ANIMAL. (Goose-RUNNING OF RAILROAD TRAIN -ALARM WHISTLE-LIABILITY FOR KILLING.)

TENNESSEE SUPREME COURT.

In Nashville & K. R. Co. v. Davis, 78 Southwestern Reporter 1050, a goose is held not to be an "animal or obstruction," within Shannon's Code, Sec. 1574, sub-sec. 4, requiring railroad trains to sound the alarm whistle and apply the brakes, and use every possible means to stop the train, when an "animal or obstruction" appears on the track. It is also held that in the absence of recklessness or common-law negligence, a railroad company is not liable for the killing of geese permitted to run at large and which trespass on the right of way. No cases are referred to. The court says: "It is true, a goose has animal life, and, in the broadest sense, is an animal; but we think the statute does not require the stopping of trains to prevent running over birds, such as geese, chickens, ducks, pigeons, canaries, or other birds that may be kept for pleasure or profit. Birds have wings to move them quickly from places of danger, and it is presumed that they will use them (a violent presumption, perhaps, in the case of a goose, an animal which appears to be loath to stoop from its dignity to even escape a passing train). But the line must be drawn somewhere, and we are of the opinion that the goose is a proper bird to draw it at. We do not mean to say that in the case of recklessness and common-law negligence there might not be a recovery for killing geese, chickens, ducks, or other fowls, for that case is not presented. Snakes, frogs, and fishing worms, when upon railroad tracks, are, to some extent, obstructions; but it was not contemplated by the statute that for such obstructions as these trains should be stopped, and passengers delayed."

APPEAL. (APPELLATE JURISDICTION-AMOUNT IN CONTROVERSY-ACTION FOR A DEBT-STATUTORY PROVISION.)

MISSOURI COURT OF APPEALS.

In Marsh v. Kansas City Southern Railway Co., 78 Southwestern Reporter, 285, plaintiff sued for the negligent killing of her husband, asking and recovering judgment for $4,500. Rev. St. 1899, Sec. 2864, fixes $5,000 as the liability which a defendant must forfeit in a case of this kind. But the plaintiff sued for $500 less, thus bringing the case within the jurisdiction of the court of appeals for review rather than the supreme

court.

A

The court holds that the statute is not strictly a penal one, so that suit may be for less than $5,000, and having sued for less, the amount sued for is the amount "in dispute" as regards appellate jurisdiction. number of cases are discussed, none which are directly in point, Proctor v. Railway Co., 64 Mo. 112, 122, in which it was declared that the damages recoverable under the statute were $5,000, no more, and no less," is distinguished, as is also Rafferty v. Railway Co., 15 Mo. App. 559. Why plaintiff desired to avoid the appellate jurisdiction of the Supreme Court is not indicated, but it is understood that that tribunal is behind with its docket.

ATTORNEY'S FEE. (DIVORCE CASE-PERCENTAGE OF ALIMONY-VOID CONTRACT.)

MICHIGAN SUPREME COURT. In McCurdy v. Dillon, 98 Northwestern Reporter 746, a contract between attorney and client for an attorney's fee, consisting of a percentage of the alimony to be recovered in a divorce case, is held void, as contravening public policy. The case is said to fall directly within Jordan v. Westerman,

62 Mich. 181, 28 N. W. 826, 4 Am St. Rep. 836, in which it was said, in substance, that in fixing the amount of alimony, the court is entitled to have all the facts which would influence its decision laid before it, and it cannot be supposed that an allowance would be made of a gross sum for permanent alimony if the court knew that the wife had contracted to pay a portion thereof to her attorney. Such contracts are' against public policy for another reason. Public policy is interested in maintaining the family relation, and in promoting reconciliation between the parties. Contracts like this one tend directly to prevent reconciliation, and to bring around an alienation of husband and wife, by offering a strong inducement, amounting to a premium, to attorneys to promote the dissolution of the marriage tie. In the case at bar, the court distinguishes Chadwick v. Walsh, 70 Mich. 627, 38 N. W. 602, saying that the validity of the agreement therein was not questioned. It is also held that where the only contract an attorney has for compensation is void, he is entitled to recover what his services were reasonably worth.

BENEFIT INSURANCE. (EXEMPTION OF AssociTION FROM GARNISHMENT-CONSTITUTIONALITY OF STATUTE-EQUAL PROTECTION OF LAWSSPECIAL PRIVILEGES.)

TEXAS COURT OF CIVIL APPEALS.

In Supreme Lodge United Benevolent Association v. Johnson, 77 Southwestern Reporter 661, the constitutionality of Act May 11, 1899, Sec. 16, exempting from garnishment, benefits payable by fraternal beneficial associations, is reviewed. The act was attacked as violating the fourteenth amendment, prohibiting the denial by a state of equal protection of the laws, and also as violating Article 1, Sec. 3, of the Texas constitution, prohibiting exclusive privileges; it being first urged that the distinction between fraternal insurance associations and other insurance companies was an invalid discrimination. Williams v. Donough, 65 Ohio St. 499, 63 N. E. Rep. 84, 56 L. R. A. |

766, relied on by appellee, is distinguished by the court, and in view of the settled distinction in Texas jurisprudence between fraternal associations and other insurance companies, the act is held not open to this objection. In Section 16, however, certain named beneficial associations are exempted from its operation, and this the court holds renders the act a violation of the constitutional provisions mentioned, and inasmuch as the act must be regarded as an entirety this infirmity invalidates it in toto.

BUCKET SHOP. (PROHIBITION-POWER OF CITY.) ARKANSAS SUPREME COURT.

In City of Hot Springs v. Rector, 76 Southwestern Reporter, 1056, a general power given cities to "license, regulate, tax or suppress brokers" is held to authorize an ordinance prohibiting bucket shops, and requiring of applicants for brokers' licences a sworn statement that they are not doing a bucket shop business.

The court says that the city had a sound discretion in fixing the terms on which it would grant a license, and this discretion would not be interfered with except when it was abused, to the hurt of the citizen complaining. The presumption is that the city council's precautions were wise and proper, and unless some private right is shown to be infringed, the abstract rights of individuals need not be discussed, for the mere claim of private privilege must yield to the police power of the State.

No authorities are cited.

CHURCHES. (NUISANCE-NOISY SERVICE-RIGHT OF CITY TO RESTRAIN.)

KENTUCKY COURT OF APPEALS. In Boyd v. Board of Councilmen, 77 Southwestern Reporter, 669, the right of a city to prevent the erection of a church building, on the ground that the services which will be held therein will be of such a noisy character as to constitute a nuisance, is ad judicated and decided adversely to the city.

Ky. St., Sec. 3290, subs. 14-16, empowers third-class cities to prevent the establish

www

ment of any business offensive to the public, or dangerous to health, and to make police regulations to secure and protect the health, comfort, convenience, morals, and safety of the public, and also to prevent and remove noisances.

The ordinance in question provided that if any person should proceed to erect any structure without the consent of the common council, which, when used for the purposes intended, would be greatly injurious to adjacent property, and destroy the comfort, convenience, peace, and reasonable enjoyment of adjacent residents, such building should be deemed a nuisance; and the persons who built it fined, etc. The court says that if it be possible that the colored people of this church can hold their services in an orderly way, then the building cannot be a nuisance; and that it would be strange indeed to find any legal authority declaring that a beer garden or dancing hail may exist in a city, and yet a fireproof brick church may not be built therein. The fact that the members sang louder in their old and dilapidated building than was agreeable to neighboring residents, the court does not regard as any evidence that such would be their manner of singing in the new one. No authorities directly in point are cited.

COPYRIGHT. (MUSICAL COMPOSITION-MIMICRY.)

UNITED STATES CIRCUIT COURT, EASTERN
DISTRICT OF PENNSYLVANIA.

In Bloom & Hamlin v. Nixon, 125 Federal Reporter 977, the complainant sued for an alleged infringement of a song which had been composed by Bloom and was performed in a musical extravaganza entitled "The Wizard of Oz" belonging to Hamlin. The stage business accompanying the rendition of the song was prepared by Hamlin's stage director and, as described by the court, required the actress to step to one of the boxes, single out a particular person and. sing to him alone, a number of girls being brought upon the stage to sing the chorus, with the usual gestures, postures, and other resources of the actor's and of the

manager's art. "The song" says the court, "aided by these accompaniments-especially, as it seems, by the rather striking impertinence of making one of the audience uncomfortable, obtained some popular favor," and the actress who was the most recent singer was regarded as having "made a hit." The defendants were the owners and managers of another theatrical production entitled "The Runaways" and among the company was an actress who possessed unusual powers of mimicry. She imitated the peculiarities and characteristics of certain actresses, among them the one rendering this song. Her performance was preceded by. an announcement that it was an imitation. She was alone upon the stage, no chorus being present. The court quotes the first verse and chorus of the song, which it says will exhibit its quality, as follows:

"Did you ever meet the fellow fine and dandy,

Who can readily dispel your ills and woes? Did you ever meet the boy who's all the candy

Where'er he goes?

That's the very sort of fellow I'm in love with,

He is all the daffodils of early spring,
And to me the finest bliss is
Just to revel in his kisses
When to him I sing:"

66

(Chorus.)'

'Sammy, oh, oh, oh, Sammy, For you I'm pining when we're apart; Sammy, when you come wooing There's something doing around my heart. Sammy, oh, oh, oh, Sammy, Can't live without you, my dream of joy; Tell me, oh, oh, oh, tell me, You're only mine, my Sammy boy.'"

The court says: "As will no doubt be observed, this sounds the note of personal emotion that is characteristic of the lyric." The holding is that as the essential feature of the reproduction is the mimicry of the peculiar actions, gestures and tones of the original production, which were not copyrighted by Bloom and could not be since

they were the subsequent device of other minds, there is no infringement of his copyright. The court says: "No doubt, the good faith of such mimicry is an essential element; and, if it appeared that the imitation was a mere attempt to evade the owner's copyright, the singer would properly be prohibited from doing in a roundabout way what could not be done directly. But where, as here, it is clearly established that the imitation is in good faith, and that the repetition of the chorus is an incident that is due solely to the fact that the stage business and the characteristics imitated are inseparably connected with the particular words and music, I do not believe that the performance is forbidden."

SU

CRIMINAL SENTENCE. (MODIFICATION OF PREME COURT-EXERCISE OF PARDONDING POWER -CONSTITUTIONALITY OF STATUTE.)

NEBRASKA SUPREME COURT.

In Palmer & State, 97 Northwestern Reporter, 235, the provision of the Nebraska Criminal Code, Sec. 590a, empowering the supreme court to reduce an excessive sentence, and pronounce such sentence as in its opinion is warranted by the evidence, is held not to violate the constitutional provision forbidding the judiciary to exercise any power properly belonging to the executive branch of the government. Palmer was sentenced to seven years' imprisonment for the larceny of a stray steer, worth $20, and the court says the sentence is excessive, and almost Draconian. The validity of the statute was denied in Barney v. State, 49 Neb. 525, 68 Northwestern Reporter, 636, and in Fanton v. State, 50 Neb. 354, 69 Northwestern Reporter 953, 36 L. R. A. 158, but "after much reflection," the court declares these decisions unsound. The following authorities are relied on as sustaining its position: Fager v. State, 22 Neb. 332, 35 Northwestern Reporter, 195; Anderson v. State, 26 Neb. 387, 41 Northwestern Reporter, 951; Charles v. State, 27 Neb. 881, 44 Northwestern Reporter 39; and Nelson v. State, 33 Neb. 528, 50 Northwestern Reporter 679.

DETECTIVES. (DISORDERLY CONDUCT-SHADOWING RIGHT OF PRIVACY.)

NEW YORK SUPREME COURT.

In People v. St. Clair, 86 New York Supplement, 77 defendant was convicted of disorderly conduct in violating Penal Code, Sec. 675, as amended by Laws 1891, p. 657, ch. 327, providing that any person who, by any offensive or disorderly act, or language, shall annoy or interfere with any person in any place, or with the passengers of any public stage, railroad car, or other public conveyance, shall be guilty of a misdemeanor. Defendant was a private detective, and was properly licensed as such. He was engaged in shadowing the complaining witness, and for several days had followed him closely from place to place along public streets, making inquiries about him, and attracting attention to him. The court first holds that the term "public place" is not limited by the places subsequently mentioned in the act, but covers any public place. The fact that defendant was licensed did not relieve him from the punishment prescribed. The fact that there is no right of privacy at common law does not render the statute void as beyond the power of the Legislature to enact. It is finally declared that defendant's conduct amounted to a violation of the law. Judge McLaughlin dissents. No cases are cited in support of the majority holding, and the case seems to be res integra.

WEST VIRGINIA SUPREME COURT. In Fisher v. Fisher, 46 Southeastern Reporter, 118, a wife is held entitled to divorce for wilful abandonment and desertion continuing for three years during which the husband was sane, though subsequently he became insane and at the time of the commencement of the suit was a lunatic. Rathbun v. Rathbun, 40 How. Pr. 328; Douglas v. Douglas, 31 Iowa, 421; and Cook v. Cook, 53 Barb. 180, are cited as authority. for the holding. It is also held that the insanity of lefendant does not prevent the prosecution of a suit for divorce.

DOGS. (STATUS AS PROPERTY-NEGLIGENT KILLING -LIABILITY OF RAILROAD COMPANY.)

GEORGIA SUPREME COURT.

In Strong v. Georgia Railway & Electric Co., 47 Southeastern Reporter 366, it is held, following Jemison v. Southwestern Railroad, 75 Ga. 444, 58 Am. Rep. 476, that a suit cannot be maintained against a railroad company for the negligent killing of a dog. In an opinion in which he concurs under protest, Justice Cobb quotes from an opinion of a lower court, containing a half humorous, half eloquent tribute to the canine creation:

"The dog has figured very extensively in the past and present. In mythology, as Cerberus, he was intrusted with watching the gates of hell, and he seems to have performed his duties so well that there were but few escapes. . . . Few men will forget the song of their childhood, which runs:

"'Old dog Tray's ever faithful;
Grief cannot drive him away;
He is gentle, he is kind;

I'll never, never find

A better friend than old dog Tray.'

"Nor can any of us fail to remember the intelligent animal on whose behalf 'Old Mother Hubbard went to the cupboard.'

"Few men have deserved, and few have won, higher praise in an epitaph than the following which was written by Lord Byron in regard to his dead Newfoundland: 'Near this spot are deposited the remains of one. who possessed beauty without vanity, strength without insolence, courage without ferocity, and all the virtues of man without his vices. This praise, which would be unmeaning flattery if inscribed over human ashes, is but a just tribute to the memory of Boatswain, a dog.' The dog has ever invaded the domain of art. All who have seen Sir Edwin Landseer's great picture will know how much human intelligence can be expressed in the face of a dog. His picture entitled 'Laying Down and Law' will not be forgotten in considering the dog as a litigant. Thus the dog has figured in mythology, history, poetry, fiction, and art from the earliest times down to the present, and

now in these closing days of the nineteenth century we are called upon to decide whether a dog is a wild animal (feræ naturae) in such sense as not to be leviable property; or, if he is a domestic animal (domita natura), whether he is not subject to levy, on the ancient theory that he had no intrinsic value if he was not good to eat. . . .

"The dog has been very often before the courts of the different States and of different countries, and has been the subject of a good deal of judicial humor and judicial learning, but it bears a tinge of the ridiculous to contend that, however many and however valuable dogs a man may own, he cannot be made to pav his debts if he will only invest his money in dogs-a contention which reminds one of the very solemn discussions in a certain court, at a time not very long past, as to whether the oyster was a wild animal. . . . Let it be remembered that in a trover case the plantiff has the option of taking a verdict for the property or a money verdict. If he should take a money verdict, surely the law did not contemplate that he should sit in court with his judgment and fi. fa. in his pocket, and watch the defendant carry the dog away, because, although he could recover a judgment for its value, he could not realize it by levy."

FIRECRACKERS. (ORDINANCE PROHIBITING EXPLOSION CONSENT OF MAYOR.)

MISSOURI COURT OF APPEALS.

In City of Centralia v. Smith, 77 Southwestern Reporter, 488, the conviction of the defendant for exploding firecrackers within the city limits on the fourth of July, is revived. An ordinance of the city prohibited the explosion of firecrackers without the written consent of the mayor. This is held to be within the police power of the city and not void as delegating legislative power to the mayor. A number of defenses are then discussed, and it is held no defense that previous violators of the ordinance had not been prosecuted; that defendant had participated with most of the citizens in violating the ordinance on previous occasions on which the mayor had charge of the fireworks. It