fireman, forced to walk some distance through heavy snowfall to work, which exhausted and wet him, and to work extra long shift thereafter, exposed to changes of temperature, subsequent to which he contracted pneumonia, from which he died.-Linnane v. Aetna Brewing Co., Conn., 99 Atl. 507.

78. Mortgages-Priority.-A purchase-money mortgage executed at the same time as the deed to the mortgagor, has priority over a mechanic's lien for services rendered as an architect at the request of the purchaser before the deed were executd.-Weinstein and mortgage Montowese Brick Co., Conn., 99 Atl. 488.

V.

of

79. Municipal Corporations-Dedication Street. The grading by a city of a dedicated and publicly used street constitutes an assumption of control and invitation to use it as a street, which it is bound to keep reasonably safe for travel.-Chance v. City of St. Joseph, Mo., 190 S. W. 24.

80. Instructions.-In a prosecution for violation of motor vehicle law in failing to stop address, etc., after causing and give name, injury to another automobile, instructions that unless the jury believed beyond a reasonable doubt defendant knew

against innocent purchaser.-Rogers v. Whitney, Vt., 99 Atl. 419.

89. Evidence.-Where buyer paid seller certain amount as part of price of automobile, which seller was to put in running condition, such payment was not conclusive evidence of its acceptance by seller.-Lane v. McLay, Conn., 99 Atl. 498.

90. -Excuse for Nonperformance.-A letter from the buyer confirming a sale made by telegram, but mentioning a better grade of goods, does not excuse the seller from performing his part of the contract as originally entered into. -Crenshaw Bros. Seed Co. v. Rauch, Miss., 73 So. 53.

91. Rescission.-In action for price of merchandise, where defendant alleges recission for breach of warranties, directions of plaintiff's agent to defendants to keep the merchandise. endeavor to sell it, and that defects would be adjusted, while an important circumstance in determining whether defendant had elected to rescind within a reasonable time, did not warrant defendant in retaining merchandise indefinite length of time before electing to rescind. Fred S. Todd Shoe Co. v. Pierce Shoe Co.,

had been injured, he must be acquitted, held properly refused.-Woods v. State, Ala., 73 So. 129.

Con

81. Negligence-Res Ispa Loquitur. tractual relationship between the parties is not essential to the application of the rule of res ipsa loquitur.-Bloom v. City of Cullman, Ala., 73 So. 85. 82.

Principal and Agent-Respondeat Superior. Where defendant gave a written order for flour to plaintiff's agent to be charged to agent an automobile, to whom defendant had sold and plaintiff, without notice, shipped under a forged order, directing shipment direct to defendant and defendant received the flour believing it had been charged to the agent, held, that plaintiff must suffer loss caused by its accredited agent.-Felder v. Acme Mills, Miss., 73 So. 52.

83. Railroads-Interstate Commerce Commission. Interstate Commerce Commission has no power to order a carrier to furnish oil tank cars by Act June 29, 1906, amending Act Feb. 4, 1887, § 1, though by § 12 as amended by Act March 2, 1889, the commission was required to enforce the act, and by § 13 as amended by Act June 18, 1910, was given power to enter orders regulations or other practices.regarding United States v. Pennsylvania R. Co., U. S. S. C., 37 Sup. Ct. 95.

84.Regulation of Speed.-A statute regulating speed of carriage of live stock is proper exercise of police power, if reasonable and practical in its operation, and not imposing an undue burden on the carrier.-Davison v. Chicago & N. W. Ry. Co., Neb., 160 N. W. 877.

85. Sales-Bill of Lading.-Terms of contract of sale, "Cash, less 11⁄2 per cent ten days," means that payment within ten days shall be treated as cash, and give no right to attach draft to be paid before delivery of bill of lading.-Hazel Hill Canning Co. v. Roberts Bros., Md., 99 Atl. 424.

86.- -Conditional Sale. Where defendants, who obtained possession of a motor car under a conditional contract of sale, defaulted in payments, held that, seller being entitled to repossession, his measure of damages was value of the use of the property as estimated by the market price of such use during the period of reasonable detention.-Evans v. Kloeppel, Fla., 73 So. 180.

87.- -Delivery.-If goods are sold to be delivered by the seller at the residence or place of business of the purchaser, a delivery to the carrier is not a delivery to the purchaser.Robbins v. Brazil Syndicate R. & B. Co., Ind., 114 N. E. 707.

88.- -Description of Property.-A lien note on a horse reading, "For dark brown gelding, 22 load 25, No. 958, six years old, weigh 1300, star, this day conditionally sold and delivered by Johnson and Fifield Co. to Barney Levett," the horse to be good sufficiently described

an

92. Specific Performance-Evidence.-A decree of specific performance of a land contract may be denied the vendor where he misled the vendee as to the quantity to be conveyed, though he acted innocently.-Bentley v. Space, Neb., 160 N. W. 887.

93. Telegraphs and Telephones-Mental Suffering. In an action for damages for delay in transmitting a telegram, in absence of allegation that plaintiff incurred expense as a proximate cause of defendant's negligence, he could not make such damage basis of claim for mental anguish.-McLendan v. Western Union Telegraph Co., Ala., 73 So. 120.

94. Vendor and Purchaser-Evidence.-Where vendor, who conveyed land to two, one of whom disposed of his share, informed purchaser from was disoriginal grantee that vendor's lien charged, such purchaser was warranted in assuming that it had been satisfied by his grantor, who was primarily liable for one-half the purchase price.-Wolford v. Bias, W. Va., 90 S. E. 875.

95.

-Rescission.-Where townsite company sold lots, stating a railway would build its depot opposite the lots, the buyer held not entitled to rescind when the railway located its depot elsewhere.-Ore City Co. v. Rogers, Tex., 190 S. W.

226.

96. Wills-Deed.-An instrument in form of a deed to land, "to take effect only after the death of" the grantor, held testamentary in character. and not a deed.-Simpson v. McGee, Miss., 73 So. 55.

97. Heirs.-Where a testator devised his land to one for life, remainder to his children or the legal representatives of such as are dead, the expression "legal representatives" is equivalent to the word "heirs."-In re Bair's Estate, Pa., 99 Atl. 471.

98.- Power.-Where had widow a power under her husband's will to sell land necessary for her support, her failure to set out such power in her deed did not avoid the deed; it appearing that the sale was reasonably necessary for her support.-Sparhawk v. Goldthwaite. Mass., 114 N. E. 718.

99.

-Power of Appointment.-Under a will devising to testator's surviving wife and to her children by testator all his property, both real and personal, and appointing her executrix, and giving her power to sell and convey realty by warranty deed and to use proceeds for her own benefit, she was authorized to convey realty.Thurman v. Symonds, Ark., 190 S. W. 106.

100. -Remainder.-A will devising personal property and household goods to testator's wife and his real estate to his wife and his son for life, with remainder to his son's bodily heirs after payment of just debts, gives testator's debts precedence over both life estates and remainders.-Todd's Ex'r v. First Nat. Bank, Ky., 190 S. W. 468.

The opinion is by Justice Pitney, who quotes from two recent opinions by the court as to the free right of contract and arbitrary interference therewith being "a substantial impairment of liberty in the long established constitutional sense." (Coppage v. Kansas, 236 U. S. 1), and of the right to work for a living in the common occupations of the community being "of the very essence of the personal freedom" the Fourteenth Amendment intended to secure (Truax v. Raich, 239 U. S. 33).

He then says: "It is not our purpose to qualify or weaken either of these declarations in the least. And we recognize that the legislation under review does measurably limit the freedom of employer and employe to agree respecting the terms of employment, and that it cannot be supported except on the ground that it is a reasonable exercise of the police power of the state. In our opinion it is fairly supportable upon that ground. And for this reason: The subject-matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare."

Volumes might be written on the subject of freedom of contract and the right

to the pursuit of life, liberty and happiness, but no more comprehensive statement. of its subordination to police power, when the exercise of such rights places one in at situation where rights of society have claims on it can be found.

It is a matter of option whether one will contract in a certain way or will refuse to contract in that way. If to contract he places himself in a class where some public right is affected, he has the same right to the inviolability of the latter right as any other person. The principle announced is wrapped up in the maxim sic utere tuo ut alienum non laedas.

The justice says: "It cannot be doubted that the state may prohibit and punish selfmaiming and attempts at suicide; it may prohibit a man from bartering away his life or his personal security; indeed, the right to these is often declared in bills of right to be 'actual and inalienable;' and the authority to prohibit contracts made in derogation of a lawfully established policy of the state respecting compensation for accidental death or disabling personal injury is equally clear."

At bottom it is to be thought that hardly have we a right that is absolute. All our rights are relative and whatsoever measure of restriction is placed upon them is the penalty paid to government to protect what remains. If one can forfeit to society his life or his liberty for what he may do to another or his property, why need to urge he has any other right that is absolutely inviolable by society's command? We have title to property, but society takes it in invitum for taxes or in eminent domain. We have the right to will it away or donate it freely, but society tells how this must be done. We have the right to walk the streets, but if we spread infection, we may be confined. We may open our windows to the healing breeze, but if this harms those within or without our walls, we may be made to shut it out. Sic utere tuo ut alienum non laedas-use your own but not to your neighbor's hurt,

NOTES OF IMPORTANT DECISIONS.

TRADE-MARK AND TRADE-NAME-BOT

TLING PROTECTED PRODUCT SOLD IN BULK.-In Coca Cola Co. v. Bennett, 238 Fed. 513, decided by Eighth Circuit Court of Appeals, it is held that a manufacturer in bulk of a syrup, which it sells only to certain companies who may prepare it according to a formula for bottling, that is to say, by the addition of carbonated water according to directions by the manufacturer, and then sell the bottled product under manufacturer's trade-mark, may enjoin another from bottling the product sold by manufacturer and selling it under manufacturer's trade-mark.

There are several cases cited in support of this ruling on the theory of this being unfair competition. One of the reasons is that: "Unless the manufacturer can control the bottling, he cannot guarantee that it is the genuine article prepared by him." Another that, "he cannot tell whether it is bottled in so careful a manner as is essential to the preservation of the article and the maintenance of its good reputation." The court also says it "would open the door to any person or corporation to adulterate the beverage sold as Coca Cola without any right in the (manufacturer) to prevent it."

Against all of this theory, if it be admitted that one having a trade-marked article has the right to do any more than sue when a spurious imitation is palmed off on the public as genuine, appear two decisions, one of packaging and the other bottling a trade-marked product, as they came from the factory and in this form selling same under the trade-mark. This was held allowable. Russia Cement Co. v. Frauenhar, 133 Fed. 518, 66 C. C. A. 500; Appolinaris Co. v. Scherer, 27 Fed. 18.

The court said: "If the defendants in this case had simply resold the syrup, it would be within the reasoning of the cases cited; but they did not do this. They changed the syrup into a beverage, and they say that they changed it in the same manner that the appellant authorized other persons to do. But the trouble with this argument is that it destroys appellant's exclusive right to its trade-mark and the resulting right to say who may use it."

We think a trade-mark right ought not to be superior to a patent right and when one

purchases a trade-marked article, the seller loses his right to say how he shall use it. If he resells it under its trade-mark name, is it to be said that combination with another substance has made it another thing?

Also, conceding this to be so, yet, if the manufactured article is intended to be sold for use, not as a plain syrup, whether bottled or unbottled, and under its trade-mark, but in combination with water, carbonated or uncarbonated, and under its trade-mark name, may manufacturer object that the manner of combination is not followed in the resale? The fact that it is well-known that this syrup is sold at soda water fountains, generally with water combined with it, is strong evidence the other way. If one may buy the syrup in bulk and mix it as he pleases for sale at a soda fountain, is not the presumption present that the manufacturer blows hot and blows cold when he says a bottler not following his directions takes away something in the way of ready evidence to show a bottler may be infringing his trademark? One has no vested rights in a rule of evidence.

BANKRUPTCY-NEW PROMISE TO PAY UNPAID PORTION OF DEBT IN ENFORCED COMPOSITION.-In Spann v. Read-Phosphate Co., 238 Fed. 338, decided by Fourth Circuit Court of Appeals Court, a decision by district court that a mortgage given for the entire debt against a former bankrupt, which debt was awarded a percentage or dividend in an enforced composition was without consideration to support it, was reversed.

The district court said: "It may be that a bankrupt has the right, under the aspect of some moral obligation, notwithstanding his bankruptcy, afterwards to pay his debts in full. There is a difference, however, between paying in full in the case of a simple bankruptcy and in the case where a composition has been ordered and the debt subsequently paid in full has been used to force other creditors by means of a composition to accept less than their debts. No creditor voting to enforce a composition has a right in any way, shape, guise or pretense, after forcing his fellow-creditors to accept a composition, to afterwards have his debt paid in full. The debt is completely discharged. Any payment thereafter made by the bankrupt is a pure donation, and this donation cannot be made under the rules of law to the prejudice of any creditors, whether past or existing."

The Circuit Court of Appeals refers to Zavelo v. Reeves, 227 U. S. 623, Ann. Cas. 1914D, 664, as in its reasoning negativing the distinction between an ordinary discharge in bankruptcy and one where assets are distributed by an enforced composition. The principle of moral obligation supporting a new promise to pay is the same in one case as in the other, there being no fraud in bringing about the composition.

The district court proceeded on the theory, that, notwithstanding the right of a creditor to urge and vote for a composition, there arose a sort of estoppel in his doing this. But the question appears to us to be one purely of business judgment in the adoption of a course to the best advantage of creditors. The bankrupt offers a composition which will save his assets and the creditors accept the offer, instead of insisting that they be sold. If the statute affords an option to them, there should arise no estoppel as to the course they take.

The judgment below was modified so as to declare the mortgage without consideration, to the extent of the 25 per cent dividend paid in the composition, provided that had not been accounted for already.

INTERNATIONAL

LAW - PRIZE TAKEN BY BELLIGERENT ON THE HIGH SEAS, BROUGHT INTO NEUTRAL PORT.-In Berg v. British & A. S. Nav. Co., 37 Sup. Ct. —, the case of the Appam, a vessel of English registry and ownership, was brought into an American port by a German officer, put in charge of her by the captain of the Moewe, a cruiser of the German navy, which had captured the Appam on the high seas. The English owner brought an action in a United States court for her possession against the officer in charge of her.

The officer and the vice-consul of the German Empire, also made defendant, set up in behalf of their government rights under international law and a treaty between our government and Germany, asserted to accord asylum to the latter for prizes captured by its ships as a belligerent.

Justice Day, speaking for the court, said there was nothing in the treaty appealed to that differentiated this capture from the general principles of international law, and the attempt to make of our harbors a refuge for an indefinite time of prizes captured by a belligerent constituted a breach of neutrality. This breach rendered the prize subject to suit brought by the true owner in our courts.

The question of jurisdiction in our courts was determined according to practice in our government in the beginning, allowing the owner, rather than his government to sue. Quoting from Justice Story, it was said: "If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself."

But the point most strongly stressed in this case was that the prize was not brought here as to the nearest port after capture or to remain for such a time as necessary to relieve distress, but our ports were sought to be used in a permanent way for the storage of prizes for an indefinite time. This, it was held, could not be done.

DIVORCE EFFECT OF DECREE UPON SEPARATION AGREEMENT FOR SUPPORT. -In Hertz v. Hertz, 161 N. W. 402, decided by Supreme Court of Minnesota, practical construction is invoked as to meaning of an agreement of separation for monthly payments by the husband to be made to his wife during her natural life "or while this separation continues."

The court said: "The argument is that 'this separation,' that is, the separation provided for in the agreement, did not continue after the divorce was granted. This is plausible, but rather technical. It seems to us that the intention was to provide for the wife's support during her life or while the parties continued to live apart. This is quite strongly borne out by the fact that the divorce judgment was entirely silent as to any provision for the wife's support and as to the property rights of the parties."

The divorce was obtained by the wife, and it seems to us very plain, that in suing for it she abandoned the status in the agreement provided for. That the judgment in the action for divorce was silent on the subject of property rights was merely a conclusion by the wife as to the meaning of the separation agreement-it was nothing acted upon by both parties. Just as all rights ceased upon death of the wife under the agreement, so it seems they ceased upon termination of its terms by the divorce. The consideration moving for continued support of the agreement ceased by the wife's act in obtaining an absolute divorce.

APPOINTING ADDITIONAL JUDGES AS A MEANS OF DISPLACING SERVING JUDGES.

Judging from recent newspaper reports, a most remarkable bill has received the approval of the Lower House of Congress, and has been forwarded to the Upper House for their consideration, where it is now on the tapis, or has already received the Senatorial consideration and approval, thus, when signed by the executive, passing beyond its embyro stage and becoming a full-fledged law, which in substance contains the provisions to be presently noticed.

The Constitution of the United States has ordained that judges of the United States courts shall hold their offices during good behavior. Subsequent congressional legislation has provided that where a federal judge has reached the age of seventy years, having served ten years on the bench, he is at liberty to retire from office upon full pay.

The bill above mentioned makes provision that the President, in such cases, shall appoint what are termed "additional judges," who, upon being appointed, shall take "precedence" of the serving judge, and, of course, it will follow, "as night follows day," that as two bodies cannot occupy the same space at the same time, that the latter is displaced and disqualified from further holding office; relegated to the discard and other useless lumber of the court room, as much so as if the bill in question had thus in terms so declared.

Had Congress thus in terms declared, to-wit: That the serving judge should no longer hold or possess any jurisdiction to try causes in the court where he now sits, who could doubt for a moment that such law was a bill of attainder, i. e., was a legislative judgment which inflicts punishment without a judicial trial?

It was ruled in Cummings Case, 4 Wal. 277, that disqualification from office or from the pursuit of a lawful avocation by a legislative act is a punishment. Here the disqualification of the serving judge is too plain for argument. Res ipsa loquitur. And the fact that a subterfuge is employed and a circumlocution resorted to by the congressional draftsman does not rob the present bill of its attainderous hue and complexion.

Would the act accomplish a result which the Constitution forbids? If so, no matter what may be the form of the act, it is unconstitu

tional. Green v. Biddle, 8 Wheat. 1; Bronson v. Kiwzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; The Pasenger Cases, 7 How. 283.

These legislative judgments which deprive a man of any right he possesses, are condemned and denounced as bills of attainder, because they do not constitute due process of law; "the general law of the land; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial," as stated by Daniel Webster in the Dartmouth College Case. 'It was attempted indeed in the Cummings Case (successfully in the lower court), to limit the words of the United States Constitution strictly to the very words: "Life, liberty and property." But Mr. Justice Field declared in delivering the opinion of the court: "We do not agree with the counsel of Missouri that to punish one is to deprive him of life, liberty or property, and that to take from him anything less than these is no punishment at all. The learned counsel does not use these terms-life, liberty and property-as comprehending every right known to the law. He does not include under liberty, freedom from outrage on the feelings as well as restraints on the person. He does not include under property, those estates which one may acquire in professions."

Another objection appears on the face of this bill. The President has no power to anticipate a vacancy and make an appointment in advance to fill it. Black Const. Law 114; McCary, Elect., § 257.

If the Constitution fixes the term of office, such term may not be changed by the legislature. 29 Cyc. 1396 and Cas. cit. This change is clearly contemplated and intended by the legislation in question. It disqualifies a judge from further holding his office by a legislative judgment without judicial trial, and then by a similar legislative process, despite the Constitution, declares a vacancy in such office, and fills it with what is termed an "additional judge."

By the same token, if such legislation is to stand the test of judicial scrutiny, then similar legislation will be in order, providing “additional judges" of the Supreme Court of the United States, where a judge has attained the age of seventy years, having served ten years on that bench. T. A. SHERWOOD.

Long Beach, California.