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142. SALES-Breach of Warranty.-Defects.-An an. swer, pleading as a partial defense to an action for the price of machinery defects in the workmanship and material in violation of the contract of sale, held sufficient.-Florence Oil & Refining Co. v. Farrar, U. S. C. C. of App., Eighth Circuit, 109 Fed. Rep. 254.

143. SALES-Crop-Failure.- Where a contract for a specified crop cannot be filled because of failure of the crop without fault of the vendor, the vendee cannot recover damages for such failure.-Ontario Deciduous Fruit Growers' Assn. IV. Cutting Fruit Packing Co., Cal., 66 Pac. Rep. 28.

144. SALES-Installments.-A contract for the sale of a large quantity of logs, to be delivered in installments each month during a period of eight years, and to be paid for in installments as delivered, construed, and held to be an entire contract for the sale of the full quantity reqiured to be delivered thereunder. - L. Bucki & Son Lumber Co v. Atlantic I umber Co., U. S. C. C. of App., Fifth Circuit, 109 Fed. Rep. 411.

145. SALVAGE-Measure.- Award of $200 salvage allowed for hauling ferry boat out of slip at the time of apparent danger from fire held proper.-The John I. Brady, U. S. D. C., E. D. (Pa.), 109 Fed. Rep. 912.

146. SCHOOLS AND SCHOOL DISTRICTS-Orphan Asy. lum-Salaries.-Board of education of city held au thorized under constitution and statutes to pay sal aries to teachers in a local orphan asylum.-Sargent v. Board of Education of City of Rochester, N. Y., 71 N. Y. Supp. 954.

147. SPECIFIC PERFORMANCE-Tender of Payment.A purchaser of real estate, who is required to make payment by a day certain, time being of the essence of the contract, is bound to make or tender such pay. ment within the time to entitle him to a specific performance.-Kentucky Distilleries & Warehouse Co. v. Warwick Co., U. S. C. C. of App., Sixth Circuit, 109 Fed. Rep. 280.

148. STATUTES-Construction.-In construing a stat. ute, the intent of the legislature is always a proper matter to be considered--In re Matthews, U. S. D. C., W. D. (Ark.), 109 Fed. Rep. 603.

149. TOWAGE-Degree of Skill.-The owner of a tug is not an insurer against marine perils, and is liable only for the want of reasonable diligence and skill in the towing service; nor is an error of judgment on the part of the master equivalent to negligence.-The E. Luckenback, U. S. D. C., S. D. (N. Y.), 109 Fed. Rep.

487.

150. TRADE-MARKS AND TRADE NAMES Color and Shape of Label.-While no one can have a trade-mark monopoly in color of paper or shape of label, in color of ink or in one or another detail, a general col location of such details will be protected against an imitation, the natural result of which is to deceive purchasers, and which must therefore be presumed to have been adopted with that purpose.- Lalance & Grosjean Mfg. Co. v. National Enameling & Stamping Co., U. S. C. C., S. D. (N. Y.), 109 Fed. Rep. 317.

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152. TRADE-MARKS AND TRADE-NAMES. - Right of Retailer. A purchaser of an article at wholesale has a right to retail the same under the name by which it is designated by the manufacturer, but not to designate it by a name used by the manufacturer, and which has become known to the public, as denoting a grade superior to that sold.-Russia Cement Co. v. Katzen stien, U. S. C. C., S. D. (N. Y.), 109 Fed. Rep. 314.

153. TRADE-MARKS AND TRADE-NAMES-Similarity.— Trade-mark "Grape-Nuts" held not infringed by the name "Grain Hearts," under which a similar cereal food is sold.-Postum Cereal,Co. v. American HealthFood Co., U. s. C. C., E. D. (Pa.), 109 Fed. Rep. 898.

154. TRIAL-Instructions.-Where each side submits a number of instructions, and those given on the whole are fair, the verdict should not be set aside, though some are subject to criticism.-In re Keithley's Estate, Cal., 66 Pac. Rep. 5.

155. TRUSTS-Legal and Equitable Titles.-Where a person, through mistake, obtains legal title to prop erty belonging to another, it is impressed with a trust in favor of the equitable owner.-Cole v. Fickett, Me., 49 Atl. Rep. 1066.

156. TRUST-Separable Trusts.-Where land was con veyed to the daughter of the grantor in trust for her use during life, and on her death for the use of her children, the trust to her is valid and separable from the trust to the children.-Nellis v. Rickard, Cal., 66 Pac. Rep. 32.

157. TRUST-Trustee and Cestui Que Trust Identical.A cestui que trust may be appointed the trustee without affecting the validity of the trust.-Nellis v. Rickard, Cal., 66 Pac. Rep. 32.

158. TRUSTS-Voluntary Trust.-Publisher of paper, receiving contributions for support of families of dead firemen in response to his solicitation, held to be a voluntary trustee of the funds.-Hallinan v. Hearst, Cal., 66 Pac. Rep. 17.

159. TRUSTS-Voluntary Trust.-Publisher of paper, receiving certain contributions for support of families of dead firemen, held to have the determination of the question of who composed such families.-Hallinan v. Hearst, Cal., 66 Pac. Rep. 17.

160. UNITED STATES-Claims- Attorney's Fees.-Ad ministrator de bonis non of fund derived under French spoliation act should be reimbursed for expenses and attorney's fees incurred in a suit to determine the question of distribution.-Healey v. Cole, Me., 49 Atl. Rep. 1065.

161. UNITED STATES-French Spoliation Claims.-On appropriation of money by congress for payment of French spoliation claims, it had the right to make the gift on its own terms.-Healey v. Cole, Me., 49 Atl. Rep. 1065.

162. VENDOR AND PURCHASER Worthless Mining Claim. Where a mining claim is worthless, defendant, who has an option to purchase, is not damaged by plaintiff's inability to convey.-Benson v. Braun, Cal., 66 Pac. Rep. 1.

163. VENUE-Accessibility of Court.-In determining motion for change of place of trial for convenience of witnesses, the accessibility of the court to all the witnesses may be considered.-O'Beirne v. Miller, N. Y., 71 N. Y. Supp. 946.

164. WATER AND WATER COURSES-Melting Snow. Owner of lot on side of hill held not liable to owner of lot lower down on the hill for melted ice and snow running down on such lower owner's lot. -Garrett v Wood, N. Y., 71 N. Y. Supp. 987.

165. WILLS-Charging Real Estate.-Will construed, and held, that deficiencies in money legacies were a charge on the real estate. -Wellbrook v. Otten, N. Y., 71 N. Y. Supp. 927.

166. WILLS-Evidence as to Sanity.-It is not error to permit an intimate acquaintance of a testator to state his opinion as to testator's sanity.-In re Keithley's Estate, Cal., 66 Pac. Rep. 5.

The fact,

167. WITNESSES-Chinese-Truthfulness. alone, that a trial court refuses to accept as true the testimony of Chinese witnesses is not ground for reversal.-Woey Ho v. United States, U. S. C. C. of App., Ninth Circuit, 109 Fed. Rep. 888.

168. WITNESSES - Evidence of Good Character.- A court may refuse to permit a party to introduce evi dence of the general good character of his own wit nesses, who are Chinese, where there has been no at. tempt to impeach their character.-Woey Ho v. United States, U. S. C. C. of App., Ninth Circuit, 109 FedRep. 888.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 29, 1901

Governor Durbin of Indiana has again raised that most serious and unsettled question of constitutional law,-the extradition of fugitives from justice-in his direct refusal to honor the requisition of Gov. Beckham of Kentucky for the rendition of Ex-Gov. Taylor. Gov. Durbin gives as his reason for refusing to extradite Mr. Taylor that he doubts whether he would secure a fair trial in the State of Kentucky, under whose laws he has been indicted. That this presents a question most vital to the interests of all American commonwealths cannot be denied after careful investigation. If two rival governors, with deep personal or political prejudices, can open the doors of their respective commonwealths as an asylum for those charged with crime in the other jurisdiction, and thus invite the commission of crime by insuring to the criminal immunity from punishment, a condition is presented that calls for prompt and vigorous action.

Interstate extradition is based on section 2 of article 4 of the constitution providing that "a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." In 1793 congress passed an act, now §§ 5278 and 5279 of the Rev. Stat. U. S., providing that when a demand for the requisition of a fugitive from justice from any state shall have been made by the governor of said state, accompanied by a copy of the indictment found against the alleged criminal, "it shall be the duty of the executive authority" of the state, to which said criminal has fled, to deliver over the fugitive to the demanding state for trial. This provision of the constitution was construed by the Supreme Court of the United States in the case of Kentucky v. Dennison, 65 U. S. 161, which, also, is the only case directly in point with the controversy over the extradition of Gov. Taylor. In this case a certain free negro was indicted in Kentucky for enticing away a slave from his

owner, an indictable offense in that state. The alleged criminal fled to Ohio. The governor of Kentucky, after complying with the act of congress, demanded the rendition of the fugitive. The governor of Ohio refused to grant the requisition on the ground that his state did not recognize the crime for which the alleged fugitive from justice had been indicted. The State of Kentucky mandamused the governor of Ohio in the United States Supreme Court. The Supreme Court condemned the action of the governor of Ohio in very severe terms, stating that the constitution gave him no discretion whatever in granting the requisition; that it was purely a ministerial duty on his part to be performed without regard to the character of the crime charged or of the laws of procedure of the demanding state. The constitution bound him to return the fugitive "on demand,” and the court intimated that his refusal to grant the requisition was a breach of his oath to support the constitution. The court held, however, that although this was a solemn obligation imposed upon the governor by the constitution, yet if he persisted in his refusal the federal government under the act of congress had no power to coerce him.

It would seem that when this law was passed the belief was that a sense of justice and of mutual interest would insure the faithful execution of its provisions. "For," says Chief Justice Taney, "it is manifest that the government must fail unless the states mutually supported each other and the general government; and nothing would be more likely to disturb its peace and end in discord than permitting an offender against the laws of a state, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the state, to repeat the offense as soon as another opportunity offered."

For a number of years, however, there has been a strong tendency among governors to refuse the rendition of fugitives for certain political crimes or for offenses charged to enforce financial obligations and on various other grounds which they have alleged as "'ulterior." In taking this position they have undoubtedly uncovered themselves to the charge of acting in the face of the constitution and of the

We believe the suggestion of Chief Justice Beasley is worthy of earnest consideration as the most effective solution of these unhappy and serious clashes of authority between the governors of sister commonwealths over the extradition of fugitives from justice. While in most cases we may confidently rely on the character of the men elected to such high places it is not to be denied that unscrupulous and hot-headed men, wielding the executive power of a state, have the right in the exercise of this extraordinary power to throw open the doors of a sister commonwealth to a flood of crime and disorder by granting an asylum to criminals or political free-booters within its borders.

WARRANTIES-MEASURE OF

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decision of the supreme court, denying them any discretion in such matters; and certain state courts, expressly relying on the fact that the federal government under the present act is powerless to enforce that provision of the constitution, have held that the governor had practically an absolute discretion in the matter which neither state nor federal power could coerce. State v. Toole, 69 Minn. 104; Work v. Coerington, 34 Ohio, St. 64. That this is a dangerous precedent and a breach of the constitution have been pointed out, not only by the supreme court in the case we have just noted, but also in a strong opinion in the case of In re Voorhees, 32 N. J. L. 141. In all text books and digests the duty of the governor to extradite a prisoner on demand, relying on the authorities NOTES OF IMPORTANT DECISIONS. which have granted the executive a discretion in the matter or else have held to the belief that his discretion could not be controlled, has been constantly spoken of as one of "imperfect obligation," whatever that might signify. Chief Justice Beasley, of New Jersey, in the case we have just cited, denies that there is any such weakness in the constitution. He says: "I think it indisputable that the constitution has made the surrender of a fugitive from justice, which by the law of nations depended on the concessions of comity, a rule of law of perfect obligation and entirely imperative in character." He recognizes the limitation, however, on the federal government, suggested by the case of Kentucky v. Dennison, but states that this results entirely from the fact that the act of congress which regulates these proceedings directs the demand to be made upon the governor, and, since the governor is not a federal officer, the federal government cannot compel the performance of a function which it has no right to annex to the office. "But," says Chief Justice Beasley, "I cannot entertain any doubt of the power of congress to vest in any national officer the authority to cause the arrest, in any state, of a fugitive from the justice of another state, and to surrender such fugitive on the requisition of the executive of the latter state. The national right to require the surrender, under the terms of the constitution, seems to me to be clear, and all that is necessary to render such right enforceable, in every case, is the necessary organ of the federal government."

DAMAGES BREACH ACETYLENE GAS. An interesting case on the subject of the proper measure of damages for breach of warranty recently arose in the case of Tyler v. Moody (Ky.), 63 S. W. Rep. 433. In this case the appellant brought this action to recover for damages for personal injuries caused by an explosion of gas generator for the manufacture of acetylene gas, sold by appellees Hall & Son, and manufactured by appellees Moody & Offutt. Appellent avers in his petition that appellees "guarantied and represented to him at the time of said sale, and as a part of said contract, that the said machine, and the use thereof in generating acetylene gas, was and would be entirely safe, and that no damages or injury would or could result therefrom. The court held that the damages recoverable for such a breach of warranty include damages for personal injury to the buyer from an explosion of the machine, such damages being the natural and probable result of a breach of the warranty, and, therefore, within the contemplation of the parties. The court said: "It is argued that in no state of case can a recovery be had for the injuries to appellant, because they are too remote. A leading case upon the criterion of recovery for breach of warranty is Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. Rep. 696, 30 L. Ed. 810. The supreme court there said: "The damages recoverable for a breach of warranty or for false representation include all damages which, in the contemplation of the parties, or according to the natural or usual course of things, may result from the wrongful act.' In Suth. Dam. (2d Ed.) p. 1523, § 675, it is said, after a review of many cases: 'A buyer may recover damages for personal injuries which result from selling property with a false warranty. A dealer will be liable for like injuries from the explosion of illuminating oils sold with warranty, express or im

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plied, which is untrue. And so will any vendor be held answerable for such injuries from vicious animals sold with warranty of gentle and docile nature.' In this case the warranty was against explosion, the very thing shown to have happened. Upon this showing by appellant, uncontradicted, we think he would be entitled to recover for his personal injury, as this evidently was in contemplation of the parties, or, according to the natural or usual course of things, might result from a breach of the warranty that the machine would not explode. An explosion of a machine of this sort would usually and ordinarily be attended with damage other than to the machine itself, and might injure persons,-being near a dwelling, would probably do so,-and so it must be held that personal injury was contemplated as a probable result of an explosion, and that was what appellant was assured would not happen."

LIABILITY OF

WAREHOUSEMAN FOR GOODS HELD IN CUSTODIA LEGIS UNDER WRIT OF REPLEVIN.-A most vexed question of law arising in actions of replevin is, whether chattels, the subject of replevin which are in possession of a bailee, are to be considered as in custodia legis so as to charge the latter with conversion if he returns the goods to the bailor during the progress of the suit. This question arose recently in the case of Mohr v. Langan, 63 S. W. Rep. 409, where the Supreme Court of Missouri held that where chattels were deposited with a regularly licensed warehouseman, and subsequently he was called as a witness as to the value of the chattels in a replevin suit for the chattels between the bailor and another, and thereafter, at the instance of the bailor, he delivered the goods to an auctioneer, who sold them during the pendency of the suit, and judgment was rendered against the bailor in the replevin suit, the warehouseman could not escape liability for the conversion on the ground that, being a regularly licensed warehouseman, he could not question the right of his bailor to demand a return of the goods, inasmuch as the circumstances were such as to put him on notice of the fact that his bailor might not have title. It was also held that it was proper to instruct that, if the warehouseman caused the goods to be hauled to the auction house, knowing they were to be sold, he was guilty of conversion, though he did not at that time know of the ownership of the goods by the successful defendant in replevin. There is an irreconcilable conflict of authority on this question. The court reviews the cases as follows:

"Of the cases which held that property taken under a writ of replevin remains in custodia legis, even when the possession is delivered to the plaintiff in the suit, he being regarded only as a substitute for the sheriff. Lockwood v. Perry, 9 Metc. (Mass.) 440, McKinney v. Purcell, 28 Kan. 446, Hunt v. Robinson, 11 Cal. 262, and Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470, are fair exponents. On the other hand, the cases

which hold that the property does not remain in custodia legis after it has been delivered to the plaintiff in the replevin suit, and that such plaintiff may sell it and pass a good title to a bona fide purchaser, being liable to the defendant in the replevin suit for the value of the property, if he ultimately loses his suit, are fairly illustrated by the cases of Gimble v. Ackley, 12 Iowa, 27, White v. Dolliver, 113 Mass. 400, Davies v. Gambert, 57 Iowa, 239, 10 N. W. Rep. 658, Smith v. McGregor, 10 Ohio St. 461, and Ilsley v. Stubbs, 5 Mass. 280; but in no case is the proposition more clearly stated or more ably maintained than in Coen v. Watkins, 62 Mo. App. 502. One of the reasons given for holding that the property is in custodia legis is that, if it can be levied upon by a third party, the plaintiff in replevin is disabled from returning it to the defendant in replevin, if the plaintiff fails in his suit, and hence would have to pay the defendant in replevin the assessed value of the property, and still would not have the property, for it would have been taken away from him by the third party under the second replevin, or by attachment or under execution, and in this way the same property might be utilized to discharge an indefinite number of debts of the same debtor." The court after reviewing the statutory provision on the subject in Missouri, says: "These statutory provisions manifestly treat the property as in custodia legis pending the litigation, so far as the parties to the replevin suit are concerned, and exclude the right of the party in possession to sell the property during the pendency of the suit, and further preserve the right of the winning party to follow the property in the hands of any person who purchased it from the party in possession pending the litigation. But, while this is true, it does not follow that the property is in custodia legis as to third persons, so that it cannot be levied upon by any other kind of a judicial process. Of course, it cannot be seized under any other kind of judicial process by either party to the replevin suit or their grantees or privies. But the weight of authority, amply supported by logic and reason, is that it may be seized by a third person, under any appropriate judicial process, who claims hostile to both parties to the replevin suit. It is ably and strenuously argued, however, that defendant Langan is a regularly licensed warehouseman, and, as he received the goods from Mrs. Smith, he could not question her right to demand their return, nor set up a paramount title in any one else, and that no demand was made on him for the goods by Mrs. Mohr before this suit was begun, and hence he is not liable in this action for the conversion of the goods. The general rule of law is as contended for. Story, Bailm. § 108; Edw. Bailm. §§ 54, 353; Daugherty v. Chapman, 29 Mo. App. 233; Pulliam v. Burlingame, 81 Mo. 111, 26 Am. & Eng. Enc. Law (1st Ed.), pp. 720-723. But this general rule will not protect a bailee who, having notice of the rights of the real owner, yet aids and abets the

bailor in wrongfully converting the goods. Nanson v. Jacob, 93 Mo. 331, 6 S. W. Rep. 246; Koch v. Branch, 44 Mo. 542; Williams v. Wall, 60 Mo. loc. cit. 321; Dusky v. Rudder, 80 Mo. 400. Having reached the conclusion that the property, as to Mrs. Smith and Mrs. Mohr, was in custodia legis, and that Mrs. Smith had no right to sell it, it follows that, as Langan knew of the replevin suit, he knew that Mrs. Smith had no power to sell it, and, as he aided her in doing so, he thereby became a party to the conversion, and his general exemption as a warehouseman is no protection to him, for he acted outside of his duties as such warehouseman."

RETROSPECTIVE PRESUMPTIONS.

In the last edition of Lawson on Presumptive Evidence, in the chapter on "The Presumption of Continuance," it is laid down "A presumption is not retrospective (Rule 37)." The illustrative cases cited by the author support this proposition. In one, proof that a woman was married in 1860 was held not to be evidence that she was married in 1854.1 In another, proof that a person held the office of a justice of the peace on June 25, was held not to be evidence that he held the office on June 5.2 In another, proof that a person was insane in 1864 did not raise the presumption that he was insane in 1860.3

The rule as stated by the author in the first edition has been expressly approved in two recent cases. In Jarvis v. Vanderford it is said: "It was not shown that Alexander Evans was clerk, or that Richard Evans was deputy clerk, of the court of pleas and quarter sessions in 1808. And although there was evidence tending to show that Alexander Evans was clerk, and Richard Evans was deputy clerk, in 1818, this did not create a presumption that they were such officers in 1808, 10 years before that time. Lawson,

Pres. Ev. 190." In Martin v. Curtis it is said: "It is now contended by the

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so essential to a pasture that it is probable that the 10 acres described in that deed of 1806 included a part of the brook. The words 'has long been used' are indefinite in respect to the time in the past from which it is claimed that this land has been used as a pasture, but it is not claimed that the offer is to be construed as showing such use at the time the deed was executed, in 1806. The existence of a thing permanent in its character, once established, is presumed to continue hereafter until the contrary is shown, but the use of land as a pasture is not of such a character. Again, ‘a presumption is not retrospective.' Lawson, Pres. Ev. 190, Rule 37. Hence, no such inferences as those for which the plaintiff contends can legally be drawn from the evidence excluded."

But on page 2396 the author says: "In maritime law a different rule seems to prevail. Thus a ship soon after leaving port becomes so leaky and disabled as to be unable to proceed. There is no evidence that she encountered any great storm or peril of the seas. The presumption is that she was unseaworthy when she sailed."

The admiralty rule seems to be meeting with favor in actions for personal injuries, and has been adopted in several very recent cases. Thus, in a case decided this year in Illinois, it is held that evidence of the condition of an appliance, both before, as well as after, an accident, is admissible to show its condition at the time of the accident. In La Plante v. Warren Cotton Mills, a personal injury case, to quote from the opinion of the court, by Holmes, J.: "A witness was allowed to testify that the ladder on which the plaintiff stood was of home manufacture, made of two pieces of wood with strips nailed across, and one leg longer than another. He did not see the ladder until

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