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of improper and evil motives to plaintiff, | done at any time after June 29, and cer. wholly unwarranted, in view of the fact that tainly at any time after July 2. If it had defendant was informed by plaintiff's tele. done so, there never would have been any ocgram of June 29 that the bank was instructed casion, as there never was any excuse, for to pay it $29,000 on delivery to it by the de- the letter of July 3, complained of in this fendant of proper releases of the Chittim cat case. tle), Again the letter proceeded: “We sin- Thus, it conclusively appears, not only that cerely hope, for your own good, and ours, too, the language complained of was libelous, and that you will never have anything more to was not privileged, but also that the violence do with Sullivan, when the business has to of the language used, and the improper and come through our hands, as we know his busi. evil motives and conduct attributed to Sulli. ness methods, and we are afraid to deal with van, afforded sufficient prima facie evidence him," which, as Lord Denman said in Tuson of actionable malice to take the case to the v. Evans, 12 Ad. & El. 733, was a “defama jury. It was a question of law for the court tory comment on the motives or conduct” of whether the letter was a privileged communi. Sullivan; for which there was no provoca- cation, but malice was a question of fact for tion or foundation of fact in anything Sulli. the jury, if there was any evidence whatever van did in this transaction, or is shown by of malice. Newell, Defamation, Slander & the record in this case to have ever done. On Libel 2d ed. p. 392, $ 10; Arnold v. Jewett, the 5th of July defendant indorsed the notes 125 Mo. 241, 28 S. W. 614. covered by the deed of trust, without recourse, These conclusions result in reversing and and delivered the mortgage, release of 2,- remanding this case. It is so ordered. 500 cattle, and the notes to the bank, and received from it $29,000, just as it might have All concur. 47 L. R. A.

END OF CASES IN BOOK 47.

RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK.

SHOWING the Changes, Progress, and Development of the Law during the Third Quar. ter of the Judicial Year Beginning with October 1, 1899, Classified as Follows:

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
II. CONTRACTUAL AND COMMERCIAL RELATIONS.
III. CORPORATIONS AND ASSOCIATIONS.
įV. DOMESTIO RELATIONS.

V. FIDUCIARIES OR REPRESENTATIVES.
VI. TORTs; NEGLIGENCE ; INJURIES.
VIL. PROPERTY Rights ; LIENS; TRUSTS.
VIII. Civil REMEDIES.

IX. CRIMINAL LAW AND PRACTICE.

1. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.

Statutes.

License taco. The re-enactment of a state statute at- A license tax on merchandise brokers is tempting to regulate the lien of Federal held void as a regulation of commerce with court judgments is held unnecessary to make respect to a broker engaged in selling goods, it operative after Congress has authorized which are not in the state, solely by sample, such legislation, although when the act was for principals who are in other states. passed it was ineffectual for want of state (Va.) 583. authority over the subject. (Iowa) 469. An ordinance requiring a license for the

An option given to cities incorporated un- use by merchants of trading stamps is upder special charters, to adopt the provisions held as a license for the purpose of raising of a general law, is held not to make that revenue. (Wash.) 205. statute violate constitutional provisions

Assessments. against special or local laws amending muni. The structure of an elevated railroad is cipal charters, and providing that laws for held to be property subject to assessment for such purposes must be general and uniform benefits on account of a street pavement. throughout the state. (Wis.) 441.

(Ill.) 624. Public money.

A published notice of an assessment for loAn attempt by the legislature to appro- cal improvements which fails to show when, priate public moneys to pay a pardoned con- where, or before whom appearance can be vict for alleged wrongful imprisonment is made to contest the assessment, is insuffiheld subject to constitutional provisions as cient to satisfy the constitutional provision to appropriations for private purposes, and for due process of law. (Va.) 574. such a claim is held not to be one which the The fact that an ordinance for a street asboard of auditors can adjust. (Mich.) 117. sessment did not affirmatively show that Taxes.

benefits were considered is held insufficient A fire tax to which the property of rail. to require an injunction against the assessroad companies is subject, without being en. ment, when it is established that the benefits titled to any of the benefits of the tax, is were more than the assessment, and it does held unconstitutional. (Kan.) 77.

not appear that the burden was not fairly A tax on contracts of insurance made with apportioned. (Ohio) 156. companies not authorized to do business in

Eminent domain. the state, which is based on the premiums The restriction of the height of buildings paid, is held to violate the constitutional re- adjacent to a public square, made by statute quirement of uniformity. (Kan.) 68. for the purpose of promoting the beauty and

Under a constitutional provision authoriz- attractiveness of the square or park and preing inheritance taxes upon all inheritances, vent interference with light and air, is held etc., above a fixed and specified sum, but pro- to be for a public purpose justifying the exviding that the tax above such sum may be penditure of public money to pay compensauniform or may be graded or progressive, it tion for injury to property rights, thus creis held that a statute exempting devises of ating an easement of light, air, and view real property to persons and corporations annexed to the park. (Mass.) 314. whose property is exempt by law from taxa

Counties. tion, and which allows a larger exemption An obligation imposed by statute upon a to lineal heirs than to collaterals, and does new county to pay bonds of the county out of not lay the tax on the excess of the value of which it was formed is held to be in the nathe property received above a uniform ex. ture of a specialty, not governed by the ordiempted sum, is unconstitutional. (Minn.) nary statute of limitations applying to con525.

tract obligations or liabilities in writing, and (PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) the limitation period is held to begin at or election of such justices, without making any after the date of the imposition of the obli- provision for decision of a tie vote in such gation by the statute. (C. C. App. 9th C.) cases, though a provision of this kind is 459.

made as to other officers. (Mo.) 551. Local self-government..

Municipalities. A statute arbitrarily establishing a high The liability of a municipal corporation school and requiring its maintenance by the for damages sustained by a person in enforcpeople of the county is held not to be an uning an unconstitutional and void ordinance constitutional interference with the right of is sustained. (Ky.) 593. local self-government. (Kan.) 67.

A municipal corporation is held not to be Courts.

liable for injury to a person struck by a biA statute empowering the court to fix cycle ridden on a sidewalk by reason of its maximum water rates, on petition of a party failure to enact or enforce an ordinance proaggrieved, once in five years, is held consti- hibiting such riding. (Va.) 294. tutional on the ground that the primary The right of a city to build waterworks of purpose is to settle existing rights of parties its own, after having granted a franchise to in relation to each other, although it sec- a water company which has constructed such ondarily establishes a rate for all, and for works and is supplying water, is upheld che future as well as the past. (Mass.) 319. where the franchise granted was not in terms Officers.

exclusive, and there was no agreement, exThe right of a woman to be elected prose- press or implied, to prevent the city from cuting attorney is denied under a constitu- erecting its own works, and the charter powtional provision that officers shall be chosen er of the city to construct, or authorize othby the electors, when there is no provision ers to construct, such works, is held not to expressly conferring on women the right to be in the alternative. (Wash.) 214. hold such office. (Mich.) 92.

Highways. The unconstitutionality of a legislative act A telephone company having the right to is held not open to question by executive of- string wires in a highway is held entitled to ficers to defeat a mandamus to compel their do the necessary trimming of trees therein performance of ministerial acts. (La.) 512. without giving the landowner an opportunity

A tie vote for justice of the peace is held to do it, but being answerable for any unto create no vacancy which can be filled by necessary, improper, or excessive cutting. appointment, under a constitutional provi- (Mich.) 497. sion that justices shall hold over until their The consent of a municipality is held not successors are elected or appointed and qual. to be necessary to the use of streets by teleified. (Mo.) 560.

phone companies under a statute which gives The existence of a vacancy in the office of the authority in general terms, without resenator, requiring the election of a new in- quiring such permission. (Mich.) 104. cumbent. is held to be a question which the

Bicycle paths. courts cannot decide until it has been de

The establishment of bicycle paths by cided by the senate, under a constitutional county authorities, and the use of a portion provision making the senate the sole judge of a public highway therefor, are held to be of the qualification and election of its mem- ratified by a statute making it a misdemeanbers. (Md.) 622.

or to drive animals or vehicles other than Elections.

bicycles on such paths. (Minn.) 144. A ballot law requiring an indorsement by

Defective bridge. official stamp on the back of a ballot, and

The mere existence of a defect in a bridge the name or initials of the judge thereon, is for two or three days is held insufficient to held constitutional, and construed so as to constitute constructive notice thereof to a cause the rejection of a ballot which is de- city under a statute making the city liable fective in either particular. (Wyo.) 842. for such defect only in case of knowledge or

Leaving two columns of an official ballot notice thereof. (Mich.) 499. uncrossed while the statute requires the

Ordinances. voter to cross out all groups of candidates except one is held to render the entire ballot bles within the business part of a city, ex.

An ordinance prohibiting any livery sta. invalid, although in one column there was cept those already in operation, is held inbut a single name, and for most of the offices valid for discrimination, and also for exnamed in the other column it was left blank. cess of authority, where the statute provides (Mo.) 806. A statute relating to the marking of bal- their suppression. (La.) 652.

for the regulation of stables, but not for lots is construed and applied to a variety

An ordinance making it unlawful to reof markings. The court holds that certain ceive intoxicating liquors within a municmerely technical variations from the form of ipality notwithstanding the fact that they mark specified do not vitiate the ballots, had been lawfully purchased elsewhere is where the marks were evidently made in held not to be authorized by the general welgood faith. (S. D.) 830.

fare clause in a city charter. (Ga.) 366. The power to decide between candidates

An ordinance requiring saloons to be for justice of the prace who have an equal closed between 10 P. M. and 4 A. M., and on number of votes, though a statute attempts Sundays, is held valid, but a provision reto give it, is held to be contrary to a consti- quiring curtains on front doors and windows tutional provision which provides for the' to be removed from sunset to sunrise, and

(CONTRACTUAL AND COMMERCIAL RELATIONS.) making it a misdemeanor to let any person closing, is held unreasonable and void. in or out of the saloon during the hours of '(Tenn.) 278.

II. CONTRACTUAL AND COMMEROIAL RELATIONS.

an eight-hour law applying to smelters is

Duress. held unconstitutional as an interference Threats which actually put a person in with the liberty of the citizen, and his right such fear as to make him incapable of exerto acquire and possess property. (Colo.) cising his free will are held sufficient to con52.

stitute duress, although they would not have An eight-hour law applicable only to em- such an effect upon a person of ordinary ployees of the state or of some municipality firmness and courage. (Wis.) 417. or subdivision of the state is held valid.

Mistake. (Kan.) 380.

A mutual mistake in pointing out boundA statute prohibiting payment of the ary lines, though without any fraud or in. wages of employees of a corporation or trust tentional misrepresentation, is held to jusemploying ten or more persons in anything tify a rescission, where the vendee gets only but lawful money is held void as a depriva- half of the quantity and less than half the tion of property without due process of law value of the property bargained for. or the equal protection of the laws. (Kan.) (Tenn.) 267. 369.

Carriers. A statute requiring corporations to pay

One licensed as a common carrier within wages monthly, and in default thereof giv

a city is held liable as such when carrying ing a lien for the wages on all the property goods beyond the city limits under an agreeof the corporation superior to any other liens ment to take them to a certain point, withexcept duly recorded mortgages and deeds out any “urther contract, although he could of trust, and also giving an attorney's fee not have been compelled to carry them outin case of suit, with the right to attach prop. side the city. (Ky.) 383. erty, is held unconstitutional because of the

A rtile that baggage will not be checked discrimination against corporations and

more than half an hour before train time is their employees. (Cal.) 338.

held not to be unreasonable as matter of law. A statute making it unlawful to screen (Wis.) 221. coal mined at quantity rates before it is weighed and credited to the employees is

Hackmen at depot. held constitutional, where it leaves the partween hackmen and private carriers with re.

Discrimination by a railroad company be. ties free to contract for work at day wages or for wages based on the amount of screened spect to the right to enter the depot to solicit coal. (Kan.) 71.

business from passengers is held lawful, but

discrimination between them at points outInterstate commerce.

side the depot is held illegal. (Minn.) 532. An agent who collects garments and sends

Banks. them to another state to a laundry, and redelivers them to their owners when returned, which it is an indorser is held to have no

A bank receiving for collection a note on is held not to be engaged in interstate com- defense on account of its own failure to make merce because the transaction is not commercial in its nature. (Tenn.) 416.

presentment and demand. (Ark.) 329.

The selection by a bank of its regular corPublic contract. A contract for a garbage crematory is held respondent for an agent in the collection of invalid when let without filing any plan as for collection is held to indicate proper care,

a check which the initial bank has received required by a city charter, and upon speci- (Tenn.) 270. fications so indefinite as to evade the statu

Consignment. tory provisions requiring bids. (Wis.) 685.

An ordinary consignment of goods for sale, Validity.

retaining title, is held to give no power A contract to furnish crushed stone to a to the consignee to pass title to the goods paving contractor, delivered on the street, even to an innocent purchaser, when he sells din such quantities as may be desired,” is them the same day they are received as part held not to bind the promisor to furnish all of his entire stock and business. (Conn.) that was needed for paving that street, since 601. the contractor was not bound to take such

A consignment to the consignor's order, quantity. (Wis.) 427.

where the bill of lading with draft attached Signature.

is sent to a bank to be delivered when the A signature by mark is held sufficient at draft is paid, and stipulates that it must be common law without any attestation by a surrendered in order to obtain the delivery subscribing witness. (Wis.) 695.

of the goods, does not pass title to them, or Consideration.

entitle the person for whom they were sent A contract between merchants to close to their delivery by the carrier without sur. their places of business at a certain hour rendering the bill of lading, although the each day is held to rest upon a sufficient con- bank refuses to surrender it to him or acsideration, and to be free from the objection cept his tender of the amount of the drafts that it illegally restrains trade. (Ky.) 287. (Md.) 124.

(CORPORATIONS AND ASSOCIATIONS.) Covenant.

caused by wind, unless other damage occur. A covenant by grantors in a deed to a rail (C. C. App. 8th C.) 308. road company, agreeing to build a fence or An insurance broker authorized to procure not hold the company responsible for dam- a certain amount of insurance in companies ages to stock, is held to be personal, and not to be chosen by him is held not to be an agent to run with the land. (Or.) 409.

of the insurer so as to bind the latter with A covenant by which a lessee of a part of the agent's knowledge of other insurance, al. a railroad right of way for warehouse pur though he is allowed a commission on the poses agrees to save the lessor harmless from business by the recognized agents of the indamages or claims for injury to property on surer. (C. C. App. 7th C.) 450. the leased premises by fires set by the les- An oral contract by an agent of a foreign sor's engines, when there is a stipulation insurance company, to renew a policy that that the covenant shall bind the assigns of he had issued, is held to be within his auboth parties, is held to inure to the benefit thority to make insurance and deliver polof a transferee of the railroad property and icies. (N. D.) 641. of the lease. (N. D.) 149.

Credit for part of the first insurance preInsurance.

mium extended by a general agent of a for. The express terms of a certificate of mem- eign company is held binding on the combership in an insurance association are held pany, though a provision of the policy there to prevail over by-laws, where the certifi. after issued, but which was not assented to catë denies liability for suicide, and the by- by the insured, declared that the policy laws do not authorize the limitation. (Wis:) should not be valid until the premium was 681.

paid, and that no provision of the contract The protection of a member of a beneficial should be waived by the agent. (Wash.) insurance association against changes and 201. amendments of by-laws is made in a Minne

The conflicting decisions are reviewed on sota case where a change was made by which the question of the effect of a clause in an a notice of assessments previously required insurance policy requiring suit to be brought by by-laws was made unnecessary. (Minn.) within a certain time after a fire and it is 136.

held that this phrase gives the stipulated The power of an insurance company to time for suit after the right of action acgrant an annuity by a policy which is not crues. (S. C.) 696. under seal or in the form of a deed is upheld

Infant's contract. under a charter authorizing it to “grant, An infant rescinding a contract for the purchase, or dispose of annuities.” (Md.) purchase of a bicycle, and attempting to re614.

cover back instalments paid, is held to acA barber is held not to be engaged in a count for the value of the use of the bicycle more hazardous occupation at the time of an and its deterioration in value while in his injury received while hunting rabbits as a possession. (N. Y.) 303. mere incident of his daily life, and not for A restoration of the consideration received hire or profit. (Kan.) 650..

by an infant for his conveyance of land is A policy against damage by cyclones, tor- held not necessary on disaffirming the deed nadoes, and wind storms is held not to cover after coming of age, when the consideration damage by hail accompanying a wind storm, is no longer in his possession or control, but under a provision excluding uamage by hail has been dissipated by him while still an inor lightning and various kinds of damage fant. (Tex.) 326.

III. CORPORATIONS AND ASSOCIATIONS.

See also supra, II.

special franchises to corporations or associ.

ations. The constitutional prohibition against cre

(Ill.) 802. ating a corporation by special act is held vi, ate the permission which has been granted

The right of a telephone company to alienolated by renewing or extending the term it for the use of streets is held not to deof the existence of corporations which have pend on the consent of the municipality, special charters. (Ind.) 489.

where the statute authorizes corporations to A foreign insurance company is held en alienate their property. (Mich.) 87. titled to a license without regard to the sim

State hospital. ilarity of its name to that of a domestic cor

A state hospital is held not to be liable to poration, when it has complied with the pro- an action for damages on account of injuries visions of the statutes, which include noth- sustained by an inmate from negligence or ing on that subject, although the statutes misconduct of the persons in charge. (Va.) governing domestic corporations provide that 577. a name applied for may be rejected when it

Railroad commissioners. is too similar to one already appropriated. The authority of railroad commissioners (Ill.) 795.

to order a station house or depot to be built A statute providing that certain incorpo- is held to be conferred by a statute giving rated associations shall each appoint one them general supervision over railroads, and member of state board for licensing com- providing that they shall inform the com. mission merchants is held unconstitutional pany of the improvements which they adunder a provision prohibiting the grant of judge to be proper. (S. D.) 569.

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