156 N. W. 1060.

23. Damages Exemplary.-Where an express company, shipping a piano, delayed it in such a manner that a person of ordinary reason and prudence would have said it was a reckless disregard of the shipper's rights, the company was liable for punitive damages.-Piero v. Southern Express Co., S. C., 88 S. E. 269.

24. Death-Evidence.-Evidence that a deceased employe left no property or insurance, and that his wife and children had no property, is relevant to show dependency.-Dutton v. Atlantic Coast Line R. Co., S. C., 88 S. E. 263. 25.

Deeds-Avoidance.-Although at the time of making the deed the grantor is of weak and feeble mind. that does not void his deed; but, if erty and what he intended to do with it, that was sufficient.-Hagin v. Barrow, S. C., 88 S. E. 299.

26. -Covenant.-The simple granting words of a deed not only imply the transfer of the largest estate that can exist in lands, but also a covenant that the grantor is seised of such an estate. so that it is unnecessary to use the word "heirs" in describing the estate.-McMahill v. Schowengerdt, Mo., 183 S. W. 605.

27.

Divorce-Pleading.-The conduct complained of for divorce, constituting a continued course of ill treatment, need not be alleged in the complaint with particularity as to time and place.-Klaus v. Klaus, Wis., 156 N. W. 963.

28. Elections Ballots.-A ballot whereon a voter had penciled "Matt" in the blank space for Chief Justice of the Supreme Court, drawn a line through it and then written "Matt Sullivan" in the blank for Chief Justice, short term, was valid as to another candidate.-Sweetser v. Pacheco, Cal., 155 Pac. 639.

29. Eminent Domain-Measure of Damages.The measure of damages for injury to land partly taken for a levee was the actual value of the strip appropriated and the diminution of value caused to the residue.-Janes v. Levee Dist. No. 2 of Dunklin County, Mo. App., 183 S. W. 697.

30. Estoppel-Evidence.-Conduct predicated solely on a contract for a sale of realty will not constitute an estoppel enforceable by injunetion against the maintenance of a possessory action, unless the factum and validity of the contract be alleged and proven.-Barnes v. Cole, W. Va., 88 S. E. 184

31.- -Evidence.-An alleged admission by plaintiff of the correctness of the judgment from which he had appealed could not be a basis for

estoppel where it was never acted on by defendant.-Saunders V. Busch-Everett Co., La., 71 So. 153.

32.- -Partition.-Where a decedent's heirs voluntarily partitioned his land by conveying to the widow, who reconveyed their separate shares to each, the share of a daughter, by her direction being conveyed to herself and husband, such daughter, owning the land by inheritance, and not by virtue of the deed, was not estopped to assert her sole title, though her husband improved it to her knowledge.-Powell v. Powell, Mo., 183 S. W. 625.

33.- -Reliance Upon.-Where the purchaser of land, prior to being informed of the seller's other grounds for refusing to perform, did not act in any manner to his prejudice in reliance upon the seller's refusal to perform because of his wife's refusal to consent, the seller was not estopped to set up other grounds in the purchaser's suit for specific performance.-Dodd v. Groos, Iowa, 156 N. W. 845.

34.

Executors and Administrators-Lien.-On holding an administrator's sale void for want of the court's jurisdiction to order such sale, the purchaser was properly given a lien upon the property for what he had paid on the price and for taxes with legal interest thereon.Stadelman v. Miner, Ore., 155 Pac. 708.

35. False Imprisonment, Evidence.-In an action for false arrest it is competent to show the jury that the arrest was published in a newspaper, though the article itself must be excluded, in the absence of showing that defendant was responsible for its publication, if it cannot be read without introducing matter that cannot be gleaned from the charge and proceeding thereon.-Duval v. Inland Nav. Co., Wash., 155 Pac. 768.

36. Fixtures-Removal.-As between the vendor and vendee of land, a storehouse building erected on a solid foundation consisting of brick and wooden pillars and extending onto plaintiff's property for a distance of nine feet constituted a fixture, and the vendor had no right to remove the same against the protest of plaintiff, a successor in interest of the vendee.McLeod v. Clark, Miss., 71 So. 11.

37. Fraud-Presumption. In an action for fraud in representing the value of bonds given for the difference on an exchange of realty, it must be presumed that the parties put the true value on the property they exchanged.-Moore v. Beakley, Tex. Civ. App., 183 S. W. 380.

and

38. Fraudulent Conveyances-Husband Wife. Creditors of an insolvent husband who uses his funds to improve his wife's lands may reach the value of such improvements by chancery proceedings.-Healey v. Tillberry, Mo. App., 183 S. W. 666.

39. Garnishment-Pleading.-Where a judg ment debtor on selling land requires payment of the price by note and mortgage to his son, simultaneously with transfer of title to the purchaser, the purchaser was not indebted to the judgment debtor, nor subject to garnishment, and need not ask in the garnishment proceedings that the judgment debtor be brought in to determine the person to whom he owed the money. Stovall v. Hamilton, Ala. App., 71 So. 63.

40. Guardian and Ward-Allowance to Ward. -Though the guardian must preserve the ward's estate, it does not follow that a child and its parent must remain in poverty and privation during the ward's minority in order to preserve intact the estate, when the best interests of the child require that the parent maintain a home for it.-Des Moines Savings Bank v. Krell, Iowa, 156 N. W. 858.

41. Homestead-Waiver. — A marginal inscription of a waiver of homestead in favor of the plaintiff bank on the page upon which a mortgage in favor of the plaintiff was recorded not a registry of the waiver.-Iberville Bank & Trust Co. v. Dupuy, La., 71 So. 206.

was

42. Husband and Wife- -Contract.-Where a contract for the exchange of land between married women bears the signature of the husbands, without their names appearing in the body of the contract, that is sufficient to indicate their assent, if the wives are otherwise bound by their signatures.-Wood v. Lett, Ala., 71 So.

177.

43. Parties to Action. Only an innocent purchaser, who actually paid a valuable consideration, and received or was entitled to receive a conveyance, having no notice of any fraud, can defend a wife's suit for cancellation of her deed to the purchaser's grantor, based upon fraud practiced in securing her acknowledgment.-Essex v. Mitchell, Tex. Civ. App., 183 S. W. 399.

44. Separate Estate.-If a wife, out of her separate estate, paid the consideration which induced the husband's judgment creditor to convey to her the husband's land on which such creditor had levied under writ of execution, the creditor's deed vested title in the wife as her separate estate.-Emery v. Barfield, Tex. Civ. App., 183 S. W. 386.

A

45. Injunction Independent Owner. driver of a bakery wagon who owned his horse and harness, but used the plaintiff's wagon and goods and received 25 per cent of his sales as compensation, was not the independent owner of a bakery route, but the employe of the plaintiff, and his use of their list of patrons in soliciting for a rival concern would be enjoined. -Cornish v. Dickey, Cal., 155 Pac. 629.

46. Jitney Busses.-A suit to enjoin enforcement of a municipal ordinance passed under statutory authority, which purports to regulate jitney busses, will lie where brought, not with intent to prevent criminal prosecutions but because the ordinance deprived the operators of their property without due process of law.Huston v. City of Des Moines, Iowa, 156 N. W. 883.

47. Insurance-Divorce.-Proof that a wife, from whom insured was divorced, paid "several" premiums upon his life insurance policy, held to entitle her to reimbursement in the amount of two premiums and no more.-Eversole v. Eversole's Adm'x, Ky., 183 S. W. 494.

48. Landlord and Tenant-Pleading.-Lessee, under lease permitting termination at his option if sale of liquors on leased premises was prohibited, was not required to plead, in lessor's action for breach, after prohibition of sale on the premises, that he had applied for license, or that it had not been refused on account of personal disqualification, where no notice was given to apply, and license was fused on the ground that sufficient saloons were already licensed.-Christian Moerlein Brewing Co. v. Roser, Ky., 183 S. W. 479.

re

49. Libel and Slander-Instructions. In action for slander by defendant's manager, Instructions, authorizing recovery if the manager was the agent of defendant acting within scope of employment, did not authorize recovery merely because language was uttered contemporaneously with employment.-Southwestern Telegraph & Telephone Co. v. Wilkins, Tex. Civ. App., 183 S. W. 429.

50.- -Slander per Se.-Statements by the manager of a telephone company that the company did not allow girls to work for it who were not ladies, and that she and another had had men in their room at night, were slanders per se. Southwestern Telegraph & Telephone Co. v. Long, Tex. Civ. App., 183 S. W. 421.

51. Limitation of Actions New Parties. Where plaintiff, after suing a company as “a corporation," learned that it was a partnership, leave to amend to correct the mistake should have been granted over objection that the amendment introduced a new party after limitations had run. McGinnis V. Valvoline Oil Works, Pa., 96 Atl. 1038.

V.

52. Livery Stable and Garage Keepers-Lien. -Where a mechanic secured the contract to repair an automobile, agreeing to wait for payment until the owner's claim against the insurance company was settled, he had no lien on the automobile for the repairs.-Pezenik Greenberg, N. Y. Sup. Ct., 157 N. Y. Supp. 1093. 53. Malicious Prosecution-Defense. One who maliciously and without probable cause files what purports to be a criminal information, but which fails to state facts constituting a criminal offense, cannot urge the defect in such information as a defense to an action for malicious prosecution based thereon.-Vander Linden v. Öster, S. D., 156 N. W. 911.

54. Master and Servant-Assumption of Risk. -A teamster required to back his wagon into a shed assumes all risk of injury resulting from

the lowness of the shed's roof; the defect being perfectly obvious.-Poynter v. Alfred Struck Co., Ky., 183 S. W. 461.

55. Assumption of Risk.-A coal miner does not assume the risk of injury from the master's failure to supply and deliver timbers on request, as required by Code 1915, § 3507, subd. 11.Melkusch V. Victor American Fuel Co., N. M., 155 Pac. 727.

56. Contributory Negligence.-A servant, negligently placing ice hooks so near edge of block that they were likely to pull loose, held to have selected an unsafe method, and guilty of contributory negligence, defeating his recovery. -Corbin Ice & Carbonating Co. v. Ellison, Ky., 183 S. W. 549.

57. Surviving Dependent. The surviving dependent of a servant who received injuries causing his death is not entitled to compensation for amounts paid to a physician unnecessarily called in consultation in order to save the life of the servant by an operation another competent physician being in attendance.-Mahoney v. Gamble-Desmond Co., Conn. 96 Atl. 1025.

58. Warning.-The duty of a locomotive engineer, who sees a section man, track worker, or switchman on the track, to give warning of the engine's approach, does not arise until he sees that the other will not protect himself.Newkirk v. Pryor, Mo. App., 183 S. W. 682.

59. Workmen's Compensation Act.-Clerical employes in the city clerk's office are not city employes engaged in conducting a light and water plant, within the Workmen's Compensation Act, § 6.-Udey v. City of Winfield, Kan., 155 Pac. 43.

60.--Workmen's Compensation Act.-Under Workmen's Compensation Law providing compensation for injuries by employes in hazardous employments, specifying as such the operation of horse-drawn vehicles, a stable employe, injured when a horse which he was removing from its stall fell on him, was entitled to compensation. Costello v. Taylor, N. Y., 111 N. E. 755, 217 N. Y. 179.

61. Wrongful Discharge.-Where employer writes a contract of employment, which employe signs, and employer agrees to sign it, but before doing so, without cause, discharges employe, employe has cause of action for salary for unexpired term.-Lurie v. Titcomb, La., 71 So. 200.

62. Mines and Minerals-Equity.-A court of equity has jurisdiction of a suit by the United States to enjoin the taking of petroleum from land which it claims to own, and which constitutes its chief value, and where complainant also owns adjoining oil lands.-El Dora Oil Co. v. United States, U. S. C. C. A., 229 Fed. 946.

63. Monopolies-Sherman Act.-Manufacturers of lasts, who separately agreed with rubber company to sell lasts only to parties specified by it, held within their rights, and not liable under the Sherman Act.-Hood Rubber Co. v. United States Rubber Co., U. S. D. C., 229 Fed. 583. 64. Mortgages-After-Acquired Property. An after-acquired property clause in a mortgage to secure advances will not confer title upon the mortgage to crude gum taken from trees on public lands, and which the mortgagor mixed with gum of which he was the unquestioned owner-Union Naval Stores Co. v. United States, U. S. Sup. Ct., 36 Sup. Ct. 308.

65. Evidence. In an action on a note and mortgage, defended on the ground that the note was never delivered to the mortgagee, testimony that defendant's husband said in conversation that he had never delivered the mortgage could be considered only as impeaching the husband's contrary testimony, and not as substantive evidence of delivery.-Roberts V. Roberts, Iowa, 156 N. W. 399.

66. Priority.-Where an association agreed to convey land and loan money to erect a building thereon, and where the deed and mortgage back were executed simultaneously while the building was under construction, and the balance of the amount to be advanced on the mortgage was paid over, held that, to the extent of the unpaid purchase price, the mortgage was entitled to priority as a purchase-money mortgage over mechanics' liens.-Franklin Society for Home Building & Savings v. Thornton, N. J., 96 Atl. 921.