tional false statements in the proofs of loss will not preclude recovery.-Willis v. Horticultural Fire Relief of Oregon, Ore., 152 Pac. 259. 70. Property Covered.-Policies of tornado insurance not purporting to cover subsequent construction held to cover property in process of construction at the time of their issuance, but not property the construction of which was begun after their issuance.-Northwestern Fuel Co. v. Boston Ins. Co. of Boston, Mass., Minn., 154 N. W. 515.

71.--Warranties.-Untrue answers in an application for a policy of insurance which warrants all answers therein to be "complete and true and material and binding" void the policy. -McManus v. Peerless Casualty Co., Me., 95 Atl.

510.

72. Joint-Stock Companies-Common Law.At common law, and without statutory authority, persons may associate themselves in jointstock companies with transferable shares.Roberts v. Anderson, U. S. C. C. A., 226 Fed. 7. 73. Judgment-Clerical Error. While the trial court may order that clerical mistakes in the entry of a judgment be corrected to show the judgment pronounced, judicial errors can be reached only by motion for new trial appeal.—Wyllie v. Kent, Idaho, 152 Pac. 194.

or

74. Conclusiveness.-A judgment is conclusive as to everything which might have been pleaded, or given in evidence in defense, or to lessen the damages, except that which might be pleaded in offset.-Campbell v. Martin, Vt., 95 Atl. 494.

75. Opening Default.-Where a party having a meritorious defense employed a reputable attorney to present it, and the attorney agreed to appear, a default due to the attorney's failure will be vacated on the ground of excusable neglect. Gaylord v. Berry, N. C., 86 S. E. 623. 76. Vacation of.-In order to vacate judgment for fraud practiced by the successful party, it is necessary that the defense of the action be sufficiently alleged and that such defense be adjudged a valid one.-Smith v. Minter, Ark., 179 S. W. 341.

a

Larceny-Good Character.-Where defendant's explanation that he bought the alleged stolen cattle was undisputed and was supplemented by testimony of his good character and honesty, his conviction was unauthorized.--Graham v. State, Okl. Cr. App., 152 Pac. 136.

78. Possession of Stolen Property.-The mere possession of coffee, though not accounted for, will not authorize a conviction of stealing, where there is no evidence that it was stolen. Berry v. State Ga. App., 86 S. E. 644.

79. Libel and Slander-Truth as Defense.The publication of a true statement is not libelous if it is published with good motives and for justifiable ends, within Const. art. 1, § 5, though it would be libelous if untrue.-Deupree v. Thornton, Neb., 154 N. W. 557.

84. Master and Servant-Assumption of Risk. -A laborer directed by his foreman to remove a wooden horse from its position across a freshly cut ditch assumed the obvious risk of its caving in from his placing his weight too close to the edge.-White v. Louisville Gas & Electric Co., Ky., 179 S. W. 418.

85.-Assurance of Safety. That a master gives a servant an assurance of safety does not impose absolute liability, regardless of negligence, but only deprives the master of the advantage of the pleas of assumption of risk contributory negligence, unless the deNational Con

and

fect was obvious.-Thomas v. crete Const. Co., Ky., 179 S. W. 439.

86.- -Dependency.-A widowed mother without means is wholly dependent on her son for support, where she is supported partly by his wages and partly by the yield of his land.State v. District Court, Beltrami County, Minn., 154 N. W. 509.

87. Obvious Danger.-Danger of employe slipping, where scrub-woman was mopping the floor, as she stepped back from the machine at which she was working, held so obvious that warning was required.-Standard Knitting Mills v. Hickman, Tenn., 179 S. W. 385.

no

$8. Quantum Meruit.-Where, in an action for services, the complaint alleges an agreed price and the reasonable value, and the latter only is proven, recovery may be had therefor.Krutz v. Lough, Minn., 154 N. W. 514.

89. Workmen's Compensation Act.-The injury was one "arising out of," as well as in the course of, his employment, within the Workmen's Compensation Act, where a mill superintendent, on ordering out a trespasser, pursuant to his general dut and specia' instructions, was shot and killed by him.-In re Reithel, Mass., 109 N. E. 951.

90. Monopolies--Magnitude.--The Size and extent of business of a corporation may properly be considered in determining whether it constitutes an illegal monopoly, where it has used the power resulting from a large business arbitrarily to eliminate weaker competitors.-U. S. v. Eastman Kodak Co., U. S. D. C., 226 Fed. 62. 91. Mortgages-Presumption of Payment.A bond and mortgage payable at such time the directors of the mortgagor should determine were presumably due and payable after the lapse of 18 years.-Rhone v. Keystone Coal Co., Pa., 95 Atl. 530.

as

92. Priority.-A materialman's lien held prior to a mortgage taken during the construction of the building for which the material was furnished, though the material was not used in the building.-Minneapolis Sash & Door Co. v. Hedden, Minn., 154 N. W. 511.

con

80. Liens-Creation of.-Liens and legal mortgages can exist only by express provision of law, and any law creating them strictly construed.-State v. C. S. Jackson & Co., La., 69 So. 751.

81.-Equity.--An equitable lien may be created by advancements on the faith of property, may attach to property not in being, and does not depend upon possession, but may exist by implication.-Sieg. v. Greene, U. S. C. C. A., 225 Fed. 955.

82.

Life Estates-Permanent Improvements. -A life tenant is not bound to make any permanent improvements on the estate, and if he makes them it will be presumed that they are for his own benefit, and he anything therefor from the remaindermen or reversioners.-Neel's Ex'r v. Noland's Heirs, Ky., 179 S. W. 430.

cannot recover

94.-Release of Surety.-A surety on a note was discharged, where the holder without the surety's consent surrounded collateral security, regardless of the value of the collateral.-Elsey v. People's Bank of Bardwell, Ky., 179 S. W. 392.

95.

Railroads-Licensee.-A switching fireman killed by an engine of another railroad while crossing the yard to his engine after going to the station for a drink was not a trespasser or licensee, so that defendant owed him the duty of active care.-Ingram's Adm'x v. Ruthland R. Co., Vt., 95 Atl. 544.

96. Signals.-While a pedestrian on railroad tracks between crossings is not entitled to crossing signals, yet, if the signals are not given and the train is operated without a headlight, such facts are evidence of negligent operation. Treadwell V. Atlantic Coast Line R.

Co., N. C., 86 S. E. 617. 97. Reformation of Instruments-Mistake.Equity will reform a written instrument for mistake, because it does not state the true

the buyer

100. Sales Acceptance.-Where accepts, without objection being made within a reasonable time, an article different from that ordered, he is liable for the price agreed on for the article ordered.-Spaulding v. Howard, Okl., 152 Pac. 106.

101. Burden of Proof.-Where the issue was whether a sale was effected or whether there was merely an agreement to effect a subsequent sale by written contract, the burden was on the plaintiffs.-Pete Sheeran, Bro. & Co. v. Tucker, Ky., 179 S. W. 426.

102.- -Cancellation.-A letter from a purchaser requesting cancellation, answered by a letter from the vendor saying, "We are also grieved that it is necessary to concel" the order, held a cancellation by consent.-Schwab Safe & Lock Co. v. Snow, Utah, 152 Pac. 171.

103. Mitigating Damages. Where plaintiff might have mitigated the damages from defendant's breach of a contract of sale by purchasing elsewhere, compensation will be limited to such damages as could not have been avoided. Wilson v. Scarboro, N. C., 86 S. E. 611.

conse

104. Telegraphs and Telephones-Avoidance of Injury. The principle of avoidable quences applies to the negligent failure of a telegraph company to deliver a dispatch, as to other cases of broken contract or tort.-Weeks v. Western Union Telegraph Co., N. C., 86 S. E. 631.

105. Tenancy in Common-Diversion of Water. Where a tenant in common of a natural stream diverted water, he was a trespasser; his co-ownership not authorizing him to deal with the common property to the detriment of his co-owners.-Barton Land & Water Co. v. Crafton Water Co., Cal., 152 Pac. 48.

106.-Easement.-A tenant in common, by deed to which the other tenants were strangers could not place the burden of an easement of way on the estate so held in common, and make it servient to some other land.-Silverman v. Betti, Mass., 109 N. E. 947.

107. Trover and Conversion - Damages. One's right to recover the value of his property converted is not affected by the fact that he purchased it for less than the value, or ceived it as a gift.-Elbert County v. Brown, Ga. App., 86 S. E. 651.

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108. Vendor and Purchaser-Marketable Title. Where the vendor breached his contract to furnish a clear and merchantable abstract of title, and his suit for a reformation of the contract, to continue it during certain litigation was denied, the purchaser was entitled to the return of the earnest money.-Mathers v. Christianson, Iowa,. 154 N. W. 455.

109. Statutory Lien.-An action to enforce a statutory vendor's lien can be maintained only in the county where the land is located.-Newcomer v. Sheppard, Okla., 152 Pac. 66. -A

110. Waste Remainderman. contingent remainder is an insufficient title to support action of waste against life tenant.-Briggs v. R. I., 95 Atl. 505.

111. Waters and Water Courses-Ice.-A riparian owner on a mill dam has a fixed right to take ice from the stream where it flows over his land, and the owners of the dam cannot avail themselves of such right, although they have a right to an undiminished amount of water. Valentino v. Schantz, N. Y., 109 N. E. 866, 216 N. Y. 1.

112.- --Negligence.-Where a railway company builds its bridges and abutments so as to cause debris to accumulate and back up water over neighboring property, it is guilty of actionable negligence.-Southern Ry. Co. v. Weidenbrenner, Ind. App., 109 N. E. 926.

113. Riparian Rights.-Rights in water flowing from spring over plaintiff's land held to depend upon his riparian rights; no rights being obtainable by prescription.-Fraser v. Nerney, Vt., 95 Atl. 501.

114.- -Riparian Owners. Riparian owners held to have no right as against lower owners to furnish water from stream to people who were not riparian owners.-Town of Kirkland v. Cochrane, Wash., 151 Pac. 1082.

115. Surface Water.-Where a public highway drained surface waters on to plaintiff's land, plaintiffs had the legal right to repel such surface water by diking their land, irrespective of their motive in so doing.-Harvie v. Town of Caledonia, Wis., 154 N. W. 383.

116. Surface Water. Where there is a right in the surface waters of a stream, such right includes that to the subterranean waters which support the surface stream.-Barton Land & Water Co. v. Crafton Water Co., Cal., 152 Pac. 48.

117. Unlawful Diversion. Where restoration of water wrongfully diverted by defendant into its reservoir might benefit no one, plaintiff's remedy by an action at law for damages from such diversion was adequate, precluding injunction.-Comstock v. Ft. Morgan Reservoir & Irrigation Co., Colo., 151 Pac. 929.

re Craven's Will, N. C., 86 S. E. 587.

119.- Construction.-Unless it clearly appears from the context of a will or the circumstances of the case that a contingent interest was intended, the remainder will be regarded as vesting at testator's death, and not at the expiration of the life tenancy.-In re Tatham's Estate, Pa., 95 Atl. 520.

120.-Lex Loci. The validity of a will, as to personal property, is determined by the law of the testator's domicile at the time of his death, and, as to real property, by the law of the jurisdiction wherein it is situated.-Rutledge v. Wiggington, Ky., 179 S. W. 389.

121. Witnesses - Accused. Where accused voluntarily becomes a witness, he subjects himself to any legitimate cross-examination, though it tends to incriminate him.-Hoskins v. State Fla., 69 So. 701.

122. Credibility.-A credible person is one having capacity to testify on given subject and worthy of belief, and lack of knowledge on the subject of particular inquiry renders witness not credible in reference thereto.-Dewein v. · State Ark., 179 S. W. 346.

123.- -Cross-Examination.-A witness cannot be cross-examined as to collateral matters not referred to on direct examination.-People v. Ung Sing, Cal., 151 Pac. 1145. 124. Cross-Examination.-A witness to accused's good repute may be cross-examined as to the existence of rumors of specific wrongful acts.-State v. Rowell, Iowa, 154 N. W. 488. 125. -Impeachment.-Where accused was offered permission to ask his impeaching witsame question propounded to state's witness whom he desired to impeach by proof of a conversation, he cannot complain that the court would not permit questions as to the minute details.-Bulger v. People, Colo., 151 Pac. 937.

ness

the

the

126. -Impeachment.-A witness cannot be impeached by showing his conviction of a misdemeanor not involving moral turpitude.-Howard v. State, 86 S. E., Ga. 540.

127. Interrogation by Judge. The trial judge may interrogate a witness to elucidate matters, provided he does not intimate or express an opinion as to the proof of defendant's guilt.-Cason v. State Ga. App., 86 S. E. 644.

Central Law Journal.

ST. LOUIS, MO., JANUARY 21, 1916.

RECOVERY UNDER WORKMEN'S COMPENSATION ACT FOR INJURY SUFFERED IN INTERSTATE COMMERCE WHERE EMPLOYER WAS FREE FROM NEGLIGENCE.

In Winfield v. New York, C. & H. R. R. Co., 216 N. Y. 284, 110 N. E. 614, there appears to have been raised, for the first time, the question whether New York Workmen's Compensation Act was. excluded from application to a carrier in interstate commerce by the Federal Employers' Liability Act, in that recovery under the latter depends on negligence, while under former act it does not. It was held by a unanimous court, one judge not voting and another being absent, that the federal act only refers to recovery for negligence, and does not exclude recovery by an employe in interstate commerce for an injury not arising out of negligence.

State opinion in such a question is not, of course, conclusive, as it remains for the U. S. Supreme Court to construe the purpose of the federal act and to determine whether that purpose would be interfered with by state law allowing recovery in nonnegligence cases, when it declares that, so far as federal control goes, there must be negligence as a ground for recovery.

The New York court concedes, as other state courts declare, that all state laws regarding recovery by an employe injured in the course of employment are superseded by the federal act to the extent of its scope, and the inquiry is whether by its declaring, that a condition precedent to recovery is that an employer must be negligent, takes such an employer from under the police power of the state as to his being nonnegligent in an industrial pursuit.

The New York court says, however, that the scope of the federal act is as to recovery

based on negligence of employers, and does not cover what is embraced in police power: as to recovery from an industrial establishment on other ground than negligence, and as confirming its view it speaks of the federal compensation act providing for recovery by federal employes, though liability does not depend upon the existence of negligence. This confirmation would seem to be very slight indeed, for the question finally comes back as to the scope of the federal employers' liability act at the time it was. enacted. Indeed, the federal government might well have one theory of recovery as to employments under the commerce clause and a totally different theory as to recovery comes under laws not depending on the commerce clause.

When Congress was legislating in the riers in interstate commerce was it doing Federal Employers' Liability Act as to carthis to put a limitation upon their liabilities for injuries in the performance of their functions? When, therefore, it prescribed that they should reward an employe injured by their negligence, impliedly was it said no other penalty should be put upon them?

If states go beyond this they put a burden on the instrumentalities of commerce, which Congress may have said they shall not bear. It might be deemed that these carriers would not be either so free or so able to serve the purposes of commerce as were they exempt from this burden.

Furthermore, let us inquire how this imposition under state law would work, if it is lawfully imposed?

An employe sues an interstate carrier on the theory of negligence by his employer resulting in injury. There is verdict for defendant. This is not conclusive, because it merely shows the employe should have proceeded under the state workmen's compensation act.

But suppose that, in the first instance. the employe proceeds under the state act, and the carrier sets up its negligence as

We greatly doubt whether this finding by a commission would be a bar to proof of no negligence, for a judgment by a commission is not a judgment by a judicial tribunal. Indeed, we greatly doubt whether a commission can entertain such an issue, or, at least, whether it is expected to do this. Its judgment generally is to ge for the employe irrespective of negligence or non-negligence.

But it certainly can be ousted of jurisdiction in negligence cases, where the employer is engaged in interstate commerce, and we doubt whether failure to object to procedure under the state act would preclude a carrier from showing afterward, that the subject-matter was not within a commission's jurisdiction. It is not accident that gives the court jurisdiction in such a case, but accident resulting from negligence. The two things are as distinct as are any other two things.

It seems to us, therefore, that if we get beyond the federal question involved, we are then confronted with the purpose of the state act, as shown by its procedure to ascertain the measure of liability. But to us it seems clear, that, if the federal act forbids any recovery from an employer except as arising out of negligence, this should be construed to mean that no penalty where there is no negligence should be imposed. The federal act is not alone for the protection of employes, but also it may be deemed The for the protection of employers. whole question, therefore, resolves itself into the inquiry, whether or not there is a strong negative pregnant in the federal act against any penalty being visited on a federal instrumentality where it is not at fault. As federal law has no office merely to right a civil wrong, but to protect federal means, this question ought to be answered in the affirmative.

ONE

COMMERCE - TELEGRAM FROM POINT TO ANOTHER IN SAME STATE WITH WIRE CROSSING BOUNDARY.-It became important under the rule in Arkansas allowing damages for mental anguish to determine whether a message was interstate or not, Western U. Tel. Co. v. Sharp, 180 S. W. 504, decided by Supreme Court of Arkansas.

The facts show that the message in question was sent from a point in the state and was relayed at a point outside of the state and from there sent on to its destination in the state.

The opinion refers to three cases where the same question was involved and all of them held that the message was not interstate commerce. The Arkansas Court says: "We think the sounder rule is to say that so far as a telegraph message is concerned, the right of control is exclusively with the state where the message is sent from one point to another in the state regardless of the fact that the state line is crossed and that such fact does not constitute interstate commerce."

While this rule is generally true, it is to be doubted whether it would apply to messages which are relayed, as this fact suggests a distinction from a message going direct from one point in a state to another in the same state, though in its journey it crosses into another state.

DIVORCE. DIRECTION OF DECREE FROM BED AND BOARD.-Under Rhode Island statute divorces from bed and board and future cohabitation until the parties be reconciled may be granted for the causes for which divorces from the board of marriages may and in judicial discretion "for such other causes as may seem to require the same."

In Walker v. Walker, 95 Atl. 925, Rhode Island Supreme Court granted such a decree under judicial discretion as to conduct "allying it in its moral attributes with adultery," that is for "conduct extending over a long period, although not amounting to acts of adultery, yet had such a character of licentiousness as allied it to that offense and was like it in kind."

It would seem there ought to be some way to have reconciliation made a matter of record of equal dignity as the decree thus set aside. The separation standing as justified, the reunion should rest on judicial decree as well. The court had no occasion to speak on this point in the case. The decree, however, pro

vided for separate maintenance and how long that was to continue should be definitely marked and its cessation judicially shown.

An interesting point in procedure is to be noted as occurring in this case. The wife as appellant was allowed to have her amendment to have the decree under judicial allowed, but the Supreme Court ruled that, as required by statute, "respondent will be given an opportunity on December 20, 1915, to show cause why an order should not be made remitting the case to the Superior Court with direction to enter a decision granting to the petitioner a divorce from bed, board and fu ture cohabitation with the respondent until the parties be reconciled," etc., etc.

The practice here indicated shows that, if evidence has been submitted in the court below, it will be given effect without remand because of error in lower courts refusing to consider it and give it effect. This statute is in the line of practical procedure, saving time, expense and numerous bites at a cherry.

CONSTITUTIONAL LAW

EXEMPTION OF MEMBERS OF LEGISLATURE FROM CIVIL PROCESS DURING LEGISLATIVE SESSION.-Illinois Supreme Court held that a statute of Illinois exempting members of its Legislature from the service of civil process during a legislative session was unconstitutional, in that it was not based on any reasonable classification, is a special law and that independently of such statute a constitutional provision exempting members of its Legislature from arrest during a session, except for treason or felony did not cover service of civil process. Phillips v. Browne, 110 N. E. 601. There was dissent upon the first ground by two judges.

There is diversity of view as to the second of the above propositions, but it is believed that the weight of authority is with the Illinois court in this holding, some early cases ruling that the privilege from arrest is not to be narrowly confined.

But it seems to us that the majority err in holding that there is no reasonable classifications for the validity of the statute as ruled. It was said: "The members of the General Assembly constitute but a portion of the public officials chosen to transact the business of the state, and we perceive no good reason why they should be singled out as immune from service of civil process while engaged in the line of their duty any more than any

other class of public officials. If the purpose of the provision is to prevent suits being brought against members of the General Assembly in foreign counties into which they may be required to go in the performance of their official duties, then the law applies only to a portion of the public officials of this state, who are at times required to leave their home counties to perform their official duties."

But this assumes that were there a law passed for exemption of such latter class of officials, it would not rest upon a proper classification. We think that compelling a public officer to leave his home county to perform a public duty in another county ought to exempt him from civil process in another county, or that a statute to this effect would be valid. There is not free locomotion on his part, but only that in obedience to a public duty. He ought to be made exempt from having to answer in an inconvenient jurisdiction because he is faithful to his public duty.

And so as to a legislator away from his home county, there ought to be no temptation to sacrifice his public duty to his private interests. It is but a slight step beyond this to give a member exemption from service of civil process in his home county. The statute being based generally on reasonable classification, Iwould be maintained as to its incidental features.

As is well pointed out by the dissent, there exists classification in the facts, that a session of the legislature is only for a part of the year and that a member cannot perform his duties by deputy, but his personal presence is necessary.

BANKRUPTCY-LIEN OF JOINT JUDGMENT AGAINST HUSBAND AND WIFE ON ESTATE BY ENTIRETY.-In 1913 a joint judgment was obtained against a husband and wife. In 1914 he was adjudicated a bankrupt but the trustee made no claim upon property held in entirety. About two months after his discharge in bankruptcy, the wife died. The judgment creditor then sought to enforce his judgment against the property held in entirety, and it was ruled by Maryland Court of Appeals that this could be done. Frey v. McGaw, 95 Atl. 960.

The court said: "The discharge of the It bankrupt was only personal to the debtor. was entirely without effect as to any liens subsisting at the time."

But, if a general judgment is discharged by the discharge in bankruptcy, this is equivalent