18.- -Elevators-Owners of office building, under their lease of rooms to tenant, were charged with duty to exercise due care in providing and maintaining elevator reasonably safe for passenger service under particular conditions.-Draper v. Cotting, Mass., 120 N. E. 365. 19. Elevator.-Where deceased, while riding in a passenger elevator in defendant's building, fell over and was killed, there is a presumption of negligence on the part of defendant, if the elevator was in such a condition or so operated that it might have thrown deceased.-Monaghan V. Equitable Life Ins. Co. of Iowa, Iowa, 168 N. W. 892. 20. Charities-Charter Powers. Where a charitable institution was not liable for improvements on its property because they were not within its powers under its charter, and the institution provided for the rasing of a fund for the payment of the value of such benefits, the court will order the application of any such funds so raised to the payment of the cost of any benefits received.-Horton v. Tabitha Home, Neb., 169 N. W. 2. 21. Chattel Mortgages-Assumption of Debt. -Though the original parties to a chattel mortgage on machinery which the mortgagors purchased from the mortgagee were released when the machinery was transferred to other, who assumed payment, that does not necessarily establish a discharge of the mortgage.-Bensen & Marxer v. Reger, Iowa, 168 N. W. 881. an 22. Compromise and Settlement-Estoppel.Plaintiff storing beans in warehouse is not estopped to sue warehouseman for conversion, because company which replevied some beans of the warehouseman promised but failed to pay plaintiff's draft therefor; one not being concluded by negotiations for compromise unless the terms thereof are carried out in whole or in part. Allswede v. Central Warehouse Co., Mich., 169 N. W. 13. 23. Constitutional Law Selective Service Act. The enforcement of Selective Service Act May 18, 1917, has been intrusted to the War Department, and the correction of questionnaires, in the absence of fraud, is not for the courts. Ex parte Kusweski, U. S. D. C., 251 Fed. 977. 24. Corporations-Appropriation of Assets.Where the sole owner of all the stock of a corporation appropriated all its assets to his Own use, rendering the corporation insolvent, he was liable in equity, for debis of the corporation less in amount than the value of the assets misappropriated.-Fulton Auto Supply Co. v. Sullivan, Ga., 96 S. E. 875. 25. Implied Authority.-President of corporation though owning nearly all stock, has no implied authority to execute notes without directors' consent.-Goodman Mfg. Co. v. Mammoth Vein Coal Co., Iowa, 168 N. W. 912. notice 26. Notice to Subscribers.-Actual to a purchaser of corporate stock that it was originally issued without having been fully paid is not necessary, and his knowledge of facts impelling an ordinary and careful investor to inquire whether it was fully paid, which inquiry would have shown that it was not, would be sufficient notice to make him liable to an assessment.-In re Manufacturers' Box & Lumber Co., U. S. D. C., 251 Fed. 957. 27. Ratification.-A written contract by individual stockholders, disposing of corporation assets, taking stock in new corporation, and appointing trustees to hold legal title, which provides that it shall not be binding until owners of all shares shall have signed, is void until ratified.-Williams v. Croft Hat & Notion Co., W. Va., 96 S. E. 929. 28.- -Stockholders' Meeting. Stockholders, though interested in not having the corporation exercise its right of taking over a purchase by them from another of stock in it, made while they were its officers, may vote at a stockholders' meeting to determine whether it shall so so.-Du Pont v. Du Pont, U. S. D. C., 251 Fed. 937. ized and plaintiff's land included therein and assessed, held, that plaintiff could not recover from the city the amount of her assessment by the drainage district on the theory that it was her duty to abate the nuisance, etc.-Conklin v. City of Des Moines, Iowa, 168 N. W. 874. 30. Deeds-Trust and Confidence.-When a relationship of trust and confidence is established between contracting parties, then, without reference to the infirmity of one of the parties, the other party, who has received a benefit by the transaction must prove that the transaction was fair.-Huguenin v. Adams, S. C., 96 S. E. 918. 31. Ferries-Franchise.-Where a ferry franchise is given by legislative authority, its rights are not exclusive as against a later constructed nearby ferry or bridge constructed under legislative authority, unless the franchise or grant of the former provides that they shall be exclusive, but no ferry not authorized by legislative authority can be operated without being liable to the former for loss of custom, notwithstanding Code 1904, § 1386.-Snidow V. Board of Sup'rs of Giles County, Va., 96 S. E. 810. 32. Fraud-Opinion.-Where owner of timber land made no effort to inform himself as to value of his timber, he could not recover damages from representations by defendant buyer's agent as to value, inducing plaintiff's sale of land, especially where the agent professed to give only his opinion.-Williams v. Bruce, S. C., 96 S. E. 905. 33. Frauds, Statute of-Memorandum in Writing. Where defendant, with his wife practical owner of a company, fraudulently induced plaintiff to buy stock and become manager, to reanimate business and reimburse himself and wife, estimates of corporate assets given to plaintiff by him were not required to be in writing and signed, by Comp. Law 1915, § 11983.-Andrews v. Osius, Mich., 168 N. W. 1032. a 34. Garnishment-Exemption From.-A separation agreement whereby for a consideration wife releases her claim on her husband's property and to his support does not create a "trust," and indebtedness of the husband to the wife on notes given under such agreement are not exempt from garnishment as a trust fund.Farmers' & Merchants' Bank v. Dondelinger, Kan., 175 P. 109. 35. Gas Franchise.-Under a village franchise to install and operate a gas plant, declaring that rates should not exceed a certain rate and authorizing removal of meter if no gas was used, unless 75 cents per month minimum charge was paid, company could only require of a customer, retaining his meter, either 75 cents a month in case no gas was used, or payment for the amount of gas used per month, although such sum might be less than 75 cents.-Village of Otsego V. Allegan County Gas Co., Mich., 168 N. W. 968. 36. Guardian and Ward-Conversion.-Where guardian buys automobile for his personal use, and pays therefor, with knowledge of seller, out of wards' funds, seller is a party to the conversion of the trust funds, and is liable to wards for sum received.-American Surety Co. v. Vann, Ark., 205 S. W. 646. 37. Highways-Abandonment.-The proprietor of land, along the boundary of which a way for public travel is established, has a special right therein, if the abandonment of the highway will injuriously affect the access to his land.Dudding v. White, W. Va., 96 S. E. 942. 38. Contributory Negligence. Plaintiff, passenger in another's automobile, who alighted without looking to rear, and was struck by defendant's car, driven at negligent speed by defendant, who attempted to pass standing car on right, could not recover because of contributory negligence.-Deal v. Snyder, Mich., 168 N. W. 973. 39. Husband and Wife-Antenuptial Contract. -An antenuptial contract, whereby wife was only to have $1,000 at death of husband worth $30,000, was presumptively fraudulent, and burden was upon husband's representatives to show that contract was obtained fairly and without fraud, concealment, deception, or undue influence. Stephens v. Stephens, Ky., 205 S. W. 573. 40. -Estoppel.-Where a wife, knowing her husband has taken title in his own name to property purchased with her money, allows him to retain possession and credit is extended on faith of his apparent ownership, she is estopped from asserting any equity against his trustee in bankruptcy.-Krueger v. MacDougald, Ga., 96 S. E. 867. 41. Injunction-Condemnation Proceedings.Where automobile was sold on credit, note for the price being secured by mortgage on the car, and purchaser was arrested while conveying intoxicating liquors, condemnation proceedings instituted under Acts 1917 (Extra. Sess.) p. 6, will be enjoined at suit of holder of mortgage until provision for application of funds on sale of vehicle to the mortgage lien is made.Shrouder v. Sweat, Ga., 96 S. E. 881. 42. Innkeepers-Negligence per se.-In action against hotel keepers for death in elevator, if rear door of elevator was open when it was started, it was evidence of negligence.-Bechtold v. Rue, Mass., 120 N. E. 377. 43. Insurance-Accidental Means. Under a policy covering injury by external, violent, and accidental means, insured, who while pulling a tire from an automobile slipped and fell when it suddenly loosened, sustained an accidental injury from an accidental, external, and violent means.--Lickleider V. Iowa State Traveling Men's Ass'n, Iowa, 168 N. W. 884. name and purpose, from that of the material.American Tobacco Co. v. City of Bowling Green, Ky., 205 S. W. 570. 51. Master and Servant-Assumption of Risk. -Under federal Employers' Liability Act, experienced, competent fireman who, seeing his train in motion, climbed on top of car to go forward to engine, and fell between cars and was killed, and who should have known or perceived dangers, assumed risk.-Briggs v. Union Pac. R. Co., Kan., 175 Pac. 105. 52. Evidence. In action for death of defendant's engineer from contact with charged chain hanging above a lamp-testing apparatus, wherein defendant offered evidence that it furnished rubber gloves, testimony of one who worked with deceased until eight months before accident that no gloves were then furnished was revelant.-Eargle v. Sumter Lighting Co., 96 S. E. 909. 53. Independent Contractor.-That owner's overseer or architect is to see that work complies with contract, or that work is to be to owner's satisfaction, does not change the character of independent contract, or if he represents owner only as to result, and himself selects the means.-Pace v. Appanoose County, Iowa, 168 N. W. 916. 54. Insubordination.-Farm servant, living with employer, who complained in loud and scolding voice of slamming of doors at night by employer and his guests, and also refused to apologize, held not guilty as matter of law of insubordination justifying his discharge.-MacIntosh v. Abbot, Mass., 120 N. E. 383. only 44. By-Laws.-The duly authorized representatives of the members of a mutual benefit society are alone vested with the power of determining when change is demanded in the by-laws, and the court will interfere when there is abuse of discretion.-Funk V. Stevens, Neb., 169 N. W. 6. 45.- Filling Blanks in Policy.-Blank slip furnished by life assurance society to general agent, containing printed directions that blanks be filled up from society's book of tables, based on its insurance experience up to date of policy, to which slip so filled up was attached, should be considered as though society had filled blanks and attached it to policy.-Thomas v. Equitable Life Assur. Soc., Mo., 205 S. W. 533. 46. Intoxicating Liquors-Private Ownership. -Intoxicating liquor is property that is subject to private ownership," and a Legislature has no authority to prohibit its ownership, possession, or transportation for personal use by the citizens either in a prohibition county or a county where prohibition is not established, unless in either of said counties its possession is intended for illicit sale.-Ex parte Francis, Fla., 79 So. 753. 47. Libel and Slander-Privilege.-Statement of defendant that plaintiff stole his turkeys, though in direct answer to question from another person, was not privileged, where there was actual malice, evidenced by other statements to the same effect and when made to persons having no interest in the subject-matter.Everhart v. Clute, Mich., 168 N. W. 952. was 48. Malicious Prosecution-Exemplary Damages. In a suit for malicious prosecution, based on arrest of plaintiff by defendant's agents on the charge of embezzlement, where there evidence from which the jury might find that defendant's agents were so anxious that plaintiff should not get away with defendant's money that they were reckless of what injustice they might do him, it was not error to allow the jury to award exemplary damages.--Western Union Telegraph Co. v. Thomasson, U. S. C. Ç. A., 251 Fed. 833. 49.-Probable Cause.-Prosecution of member of firm of contractors for violating Acts 1916, c. 517 (Code Supp. 1916, p. 635), prohibiting unlicensed persons acting as labor agent, instituted by private detective in employ of coal mining company, whose acts were either authorized or ratified by company's superintendent, held without probable cause.-Clinchfield Coal Corporation v. Redd, Va., 96 S. E. $36. 50. Manufacturing-Definition of Terms.-The primary meaning of "manufacturing" is a making by hand, though, since the general use of machinery, it now ordinarily denotes the making of articles by expending of labor upon material to make a finished product, ordinarily taking a different form, and usually having a different 55. -Release.-Under Workmen's Compensation Law, pt. 6, § 1, providing that dependent promise to pay plaintiff's claim, should disployer from all claims at law, deceased's mother, by accepting compensation, did not release third person from liability under Survival Act to deceased's administrator for negligent killing.Vereeke v. City of Grand Rapids, Mich., 168 N. W. 1019. 56.- Reliance on Promise.-Where a brakeman, suing for personal injury, knew that a coupling was defective he could not recover unless he acted under a promise by the conductor, which was not kept.-Loving v. Atlantic Southern R. Co., Iowa, 168 N. W. 910. 57.--Res Ipsa Loquitur.-Mere proof by servant that his eye was injured by small bits of rock flying into it by reason of another servant breaking rock with a hammer in a mine, without any showing that the other servant was careless, or that breaking rock at such place was improper or unusual, was insufficient, under the doctrine of res ipsa loquitur, to show negligence. Suborich v. Alaska United Gold Mining Co., U. S. C. C. A., 251 Fed. 885. 58.- Rules of Conduct.-Rules of railroad limiting the conduct of its employes do not establish the legal measure of duty to third persons, which may be greater or less than the rule prescribes.-Missouri, K. & T. Ry. Co. v. Missouri Pac. Ry. Co., Kan., 175 Pac. 97. Code 59.- Waiver of Negligence.-Under Supp. 1913, § 4999a3, servant, who worked at buzz saw without adjusting guard furnished as required by section 4999a2, did not waive master's negligence in failing to guard machinery permanently unless danger was SO imminent that reasonably prudent person would not have continued.-Nodland v. Kreutzer & Wasem, Iowa, 168 N. W. 889. 60.-Workmen's Compensation Act.-Injury arises out of employment, entitling servant to compensation under Workmen's Compensation Act, when there is apparent, on consideration of all circumstances, causal connection between conditions under which work is required, and resulting injury.-Cennell v. Oscar Daniels Co., Mich., 168 N. W. 1009. 61.Workmen's Compensation Act.-Servant whose injuries from third person's negligence arose out of and in course of employment, under Workmen's Compensation Act, pt. 3, § 15, as amended by St. 1913, c. 448, could not concurrently proceed at common law against negligent person for damages, and, under statute, against master for compensation.-Labuff v. Worcester Consol, St. Ry. Co., Mass., 120 N. E. 381. 454 CENTRAL LAW JOURNAL Negligence.62. Municipal Corporations Whether a motorman on a west-bound street car passing over a bridge was negligent, precluding recovery for injuries by a head-on colits emerging lision with defendant's truck on from a cloud of smoke emitted by a train passing beneath the bridge, held for the jury.Smoker v. Baldwin Locomotive Works, Pa., 104 Atl. 597 -Contributory Negligence. 63. Negligence Where plaintiff stood in narrow space between billboard and scale for weighing wagons, with board and back to scale, reading notices on talking, he was guilty of negligence contributing to injuries when defendant's wagon, driving on scale, struck him.-Snyder v. Heuer, Iowa, 168 N. W. 878. 64. Obvious Danger.-Plaintiff, who, while in charge of execution of contract to install in building in course of construction a fire-extinguishing system, inadvertently stepped sideelevator shaft, ways and backwards into an plainly visible, in which an elevator was to be installed, cannot recover against the owner, the or the firm having conbuilding contractor, tracted to install elevator, by simply showing the existence of the opening.-Trainor v. H. A. Maine & Co., Iowa, 168 N. W. 872. 65.- -Rescue from Danger.-The right to rescue another from danger, though voluntarily exercised, is a complete right, and that the danger springs from the negligence of a third person does not affect the right or the moral obligation to exercise it.-Bond v. Baltimore & O. R. Co., W. Va., 96 S. E. 932. 66. Partnership - Estoppel. Where a partner, wishing to withdraw, entered into contract with his co-partner, the effect of which was to continue partnership for another year, he was absence of circumstances creating liable, in estoppel, for services rendered and money lent to the partnership in promotion of its current business under a contract made by co-partner, although person rendering services and lending money knew of his purpose to withdraw.-Oakley v. Morrow, N. C., 96 S. E. 891. on 67. Principal and Agent-Ratification.-In a suit for malicious prosecution, based on arrest of embezzlement, an on charge of plaintiff answer requiring plaintiff to prove his whole case did not constitute a ratification by defendant of the acts of its agents in causing plaintiff's arrest, so as to justify the imposition of exemplary damages.-Western Union Telegraph Co. v. Thomasson, U. S. C. C. A., 251 Fed. 833. -Contractor's Bond. condi68. Principal and Surety bridge contractor's bond, -Surety tioned to pay all indebtedness for material furnished, was liable for unpaid price of sheet steel piling, used or substantially consumed in constructing bridge, but not liable for piling drawn, removed, cut off, and used in construction of another bridge.-Road Supply & Metal Co. v. Kansas Casualty & Surety Co., Kan., 175 Pac. 108. 69. Railroads-Negligence.-Where a railroad company, on a dark night, pushed freight car with engine at rear, and headlight thus obscured, a sidewalk, where it along a siding and over struck plaintiff, who could not see the car approaching and the evidence was conflicting as to whether a signal was given and as to speed of the car, the question of defendant's negligence was for the jury.-Di Grazio v. Pennsylvania R. Co., Pa., 104 Atl. 596. a 70. Switching Charges.-Where entire capital stock of a railroad company was owned was operated by another company, and road part of latter's system, and controlled as under same general officers, though first road's independent organization was maintained, it was, for the purpose of rate making, part of controlling system, so that switching charges between them were properly eliminated.-Pontiac, O. & N. R. Co. v. Michigan Railroad Commission, Mich., 168 N. W. 927. warn 71. -Warning Employe.-Where it was the duty of a railroad company as well as a coal the latter's employes, who company to were loading cars, before the same should be moved, and the railroad company relied on the coal company to give the warning, it is liable for the latter's failure so to do.-Johnson v. Waverly Brick & Coal Co., Mo., 205 S. W. 615. 8 72. Receivers Abuse of Discretion.-Where Specific Performance In to 74. Bringing Money into Court.-On purchaser's bill for specific performance after forfeiture for failure to pay taxes and purchasemoney installments, the money due should have been brought into court to assure it that terms upon which relief from forfeiture might be granted would be complied with.-Lozon v. McKay, Mich., 169 N. W. 11. 75. Street Railroads Corporate Purpose.Railway corporation chartered by state to construct, operate, and manage street railways in a city and vicinity and along city streets if granted a right of way by council, and to lease, operate, or intersect with other street railways, was not authorized to operate street railroad on line of interurban railroad.-South Covington & C. St. Ry. Co. v. Commonwealth, Ky., 205 S. W. 603. 76.- -Equity.-Equity has jurisdiction to enjoin a municipality from obstructing the tracks of a street railroad company, and otherwise interfering with the operation of its cars in the municipality.-Pottsville Union Traction Co. v. Borough of St. Clair, Pa., 104 Atl. 602. 77. Negligence.-Automobile driver's act in proceeding to cross street railway track when there was no approaching car within 250 feet, nor within view, did not constitute negligence. -Reichle v. Detroit United Ry., Mich., 168 N. W. 972. 78. Reasonable Care.-Though plaintiff, attempting to back automobile out of garage, was under duty to exercise reasonable care for safety from passing street cars, he could trust somewhat to expectation that motorman also would act with due regard for safety of others.-Gagnon v. Worchester Consol. St. Ry. Co., Mass., 120 N. E. 381. 79. Tenancy in Common-Redemption from Tax Sale.-Where owner died after his land was sold for delinquent taxes and a tax deed was issued and recorded, and one of the heirs purchased a quitclaim from holder of tax deed, it amounted to a redemption, inuring to the benefit of the purchaser's co-tenants.-Watson v. Williams, Kan., 175 Pac. 96. Quitclaim. Purchaser 80. Vendor and Where testator devised land subject to payment of money to three other persons, each of whom quitclaimed to devisee in consideration of his of their several bequests, each acquired a venagreement to pay to each of them the amount dor's lien for the purchase price, which lien was assignable.-Lavin v. Lynch, Mich., 168 N. W. 1024. 81. Waters and Water Courses-Division of waters diverted by deWater. That surface fendant onto plaintiff's land became there mingled with other water coming upon the land by natural course would not defeat plaintiff's right to recover damages.-Whitsett v. Griffis, Iowa, 168 N. W. 878. 82.- -Public Service Commission.-Where application for charter of water company set forth name of stream in which it proposed to construct dam or dams, and application was approved by water supply commission, public service commission may subsequently approve of application, though amended plan is produced, showing a smaller number of dams and one at less height than that shown on original plan.Pennsylvania Power Co. v. Public Service Commission, Pa., 104 Atl. 605. LIST OF LEADING ARTICLES IN VOLUME 87 No. 1. Can Counsel, Employed and Paid by Private Person, Institute and Prosecute Criminal Cause? By Frank James, 5. No. 2. Non-Contesting Clauses-Their Effect and Validity in Wills. By Sumner Kenner, 22. No. 3. Proposed English Ministry of Justice. By Donald Mackay, 40. Why King Alfred Hanged Forty-Four Justices in One Year. By A. H. Robbins, 42. No. 4. Protecting the Public From Dishonest Lawyers. By A. H. Robbins, 59. Germany's Industrial Army on American Soil. By A. Mitchell Palmer, 61. No. 5. Uniform State Legislation. By Walter George Smith, 77. No. 6. Liability of Telephone Company for Injury to Patron by Excessive Current on Wires. By C. P. Berry, 94. No. 7. Duty of Railroad Company to Awaken Sleeping Passenger in Coach. By Thomas H. Daniel, 112. No. 8. The Lawyer and the War. By John W. Davis, 129. British No. 9. Aliens in Donald Mackay, 150. Reign of Law Versus the Reign of Anarchy-Subject of Discussion at a Memorable Meeting of a Great State Bar Association. By A. H. Robbins, 151. No. 10. Liability for Serving Unwholesome Food on Dining Cars. By H. O'Brien, 166. No. 11. Effect of Statutes Fixing Maximum Rates for Public Service Corporations on the Jurisdiction and Power of Public Service Corporations. By N. C. Collier, 184. No. 12. Breach of Legal Duty Should Always Give Rise to Damages. By C. P. Berry, 205. No. 13. The Duration of the War-Legal Ef fects of the Phrase. By Donald Mackay, 220. The Right to Vote a Fractional Share of Stock. By Fred H. Peterson, 222. No. 14. Dates and Signatures. By Webster A. Melcher, 238. No. 15. The Banker and His Customer-Duties and Responsibilities. 259. By Donald Mackay, Soldiers' and Sailors' Civil Relief Act and its Practical Effect on Titles to Real Estate. By Henry E. Monroe, 368. No. 22. Registrations in California Under the So-Called Torrens System. By J. L. Mack, 384. No. 23. Taxing the Supreme Court a Consti- The War and the Law of Titles. By No. 24. Federal Control of Railroads as Affecting the Liability of Carriers for Failure to Deliver Promptly Live Stock. By Edgar Watkins, 422. The League of Nations. By Viscount Grey, K. C., 423. No. 25. Heralds of a World Democracy: The This list includes only those cases commented upon editorially or in our Notes of Important Decisions, or in full annotated. The abbreviation Ed., indicates editorially-R. D., cases commented upon in our Notes of Important Decisions, and ann. case, annotated case. Conklin v. City of Des Moines (Ia.), Waters and Water Courses-Servient Owner, ann. case, 428. Cooper v. Sonk et al. (Mich.), Negotiable Instruments-Parol Evidence, ann. case, 118. Corden Co. v. Houck Mfg. Co. (U. S. C. C. A.), Pleading and Practice-Rulings on Theory of the Case as Tried, R. D. 20. Crecelius v. Chicago, M. & St. P. Ry. Co. (Mo.), Daeche v. United States (U. S. C. C. A.), Criminal Law-Venue in Preparing Explosive Bomb to Destroy on High Seas, R. D. 218. Dickinson v. Stiles (U. S. S. C.), Attorney and Donohue v. East River Mill & Lumber Co. (N. Eggleston v. Pantages et ux. (Wash.), Receivership Abuse of Process in Representative Action, R. D. 329. Evans v. Sup. Council Royal Arcanum (N. Y.), Exploration Co., Ltd. v. United States (U. S. S. Fort Worth & D. C. Ry. Co. v. Brown (Tex.), Fullerton v. U. S. Casualty Co. (Iowa), Indemnity Insurance-Male Adult as Member of Fami of Insured, R. D. 3. General Ry. Signal Co. v. Virginia (U. S. S. C.), Gilbo & Swartz v. Merrill's Estate et al. (Vt.), Gluckman v. Board of Education of New York Grosvenor v. Fidelity & Casualty Co. of New 281. Gurfein v. Rickard (Conn.), Theory of Case- |