ployee to show both defect in machine, with negli. gence in providing it, and also negligence in permitting floor on which he stood to operate it to be wet and slippery, when accompanied, also, by instruction to find for employer if the machine was not defective, although there was no evidence that the admittedly wet and slippery condition of the floor was due to neg. ligence.-SWIFT & Co. v. HOLOUBEK, Neb., 86 N. W. Rep. 900.

54. MASTER AND SERVANT — Duty of Master — Appliances and Place to Work.-A master owes a positive duty to his servants to use ordinary care to furnish appliances reasonably safe for their use considering the nature of the service, and to provide a safe place to work, and keep it in suitable condition. Where he delegates such duty to another, he is responsible for its proper performance by such other, although the latter may be, as to other matters, a fellow-servant with the other employees, for whose negligence the master is not responsible to whom.- LAFAYETTE BRIDGE Co. v. OLSEN, U. S. C. C. of App., Seventh Circuit, 108 Fed. Rep. 335.

55. MASTER AND SERVANT — Injury to Employee-Assumption of Risk.-The presence of a book on the rear of a locomotive tender, for supporting the hose of the air brake when not coupled, being apparent, and its danger known, and it having been replaced every time the brakeman knocked it off, he assumes the risk of being caught thereby, where he continues to climb over the end of the tender.--CRAWFORD V. DETROIT, ETC. CO., Mich., 86 N. W. Rep. 817.

56. MORTGAGES-Waiver of Title-Levy of Execution. -The acceptance of a mortgage on property is not necessarily a waiver of title by the mortgagee, subjecting it to levy, if the parties understood that it was not a waiver.-STACK V. OLMSTED, Mich., 86 N. W. Rep. 851.

57. MUNICIPAL CORPORATIONS-Mandamus to CityTax Levy.-City authorities not required by mandamus to levy tax for water supply in excess of limit on such tax existing at time of contract.-STATE V. CITY OF WAHOO, Neb., 86 N. W. Rep. 923.

59. MUNICIPAL CORPORATIONS-Sidewalks-DefectsNotice of Injury.-Where a person injured by falling on a defective sidewalk serves a claim, and describes the location of the defect as on a certain side of a named street, between two other named streets, and the city receives and acts on the notice without objection, the notice is sufficiently definite as to the locality.- WHEELER V. CITY OF DETROIT, Mich., 86 N. W. Rep. 822.

-

59. MUTUAL BENEFIT COMPANY Insolvency Distribution of Funds.-Defendants and others held matured certificates in a mutual benefit company, and, on failure of the company to pay the certificates, an agreement was made whereby the amounts were to be paid in installments, and mortgages were to be assigned to defendants to secure the deferred payments. The mortgages were never assigned, but defendants acted as a committee in receiving and distributing the cash payments without knowledge of the company's insolvency. Held, that defendants were not liable, as trustees, to the receiver of the company, for the sums distributed.-CALKINS V. BEEKMAN, Mich., 86 N. W. Reb. 835.

60. NEGLIGENCE-Contributory Negligence-Danger. ous Premises.-Where an employee in a sawmill, while on his way to discharge a duty which he has been ordered to perform. in nagging along one of the

for such a purpose, it ought not to have been kept open as a common passage or thoroughfare.-MOORE V. W. R. PICKERING LUMBER CO., La., 29 South. Rep. 990.

61. NEGLIGENCE Dangerous Premises - Owner's Duty,-One who goes upon the premises of another by express or implied invitation of the owner may recover damages for an injury caused by a failure on the part of such owner to keep the premises in a reason. ably safe condition.-TUCKER V. DRAPER, Neb., 86' N. W. Rep. 917.

62. NUISANCE Abatement-Agent.-An "agent," as defined by section 10, ch. 10, of the charter of the city of St. Paul, is one who has general control of the premises. One whose authority is limited to merely the renting of premises and the collection of rents is not such an agent, and his authority to abate a nuisance will not be presumed.-CITY OF ST. Paul v. CLARK, Minn., 86 N. W. Rep. 893.

63. PLEA IN MITIGATION OF DAMAGES-Evidence of Good Faith.-In those states where by statute a plea in mitigation of damages may be filed in connection with a plea of justification, and evidence in support of the former plea may be received although the latter plea is not established, an issue concerning the good faith of the defendant inheres in every action for slander or libel where a plea in justification is filed and is not sustained by the proof, since the jury, in determining whether punitive damages should be assessed, are entitled to consider whether the plea was interposed in good or in bad faith, and evidence hav. ing any legitimate tendency to develop the defend. ant's motive should be received.-KANSAS CITY STAR Co. v. CARLISLE, U. S. C. C. of App., Eighth Circuit, 108 Fed. Rep. 345.

64. PUBLIC LANDS- Entry- Filing-Right of Possession.-Where an application for the entry of land is legally and properly made for a homestead under the land laws of the United States, the right to possession thereof inures to the person making such entry, as against a trespasser.-HASTY V. BONNESS, Minn., 86 N. W. Rep. 896.

65. RAILROADS-Negligence-Death of Employee.Under Comp. Laws, § 6313, requiring railroads companies to block frogs, it is the duty of the railroad companies to make the frogs as nearly safe as possible, and evidence that the blocking of a certain frog was old and worn by the flanges is sufficient to render the question of a company's negligence one for the jury.-JONES v. FLINT & P. M. R. Co., Mich., 86 N. W. Rep. 838.

66. RAILROADS- Relief Departmant Claims- Release. Deceased was killed on the defendant railway while on duty as fireman, and left a widow and two minor children, and was a member of the defendant company's relief department, which had a rule that, in case of the death of a member, the benefits would not be paid until the parties entitled to sue had executed a release to the company of all claims for dam. ages. Held, that the execution of a release by plaintiff as the widow and beneficiary of deceased, and an acceptance of a $1,000 benefit therefor, did not bar an action by her as adminstrator of deceased's estate. COWEN V. RAY, U. S. C. C. of App., Seventh Circuit, 108 Fed. Rep. 320.

67. RAILROADS-Right of Way-Liability of Railroads- Damages. Where a railroad company has entered upon the land of another and constructed its road through them without the owner's consent, and without condemnation proceedings, the measure of

its rendition they had not been discharged in the suit In which they were originally appointed, although the receivership was subsequently extended to an. other suit against the company, and in such suit they had been discharged prior to the judgment.-MCCARLEY V. MCGHEE, U. S. C. C., N. D. (Ala.), 108 Fed. Rep. 494. 69.

SALES-Contract of Sale-Title. -An arrangeinent whereby chattels are conveyed at a price certala, with a provision that the vendee may, if he fails to resell them, return them to the vendor, is a contract of sale.-OMAHA NAT. BANK V. KRAUS, Neb., 86 N. W. Rep. 906.

70. SALE-Land-Contract-Description.-In a contract for the sale of land a description by name is sufficient if it can be indentified by extrinsic evidence not contradictory of the contract.-GARVEY V. PARKHURST, Mich., 86 N. W. Rep. 802

71. SALE-Rescission-Fraud.-Rescission of a sale on the ground of fraud is justified on evidence that the purchaser said that he was in as good pecuniary con. dition and had as good credit at the bank as ever, and could meet his paper when due; that he had not as good credit at the bank as previously; and that a month later, on account of threatened suit by creditors, he formed a corporation, to which he conveyed all his property except his home and some lots, which he conveyed to his wife.-CLARK V. WILLIAM MUNROE Co., Mich., 86 N. W. Rep. 816.

72. SALE Written Contract Oral Warranties.Warranties cannot be added by parol to a written con. tract which on its face purports to contain the whole agreement of the parties. But where, in an action for the price of a cash register, the contract of sale being in writing, defendant pleaded that the seller represented to him that the machine could not be manipu lated to his prejudice, and that in reliance thereon he purchased the register, which in truth could be manipulated, defendant might give evidence to show the purchase induced by deceit.-HALLWOOD CASH REG· 18TER CO. V. MILLARD, Mich., 86 N. W. Rep. 833.

73. SHIPS AND SHIPPING-Collision-Action for Damages to Tow-Master of Tug as Libelant.-The master of a tug is a common-law bailee of a tow and her cargo which are in his charge with a lien thereon for the towage services rendered, and as such he is entitled to maintain an action against another vessel for a colli sion in which his tow and her cargo are lost, and in such action to recover their full value, holding the amount remaining, after deducting his own loss, in trust for the owner. In such case the owners of the tow and cargo may intervene as co-libelants, if they desire, or the respondent may bring in the tug, under admiralty rule 59, by petition showing her to have been in fault, in which case a substitution of the owners of the tow and cargo as libelants is the proper course.- THE MERCEDES, U. S. D. C., S. D. (N. Y.), 108 Fed. Rep. 559. 74. SPECIFIC PERFORMANCE-Cloud on Title.-Where defendant contracted to purchase land on delivery of an abstract showing a good title clear of all incumbrances, and it appeared that plaintiff's title was ob tained under a foreclosure sale which took place 13 1-2 years after the entry of decree, on which state of facts defendant's counsel advised that the title was not perfect, there was such doubt as to the validity of the title that plaintiff was not entitled to enforce specific performance.-WALKER V. GILLMAN, Mich., 86 N. W. Rep. 830.

75. STATES-Action Against State-Damages to Property.-Under Ann. Code, § 4248, providing that any person having a claim against the state, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant in payment thereof, may sue the state, a party renting land to the state is not entitled to sue such state for bad husbandry in breach of the lease, since such claim, being unliquidated, is not such a one as the auditor can audit.— HALL V. STATE, Miss., 29 South. Rep. 994.

76. TAXATION-Deliquent Taxes-Interest.—Interest cannot be collected on deliquent taxes before they are reduced to judgment, since interest is not allowed at common law, and Code 1892, § § 2348, 2350, only allowS interest on money due under contracts and judgments. -ILLINOIS CENT. R. Co. v. ADAMS, Miss., 29 South. Rep. 996.

77. TAXATION-Exceeding Statutory Limit-Injunc tion. "When a tax is void,—that is, when there is no tax which the plaintiff is in equity bound to pay,-he may invoke the aid of a court of equity to protect bis rights by an injunction, notwithstanding section 144, ch. 77, art. 1, Comp. St. 1899."-GRAND ISLAND & W. C. R. Co. v. DAWES COUNTY, Neb., 86 N. W. Rep. 934.

78. TAXATION-Personal Property-Assessment to Wrong Party.-Under Comp. Laws, § 3886, requiring property to be assessed "to the owner" on the second Monday of April, and section 3840, providing that no change of location or sale of any personal property after the 1st day of May shall affect the assessment of for such year, the assessment of personal property of the Fergerson Hardware Company, Limited, in the name of its predecessor, the Ferguson Hardware Company, gave no tax lien on the goods, snd the purchaser at a valid chattel mortgage foreclosure sale after the 1st of May could replevin them from the tax col. lector.-CHIPPEWA HARDWARE CO. v. ATWOOD, Mich., 86 N. W. Rep. 854.

79. TAXATION-Tax Judgment-Action to Annul.-In an action under section 1610, Gen. St. 1894, to have a tax judgment annulled and vacated, upon which a certificate regular on its face has been issued, the court may, as a condition to its order setting aside such judgment, require, as a condition therefor, that subsequent taxes paid by the holder of the certificate, and tacked to the same, must be paid by the plaintiff.-ROBERT P. LEWIS Co. V. KNOWLTON, Minn., 86 N. W. Rep. 875.

80. TAXATION-Tax Sale-Rights of Purchaser.-A purhaser of lands at an invalid tax sale is subrogated to the rights of the county. GREEN V. HELLMAN Neb., 86 N. W. Rep. 912.

81. TAXATION.-Void-Levy. Where the board of supervisors voted salaries to the sheriff and other officers, and such salaries were included in the tax levy, tax deeds based thereon are void.-COLLINS V. REA, Mich., 86 N. W. Rep. 811.

82.

VENDOR AND PURCHASER-Default of VendeeRecovery of Payment Made.-A vendee in a contract for the sale of lands, which provides for the forfeiture to the vendor of all payments made as liquidated damages in case of default in any of the payments, and for the right of the vendor to rescind the contract on such default, cannot while so in default maintain an action against the vendor to recover back money paid in part performance of said contract on the ground of a rescission of the contract by the vendor.MALOY V. MUIR, Neb., 86 N. W. Rep. 916.

83. WILLS-Constructions-Life Estate.-A will consisting of a single sentence in the German language, of which the following is, as nearly as possible, a lit eral translation into English, omitting names: "I do will and bequeath to my wife all my property, she has entire control (Sie habt zu verfuegen') over the same after my death as long as she lives,"-devises a life estate only, and the reversion at the death of the testator vests in his heir or heirs at law.-SCHIMPF V. RHODEWALD, Neb., 86 N. W. Rep. 908.

84. WITNESSES- Competency- Wife as Interested Party.-Under Comp. Laws, § 10,212, providing that in actions against decedents' estates the opposite party shall not be permitted to testify to matters which, if true, must have been equally within the knowledge of decedent, a wife of complainant in an action against a decedent's estate for damages for a breach of an agreement is not a party in interest and incompetent to testify.-DUNN V. DUNN'S ESTATE, Mich., 86 N. W. Rep. 801.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 18, 1901.

Government by injunction has been most severely condemned, not altogether justly, but at the same time not altogether without reason. The application of this extraordinary and most arbitrary of all legal remedies by courts of equity has been with most marked frequency of late years, especially in the settlement of disputes between labor and capital, and has given rise to much discussion as to its probable abuse. A recent decision by Judge Hammond of the United States District Court at Memphis, handed down a few weeks ago, enters largely into the ethics of the question and arrives at the conclusion that the jurisdiction of equity is practically supreme and unlimited in the protection by injunction not only of property, but of personal rights as well, and irrespective of the fact whether the act complained of is punishable as a crime or not. The case which has been responsible more than any other for this clear extension of equity jurisdiction is that of In re Debs, 158 U. S. 564. The exact holding of this case was that a court of equity has jurisdiction to enjoin the obstruction of the mails and highways used in interstate commerce, though such obstruction amounts to a public nuisance, for which a criminal prosecution would lie, and that the punishment imposed by such court for violation of its injunction is not an exercise of criminal jurisdiction. The point, however, which distinguished this case from others and made it the stepping stone, whether so intended or not, to a wider exercise of equitable powers of injunction was the strong disclaimer by the court of any desire to rest its decision on any rights of property which the United States might or might not have in the carriage of the mails as a prerequisite to the jurisdiction of the court to restrain or remove by injunction any obstruction to the exercise of any of the powers of government

and its effect is clearly observed in the decision of Judge Hammond in the case of Southern Railway Co. v. Machinists' Union, just referred to. This case was a suit for injunction prohibiting members of a certain labor union from the commission of acts of violence and intimidation against nonunion employees of the complainant. The court concerned itself principally with what it termed the personal liberty of the non-union workmen, and based its right to grant relief on the ground that no police or other protection was afforded them, "which is really," says the court, "the chief reason why resort must be had to courts of equity; ordinary police protection being ineffective in fact whatever cause may produce that insufficiency; the condition of non-protection, in fact, being all with which equity is concerned." Then follows this sweeping statement of the extent of the court's jurisdiction to grant injunctions in such cases, which we believe evidences the most advanced position which has yet been taken on this important question:

"The suggestion that the same constitution which safeguards the personal liberty of the 'scab' and his employer guarantees to its violators trial by jury for their crimes or offenses arising out of the violation is not an answer to the fact that prosecutions and consequent convictions are either wholly wanting or ineffectual for the protection of the 'scabs' and their employers. The Debs case settles that the same constitution also guarantees the equitable remedy. It is not, indeed, as the able counsel of defendants argued, a concurrent remedy with that afforded by criminal prosecution, and it is one dependent, as he says, upon conditions in which mere police failure is not included, but that failure is none the less the occasion of the resort to equity-the paramount necessity for it. The equitable remedy is a wholly independent one arising out of conditions of inadequacy of that other likewise wholly independent remedy of an action at law for damages, and upon neither of these does the remedy of criminal prosecution have the least bearing. Except that if the criminal law be so thor

We have quoted this case in advance of its appearance in the Reporters, because of its unique importance in this day of labor troubles and disputes. Undoubtedly this extension of equity jurisdiction, although not abrogating the general rule that equity never interferes by injunction to prevent the commission of a crime, nevertheless undermines it with another exception so far reaching as to eventually make the rule itself a very precarious foundation to build upon. Whether this will be a calamity is not altogether cer*tain, depending more upon the character of the men into whose hands this extraordinary power is committed than upon any inherent injustice in the rule itself.

NOTES OF IMPORTANT DECISIONS.

UNFAIR TRADE MALICIOUSLY INDUCING ONE'S CUSTOMERS TO QUIT TRADING WITH HIM.-The unanimous judgment of the House of Lords in Quinn v. Leatham is particularly important, because it clearly shows that an action can still be maintained against persons who maliciously induces a man's customers not to deal with him, or his servants not to continue in his employment.

The contrary has, no doubt, been inferred by many people from the decision of the same tribunal in Allen v. Flood. In that celebrated case, however, said the lords who deefded Quinn v. Leatham, the facts on which the majority based their decisions were that the appellant merely informed the respondents' employer that, unless he dismissed the respondents, his other workmen would refuse to work for him, and to give such information truthfully, however maliciouly, cannot infringe any right. Yet the right of every man to earn his living in his own way, to deal with persons who are willing to deal with him, is recognized by law. An interference with this right, it is now laid down, by threats of serious damage or annoyance is prima facie actionable, even when the coercion is applied, not to the man himself, but to others for the purpose of iniuring

make any regulations for the conduct of its business which is reasonable. An American, however. feels any limitation on his personal rights so sensitively that he will instinctively protest against it. This fact probably accounts for the continuous litigation over this question, and especially that phase of it regarding the right of a carrier to place a time limit on its contract of transportation by merely printing same on the ticket, but not bringing it expressly to the attention of the passenger. This was the question discussed in the case of Coburn v. Railroad, 29 South Rep. 882, where the Supreme Court of Louisiana held that a purchaser of a railroad passenger ticket must take notice of the time limitation printed or stamped on the face of the ticket, and that a limit of one day on such a ticket was not unreasonably short.

Subject to the qualification of reasonableness. time limits in railroad tickets are valid, and the holder of such a ticket must start upon his passage within the time prescribed or forfeit his right to passage. Elmore v. Sands, 54 N. Y. 512: Shedd v. Railroad, 40 Vt. 88; Lillis v. Railroad. 64 Mo. 464; Heffron v. Railroad, 92 Mich. 406; McRae v. Railroad, 88 N. Car. 526; Pennington v. Railroad, 62 Md. 95; Howard v. Railroad, 61 Miss. 194; Powell v. Railroad, 25 Ohio St. 70. The conditions generally reads that "this ticket will not be good unless used on or before a certain date. This, however, does not require him to commence his passage until midnight of the last day, although he cannot reach his destination until after the expiration of the time limited. Auerbach v. Railroad, 89 N. Y. 281; Georgia, etc. R. R. v. Bigelow, 68 Ga. 219; Evans v. Railroad, 11 Mo. App. 463; Lundy v. Railroad, 66 Cal. 191, 56 Am. Rep. 100.

LANDLORD AND TENANT-"CROPPERS"-FAILURE OF TENANT TO COMPLY WITH CONTRACT.A "cropper" is a term applied to a person hired by the land owner to cultivate the land, receiving for his compensation a portion of the crops raised. In a number of states, statutes have been passed defining the rights and liabilities attaching to this peculiar tenancy. These statutes are little more than declaratory of the common law. Thus, in the recent case of Wood v. Garrison, 62 S. W. Rep. 728, the Supreme Court of Kentucky held that § 2327 of statutes, providing that "when a tenant enters or holds premises by virtue of a contract, in which it is stipulated that he is to labor for his landlord, and he fails to begin such labor, or if,

"It is every where admitted (see cases previously cited) that under a pure or unqualified cropping contract the entire legal ownership of the crop is in the owner of the land until division. As was said by Rodman, J., in Harrison v. Ricks, 71 N. Car. 11: A cropper has no estate in the land. That remains in the landlord. Consequently, although he has in some sense the possession of the crop, it is only the possession of a servant, and is in law that of the landlord. The landlord must divide to the cropper his share. In short, he is a laborer receiving pay in a share of the crop.' Under the facts of this case as stated above, appellee appears to come within the definition of the term 'cropper,' which is a tenancy contemplated and included in section 2327. If such a tenant fails to begin the labor contracted to be done by him, or, having begun, without good cause fails to continue it, the landlord may maintain forcible detainer, and dispossess him; and he might also be entitled to such of the remedies provided in section 2325 as were applicable to the state of the case."

CONTEMPORANEOUS

CONSTRUC

STATUTES TION. One of the most insidious temptations of courts or judges in arriving at the meaning of a statute is to resort to extrinsic or contemporaneous construction, whenever the words taken in their ordinary meaning do not appeal to their preconceived opinion as to what the law ought to be, or what they think the legislature had in mind when they passed the law, and the mistake is not unfrequently made that to find out and effectuate the intention of the legislature in passing a certain act is perfectly legitimate, whether there is any ambiguity in the meaning of the words or not. The intention of the legislature or the evils they intended to remedy, are absolutely immaterial, where the words they have used, when taken in their ordinary usage, admit only of one interpretation. This rule was well stated by the court in the case of Southern Railway Company v. Local Union, decided October 5, 1901, by Judge E. S. Hammond of the U. S. District Court at Memphis. The statute which was the subject of construction provided that it should not be lawful for any person knowingly to hire, decoy or entice away, any one, male or female, who is at the time under contract or employ of another; and any person so under contract or in the employ of another leaving their employ without good and sufficient cause, before the expiration of the time for which they were employed, shall be liable for the damages the employer may reasonably sustain by

m

act itself, and no other limitation is authoritative where the language is unambiguous and construes itself. It is not permissible to go outside the statute, plain in its words, as covering all labor contracts and laborers, and to say, on any consideration whatever, that there was an intention to limit it to a particular class of laborers, white or black, or however else such classification may be made, as of agricultural or industrial workmen ; not when the subject-matter and the language used comprehend these and all other classes." The following authorities are directly in point and sustain the position of the court: Lake County v. Rollins, 130 U. S. 662; St. Paul, etc. Railroad'v. Phelps, 137 U. S. 528; Hamilton v. Rathbone, 175 U. S. 414, 419; Dewey v. United States, 178 U. S. 510, 521.

OF

FIRE INSURANCE-CONSTITUŢIONALITY ANTI-COMPACT LAWS.-Anti-trust legislation under the spur of popular prejudice sometimes oversteps the bounds of reason by attacking legitimate enterprise and infringing the right and freedom of contract. This is especially so in statutes attempting to control the right of insuranee companies to enter into agreements fixing the rates of insurance. This is a very important question at the present time, and one on which the authorities are not altogether clear or harmonious. In the recent case of Niagara Fire Insurance Co. v. Cornell. decided by the United States Circuit Court for the district of Nebraska, the question of the constitutionality of a law which prohibited insurance companies organized and existing under the laws of other States from entering into any agreement with respect to the question of rates, was decided in favor of the insurance companies. The Nebraska legislature in 1897 passed a bill in reference to trusts, defining the same, providing means for their suppression, and for the punishment of the violator of the statutes. It specifically referred to fire insurance companies, and in the definition of a trust recites that "a combination of capital, skill, or acts by persons with intent to prevent competition in fire insurance, or by which they shall in any manner establish or settle the price of fire insurance, with the intent to prevent free competition, is in violation of the statute." It will be well to note in this connection that this language is much stronger than has usually been employed by legislatures in arriving at the same end. The complainants insisted that the statutes were in conflict with both the state and federal constitutions for various reasons, and prayed for an