Графични страници
PDF файл
ePub

question of the validity thereof, held not to estop them from pleading non est factum to defeat liability.REPASS V. RICHMOND, Va., 39 S. E. Rep. 160.

83. EVIDENCE. - For breach of warranty against breaking, it was error to admit evidence that machine did not work properly.-DOWAGIAC MFG. Co. v. COR. BIT, Mich., 86 N. W. Rep. 954.

84. EVIDENCE-Bonds-Other Deputies.-Evidence is not admissible, in an action on a bond of a deputy treasurer, as to bonds given by other deputies.-REPASS V. RICHMOND, Va., 39 S. E. Rep. 160.

85. EVIDENCE-Burden of Proof-Interveners.-Filing plea by interveners denying plaintiff's allegations held not to relieve plaintiff of the burden of establishing his right to recover.-EASTMORE V. BUNKLEY, Ga., 39 S. E. Rep. 105.

86. EVIDENCE-Corroboration-Witnesses.-Evidence of statements made by a surety on a bond prior to the institution of suit there on held not admissible to corroborate his testimony.-REPASS V. RICHMOND, Va., 39 S. E. Rep. 160.

87. EVIDENCE-Fragments of Deeds.- Fragments of a deed held admissible, in connection with parol proof that missing portion could not be found.-ANNISTON CITY LAND CO. v. EDMONDSON, Ala., 30 South. Rep. 61. 88. EVIDENCE Interrogatories - Former Trial.Where plaintiff dismisses action and brings another, answers to the interrogatories returned while first action is pending held admissible on trial of second action.-RADFORD V. GEORGIA & A. R. Co., Ga., 39 S. E. Rep. 108.

89. EVIDENCE-Lost Deed.-Record of a deed held inadmissible until proof that the original is not in possession or under control.-AMERICAN MORTG. Co. v. MOUSE RIVER LIVE-STOCK Co., N. D., 86 N. W. Rep. 965.

90. EVIDENCE-Res Gesta-Correspondence.-Correspondence between the parties to a contract after its execution is not admissible in an action thereon as a part of the res gesta.-SOUTHERN RY. Co. v. WILCOX, Va., 39 S. E. Rep. 144.

91. EVIDENCE-Stipulation in Court.-A stipulation of counsel, made in open court and taken down by the stenographer at a former trial, is admissible in evidence on a new trial of the same cause.-GALLAGHER v. MCBRIDE, N. J., Atl. Rep. 582.

32. EXECUTION-Enjolning-Sale by Vendee.-A bill by vendee to enjoin a sale of goods under execution against the seller, which does ot show sale was prior to defendant's judginent is not sufficient.-WENZEL V. MILBURY, Md., 49 Atl. Rep. 618

92. EXECUTION-Payment to Sheriff.-Payment to sheriff on levy on account after fraudulent assignment of the account, held a discharge of the debt.FABER V. WAGNER, N. Dak., 86 N. W. Rep. 963.

94. EXECUTORS AND ADMINISTRATORS-Care of Testatrix-Recompense.-Where complainants supported testatrix for years on her fraudulent pretense of destitution, they were entitled to be recompensed.ANDERSON V. EGGERS, N. J., 49 Atl. Rep. 578.

95. EXECUTORS AND ADMINISTRATORS-DistributionEnforcement.-Where title to devises did not pass to beneficiaries until executor had assented thereto, they should not recover property from him without alleging assent or refusal to assent.-LESTER V. STEPHENS, Ga., 39 8. E. Rep. 109.

96. EXECUTORS AND ADMINISTRATORS Sale - Purchase by Administrator.-Statute declaring a pur. chase of land by an administrator at his own sale to be void should be construed to mean voidable only. -VEEDER V. MCKINLEY-LANNING LOAN & TRUST Co., Neb., 86 N. W. Rep. 982.

97. EXECUTORS AND ADMINISTRATORS -Sale- Purchase by Administrator.-An administrator, authorized to sell land belonging to the estate, cannot be come a purchaser in his own right.-VEEDER V.

MCKINNEY LANNING LOAN & TRUST CO., Neb., 86 N. W. Rep. 982.

98. FACTORS-Lien-Possession.-Factor's lien, given by Rev. Codes, § 4836, held dependent on possession of the property.-ROSENBAUM V. HAYES, N. Dak., 86 N. W. Rep. 973.

99. FACTORS-Receipt of Good-Sunday.-The fact that a factor acquired possossion of sheep on Sunday will not defeat his possession or lien.-ROSENBAUM V. HAYES, N. Dak., 86 N. W. Rep. 973.

100. FEDRAL COURTS - Jurisdiction - Objection.-A federal court cannot entertain a purely equitable defense in an action in ejectment, and the matter being jurisdictional, the court is bound to take notice of it.-MULQUEEN V. SCHLICHTER JUTE CORDAGE Co., U. S. C. C., E. D. (Pa.), 109 Fed. Rep. 931.

101. FEDERAL COURTS - Pleading - Amendment. — A federal court will permit an amendment of a com. plainant in an action at law before answer, introduc. ing an additional cause of action.-OLIVER V. RAYMOND, U. S. C. C., E. D. (Wis.), 108 Fed Rep. 927.

102. FIRE INSURANCE- Forfeiture-Misstatements.Where owner of life estate insured the premises and stated that she was the owner thereof, held not to render the policy void.-CONVIS v. CITIZENS' MUT.

FIRE INS. Co.. Mich., 86 N. W. Rep. 994.

103. FIRE INSURANCE-Waiver.-Written assent to a sale of the property is waived by company subsequently recognizing the policy in force.-STUART v. RELIANCE INS. Co., Mass., 60 N. E. Rep. 929.

104. FRAUDS, STATUTE OF-Agreement to Reconvey.A parol agreement to reconvey real estate held within the statute of frauds, and not to create an express trust in favor of the grantor.-VEEDER V. MCKINLEYLANNING LOAN & TRUST CO., Neb., 86 N. W. Rep. 982.

105. FRAUDULENT CONVEYANCE-Account-Tranfer.Transfer of threshing account and statutory lien, while good between the parties, held void as to execu tion creditors of assignor.-FABER V. WAGNER, N. Dak., 86 N. W. Rep. 963.

106. FRAUDULENT CONVEYANCE - Declarations of Grantor.-Declarations of the grantor after the conveyance, in the absence of the grantee, held properly excluded.-SKELLEY V. VAIL, Ind., 60 N. E. Rep. 961.

107. FRAUDULENT CONVEYANCES-Intent.-Intent to defraud creditors must appear on face of deed, that court may declare it fraudulent per se.-BALLARD V. CHEWNING, W. Va., 39 S. E. Rep. 170.

108. GIFTS-Declaration of Husband.-Declarations of husband while free from debt held admissible to prove gift to the wife.-FIRST NAT. BANK V. HOLLAND, Va., 39 S. E. Rep. 126.

109. GIFTS-Husband to Wife Dividend.-Gift by husband to wife of stock held not affected by the fact that he continued to draw the dividends.-FIRST NAT. BANK V. HOLLAND, Va., 39 S. E. Rep. 126.

110. GUARDIAN AND WARD Personal Liability. — Where a guardian gave a personal order for goods expecting to pay for them as guardian, such fact did not relieve him of personal liability.-GALLAGHER V. MCBRIDE, N. J., 49 Atl. Rep. 582.

111. HEALTH.-Although abatement of nuisance by board of health may affect a suit pending, no ground for interference with the board of health.-STONE V. HEATH, Mass., 60 N. E. Rep. 975.

112. HIGHWAYS-Open to travel-Evidence.-Wagons passing over a highway insufficient to show that it was open to public travel.-COMPTON V. INHABITANTS OF TOWN OF KEVERE, Mass., 60 N. E. Rep. 931.

[blocks in formation]
[blocks in formation]

117. INJUNCTION - Nuisance Removal.-Failure to object to the construction of a nuisance held not to estop a party injured thereby from maintaining injunction to compel its removal.-TOWNSEND V. EPSTEIN., Md., 49 Atl. Rep. 629.

118. INJUNCTION-Motion to Dissolve.-Where a motion to dissolve an injunction is heard on a bill and answer, and the latter denies all the facts stated in the bill, the injunction will be dissolved.-WENZEL V. MILBURY, Md., 49 Atl. Rep. 618.

119. INSURANCE - Change of Beneficiary.-Assignment of a life policy by insured with consent of insurer held a sufficient change of beneficiary.-ATLAN TIC MUT. LIFE INS. Co. v. GANNON, Mass., 60 N. E. Rep. 933.

120. INTOXICATING LIQUORS-Hotel-Keeping Bar.A hotel keeper who keeps a bar in a room which cannot be seen from the street, is guilty of a misdemeanor.-PEOPLE V. WHITE, Mich., 86 N. W. Rep. 902. 121. JUDGES Disqualification Relationship. - A judge held not disqualified because related within the sixth degree.-EX PARTE KREBS, S. Car., 39 S. E. Rep.

181.

[ocr errors]

122. JUDGES-Special-Quo Warranto.-Under Ann. Code 1892, § 922, a special judge has no jurisdiction of a quo warranto proceeding in vacation.- KELLY V. STATE, Miss., 30 South. Rep. 49.

123. JUDGMENT-Limitations.-Four years' possession of land, which will devest lien of judgment under Civ. Code, § 5355, must be during a time when judg. ment could be lawfully enforced.-DOZIER V. Mc. WHORTER, Ga., 39 S. E. Rep. 106.

124. JUDGMENT-Parties not of Record-Conclusive. ness. One who promotes and controls an action through counsel is concluded by the judgment although not a party to the record.-HAUKE V. COOPER, U.S. C. C. of App., Fifth Circuit, 108 Fed. Rep. 922.

125. JUDGMENT-Res Judicata. Judgment of su preme court affirming, because of equal division, judgment below, held res judicata. - MCALISTER V. HAMILTON, S. Car., 39 S. E. Rep. 182.

126. JURY.-Taking Case from Jury.-A defendant, who, by conceding a prayer, admits that the case was for the jury, cannot ask to withdraw the case from the Jury.-PHILADELPHIA & B. C. R. Co. v. HOLDEN, Md., 49 Atl. Rep. 625.

127. LIS PENDENS-Substitution.-Purchaser pendente lite is entitled, on becoming a party to the action, to be substituted to his grantor's position.-SHARITZ V. MOYERS, Va., 39 S. E. Rep. 166.

128. MANDAMUS-Connecting Error of Trial Court.Mandamus will not lie to compel the correction of an error made by a court in construing the opinion of an appellate court.-JAMES V. CENTRAL TRUST CO., U. S. C. C. of App., Fourth Circuit, 108 Fed. Rep. 929.

129. MASTER AND SERVANT- Employer's Liability Act.-Railroad corporation held responsible for inju. ries to employees through negligence of locomotive engineers the same as to strangers.-INDIANAPOLIS UNION RY. Co. v. HOULIHAN, Ind., 60 N. E. Rep. 943.

130. MASTER AND SERVANT Fellow-Servants. - A foreman of water supply running free on an engine, between stations, is a fellow servant of the engineer, and cannot recover from the raiload company for an Injury caused by the negligence of such engineer.LOUISVILLE & N. R. Co. v. STUBER, U. S. C. C. of App., Sixth Circuit, 108 Fed. Rep. 934.

131. MECHANICS' LIENS - Other Realty - Enforcing Lien.-In order that a contractor may enforce lien on other reality of the same owner which may be benefited, he must clearly identify it by evidence.-EASTMORE V. BUNKLEY, Ga., 39 S. E. Rep. 105.

[blocks in formation]

133. MUNICIPAL CORPORATIONS Advertising CityCost.-Charter of city held not to authorize appointment of an officer to represent the city in a general way as a resort before the people at large.-POTTS V. CITY OF CAPE MAY, N. J., 49 Atl. Rep. 584.

134. MUNICIPAL CORPORATIONS-City CouncilmanRecovery from City.-Laws prohibiting councilman from contracting with city do not prevent him from recovering for injuries from defective highway.-CITY OF DANVILLE V. ROBINSON, Va., 39 S. E. Rep. 122.

135. MUNICIPAL CORPORATIONS - Contracts-Award. ing. In reviewing award of city contract, the court will only inquire into the good faith of the city.-RYAN V. CITY OF PATERSON, N. J., 49 Atl. Rep. 587. 136. MUNICIPAL CORPORATIONS Debt Incurring Power. The purchase by a municipal corporation of land subject to mortgages in excess of its debt-incurring power will be enjoined.-BROWNE V. CITY OF BOSTON, Mass., 60 N. E. Rep. 934.

137. MUNICIPAL CORPORATIOES-Defective Sidewalk. -One injured by defect in sidewalk held not chargeable with notice thereof because he is a councilman.CITY OF DANVILLE V. ROBINSON, Va., 39 S. E. Rep. 122.

138. MUNICIPAL CORPORATIONS-Extension of City.— A notice for the propesed extension of a city held to have been sufficiently published under Burns, Rev. St. 1894, § 3659.-CITY OF BLOOMINGTON V. DUNN, Ind., 60 N. E. Rep. 958.

139. MUNICIPAL CORPORATIONS-Franchise-Forfeiture. Where money is forfeited to a city for a failure to comply with a franchise, a donation thereof to another company, completing the work of the first company, was unconstitutional.-ADAMS V. JACKSON ELEC. RY., LIGHT & POWER CO., Miss., 30 South. Rep. 58, 140. MUNICIPAL CORPORATION-Obstruction in Street. -Facts held to show that an ordinance authorizing the construction of a passageway over a street was vold, because permitting the obstruction of the street for private use.-TOWNSEND V. EPSTEIN, Md., 49 Ati. Rep. 629.

141. MUNICIPAL CORPORATIONS-Paving Material.A city may select such quality ofmaterial for its pavements as, in the honest exercise of discretion, it may require. RYAN V. CITY OF PATERSON, N. J., 49 Atl. Rep. 587.

142. MUTUAL BENEFIT SOCIETIES-Expense Fund-DIversion.-Appointment of a member, with right to participate in a special dividend, held not void as diverting the expense fund for private gain.-MULLER V. STATE LIFE INS. CO., Ind., 60 N. E. Rep. 985.

143. NATURAL GAS-Turning off Gas.-Act of turning off a valve belonging to a person furnishing gas to consumers without consent of the owner is unlawful. -STATE V. MOORE, Ind., 60 N. E. Rep. 955.

144. NEGLIGENCE Children-Dangerous Condition of Premises.-Acquiescence in permitting children upon premises held not to render proprietor liable for injuries caused by dangerous condition thereof.FORMALL V. STANDARD OIL CO., Mich., 86 N. W. Rep. 946.

145. NEGLIGENCE-Look and Listen.-Where the view of a traveler on approaching a crossing is obstructed, he is negligent in going on the track without stopping looking, and listening.- PHILADELPHIA & B. C. R. Co. V. HOLDEN, Md., 49 Atl. Rep. 625.

146. NEGLIGENCE-Look and Listen. - Failure of one riding in a closed carriage on a dark night to look and listen for an approaching electric car at a crossing held negligence.-WARREN V. BANGOR, O. & 0. T. RY. Co., Me., 49 Atl. Rep. 609.

147. NEGLIGENCE-Proximate Cause.-Negligence in making an opening in the inclosure of a race track, held the proximate cause of an injury received from a runaway horse escaping through such opening.WINDELER V. RUSH CO. FAIR ASSN., Ind., 60 N. E. Rep.

954.

148. NEW TRIAL-Remarks of Counsel.-Where remarks of counsel were harmless, the verdict will not be set aside therefor, though they were improper.CHRISTENSEN V. LAMBERT, N. J., 49 Atl. Rep. 577.

149. NOVATION-Acceptance of Collateral. - Where a bank, having discounted notes for a receiver, accepted his certificates as collateral, held, that the acceptance by the bank of such certificates was not a Dovation.-STATE BANK V. DOMESTIC SEWING MACH. Co., Va., 39 S. E. Rep. 141.

150. NUISANCE Obstructing Light.-Passageway connecting buildings on opposite sides of the street, so as to shut out the light from adjacent premises, held a nuisance.-TOWNSEND V. EPSTEIN, Md., 49 Atl. Rep. 629.

151. OFFICERS-Compensation - Enlargement.-Act of legislature, extending territory from which swamp lands might be s lected for services rendered, held not invalid, as an enlargement of compensation, under Const. § 21, art. 4.-OLDS V. COMR. OF STATE LAND OFFICE, Mich., 86 N. W. Rep. 956.

152. PARTITION-Distribution.-In partition of land conveyed to a father for his wife's benefit, held, that the lands belonged to the father and should be parti. tioned among all his children.- KEISTER V. KEISTER, Va., 39 S. E. Rep. 164.

153. PATENTS - Injunction-Dealing in Article.-A licensee under a patent cannot enjoin another, who is not a party to the contract, from dealing in the patented article, where the suit is not one for infringement.-JOHNSON V. SEAMAN, U. S. C. C. of App., Third Circuit, 108 Fed. Rep. 951.

154. PATENTS-Rehearing - New Evidence.-Rehear ing granted, after interlocutory decree sustaining patent, to admit newly-discovered evidence.-JOHN R. WILLIAMS Co. v. MILLER, DURRUL & PETERS MFG. Co., U. S. C. C., S. D. (N. J.), 108 Fed. Rep. 967.

155. PAUPERS-Evidence - Voting and Taxation.Voting and taxation held of much stronger proof to prevent gaining of pauper settlement than when offered to establish one.-INHABITANTS OF MONROE V. INHABITANTS OF HAMPDEN, Me., 49 Atl. Rep. 604.

[blocks in formation]

157. QUIETING TITLE Peaceable Possession.-To maintain bill to quiet title, complainant's possession must be peaceable and under claim of ownership.— BRAND V. UNITED STATES CAR CO., Ala., 30 South. Rep. 60.

158. QUIETING TITLE-Sufficient Possession.-Posses. sion, to authorize bill to quiet title, is sufficient when the land is put to such use as it is reasonably adapted to.-BRAND V. UNITED STATES CAR CO., Ala., 30 South. Rep. 60.

159. QUIETING TITLE - Undue Influence.-Cross-bill alleging undue influence in obtaining deed to plaint. iff, in an action to quiet title, held to state a cause of action.-Curtis v. Burns, Ind., 60 N. E. Rep. 963.

160. QUO WARRANTO — "Public Office."-The office of assessor of the city of Vicksburg is a "public office," so that a quo warranto proceeding to try the right to such office may be tried in vacation.-KELLY V. STATE, Miss., 30 South. Rep. 49.

161. QUO WARRANTO — Title to Office.- Quo warranto granted where relator claims title to office, which will not expire for more than four years, and no inconvenience to the public can result.-WATKINS V. VENABLE, Va., 39 S. E. Rep. 147.

162. QUO WARRANTO-Usurper in Office.-Code, ch. 145, does not make a writ of quo warranto applicable only where the incumbent is a mere usurper without color of title.-WATKINS V. VENABLE, Va., 39 S. E. Rep. 147.

163. RAILROADS -Equipment Notes-Sale.-A seller of equipment taking notes and retaining title, till full payment on the foreclosure of mortgage is entitled to retake the property, or to a first lien thereon, where mortgagee elects to retain it.-METROPOLITAN TRUST Co. V. RAILROAD EQUIPMENT CO., U. S. C. C. of App., Sixth Circuit, 108 Fed. Rep. 913.

164. RAILROADS-Failure to Give Signal.-In an ac tion for injuries received at a private crossing, failure to signal at a public crossing held not admissible as reflecting on plaintiff's contributory negligence.PHILADELPHIA, ETC. R. Co. v. HOLDEN, Md., 49 Atl. Rep. 625.

165. REMOVAL OF CAUSES Defendant's PrivilegeWaiver. The right of defendant to be sued only in the district where either he or the plaintiff resides is a personal privilege, which he alone can assert, and which he waives by removal.-EMPIRE MIN. Co. v. PROPELLER TOW BOAT CO. OF SAVANNAH, U. S. C. C., D. (S. Car.), 108 Fed. Rep. 900.

166. REMOVAL OF CAUSES - Federal Question-Pleading. To authorize the removal of a cause, on the ground that it involves a federal question, such fact must appear from the plaintiff's pleading; the want cannot be supplied by a statement in the petition for removal.-MAYO V. DOCKERY, U. S. C. C., E. D. (N. Car.), 108 Fed. Rep. 897.

167. REMOVAL OF CAUSES-Suit Against United States Marshal.-A United States marshal, sued for trover in a state court by a citizen of the same state, for the seizure of property under process issued by a district court in a private suit, cannot have the cause removed into the circuit court by certiorari.- MAYO V. DOCKERY, U. S. C. C., E. D. (N. Car.), 108 Fed. Rep. 897.

168. SALES - Breach of Contract Evidence.-In an action for breach of contract to purchase plaintiff's machines to supply trade, evidence as to number of another make sold by defendants held properly excluded.-DoWAGIAC MFG. Co. v. CORBIT, Mich., 86 N. W. Rep. 954.

169. SALES Fquipment Notes.-A contract under which equipment is delivered to a railroad company, which is to become the owner on payment of the last of a series of notes given the seller, although denom. inated a "lease," is in legal effect a sale.-METROPOL ITAN TRUST Co. v. RAILROAD EQUIPMENT CO., U. s. c. C. of App., Sixth Circuit, 108 Fed. Rep. 913. 170. SALVAGE Fraud of Master Wrecker. The fraudulent conduct of a master wrecker will not work a forfeiture of all right to compensation on the part of other employees.-THE GOV. AMES, U. S. C. C. of App., Fifth Circuit, 106 Fed. Rep. 969.

[blocks in formation]

created by its laws.-THE UNIVERSE, U. S. D. C., D. (Oreg.), 108 Fed. Rep. 968.

173. SHIPPING-Maritime Liens State Authority. - A state legislature has no authority to create maritime liens. THE UNIVERSE, U. S. D. C., D. (Oreg ), 108 Fed. Rep. 968.

174. SHIPPING-Ten Days' Notice of Loss-Reasonable Regulation.-A provision of a bill of lading requiring notice of any claim for loss or injury to the goods to be given within 10 days after such loss or injury is known to the shipper is reasonable and valid. -THE ARCTIC BIRD, U. S. D. C., N. D. (Cal.), 109 Fed. Rep. 167.

175. STATES Governor Employment of Counsel.The governor has no authority to employ counsel at the expense of the state to assist in drafting laws.CAHILL V. BOARD OF STATE AUDITORS, Mich., 86 N. W. Rep. 950.

176. STATUTES-Joint Resolution.-A joint resolu. tion held not invalid as attempting what could be accomplished only by a bill.- OLDS V. COMRS. OF STATE LAND OFFICE, Mich., 86 N. W. Rep. 956.

177. SUBROGATION-Paying Off Incumbrance.-Understanding that one paying off incumbrances shall hold the land as collateral does not subrogate such person to the lien of the incumbrancers.- MCGOWAN V. BROOKS, Ga., 39 S. E. Rep. 115.

178. TAXATION-Misdescription-Collector's Return. -Entire omission to describe land in collector's return held fatal to the validity of a tax sale.-BURGESS V. ROBINSON, Me., 49 Atl. Rep. 606.

Receipt

179. TAXATION Misdescription.- Where plaintiff paid her taxes, and the tax collector gave her a receipt misdescribing the property, which was afterwards sold for the taxes, the tax title will be set aside.-PERRET V. BORRIES, Miss., 30 South. Rep. 60. 180. TAXATION Tax Deed. A judgment debtor, whose land has been sold on execution, cannot make a valid title to his wife under a tax deed, paid for with his own money.-BURGESS V. ROBINSON, Me., 49 Atl. Rep. 606.

[ocr errors]

181. TAXATION - Tax Sale-Notice.-Applicant to pur. chase land bought in by commonwealth for taxes held not freed from duty to give notice to trustee and beneficiary, though deed of trust is not properly indexed. -VIRGINIA BLDG. & LOAN CO. V. GLENN, Va., 39 S. E. Rep. 136.

182. TORTS-Right of Arrest.-Where an officer had entered the outer door of a theater, held proper to di rect a verdict for defendant in an action for the man. ager's refusal to permit him to serve a writ OH an actor therein.-PAULTON V. KEITH, R. I., 49 Atl. Rep. 635.

193. TRIAL-Answers-Not Responsive. -Answers of a witness not responsive to the question may be stricken out.-SKELLEY V. VAIL, Ind., 60 N. E. Rep. 961. 184. TRIAL-Directing Verdict.-Where facts, as well as their bearing upon the injury of an employee, were in issue, and the evidence was conflicting, the court properly declined to direct a verdict.-MEXICAN CENT. RY. Co. v. CONWAY, U. S. C. C. of App., Fifth Circuit, 108 Fed. Rep. 932.

185. TRIAL-Instructions. - Failure to instruct as to matters already covered held not error.-GREEVER V. BANK OF GRAHAM, Va., 39 S. E. Rep. 150.

186. TRIAL-Instructions-General Exceptions.-Gen. eral exceptions to an instruction held insufficient to raise the question of its inconsistency with other instructions given.-MATTHEWS V. CLOUGH, N. H., 49 Atl. Rep. 637.

187. TRIAL-Objection to Evidence.-Where evidence was objected to, objection need not be repeated, where other evidence of the same kind is offered.-AMERICAN MORTG. CO. v. MOUSE RIVER LIVE-STOCK CO., N. Dak., 86 N. W. Rep. 965.

188. TRUSTS-Resulting Trust-Burden of Proof.The burden is on one claiming a resulting trust to es

[blocks in formation]

190. USURY

Payment in Foreign State.-A stipulation in a loan contract that payment was to be made in a foreign state will not take the contract out of the operation of the laws of the state.-SHANNON V. GEORGIA STATE BLDG. & LOAN ASSN., Miss., 30 South. Rep. 51.

191. USURY-Renewal Note Excluding Usury.-The renewal by a new note of a usurious note, but exclud. ing all the usury, renders the contract binding on the maker.-VERMEULE V. VERMEULE, Me., 49 Atl. Rep.

608.

192. WILLS-Advancements.-The sum shown by a testator's account with each one of his children held to be the amount to be charged against them as advancement.-BAKER V. SAFE-DEPOSIT & TRUST CO., Md., 49 Atl. Rep. 623.

193. WILLS-Bequest by Interest in Estate.-A will bequeathing testatrix's interest in the estate of her mother will not include property inherited by testatrix from her sister.-IN RE TILLINGHAST, R. I., 49 Atl. Rep. 634.

194. WILLS Capacity Religious Belief.-Evidence of religious belief held admissible as tending to show testator's mental incapacity to make a will.BRASHEARS V. ORME, Md., 49 Atl. Rep. 620.

195. WILLS-Construction.-A writing, executed as required of a will, providing for payment for care during deceased's last sickness, to be collected out of his estate, held to be a will.-FERRIS V. NEVILLE, Mich., 86 N. W. Rep. 960.

196. WILLS-Construction - Intent.-Intent of testator in construing will must prevail, if consistent with rules of law.-IN RE WOODWARD'S ESTATE, Minn., 86 N. W. Rep. 1004.

197. WILLS-Contest-Charging Jury.-Arraying contestant's witnesses against those of proponent, in charging the jury as to the capacity of testatrix, held erroneous.- SPENCER V. TERRY'S ESTATE, Mich., 86 N. W. Rep. 998.

198. WILLS - Devise to Mother and Children.-Will providing that niece hold land independently of her future husband and transmit it to her children, vests a life estate in niece, with remainder in children.SHANNON V. BONHAM, Ind., 60 N. E. Rep. 951.

199. WILLS-Power to Convey Fee.-Devise construed to give widow of testator power to convey a fee. - SAWIN V. CORMIER, Mass., 60 N. E. Rep. 936.

200. WILLS-Revocation in Void Will.-Where an instrument purporting to be a last will is adjudged void, a clause therein revoking all former wills is ineffectual. -LYON V. DADA, Mich., 86 N. W. Rep. 946.

201. WILLS-Specific Devise.-Provision in will, reciting that the testatrix may be entitled to a certain interest in the estate of a deceased person, and devising the entire interest, constitutes a specific devise.-IN RE TILLINGHAST, R. I., 49 Atl. Rep. 634.

202. WILLS-Time from which Will Speaks.-Words in will descriptive of objects of a gift refer to the death of testator, and not to date of will.-IN RE WOODWARD'S ESTATE, Minn., 86 N. W. Rep. 1004.

203. WILLS-Trustee-Beneficiary.-It is no objection to a trust created by will that the trustee is also a beneficiary thereunder.-SUMMERS V. HIGLEY, III., 60 N. E. Rep. 969.

[blocks in formation]

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 8, 1901

No tendency is more to be deprecated and condemned than that of thrusting the law into the private affairs of the citizen under the guise of the police power. In a free country nothing can be more destructive of private rights. Under the exercise of such a power the majority may crush and burden a minority as arbitrarily as any despot in Europe. The recent case of People v. Reetz, 86 N. W. Rep. 396, brings up for our purpose the constitutionality of such legislation in that phase of it relating to the examining and licensing of physicians. In that case the supreme court held, generally, that under the police power inherent in the state, the legislature may enact reasonable regulations for the examination and registration of physicians, and the practice of medicine and surgery. Counsel argued that such legislation was an interference with the inalienable right of a citizen when ill to employ anybody he chooses as his physician. The contention of counsel, as a general proposition, cannot be successfully contradicted, the statement of the court in this case to the contrary notwithstanding. For the law to tell a man what he shall eat or what he shall drink or wherewithal he shall be clothed is paternalism with a vengeance, and is often practically accomplished under many laws regulating the adulteration of food products, the sale of liquor, and tariffs on foreign goods, etc. But to compel a man lying on a bed of sickness to call in a physician of a certain school or schools recognized by the state, but in whom the sufferer has no confidence, or else to languish without treatment, is as cruel and as unwarrantable an interference with private right as to require him under more serious conditions of health to accept the comforts of religion from a minister having the state indorsement.

Medicine is not an exact science. Some people believe in allopathy, others say that nature cures when it does cure in spite of its volcanic purges; some believe in homeopathy, others call it the greatest humbug of the age; some believe in Christian Science, others

condemn it as criminal and suggest that those who practice it be prosecuted for manslaughter or assault to kill as the case may be; some believe in osteopathy, others will point suggestively to their foreheads as a votary of the new school passes by. And so we might go on with all the other opathies and treatments, dry air, cold water, magnetism, etc., etc. In many of these a knowledge of even the rudiments of materia medica is not essential, so that no general examination could possibly let them all in. The state therefore by requiring such an examination must necessarily shut out all schools of medicine not represented in the board of examiners or covered by the examination. Nothing but the most absurd sophistry could conceal the fact that this is a most gross violation of individual liberty, smothering all investigation of disease and its remedy or alleviation, except in certain directions, and compelling a man in sickness or pain to do without treatment unless he is willing to accept that prescribed by the state. This is not the police power, it is tyranny, and the tyranny of a majority is as bad as any other tyranny.

It is a pleasure, however, to observe a tendency of late on the part of the courts to recognize the invasion of private right inherent in such legislation and, while not declaring it unconstitutional, to meet its most serious defects by constructional limitation. Thus in Evans v. State, 9 Ohio, S. & C. P., Dec. (Ohio, 1899) 222, it was held that a statute prohibiting any person not having a certificate from the board of medical registration from prescribing, directing or recommending any drug, medicine or other agency for the treatment, cure or relief of any bodily imfirmities did not include the system known as "Christian Science." So also in Kentucky it was held that a similar statute did not prevent an osteopath from practicing his profession without a license. Nelson v. State Board of Health (Ky. 1900), 57 S. W. Rep. 501, 50 L. R. A. 383. See also State v. Liffring,.61 Ohio St. 39, 46 L. R. A. 334. Contra, Jones v. People, 84 Ill. App. 453. In the case of Nelson v. Board of Health, the court said: "[This statute] allows only reputable physicians holding a diploma from a regular or reputable school to practice medicine. If the act applies to appellant, he can

« ПредишнаНапред »