16. Public Policy.-Though, under the laws of Iowa, a note given for the price of corrate stock duly issued to the maker was void, held that, the maker having transferred the stock to another, an agreement on his part to reimburse directors of the corporation if they would pay the amount of the note and take it up, is not illegal or against public policy, being separable from the original purchase and note.— Ramsay v. Crevlin, U. S. C. C. A., 254 Fed. 813.

17. Restraint.-Lawyer, selling his business and library, may legally contract not to practice in the town where the library is located. -Dinsmoor v. Thorn, Kan., 178 Pac. 445.

18. Courts-Variance.-Before district court will arrive at conclusion with respect to whether name "Infallible" as applied to smokeless powder, is descriptive, and not registerable, at variance with conclusion of Court of Appeals of District of Columbia upon the same matter, it should be clearly convinced that such conclusion was wrong (following Gold v. Newton, 254 Fed. 824, C. C. A.).-Hercules Powder Co. v. Newton, U. S. D. C., 254 Fed. 906.

19. Criminal Law- Accomplice.- A state's witness who received from defendants property which it was claimed they obtained by a burglary must be deemed an accomplice, where he testified that when he received the property he thought it had been stolen, and conviction cannot be sustained, unless his testimony is corroborated.-Davidson v. State, Tex., 208 S. W.

664.

20. -Accused.-An accused may demand of the state to make a statement of its case before the introduction of testimony, and require it to develop its case upon the original showing, so that defendant on his defensive propositions would have the state's full case to meet.-Cannon v. State, Tex., 208 S. W. 660.

21. Evidence.-It is competent for accused to prove that another committed the offense, when such proof would be inconsistent with the guilt of accused, but such proof must be by legal evidence, and not the unsworn declaration of another.-Greenwood v. State, Tex., 208 S. W.

662.

22. Presumption.-The presumption that one intends the natural result of his act is not conclusive.-State v. Steinke, Iowa, 170 N. W.

801.

23.- -Specific Punishment.-When a statute creates a new offense and fixes the penalty, or prescribes a specific punishment, only that punishment can be inflicted which the statute prescribes. In re Food Conservation Act, U. S. D. C., 254 Fed, 893.

24. Damages-Breach of Contract.-Loss may be sustained in a legal sense for the breach of a contract, notwithstanding it can be shown that performance would have been a positive injury, as in case of a failure to erect a useless structure upon another's premises.-Ardizonne v. Archer, Okla., 178 Pac. 263.

25. Interest. It is generally held that interest on unliquidated demands will not be allowed as damages.-Pearson v. Ryan, R. I., 105 Atl. 513.

26. Province of Jury.-It was the jury's exclusive province to fix compensation for injury

to plaintiff passenger.-Indiana, Union Traction Co. v. Bales, Ind., 121 N. E. 850.

27.- -Recoupment.-In suit to recover balance on account for timber sold, defendant could not recoup for such damages as would not naturally flow from failure to deliver within time, unless plaintiff had notice of special circumstances out of which such damages would naturally arise.-Worthington v. Cleveland Lumber Co., Ala., 80 So. 688.

28. Death-Mortality Tables.-An instruction allowing the jury to consider the mortality tables in assessing the damages of a widow and minor child in a death action should expressly inform the jury that they are not bound by the tables, and should consider them in connection with deceased's habits, health, etc.-Stevens v. Kansas City Light & Power Co., Mo., 208 S. W. 630.

29. Survivorship.-At common law, when two or more persons perish in the same disaster, and there is no fact or circumstance tending to prove which survived the other, there is no presumption whatever on the subjectWatkins v. Home Life & Accident Ins. Co., Ark., 208 S. W. 587.

Deeds-Description

30. of Property.-Mere fact that description does not state county and state in which property is situated does not make deed void because of uncertainty of description.-Perry v. Wilson, Ky., 208 S. W. 776.

31. Forfeiture.-A forfeiture is not favored, and will be strictly construed against grantor with a view of preserving estate granted, in view of Civ. Code, § 1442, requiring strict construction against party for whose benefit it is created.-Whitaker v. Regents of the University of California, Cal., 178 Pac. 308.

32. Recording.-The recording of a deed is not essential to passing title.-Potter v. Potter, Iowa, 170 N. W. 773.

33.

-Repugnancy.-If the habendum clause of a deed is irreconcilable with, and repugnant to, the granting clause, the former must prevail. Glenn v. Gross, Iowa, 170 N. W. 783. 34. Easement-License.-An easement implies an interest in real estate, while a license does not.-Babcock v. Gregg, Mont., 178 Pac. 284.

35. Equity Bulk Sales Law.-Where a sale of a stock of goods was invalid under the Bulk Sales Law, though purchaser acted in good faith and paid full value, equity follows the law and will not ignore valid attachment lien by seller's creditor on the stock subsequent to sale. Trego County State Bank v. Hillman, Kan., 178 Pac. 420.

36. Jurisdiction.-Equity always seeks to do complete Justice, and rightfully having the parties before the court, it will proceed to give full relief to all parties in reference to subjectmatter of suit, if having jurisdiction for that purpose.-Kirkpatrick v. Holland, Ga., 98 S. E.

265.

37. Evidence-Books of Account.-Books of account, kept by a decedent when accompanied by proof that they were his books and are of his writing, are admissible on behalf of the estate without need of proof as to the time and manner of making the entries, the presumption being that they were regularly kept, but such rule does not apply where an entry in an account book kept by the deceased shows on its face that it was not contemporaneous with the transactions recorded.-In re Greenwood's Estate, Mo., 208 S. W. 635.

38. Deed.-Parol evidence is admissible to show the true consideration of a deed although

it may not be disclosed upon its face.-Sanger v. Futch, Tex., 208 S. W. 681.

39. Executors and Administrators-Will. Independent executor under terms of will had no authority to bind estate in subscribing to stock of hotel company; no power to invest any part of estate in any business having been given in will, which provided revenues from realty should be divided among certain devisees, etc.-Lovenskiold v. Nueces Hotel Co., Tex., 208 S. W. 759.

40.

Frauds, Statute of-Boundary Line.Parol boundary line agreement must not result in mere transfer of lands owned by one party to the other; such transfer by parol agreement being in contravention of statute against frauds. -Bordes v. Leece, Ark., 208 S. W. 780.

41.-Partnership.-Where employe of firm, after admission of new partner, continued in employment of new firm on new partner's promise to pay old firm's existing debt for wages and salary agreed on for future services in addition, and would not have done so but for such promise, consideration was sufficient to remove bar of statute of frauds against employe's evidence of new partner's promise, in his action for wages.-Cuttill v. Harrington, Iowa, 170 N. W. 788.

42. Good Will-Ownership of Business.-The good will of a business is inseparable from the ownership thereof, and cannot be conveyed. to one party while the business to which it attaches is owned by another.-Russell v. Russell, Cal., 178 Pac. 307.

43. Guaranty-Revocation.- Where faithful performance of future obligations is guaranteed without limitation of time, notice of revocation by the guarantor does not relieve him from liabilities already incurred, but does relieve him from further liability.-Furst v. Buss, Kan., 178 Pac. 411.

44. Highways—Improvement of.- In proceeding for creation of road improvement_district, the filing of plans, specifications, and estimates of costs in the county court is ample notice to all property owners within the Alexander Road Law, § 1 (b), and estimate of cost need not be shown on county court records and orders, in petition circulated, or in notices published in newspaper.-Maples v. Road Improvement Dist. No. 2 of Carroll County, Ark., 208 S. W. 577.

45. Homestead-Equitable Estate.-A homestead may exist in a life estate, a leasehold, or in an equitable estate, or possibly partly in one and partly in another.-Livasy V. State Bank of Redfield, Iowa, 170 N. W. 756. 46. Homicide-Manslaughter.-Where person shoots at one who tells his father in his presence that his mother and his father's wife was sustaining illicit relations with another person, he would only be guilty of manslaughter if he killed him.-Cannon v. State, Tex., 208 S. W. 660.

47. Husband and Wife-Community Property. -Prior to dissolution of community, no interest is due by husband upon separate funds of wife used by him individually or for the benefit of community, since revenues of her paraphernal estate fell into community.-Succession of McCloskey, La., 80 So. 650.

48. -Entireties.-Where a note is made payable to a husband and wife, they are owners by the entireties.-In re Greenwood's Estate, Mo., 208 S. W. 635.

49. Illegal Contract.-Mortgage executed by wife to husband under agreement that he should convey property to her and she should execute the mortgage to him, in consideration that he would make no contest in her divorce suit if further prosecuted, and that they would abandon their marital relations, will not be enforced by the courts, being an executory part of the agreement.-Bergevin v. Bergevin, Wis., 170 N. W. 820.

50. Insane Persons - Consideration. - Discharge of a natural obligation, as obligation of children to furnish to their insane mother things and attentions which no officer or servant at public asylum would render her, cannot serve as consideration for transfer by her to them. In re Le Bourgeois, La., 80 So. 673.

51. Insurance Assignment.— A renewable term life policy payable to insured's executors, administrators, or "assigns" for a stated amount, in consideration of specified premiums, contemplated an assignment by insured and was assignable to a creditor as security.-National Life Ins. Co. of Vermont v. Beck & Gregg Hardware Co., Ga., 98 S. E. 266.

52. -Estoppel.-A policy erroneously issued in lieu of a canceled binder, which policy was not applied for by assured, and was rejected by assured when tendered, being void ab initio, does not estop the insurer to deny liability thereunder.-Brown v. North River Ins. Co. of New York, La., 80 So. 674.

53.- -Waiver.-Where insured was induced to take a policy upon representations that she could have the premiums returned at a given time, and, after learning that the policy was not as represented, she paid several premiums, she waived the alleged fraud.-Rice v. Metropolitan Life Ins. Co., N. C., 98 S. E. 283.

54.- -Warranties.-When statements of insured in his application for life insurance are made warranties, they must be strictly and literally true, or the contract of insurance becomes voidable.-Modern Woodmen of America v. Hall, Ind., 121 N. E. 835.

motion to

55. Judgment-Modification.-A modify a judgment cannot be employed for any purpose other than to raise questions as to the form of the judgment, but modification cannot go to the extent of striking one judgment and substituting another in its place. Wells v. Huffman, Ind., 121 N. E. 840.

56. Collateral Security.-Where judgment is entered as collateral security for existing indebtedness, or as security for future advances, the substance of the agreement, or at least a reference thereto, should be inserted by clerk in his memorandum.-First Mortgage Bond Homestead Ass'n v. Mehlhorn, Md., 105 Atl. 526.

57. Landlord and Tenant-Licensee.-Where one enters into possession of property as a tenant, he will be presumed in occupancy thereafter as a licensee or by permission, regardless of whether he continued to pay rent, until by some unequivocal act he gave notice of a change in his attitude from that of peaceful to hostile possessor.-Storrow v. Green, Cal., 178 Pac. 339. 58. -Printed Lease.-A common form of printed lease does not invoke the rule of construing an agreement most strongly against the party preparing it,-O'Neal v. Hawkeye Lumber Co., Iowa, 170 N. W. 792.

59. Larceny Community Property.-Where the property stolen is community property and the spouses are living together, the ownership is properly laid in the husband.-Greenwood v. State, Tex., 208 S. W. 662.

60. Master and Servant-Assumption of Risk. That a railroad detective, when entering his employment, was not informed that former employes had been shot by third parties, did not prevent the assumption of risk of such injury on the ground that it was not obvious.-Yazoo & M. V. R. Co. v. Hulium, Miss., 80 So. 645.

61.- -Res Ipsa Loquitur.-Doctrine of res ipsa loquitur, does not apply as between master and servant, unless there is some evidence, though slight, of negligence of master other than happening of accident, and even then accident must have happened because of defects of appliances or machinery not operated by or in charge of injured servant.-Mountain Cent. R. Co. v. Drake's Adm'r, Ky., 208 S. W. 765.

62.- -Res Ipsa Loquitur.-In an action for the death of a servant killed under circumstances raising an inference of negligence held that the doctrine of res ipsa loquitur may be relied on though the complaint alleged negligence in the operation of machinery, etc.Soto v. Spring Valley Water Co., Cal., 178 Pac. 305.

63.- -Volunteer.-A "volunteer" is one who does or undertakes to do that which he is not legally or morally bound to do.- White v. Great Northern Ry. Co., Minn., 170 N. W. 849.

64. Mines and Minerals-Injury to Surface. -Where grant of coal underlying the surface provides the grantee may enter upon the lands and mine and remove coal without any liability for damages from the exercise of such rights,

he is not liable for injury to the surface by mining operations.-Weakland v. Cymbria Coal Co., Pa., 105 Atl. 558.

65.Joint and Several Liability.-Where several persons operating separate oil and gas leases negligently allowed crude oil to escape into a creek, where it was ignited and carried by wind and flow upon plaintiff's barn, which was totally destroyed, they were jointly and severally liable.-Northup v. Eakes, Okla., 178 Pac. 266.

66. Mortgages-Assumption of Debt.-Where a grantee in a conveyance of land assumes and agrees to pay a debt secured by a mortgage on land, and thereafter conveys to another, who assumes to pay the mortgage debt, the last grantee is personally liable for the debt, if his grantor was himself, liable for it.-Smith Kibbe, Kan., 178 Pac. 427.

V.

67. Mistake-When a new mortgage is substituted in ignorance of an intervening lien, the mortgage released through mistake may be restored in equity and given its original priority as a lien, where the rights of innocent third parties will not be affected, and a subsequent lienholder whose right existed at the time of the discharge cannot complain.-Wells v. Huffman, Ind., 121 N. E. 840.

68. Municipal Corporations-Contractor. Under a contract for paving a street at an agreed price per yard, contractor to replace defective portions, where the municipal authorities passing on the work refused to point out the defective portions, contractor, being prevented thereby from performing contract in full, can recover amount proportionate to the quantity of the pavement properly laid.-Frederick v. City of Bonner Springs, Kan., 178 Pac. 435. 69. Navigable Waters-Public Right.-If public right of navigation in strait in lake between island and mainland has not been granted away by Legislature, owner of the island has no right to prevent such navigation by a bridge.-State v. Hutchins, N. H., 105 Atl. 519. 70. Officers-Special Judge.-Special circuit judge was not disqualified to hear appeal from county court, although he was county examiner appointed by county judge; Const. art. 7, § 18, as to judges of circuit courts not holding any other office, not applying to special but regular circuit judges, in view of sections 16, 17 and 21.-Mapies v. Road Improvement Dist. No. 2 of Carroll County, Ark., 208 S. W. 577.

71. Partnership-Legal Entity.-A partnership is a separate and distinct entity, and holds the partnership property in trust for payment of its debts, and such property does not belong separately to the individual partners.-Jensen v. Wiersma, Iowa, 170 N. W. 780.

72. Patents-New Subject.-The application of an old process to a new subject for an old purpose without any change in result is not "invention."-Armstrong Seatag Corporation v. Smith's Island Oyster Co., U. S. C. C. A., 254 Fed. 821.

73. Principal and Agent-Fraud.-Evidence held sufficient to show that defendant, as agent for insurance companies for the sale of a salvaged stock of goods, was chargeable with fraud in selling the larger part of the goods in bulk to himself through a partner.-American Central Ins. Co. v. Isaacs, U. S. C. C. A., 254 Fed. 789.

74. Railroads-Crossing.-There is a presumption that decedent, who drove an automobile along a highway to a railroad crossing, where he was struck by a train and killed, acted with proper regard to his own safety.Whitney v. Northwestern Pac. R. Co., Cal., 178 Pac. 326.

75. Trespasser.-One undertaking to cross a railway switch yard, where engines and cars are likely to be moving at any time, is a trespasser and does so at his peril, and the only duty of the railroad and its employes toward him is not to willfully injure him. Allen v. Bush, Kan., 178 Pac. 395.

76. Receivers Ancillary Remedy.-With few exceptions, the appointment of a receiver is an ancillary remedy which can only be obtained in an action in which other substantial equitable relief is sought and is not made when

that is the ultimate object of the action.-City of Parsons v. Parsons Water Supply & Power Co., Kan., 178 Pac. 438.

77. Sales Embargoes.-Where a contract for the sale of prussiate of soda, a German product, providing that the sellers should not be liable for causes beyond their control, including war, was made after declaration of war between Germany and Great Britain, performance was excused by the British order in council which in effect placed an embargo on shipments from Germany, for such provision cannot be deemed applicable only to embargoes or restraints_coming from the United States.-Roessler & Hasslacher Chemical Co. v. Standard Silk Dyeing Co., U. S. C. C. A., 254 Fed. 777.

78. Part Performance. Where plaintiff contracted to purchase two automobiles, he cannot repudiate as to one of the automobiles and demand performance on the part of the seller as to a single machine.-Mitchell v. Caviness, Iowa, 170 N. W. 746.

79.- -Pre-Existing Debt.-A person cannot claim to be an innocent purchaser for value where he credits the purchase price to a preexisting debt.-Weld-Neville Cotton Co. v. Lewis, Tex., 208 S. W. 731.

80. Specific Performance-Mutuality.-Equity will enforce contract, though lacking in mutuality in its inception, when it is shown that party seeking enforcement has fully performed all conditions on his part to be performed.Stutsman v. Crain, Iowa, 170 N. W. 806.

81. Oral Contract.-Oral contract for sale of land cannot be enforced, where vendor has sold land to another person after his contract with vendee.-Pessemier v. Genn, Kan., 178 Pac. 426.

82.

Subrogation-Equitable Right.-Subrogation is an equitable right.-Trego County State Bank v. Hillman, Kan., 178 Pac. 420.

83. Surety and Indorser.-Doctrine of subrogation is not limited in its operation to relation of formal suretyship, but applies in full force to situation of all persons upon whom there is a fixed liability, whether as surety, indorser, acceptor, or guarantor, to pay a debt which principal ought to pay.-Dinsmore Sachs, Md., 105 Atl. 524.

V.

Pre

84. Tenancy in Common-Rebuttable sumption. Where conveyance to purchasers of tenancy in common is silent, they are presumed to take equal shares, a presumption which is rebuttable, as by proof that purchasers contributed unequally to price, giving rise to presumption they intended to share in proportion to amount contributed by each.-Lowell v. Lowell, Iowa, 170 N. W. 811.

85. Vendor and Purchaser-Implied Warranty.-Contract for sale of land does not impliedly warrant that condition of the property at time of sale shall continue until after deed is made.-Maudru v. Humphreys, W. Va., 98 S. E. 259.

86. Wills-Ademption.-Property

delivered

by a husband to a wife, even after the former has made a will, is not an ademption pro tanto, but is presumed to be a gift. In re Greenwood's Estate, Mo., 208 S. W. 635.

87. Joint Wills.-A mutual and reciprocal joint will, made by a husband and his wife, in which they give a life estate in their property to the survivor and the remainder to their children, is not opposed to public policy.-Lewis v. Lewis, Kan., 178 Pac. 421.

88.Life Tenancy.-Where a will devising land to one for life, remainder to others, authorized the life tenant to sell and dispose of timber on the lands, held, that the life tenant, as he had no right to destroy the estate in remainder, could not burden such estate giving the purchaser more than a reasonable time for removal, which is a question of fact dependent on the circumstances, and the ability on part of purchaser to impose conditions on the life tenant did not increase the powers of life tenant.-Alwood v. Lewis, U. S. C. C. A., 254 Fed. 810.

89. Mistaken Belief.-Mere mistaken belief of testatrix as to a fact on which she acted in disposing of her property does not invalidate the will.-Riley v. Casey, Iowa, 170 N. W. 742.

Central Law Journal.

ST. LOUIS, MO., MAY 2, 1919.

IS A CARRIER OF PASSENGERS REQUIRED TO EXERCISE. AN EXTRAORDINARY DEGREE OF CARE AS A MATTER OF LAW?

Overturning verdicts because of error in the instructions is becoming more and more a reproach to the administration of the law in this country. The practice of appellate courts in subjecting the instructions of a trial court to microscopic examination is ridiculously unjust to litigants and lawyers, and the overturning of a verdict because, upon such examination an appellate court believes a more accurate statement of the law could and should have been prepared, is to condemn the administration of the law in the eyes of all practical citizens as being ridiculously incompetent in an age that demands efficiency in all the important transactions of life.

Take for example the recent case of Union Traction Company v. Berry, 121 N. E. 655. Here the trial court prepared an instruction declaring that a carrier of passengers was held to the exercise of the highest degree of care. This proposition would appear to be elementary to every lawyer familiar with common law principles of negligence. But the Supreme Court held that this instruction was bad, since in Indiana there are no degrees in negligence. Therefore, the case must go back for retrial under instructions to the jury to determine what would be "ordinary care" on the part of a common carrier in protecting its passengers.

cise in view of all the conditions and circumstances as disclosed by the evidence in the particular case?" These are the words. of the appellate court in the instant case, which the court says measures the duty of a carrier of passengers or anyone else who sustains such a relation to another from which arises a duty to use care. Even under this rule, as announced by the Indiana court, ordinary care will vary in accordance with the "conditions and circumstances" of each case. The care which a man of ordinary prudence would exercise. in unloading a car of dynamite will necessarily be different from that which he would exercise in unloading a car of lumber. It is a mere play on words to say that the same degree of care is exacted in one case as in the other, on the theory that what would be ordinary care in one. case might not be ordinary care in another

case.

The facts in the case cited brought the question of the degree of care required of carriers of passengers, into sharp relief. Plaintiff was killed by being knocked off the running board of an electric car by the girders of a bridge built by the defendant and set so close to the track as to make it dangerous for persons to stand on the running board of an "open" or "summer" car. Plaintiff got on the car a short distance from the bridge and was walking along the running board to secure a seat in the car when he was struck by a girder of the bridge and killed. Negligence was grounded on the failure of the conductor to warn the plaintiff of his danger in being on the running board as the car passed over the bridge. It was shown that the company knew of this danger and that it was the custom of many conductors to stop their cars before entering the bridge and requir

board to get inside the car. The following instruction, which would have been good in practically every state in the union, was the only error the court could find on which to overturn the just and reasonable judgment given for the plaintiff in this case:

"If you find from the evidence in this case that on and about the 23d day of May, 1914, the defendant was a common carrier of passengers, then I instruct you that it was held to the highest degree of care and diligence for the safety of passengers consistent with the mode of conveyance employed, and that the omission of the defendant to exercise the highest degree of practicable care constituted negligence on its part."

In explaining the error in the instruction, the Supreme Court said:

"The use of such terms as 'slight care,' 'great care,' 'highest degree of care,' or other like expressions in instructions as indicating the quantum of care the law exacts under special conditions and circumstances, is misleading; and when so used they constitute an invasion of the province of the jury, whose function it is to determine what amount of care is required to measure up to the duty imposed by law under the facts of the particular case. The law imposes but one duty in such cases, and that is the duty to use due care; and the law recognizes only one standard by which the quantum of care can be measured, and that is the care which a person of ordinary prudence would exercise under like circumstances.

"If greater precautions are required to protect passengers while in transit, it is because the conditions and circumstances surrounding them are different and involve more danger, and not because of the existing relation. As has been said, the surrounding conditions and attending circumstances, as well as the danger involved, present questions for the consideration of the jury in determining what precautions reasonable care required under the facts disclosed in the particular case. This presents a question of fact for the jury and not one of law for the court."

The court is here attempting to blaze a new trail in the law. The common law has been content for many years to distinguish between degrees of negligence, especially in cases where public policy dictated that an unusual or extraordinary degree of care should be exercised. This has always been so in the case of carriers of passengers who, as a matter of law, were

held to the highest degree of care for the safety of passengers. That this rule is more than the mere application of the rule of ordinary care to the peculiar circumstances of the relation of carrier and passenger, is clearly shown by the fact that the common law did not even permit the carrier to contract for relief against the negligence of himself or his employes.

It would be unnecessary to go outside of the judicial precedents laid down by a long line of eminent Indiana jurists to show that the present judges of the Supreme Court of Indiana are taking a very presumptuous attitude in overruling, as they do expressly, this long line of well considered precedents. Hundreds of Indiana cases could be cited, but just one citation from the case of Citizens Street Railway Co. v. Jolly, 161 Ind. 80, is sufficient to show how far afield the court goes in the instant case. The court in the Jolly case said:

"Appellant Company was a common carrier of passengers for hire. The law, therefore, exacted of it the highest degree of care, skill and diligence for the safety of its passengers in operating its cars and road, consistent with the mode of its conveyance and likewise in the construction and maintenance of its tracks, roadway and machinery."

The court's insistence on a single standard or measure of duty would be logical if it were not for the fact that the common law has singled out certain relationships and certain duties in respect of which it requires a high degree of care as a matter of law and not as a matter of fact. The general rule as to ordinary care, as stated by the court, operates in all cases where the law itself does not require specifically a different degree of care. It may be that in this respect the law is not logical. It may be that this higher degree of care thus demanded by the law is nothing more than ordinary care applied to "the circumstances and conditions of the particular case," but it is probable as well as reasonable to suppose that the law does not wish to leave such an important matter affecting