standing the lack of privity between them.Freeman v. Schults Bread Co., N. Y., 163 N. Y. Supp. 396. 78. Newspapers-Contracts.-Where county contracted to pay publisher 25 cents per description for publishing delinquent tax list, payments to be made as delinquent taxes were paid the collector, amount was payable within reasonable time after publication, and, in the publisher's action, it was not necessary for him to allege that any of delinquent taxes had been paid the county.-Potter County v. Boesen, Tex., 191 S. W. 787. 79. Partition-Evidence.-The mere fact that a judgment is of record and appears unsatisfied is not conclusive evidence that it is unpaid, and in a partition suit such a judgment against an heir is not conclusive that there is no reason why the funds in the hands of the commissioner should not be applied to its payment.-A. Kiefer Drug Co. v. De Lay, Ind., 115 N. E. 71. 80. Railroads-Deed.-A deed by a railroad to a tract of land over which a railroad right of way extends, which made no mention of the right of way, does not pass the title to the right of way.-Chicago, St. P., M. & O. Ry. Co. v. Washburn Land Co., Wis., 161 N. W. 358. 81.Negligence.-Mere facts that plaintiff, driving a horse, was passing under a railway and that the engineer could have seen her approaching, and that he permitted steam to escape from the engine while she was under it do not show actionable negligence.-Louisville & N. R. Co. v. Kelly, Ala., 73 So. 953. 82. Negligence.-Railway receiving a franchise must answer in damages to any one injured by its negligence in the use thereof, and if it permits another to run a motor car on its tracks, it is liable for his negligence as if the car were its own.-Midland Valley R. Co. v. Toomer, Okla., 162 Pac. 1127. 83. Reformation of Instruments-Equity. Intelligent business men, who rely on a statement of the opposite party as to the terms and obligations of a proposed written contract which they have in their hands, are not entitled to invoke the aid of a court of equity to alter the contract after its execution.-Bailey v. Lisle Mfg. Co., U. S. C. C. A., 238 Fed. 257. 84. Release-Consideration. Where physician, owner of automobile which injured plaintiff, voluntarily paid hospital bill, the bill for repairing his wagon, and voluntarily rendered physician's services, so that relation of debtor and creditor was not established, payment of claims and rendition of services was not a consideration for release from liability.-Shilliam v. Newman, Wash., 162 Pac. 977. 85. Sales Contract-An instrument, signed by buyer of automobile which covered an order for a designated car, a list of equipment included, price agreed upon, the time of delivery, and time and manner of payment, being also signed by seller, was a complete contract, and in legal effect more than a "receipt."-Hebard v. Cutler, Vt., 99 Atl. 879. 86. Reliance on Representation.-The doctrine that in sale of specified articles buyer having opportunity for examination cannot rely on seller's statements as to value held not applicable where plaintiff purchased wrapped automobile casing and seller represented them to be like sample.-M. & M. Co. v. Hood Rubber Co., Mass., 115 N. E. 234. 87.- -Warranty.-The statement of the seller of paint that it is good paint, especially calculated for roof paint, and is warranted to be of good quality, is not a mere statment of opinion of value.-Rice v. Friend Bros. Co., Iowa, 161 N. W. 310. 88. Statutes-Constitutional Law.-Act 1915 (27 St. at Large, p. 737) § 1, entitled "An Act to regulate the running of motor vehicles," and making a vehicle doing damage to person or property subject to lien and attachment, does not violate Const. art. 3, § 17, requiring each act to relate to but one subject expressed in its title.-Merchants' & Planters' Bank v. Brigman, S. C., 91 S. E. 332. 89. Street Railroads-Safety Appliance.-Railway Safety Appliance Act, § 2, as amended by Act March 2, 1903, does not require automatic couplers on trolley cars run singly between two cities in different states, but does require such couplers where the cars are coupled together, though each runs by its own motor.-International Ry. Co. v. United States, U. S. C. C. A., 238 Fed. 317. 90. -Warning.-The failure to sound a street car bell on approaching a street crossing held not to render the company liable for injuries to a passenger in a taxicab which ran into the middle of the side of the street car after it had come to a full stop.-Camozzi v. Puget Sound Traction, Light & Power Co., Wash., 162 Pac. 987. 91. Telegraphs and Telephones - Interstate Commerce. Under the Carmack Amendment to interstate commerce act, § 6, telegraph company cannot assert validity and binding force of rate or regulation under interstate commerce law, when it has not complied with plain requirement of such law by filing its rates and regulations with Interstate Commerce Commission.-Western Union Telegraph Co. v. Piper, Tex., 191 S. W. 817. 92. Obstruction to Highway.-Telegraph poles standing on right of way so near traveled road as to materially interfere with its improvement constitute an obstruction within Code 1913, c. 43, § 56a (77), serial sec. 1844.-County Court of Wyoming County v. White, W. Va., 91 S. E. 350. 93, Theaters and Shows-Trespasser.-Where plaintiff knowingly entered, where fence was down, an area reserved for those who paid admission to see an automobile race without paying, and within 20 minutes, before there was time to acquiesce in his presence, he was hurt by an automobile, he was a trespasser to whom defendants owed no duty except to obstain from willful injury.-Aughtrey v. Wiles, S. C., 91 S. E. 303. 94. Trover and Conversion-Liability.-Where property is purchased, and purchaser passes it on to another, latter is not liable as for a wrongful conversion simply because the property is not paid for.-Biggs v. Carter, Iowa, 161 N. W. 322. 95. Vendor and Purchaser-Deficiency. Where land is sold by the tract, a deficiency of acreage cannot be apportioned against price, unless purchaser shows actual fraud by vendor. -Parker v. Roberts, Ga., 91 S. E. 345. 96. Forfeiture.-Where a contract expressly made payment of deferred installments material, and contained a forfeiture clause, failure to make payments for more than one year entitled vendor to forfeit contract and retain payments, and a belated tender by purchaser could not put vendor in default.-Krisky v. Bryan, Ind., 115 N. E. 70. 97.Waiver.-Purchasers of land from party claiming under deed from heirs of deceased, by making payments, waived objection to apparent defects in title that it did not appear from record that deceased's estate had been probated, his debts paid, or that there were no other heirs. -Tripp v. Sieler, S. D., 161 N. W. 337. 98.Waiver of Lien.-Where plaintiff conveyed legal title to land and received part of consideration, and was by defendant's frauduJent misrepresentations induced to accept alleged title notes on third parties for balance, which purchaser knew were of less value than he represented, vendor did not by acceptance of such notes waive his vendor's lien.-Fowler v. Falkner, Ala., 73 So. 980. 99. Wills Children.-In provision in will devising life estate in realty to testator's daughter, and after her death to "her lawful issue share and share alike," the term "lawful issue" held synonymous with "children."-Brown v. Tanz, N. Y., 163 N. Y. Supp. 372. 100.- -Legacy-Where testator's will provided that executor should pay niece $30 each month during life of testator's wife, who was living when he died, legacy, being made to rest in life of wife, attached immediately on testator's death, and continued from month to month for life of widow.-Jesseph v. Westerberg, Wash., 162 Pac. 1004. Central Law Journal. ST. LOUIS, MO., MAY 25, 1917. REMEDY UNDER WORKMEN'S COMPENSATION ACTS NOT EXCLUSIVE OF RIGHTS AGAINST THIRD PERSONS FOR INJURIES. Merrill v. Marietta Torpedo Co., 92 S. E. 112, decided by West Virginia Supreme Court of Appeals, was an action by a servant for injury suffered by him in the course of employment. But the suit was not against his employer but against an independent contractor causing such injury. In such case, there would not be, let it be assumed, any right of action. against the employer at all, were there no Workmen's Compensation Act. The matter is thus stated by the West. Virginia court: "Plaintiff's injury was not due to the negligence of his employer, but, according to the finding of the jury, to the negligence of an independent. contractor to do a particular work. The Compensation Act does not deny right of action to a workman for injury received in the course of his employment, unless the negligence is that of the master, or such for which the master was liable at common law. If the employe is injured in the course of his employment, he is entitled to compensation out of the fund, whether his injury was occasioned by the negligence of the master or not; if occasioned by the negligence of a third person, his right to compensation out of the fund is not thereby affected, nor is his right of action against such third person causing the injury impaired. The provision of the act is somewhat in the nature of life and accident insurance. That a person may be protected by accident insurance and at the same time have right of action against the person whose negligence produced the accident resulting in his injury is well settled." It would seem from this statement that the compensation act of West Virginia creates a fund by assessment on businesses accepting or in any way subject to the provisions of the act. But in states not providing for such a fund, the theory of compensation for workmen being for injury suffered in the course of business, regardless of negligence of master, in effect leaves such a fund in the hands of employers respecting their workmen. But in many cases servants are injured by the concurring negligence of masters and third persons. What the master is responsible for is on no theory of negligence at all, but what the third person concurs in doing he is responsible for only upon that theory. How in such a case does the release of one tortfeasor affect the other's liability? The principle under, the Compensation Act that negligence of master is not contirely to the relation of master and servant, sidered is a principle that is confined enand with which a tortfeasor concurring with the master has no concern. At the same time as the act intends to refer only to master and servant relations, yet, if it has a necessary bearing outside of that relation, it ought be considered. Does a proceeding against the master, who can be proceeded against under the act, and collection from him release a concurring tortfeasor? Or would a proceeding against such tortfeasor and collection from him discharge the master? It seems to us that, if what is obtained from the master is, as the court says, in the nature of life and accident insurance, the servant's proceeding against him is nothing in the way of defense to the concurring tortfeasor. curring tortfeasor. But may such tortfeasor being sued and paying have any right of contribution from the master, who so far as he is concerned may himself be a tortfeasor? This question is simple so far as independent contractors or other third persons, whose acts alone cause injury, are concerned, but it does not seem to us altogether so readily solvable where there is concurrence by third party with acts by the master resulting in injury. NOTES OF IMPORTANT DECISIONS. BANKRUPTCY-SET-OFF BY BANK OF DEPOSITS AGAINST DEPOSITOR'S DEBT AS PREFERENCE.-In Fourth Natl. Bank v. Smith, decided by Eighth Circuit Court of Appeals, it is held permissible by a bank to set-off the amount of deposits against a depositor's indebtedness, though the bank knows of depositor's insolvency, without the same being a preference forbidden by the bankruptcy statute. There is an interesting review of Supreme Court decisions on this question, and the conclusion is reached, that this set-off may be made, because of anticipation of bankruptcy, provided, nevertheless, the deposits are made in due course of business and are not built up. Also, it appears that the set-off may be made as well before as after adjudication in bankruptcy, nor is it necessary that the bankruptcy court should make the set-off, but the bank itself can exercise the right of set-off. For cases showing that set-off was denied, because deposits were made in an unusual way as being "built up," reference is made to recent cases by the supreme court. Mechanics' & Metals Natl. Bank v. Ernst, 231 U. S. 60; Nat. City Bank v. Hotchkiss, 231 Sup. Ct. 50, and one by Circuit Court of Appeals, In re National Lumber Co., 212 Fed. 928, 129 C. C. A. 448. The view taken by Supreme Court is that the bankruptcy act does not intend "to defeat the right of set-off recognized and enforced in the law," where there are mutual debts and credits. ATTORNEY AND CLIENT-CONTINGENT FEE IN CONTEMPLATED SUIT FOR BREACH OF PROMISE TO MARRY.-The Supreme Court of Missouri has ruled that an attorney suing for services under a contingent fee contract for one-half of what his client might recover in a breach of promise case, stated no case against his woman client where she married the proposed defendant, as all his client could recover was by operation of law. Crow v. Mitchell, 192 S. W. 417. Both of the parties owned property at the time of the marriage and there was no agreement in regard to it, but the petition was predicated on the idea of there being an agreement. Plaintiff sued upon the supposed agreement and not upon the value of the marriage. Therefore his proof failing as to this, his action as predicated and tried failed. This was a pity, as it would have made an interesting question for the court to have passed upon. The only interest the wife acquired was, like the plaintiff's fee, contingent. If she survives him, she, as widow, would have a statutory interest. And then it could have been determined whether or not marrying a husband, who relented after suit for breach of promise was brought, was its own sufficient reason, independently of all other considerations. The entry into marriage should be conclusively supposed not to heal or mend a broken promise thus to do. It is in fulfillment of a purpose that the law encourages, but it may serve to minimize damages of a prior breach of promise. The breach merely ceased to continue. As the defendant in this case was when she contracted, a widow, the marriage not only brought a surcease of sorrow, but amounted to a resurrection. PATENT LICENSE CONTRACT CONSTRUED AS ATTEMPTED EVASION.-In 84 Cent. L. J. 335, our editorial treats of the repudiation of tying-clause contracts limiting use of patented articles and the repudiation by U. S. Supreme Court of the Mimeograph and Button Fastener cases. On the same day appeared another decision in which an adroit license contract was declared to be, in effect, a sale contract regarding a patented article. Strauss v. Victor Talking Machine Co., 37 Sup. Ct. 412. This case refers to Miles Medical Co. v. Park & Sons, 220 U. S. 373, and Bauer v. O'Donnell, 229 U. S. 1, concerning plans of marketing and contracts modified cleverly to take advantage of distinctions suggested by those cases. So in the Talking Machine case, what the contract calls a "use" amounts really to a sale and "courts would be perversely blind if they failed to look through such an attempt as the 'License Notice' thus plainly is to sell property for a full price and yet to place restraints upon its further alienation, such as have been hateful to the law from Lord Coke's days to ours because obnoxious to the public interest." Further, the court says: "The scheme of distribution is not a system designed to secure to the plaintiff and to the public a reasonable use of its machines, within the grant of the patent laws, but is in substance and in fact a mere price-fixing enterprise, which if given effect, would work great and widespread injustice to innocent purchasers, for it must be recognized that not one purchaser in many would read such a notice, and that not one in a much greater number, if he did read it, could understand its involved and intricate phraseology, which bears many evidences of being framed to conceal rather than make clear its real meaning and purpose. It would be a perversion of terms to call the transaction intended to be embodied in this system of marketing plaintiff's machines a license to use the invention.'” We like this reading, but at the same time we confess it seems to be going some distance to say that a license for marketing a patented article is to be condemned, because licensees may not read or understand, if they did read, the license contract, if a court should rule that it was such. To say that concealment is intended and, therefore, there is fraud, when the words of a contract are written for acceptance, is to differentiate the public into the unwary and the wary. For the former, public policy is violated; for the latter, not. However, as to provisions in insurance policies, fine print has been sometimes rejected, where it states conditions. APPEAL AND ERROR-EXPIRATION OF RESPONDENT OFFICER'S TERM OF OF FICE.-In Pullman Co. v. Knott, Comptroller, 37 Sup. Ct. 428, it was held that where in an injunction against a state officer from levying and assessing a tax upon the gross receipts of a foreign corporation, the expiration of the officer's term of cffice pending writ of error to U. S. Supreme Court makes the writ of error abate, there being no state statute giving authority for substitution of his successor. The injunction raised the question of the tax being void as under the federal Constitution, the state courts deciding against this contention, but several cases are cited to support the ruling here made. They support the proposition that the duty on the officer was a personal one and any successor might discharge the duty the one sued had refused to discharge and, therefore, he ought not to be mulcted with costs for the fault of his predecessor, and that, were a demand made upon him, he might discharge the duty and in any event the successor was not in privity with his predecessor, nor was he his personal representative. This is difficult to appreciate. It is easy to say the successor might do what his predecessor had refused to do, but, if the courts had sustained the predecessor in refusing, it would look like an abuse of official power for the successor to grant what his predecessor had refused to grant. Plaintiff in error contended that it had been held in New Orleans v. Citizens' Bank, 167 U. S. 371, that former judgments adjudicating rights against states are binding in subsequent actions and the mere change of office as to the person holding the office does not destroy what has been adjudged. The court said that does not touch the question. "It was held in the Citizens' Bank case that a holding that a contract for exemption from taxation existed bound subsequent officers of the state. The difficulty here is that this proceeding in error, since the expiration of Knott's term of office expired, leaves no party defendant in error to stand in judgment." It would seem, therefore, that had the plaintiff in error have succeeded as to its claim of exemption in this case, the defendant in error had he have appealed could, by his successor, have prosecuted his writ. In other words, rights being adjudicated, the state cannot be refused hearing in an appellate tribunal by any expiration of the term of an officer who as representing the state has been sued, while this is not true, if his adversary were appealing. And yet the decision rendered and sought to be reviewed stands as the law until reversed in either case. The opinion says: "In this case the judgment of the state court was rendered June 26, 1915; the order allowing the writ of error was filed September 24, 1915, and the record filed in this court, October 8, 1915. It does not appear that any attempt was made to advance the case, in view of Knott's term of office expiring in January, 1917. As the law now stands, we have no alternative except to dismiss the writ of error for want of a proper defendant to stand in judgment." But would it be a matter of public interest, giving reason for advancing a cause, that plaintiff in error would lose his standing in court unless his cause were advanced? And if so, might not the court be strenuously implored to hand down its decision very quickly, that is to say, before defendant's term of office expired? THE REIGN OF LAW. Two great institutions of the Englishspeaking world challenge our admiration. One is the Supreme Court of the United States and the other the Judicial Committee of the Privy Council. Both have jurisdiction over states and provinces, each sovereign within the sphere of its authority. Surely the successful and satisfactory exercise of this jurisdiction contains the promise and potency of a supreme court of the civilized world, which shall bring the future of humanity under the "majesty of the law," to quote the eloquent phrase of the distinguished French statesman, Bourgeois. In the United States and in the British Empire these illustrious tribunals enforce the unquestionable supremacy of the civil power and the universal rule of equal law. We are apt to regard the universal rule of equal law as a matter of course; but it is the result of a long struggle, and can be maintained only by constant vigilance and effort. Scientists tell us that there is always a danger of reversion to inferior types. So in matters of government, there is constant danger of the usurpation of arbitrary power, and against this Kipling uttered a timely warning when, in his poem on "The Old Issue," he said: All we have of freedom, all we use or know, This our fathers bought for us, long and long ago. Ancient right unnoticed as the breath we draw, Leave to live by no man's leave, underneath the law. Lance and torch and tumult, steel and grey goose wing, Wrenched it inch and all slowly from the King. So they bought us freedom, not at little cost, Wherefore we must watch the King, lest our gain be lost. Howso great their clamour, whatsoe'er their claim, Long forgotten bondage dwarfing heart and brain, All our fathers died to lose he shall bind again. All the rights they promised, all the One of the crowning features of the British system under which we in Canada live is the final authority, in matters of law, of the Judicial Committee of the Privy Council, or, to speak more accurately, of the king speaking on the advice of the Judicial Committee of the Privy Council. So far as the Province of Ontario is concerned, this is founded on a statute passed by the first Parliament of Upper Canada, held at Niagara, in 1792, which enacted that we should be governed by the laws of England, and that there should be an appeal to the king in council. This statute has been re-enacted from time to time, and is still in force. |