1. Adverse Possession-Coterminous Owners. -If one of two coterminous owners takes possession and claims title to the extent of his possession, he hold adversely, although he was induced to locate his possession through a mistake as to the boundary.-Wagner v. Meinzer, Cal., 177 Pac. 293.

2. Attorney and Client-Abandoning Employment.-The contract of an attorney with his client is an entire and continuous one, and he cannot abandon the service of his client without sufficient cause.-State v. Bersch, Mo., 207 S. W. 809.

3. Bankruptcy-Insurance.-The cash surrender value of policies on bankrupt's life, the beneficiaries in which he could change, is property which he could have transferred prior to bankruptcy, so that right thereto passed to the trustee.-Cohn v. Malone, U. S. S. C., 39 S. Ct. 141. 4.Jurisdiction.-The power of a bankruptcy court to stay suits against the bankrupt is expressly confined to the period before determination of discharge proceedings, and a District Court can have no wider power to stay suits in a state court on an auxiliary bill dependent upon the bankruptcy proceedings.-Pell v. McCabe, U. S. D. C., 254 Fed. 356.

5. Materialmen.-A trustee in bankruptcy holds his title to property of a corporation subject to liens filed by materialmen and laborers within the time prescribed by statute.-Church

E. Gates & Co. v. Empire City Racing Ass'n, N. Y., 121 N. E. 741, 225 N. Y. 142.

6.- -Record Title.-A trustee in bankruptcy, when there are creditors of bankrupt entitled to invoke an estoppel against owner of realty, the apparent record title of which was in bankrupt and on faith of which credit had been extended to him, may maintain action to appropriate property to extent of claims of such creditors.-Bergin v. Blackwood, Minn., 170 N. W..

508.

7.-State Courts.-An action to set aside conveyances for fraud can be brought in state court by a creditor notwithstanding bankruptcy proceedings against defendant, even though such proceedings be regarded as in the nature of an action in the federal court.-Board of Directors v. Lowrance, S. C., 97 S. E. 830.

8. Bills and Notes-Correspondence.-In an action on a note which defendant claimed had been paid, it appearing that the holder had transmitted it to a bank which took up the same and paid the holder, held that correspondence between the holder and such bank was admissible, as tending to show payment.-Stark v. Scherf, Mo., 207 S. W. 863.

9. Draft with Bill of Lading.-Where bank took a draft with bill of lading attached and credited amount to drawer, who checked it out on following dày, and the bank forwarded draft to its correspondent for collection and it was paid, the proceeds belonged to forwarding bank. -First Nat. Bank v. Stallings, Okla., 177 Pac. 373.

10. -Scroll.-The mere addition of a scroll after the signature on a note, without words of reference or adoption in the note itself, did not make it a sealed instrument.-Long v. Gwin, Ala., 80 So. 440.

12.

Cancellation of Instruments-Rescission. -When transaction out of which a conveyance results involves payment of a valuable consideration by grantee, the grantor cannot have the land and the money too, and if he elects to rescind and reclaim land, he must restore or offer to restore what he has received from his grantee, and should by his pleading inform the court as to such facts.-Grundy v. Greene, Tex., 207 S. W. 964.

13. Carriers of Goods-Delivery.-Without a special contract, a common carrier is not an insurer of the time of delivery, but must use diligence and deliver within a reasonable time. -National Elevator Co. v. Great Northern Ry. Co., Minn., 170 N. W. 515.

14. Loss en Route.-Loss or damage to property in course of transportation through explosion of war munitions, also in transit, cannot be considered in a legal sense an "act of God." John Lysaght, Limited, v. Lehigh Valley R. Co., U. S. D. C., 254 Fed. 351.

15. Carriers of Passengers-Alighting Passenger. It is duty of carrier's employes to assist alighting passenger whenever circumstances are such that it is reasonably apparent that assistance is reasonably necessary, but they are not required to exercise diligence to discover enfeebled condition of passenger.-Olson v. Des Moines City Ry. Co., Iowa, 170 N. W. 466.

19. Commerce-Intoxicating Liquors.-Transportation of liquor on the person of a passenger from one state to another is "interstate commerce," within the regulatory power of Congress.-United States v. Hill, U. S. S. C., 39 S. Ct. 143.

20. Workmen's Compensation Act.-The federal Employers' Liability Act applies, and there is no liability under the state Workmen's Compensation Act, if employe at time of injury was engaged in interstate commerce.-Wangerow v. Industrial Board, Ill., 121 N. E. 724.

21. Conspiracy-Workmen Combining.-Workmen have legal right to combine to get advantage of bargaining for their common benefit in respect to the terms and conditions upon and under which they shall work.-Shinsky v. O'Neil, Mass., 121 N. E. 790.

Consideration.

Defendant's

22. Contractsagreement to charter vessel to plaintiff, if he, defendant, should buy her, being then in negotiations, was not void for want of consideration or mutuality of obligation as conditioned on defendant's will.-Scott v. Moragues Lumber Co., Ala., 80 So. 394.

23. Duress.-A contract procured by duress is not void, but voidable only; and, if a party elects to repudiate it, he must do so within a reasonable time after the duress has been removed.-Deibel v. Jefferson Bank, Mo., 207 S. W.

869.

24. Letters and Telegrams.-The interpretation of a contract created solely by letters and telegrams is a matter of law for the court. -Carstens Packing Co. v. Sterne & Son Co., Ill., 121 N. E. 737.

25. Meeting of Minds.-There must be a concurrence of intention to constitute a contract, and the minds of the parties must meet as to all essential elements involved in the contract and as to the subject-matter and as to their spective rights and duties.-C. W. Cochran Lumber Co. v. Paterson & Edey Lumber Co., Ala., 80 So. 448.

re

26.- -Modification.-Consideration for original contract is sufficient to support subsequent modification of contract.-Pacific Power & Light Co. v. White, Wash., 177 Pac. 313.

27. Unilateral.-A contract ordinarily unilateral may become bilateral and binding when it loses its unilateral character and stands as valid from the fact that an obligation has arisen with a second party, so that mutuality, or a consideration, appears as a binding force.-Warren v. Ray County Coal Co., Mo., 207 S. W. 883. 28. Covenant-Incumbrance.-An assessment which did not exist when land was conveyed was not an "incumbrance" within a covenant against incumbrances.-Jaques v. Tomb, Cal., 177 Pac. 280.

29. Criminal Law-Changing Plea.-Whether defendant, after having pleaded "not guilty" on day of arraignment, shall be permitted to change plea on day of trial to "not guilty, by reason of insanity," is discretionary with court.-Knott v. State, Ala., 80 So. 442.

30.Other Crimes.-If the character of a crime is such as to show upon its face the intent with which it is done, evidence of other crimes is inadmissble to show intent.-State v. Bersch, Mo., 207 S. W. 809.

voluntary

31.- -Voluntary Confession. - A confession standing alone is insufficient to prove the commission of a crime.-State v. Herman Krasne, The Novelty Skirt Co., Neb., 170 N. W. 494.

32. Crops Emblements.-Wheat and oat crops are emblements-fructus industriales-and are chattels personal, and are not real property.Power Mercantile Co. v. Moore Mercantile Co., Mont., 177 Pac. 406.

33. Damages-Increased Cost of Living.-The increase in the cost of living must be to some extent taken into consideration in determining whether verdict for personal injuries of a permanent nature is excessive.-Noyes v. Des Moines Club, Iowa, 170 N. W. 461.

34. Trespass.-In an action for damages for injuries to sheep, crops, and loss of time for trespass committed by defendants' dogs, damages for the mental distress of plaintiff are not recoverable.-Stephens v. Schadler, Ky., 207 S. W. 704.

35.

Dedication—Grant by Deed.-Dedication may be either express or implied. It is "express" when the purpose to devote the land to public use is by grant, as by deed; and "implied," where an intention to devote the land to public use is clearly manifested by the conduct of the owner-the animus dedicandi being the essential element of dedication.-Wensel v. Chicago, M. & St. P. Ry. Co., Iowa, 170 N. W. 409.

36. Deeds-Condition Precedent.-The general rule is that where a deed is to take effect on the performance of a condition by the grantee, and the grant is without other consideration, no title will pass until the condition is performed; but where other conditions have been performed, and especially where full value has been paid, the condition will be considered a condition subsequent.-Manton v. City of San Antonio, Tex., 207 S. W. 951.

37. Fraudulent Representation.-Where an 85-year-old woman, practically blind and unable to read, is induced by her daughter and son-inlaw to sign a deed to land under the fraudulent representation that it was an instrument authorizing the daughter to manage the land, the deed will be canceled.-Livingston v. Bothwell, Ala., 80 So. 462.

38.

Easements-Prescription.-Where a railroad company was in possession of a right-ofway as lessee, no prescriptive way over such right-of-way could be acquired, for the law will not presume a grant from the apparent acquiescence of one who could not have made it.-Cincinnati, N. O. & T. P. Ry. Co. v. Sharp, Tenn., 207 S. W. 728.

39.-Servitude.-Where the owner of an estate imposes upon one part an apparent and obvious servitude in favor of another, and at the time of the severance the servitude is in use and is reasonably necessary for the fair enjoyment of the other, then, whether the severance is by voluntary alienation or by judicial proceedings, the use is continued by operation of law. Indiana Truck Farm Co. v. Chambers, Ind., 121 N. E. 662.

40. Embezzlement-Acts in Series. Where the evidence shows that the embezzlement of an aggregate amount has been accomplished by a continuous series of withholding sums not separately capable of proof, the crime is a continuous one, and proof thereof is sufficient to sustain a conviction of embezzlement of such aggregate amount.-State v. Dawe, Idaho, 177 Pac. 373.

41. Escrows-Delivery.-A deed cannot be delivered to the grantee as an escrow, and if delivered to him it becomes an operative deed, freed from any condition not expressed in the deed itself.-Manton v. City of San Antonio, Tex., 207 S. W. 951.

42. Estoppel-Covenant of Warranty.-Where a person, having purchased realty and personalty from one who had no title, conveyed with covenants of warranty one undivided half interest in the "property purchased from" his vendor, his vendee acquired an undivided half interest in the property when the vendor of the halfinterest subsequently acquired perfect title from

a different person.-Cobbs v. Union Naval Stores Co., Ala., 80 So. 415.

43. Executors and Administrators-Attorney Fees. Where a note given by a decedent provided for payment of attorney's fees, his estate in a suit thereon is liable therefor, where against his administrator a claim for such fees is entered and notice of claim is served as prescribed by statute.-Penick Supply Co. v. Anderson, Ga., 97 S. E. 889.

a

44. Fixtures-Gas and Electricity.-Gas and electric fixtures, as ordinarily attached to house or other building for use, are, in actions between grantor and grantee, landlord and tenant, and mortgagor and mortgagee, held to be personal property.-Wahle-Phillips Co. v. Fitzgerald, N. Y., 121 N. E. 763, 225 N. Y. 137.

45. Frauds, Statute of-Memorandum.-Written memorandum of executory contract to sell wheat, signed by seller and buyer, held sufficient to satisfy statute of frauds, not being indefinite as to price, nor faulty because not expressing time for payment, despite unexpressed agreement that price should be paid when warehouse receipts were delivered; delivery to be made at place chosen by seller.-Dement Bros. Co. v. Coon, Wash., 177 Pac. 354.

46. Fraudulent Conveyances-Contingent Remainder. A debtor cannot create a trust in his own favor in his own property and provide conditions against the property being subject to the payment of his own debts, even though he provides for a contingent remainder in third persons in view of Rev. St. 1909, § 2880.-Jamison v. Mississippi Valley Trust Co., Mo., 207 S. W.

788.

47. Habeas Corpus-Constructive Contempt.In a habeas corpus proceeding brought to o0tain release from imprisonment for constructive contempt, the inquiry is limited to the consideration of the question whether the court was, by affidavit filed, invested with jurisdiction to hear and determine the contempt proceedings. -Ex parte Selowsky, Cal., 177 Pac. 301. - If intestate's 48. Homestead-Residence. widow claims homestead or property in lieu thereof under general law, she must be a resident of the state at the time in order to get re Lavenberg's the benefit of the statute.-In Estate, Wash., 177 Pac. 328.

49. Husband and Wife-Antenuptial Contract. -Under the provision of an antenuptial contract, waiving dower and curtesy, that each spouse should contribute from separate property to the family's running expenses, the "family" consists of both spouses, and ceases to exist when one dies. In re Mansfield's Estate, Iowa, 170 N. W.

115.

50. -Constructive Fraud.-The fact that defendant at the request of her husband signed note containing stipulation to effect that either party might sue the other in any court having jurisdiction of the subject-matter would not bring the case within the rule of constructive fraud, based upon confidential relation between the parties to the contract.-Thompson v. Union Springs Guano Co., Ala., 80 So. 409.

51.

53.

Survivorship.

Where

56. Joint Tenancy owners of property, with no intention to abandon contracts creating a joint tenancy, permitted, for temporary reasons, for convenient handdling, property to be taken and held by either of them or some agent, such property was in no wise removed from the control of the contract, and the holders were trustees for the owners as joint tenants, and upon the death of either of owners the complete equitable title and right to the entire legal title would vest in the survivor, and could be judicially enforced.-Smith v. Douglas County, Neb., U. S. C. C. A., 254 Fed. 244.

57. Judgment—Amending.-Courts have right to entertain motions to correct judgment and record thereof nunc pro tunc, but such motions must be founded upon some matter already in the record which must supply the means for making the corrections.-Stigleman v. Felter, Ind., 121 N. E. 670.

58. Dormancy.-A dormant judgment is not void, but only voidable, and for that reason it cannot be attacked in a collateral proceeding.— Burlington State Bank v. Marlin Nat. Bank, Tex., 207 S. W. 954.

59.- -Res Judicata.-Where a court has jurisdiction of subject-matter of action and of the parties, its orders and judgments as to all matters involved are conclusive, and such matters cannot be relitigated by parties in an original proceeding before another tribunal.-Rennolds v. Guthrie, Kan., 177 Pac. 359.

60. Term of Court.-Court may revise any judgment, decree, or order at term at which it was rendered.-Gulf, C. & S. F. Ry. Co. v. Muse, Tex., 207 S. W. 897.

61. Larceny Variance.-Under an indictment for the larceny of "one seven-passenger automobile Overland" of a certain model and number, on proof that it was a "Willys-Overland" of the same number and model as that alleged, there was no variance amounting to a failure of the evidence to sustain the charge.-Stewart v. State, Ga., 7 S. E. 871.

62. Master and Servant-Invitee.-If plaintiff's intestate, who was an invitee in defendant's restaurant, was wrongfully killed by defendant's servant while the servant was acting in the scope of his employment, defendant was liable.-E. I. Du Pont de Nemours & Co. v. Snead's Adm'r, Va., 97 S. E. 812.

63. Obvious Danger.-Duty of supervision and superintendence does not exist where the danger is known to the injured servant or is so open and obvious that he is presumed to have had knowledge of it.-Swift & Co. v. Hatton, Va., 97 S. E. 788.

64. -Master's Duty.-An employe cannot recover for personal injuries caused by risks from the master's negligence or failure to discharge his masterial duties, where he has assumed them.-Taylor v. Chicago, R. I. & P. Ry. Co., Iowa, 170 N. W. 388.

65. Mortgages-Parol Evidence.-A conveyance of realty in the form of an absolute feesimple deed can be shown by parol evidence to be only a security deed, where the grantor, after making the deed, retains possession of the realty conveyed.-Farmers' Supply Co. v. Smith, Ga., 97 S. E. 864.

of

66. -Pre-existing Debt.-A conveyance real estate by mortgage or deed of trust can only be effective as such when made to secure a pre-existing, then created, or after arising ob

ligation, or the performance of some duty entailing a pecuniary liability.-Finnerty v. John S. Blake & Bro. Realty Co., Mo., 207 S. W. 772.

67. Tenancy by Sufferance.-Where mortgagor remained in possession of land after sale upon execution under mortgaged foreclosure, retaining possession and harvesting a crop after sheriff's deed was delivered to the mortgagee as execution purchaser, he was a tenant by sufferance and was the owner of the severed crop. -Power Mercantile Co. v. Moore Mercantile Co., Mont., 177 Pac. 406.

Delegated exercise

can

68. Municipal Corporations Power.-Municipal corporations only such powers as are delegated to it by the Legislature.-Incorporated Town of Decatur v. Gould, Iowa, 170 N. W. 449.

69. Easement in Street.-City cannot acquire prescriptive right to easement in land for street purposes, unless public travel has pursued a definite, fixed course over it for the statutory period.-Barnard Realty Co. v. City of Butte, Mont., 177 Pac. 402.

70. -Ministerial Function.-A purely ministerial function of a municipal officer is one as to which nothing is left to discretion, while legislative acts involve the exercise of discretion and judgment.-Lotspech v. Mayor and Aldermen of Town of Morristown, Tenn., 207 S. W. 719.

71.

Negligence-Degrees of.-As a matter of law there can be no degrees of negligence, and hence no degrees of duty.-Union Traction Co. of Indana v. Berry, Ind., 121 N. E. 655.

72.- Wantonness.-An act committed in such manner that a person of ordinary reason and prudence would say that it was a reckless disregard of another's rights is "wanton," although the wrongdoer does not actually realize that he is invading the rights of another.-Norris v. Greenville, S. & A. Ry. Co., S. C., 97 S. E. 848.

73. Parent and Child-Respondeat Superior.Where the owner of an automobile has purchased it for the use and pleasure of his family, he is chargeable with the negligence of a minor member of his family who has been given permission to the automobile.-Collinson Cutter, Iowa, 170 N. W. 420.

use

V.

74. Payment-Application of.-At time of payment the debtor may direct to what items of account the payment shall be applied, and if he fails to do so his creditor may apply the payment, but only to debts then due, and not to advances not yet made.-Petroutsa v. H. C. Schrader Co., Fla., 80 So. 486.

75. Process - Substituted Service. Where publication is substituted for summons, the proceedings required by statute must be strictly followed.-Ponder v. Martin, Miss., 80 So. 388.

76. Railroads-Crossing.-One crossing railroad tracks guarded by gate may assume way is safe so far as gate is concerned until warned to contrary by gong or other device or by seeing gate descend, and may assume it will not be lowered while he is passing through; his duty being exercise of ordinary care.-Atlantic Coast Line R. Co. v. Ballard, Ala., 80 So. 436.

77. Initial Carrier.-Where railroad delivered car with insecurely fastened door to shipper and after loading of car by shipper delivered car to connecting carrier, the initial carrier was liable for injuries to consignee's employe, because of such defective door.--Sasnowski v. Mobile & O. R. Co., Mo., 207 S. W. 865.

78.- -Negligence per se.-Violation of speed ordinance is negligence per se.-Michigan Cent. R. Co. v. Kosmowski, Ind., 121 N. E. 665.

79. Receivers-Adverse Claims.-While a receiver has no authority to question orders and decrees distributing burdens or apportioning rights between the parties to the suit, or any order or decree resting upon discretion of court appointing him, he may defend the estate in his possession against all claims which are antagonistic to the rights of both parties to suit.Wiley Fertilizer Co. v. Carroll, Ala., 80 So. 417.

82.

-Deceit. The difference between a warranty and a fraudulent representation is that the latter contains the element of deceit, whereas that element is not essential to the former. -Barthelemy v. Foley Elevator Co., Minn., 170 N. W. 513.

83. -Unloading and Inspection.-A purchaser of lumber in carload lots has the right to rely upon the obligation resting on the seller under his contract to ship the commodity of the character and quality specified, and is entitled to a reasonable time in which to unload the car and make inspection or examination before he is required to accept.-Rosenbaum Hardware Co. v. Paxton Lumber Co., Va., 97 S. E. 784.

87.

-Vendor's Lien.-Purchase-money notes are secured by an equitable vendor's lien, though there is no express reservation of a lien either in notes themselves or in deed.-Luse v. Rea, Tex., 207 S. W. 942.

88.Waiver.-Where a land contract provided that the sale might be declared void if the first note with interest were not paid on a fixed date, and the grantee refused to accept the payment, he waived his right to payment on such date. Eason v. Fowler, Tex., 207 S. W. 958.

89. Waters and Water Courses-Meander Line. Where original boundary followed lake meander line and waters receded imperceptibly, the water's edge was the boundary.-Chew v. De Ware, Tex., 207 S. W. 988.

90.

Wills-Determinate Interest.--Where testator bequeathed to his wife, so long as she remained his widow, his entire property, with power to sell and convey any realty in fee, she took only an estate for life, subject to termination on remarriage, though there was no limitation over, and, where she died without having remarried, the realty devised to her passed to testator's next of kin as an estate of remainder in fee simple.-Fetter v. Rettig, Ohio, 121 N. E. 696.

91.-General Legacy.-A general legacy of a certain amount of money cannot be paid out of proceeds from undevised real estate, unless there is an intention to do so expressly declared or clearly inferred from the language of the will. -Ford v. Cottrell, Tenn., 207 S. W. 734.

92. Intestacy.-A construction of a will, resulting in total or partial intestacy, will be avoided, wherever it can reasonably be done.— Fodersen v. Matthiesen, Iowa, 170 N. W. 385.

93. Undue Influence.-On contest of a will for undue influence, contestant is required, in first instance, to assume full burden of proof of allegation. Sanford v. Holland, Mo.. 207 S. W. 818.

Central Law Journal.

ST. LOUIS, MO., APRIL 11, 1919.

BINDING DECLARATIONS OF RIGHT-THE NEXT REFORM IN THE LAW.

In our first issue of this volume (88 Cent. L. J. 6) Prof. Sunderland of Michigan University Law School contributed an article on the subject, "A New Function for Courts Declaring the Rights of Parties," which has provoked widespread interest and discussion. Nine out of every ten letters received urged us to press the issue on the country.

It might be interesting to note that as a direct result of Prof. Sunderland's investigations, bills were introduced in the legislatures of three States involving this idea. -Illinois, Oregon and Wisconsin. The usual provision in these bills follows the wording of the English rule known as Order No. 54. Thus the bill introduced in the Illinois legislature (Senate Bill No. 17, Sec. 28) provides that "in every action in equity the court may grant to the respective parties all such relief as they may appear to be entitled to, whether the same be of an equitable or of a legal nature, and the court may also, upon application therefor, make binding declarations of right, whether any consequential relief is or could be claimed, or not, and whether such declaration of right involves the determination of a question of law or a question of fact, or a question of both law and fact."

It is strange to notice that most of our radical reforms in procedure come from England. Practically all the old technicali-❘ ties of pleading, practice and evidence were abolished by the English Judicature Act of 1873 and a new system of procedure devised more in harmony with the spirit of the times and with modern business and social conditions. Out of this new system of procedure was developed the rule for

This rule must be taken in connection with Order No. 25, Rule 5, of 1883, which provided that "no action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not."

The advantage of this new idea of remedial procedure is obvious. It extends the field of preventive justice. As it has become the most important duty of the physician not to cure his patients, but to keep his patients from getting sick, so it has become the chief business of the lawyer to keep his clients from getting into trouble, rather than to get them out of it.

The common law provided only for the redress of wrongs. The new rule seeks the establishment of rights? Only a few months ago an attorney in a western state, desiring to test the right of a client to drill for oil through a superjacent stratum of coal, requested the attorney of the coal company to file an injunction without requiring the former's client to go to the expense of erecting valuable machinery and hiring labor to begin the digging of a well. It was agreed between the attorneys that the oil company should place two or three pieces of pipe at the spot where they sought to drill, which would be sufficient to make out a case of threatened wrong and the coal company would thereupon bring suit for injunction!