62. Landlord and Tenant-Annexation Freehold.-As between landlord and tenant, manure produced upon the premises is the property of the landlord, in which the tenant has no interest, and for removal or sale of which, without the lessor's consent, the tenant is liable, unless custom or usage of the neighborhood, known to the parties previous to the agreement, renders the contract otherwise.-Stuart Clements, Ky., 216 S. W. 136.

V.

63. Attornment.-Where the landlord parts with his title pending the lease, the tenant thereupon and by operation of law, in the absence of any reservation to the contrary, becomes the tenant of purchaser.-Stewart Bros. v. Cook, Ga., 101 S. E. 304.

64. Limitations of Action-Tolling Statute.Statute of limitations, having commenced running against a claim during the lifetime of the maker, is interrupted only from the date of his death until the appointment and qualification of a legal representative, and then continues its onward course, unless stayed by statute.-Davis v. Davis' Estate, Mont., 185 Pac. 559.

65. Malicious Prosecution-Advice of Counsel. That the prosecution was instituted on the advice of counsel may be considered by the jury cn passing on cases of malice.-Thornton v. Story, Ga., 101 S. E. 309.

66. Master and Servant-Fellow Servant.The negligent act of a fellow servant becomes the negligence of the master, where the servant is doing an act with the knowledge of the masters' foreman and practically under his supervision.-Flummer's Adm'r v. Tri-State Telephone Co., Ky., 216 S. W. 133.

67.Safe Place.-The law imposes upon all employers the duty of exercising ordinary care to provide their servants with a reasonably safe place to work, a duty which is a continuing one. -Citizens' Telephone Co. v. Prickett, Ind., 125

N. E. 193.

68. Special Finding.-A finding that a hand brake on a railroad car was defective did not override a general verdict which was necessarily based upon a finding that the hand brake was inefficient.-Thayer v. Denver & R. G. R. Co., N. M., 185 Pac. 542.

69. Mechanics' Liens-Priority of Contract.Though there was no privity of contract between plaintiff subcontractor and owner of property, or any of the defendants other than the contractor, defendants would, if they had by act or representation willfully led plaintiff to forego his rights of lien, be stopped from setting up failure to file notice of lien within the statutory time; but merely standing by and permitting plaintiff to sleep upon his rights does not estop defendants.-Pence v. Martin, Cal., 185 Pac. 503.

70. Monopolies-Independent Agreement. Contract, whereby plaintiff agreed to sell seed to defendant, held independent of agreement between defendant and others to suppress and restrain competition in trade of buying and selling seed, so that, where plaintiff before date fixed for performance confessed breach and agreed on the amount of damages and paid the same, he cannot recover payments made; the contract of sale not being in restraint of trade under Ky. St., § 3918.-Scobee v. Brent, Ky., 216 S. W. 76.

71. Mortgages-Inconsistent

Duties.

The effort of a trustee in a trust deed, as attorney of beneficiary, to collect the note secured thereby was not incompatible with his duty as trustee to make a sale in the event of its nonpayment.—— Thornton v. Goodman, Tex., 216 S. W. 147.

72. Negligence Concurrent Negligence. Where automobile driver in driving automobile to a depot heeded the directions of occupants, who wanted to board a train, the management of automobile was the concurrent act of driver and the occupants and the negligence of driver in driving at excessive speed was imputed to an occupant, precluding recovery from railroad

for injuries at crossing.-Langley v. Southern Ry. Co., S. C., 101 S. E. 286.

73. Trespasser. One taking a lunch to an employe of a corporation working on its premises becomes a trespasser if, on his return, he enters on grounds without occasion for doing so. -Southwestern Portland Cement Co. v. Bustillos, Tex., 216 S. W. 268.

74. Parent and Child-Interest of Child.-The law places the parents of a married child on a much more favorable basis than that of a stranger to the family relations, in actions for alienation of affections, and all presumptions must be that the parents will act only for the best interests of the child.-Bourne v. Bourne, Cal., 185 Pac. 489.

75. Partnership-Partnership Assets. Creditors of a partnership have the first claim on collections or assets of the firm.-Kreutzer & Wasem v. Reese, Ia., 174 N. W. 935.

76. Principal and Agent-Scope of Agency.— That an agent of a building contractor was sent to a town to superintend the construction there of buildings for a client of the contractor, and to purchase the labor and material therefor, did not give him authority, actual or apparent, to enter into a contract for the construction of another building of a different character and for another person. Arkadelphia Milling Co. v. Campbell, Ark., 216 S. W. 20. 77. Rape-Attempt.-The intent is an essential element of the crime of an attempt to commit rape.-Broaddus v. Commonwealth, Va., 101 S. E. 321.

78. Reformation of Instruments-Mistake.A written contract will not be reformed in equity because of a mistake, in the absence of fraud, unless it is mutual, that is, common to both parties, and each under the same mistake as to its terms.-Giammares v. Allemannia Fire Ins. Co., N. J., 108 Atl. 237.

79.- -Mistake by Scrivener.-A mistake by a scrivener in drawing an instrument which would warrant a reformation applies to mistakes of law as well as mistakes of fact, and a contract can be reformed where a scrivener uses a word in a mistaken sense.-Benson v. Ashford, Tex., 216 S. W. 283.

80. Sales Breach of Contract.-The question of waiver of breach of sale contract is mainly one of intention, and such intention cannot be inferred from acts performed under circumstances such as renders the acts involuntary or compulsory.-Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers' Ass'n, Tex., 216 S. W. 225.

81.- Election.-The seller having treated the contract of sale of live stock as at an end by taking back the stock after breach by the buyer, his election precluded him from thereafter suing for the purchase price.-Murphy v. Hellman Commercial Trust & Savings Bank, Cal., 185 Pac.

485.

82. Offer and Acceptance.-A gratuitous offer to sell may be accepted within reasonable time before withdrawal.-Caldwell V. E. F. Spears & Sons, Ky., 216 S. W. 83.

83.- Rescission.-In seller's action for price of lumber, whether seller's letter and telegram of same date, to buyer, sent upon buyer's complaint that the lumber received did not conform to contract, rescinded the contract, or made an unaccepted offer to rescind on buyer reloading and rebilling lumber, as directed, held for jury. -American Hardwood Lumber Co. v. MillikenJames Hardwood Lumber Co., Ark., 216 S. W. 23.

84. Specific Performance-Judicial Discretion. -Specific performance of contract for purchase of land may not be arbitrarily refused, but in the exercise of a sound legal discretion should be granted in the absence of some showing that to do so would be inequitable.-Rourke v. Peterson, Ia., 174 N. W. 945.

85. Wills-Remainder. Testamentary language creating remainders will be construed to create vested and not contingent if the language consistent with such an intent.-Dowd v. Scally, Ia., 174 N. W. 938.

is

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 20, 1920.
APPRAISEMENT OF REAL ESTATE FOR JU-

DICIAL SALE OR OTHER DISPOSAL OF
PROPERTY AT PUBLIC VENDUE.

In a standard authority, Freeman on Executions, the first edition of which appeared in 1876 and the third in 1900, at § 284 it is said: "In a few of the states one of the steps toward a sale of the property levied upon is to procure its appraisement.' The author's notes refer to decisions only in four or five states. In some other states there are statutes which require appraisement in the sale of decedents' property by their legal representatives. The purpose of such a requirement has been said, in one of the latter states, in a guardian's sale, "to prevent the sacrifice to which the estates of minors might be exposed if courts were left to rely upon the interested representatives of sharks and speculators as to value." Strouse v. Drennan, 41 Mo. 1. c. 298.

In 24 Cyc., page 14, it is said that: "In a number of states the statutes require an appraisement of property before a judicial sale thereof, and either forbid a sale for less than a certain proportion of the appraised value, or give the owner the right of redemption for a certain time if a specified portion of the appraised value is not realized at the sale."

In 27 Cyc. 1684, appraisement as to lands about to be sold on foreclosure of a mortgage is spoken of as required by statute, and cases from several states are cited to the text. In this volume of Cyc., under the title, "Mechanics' Liens," under the subhead, "Sale," there is no reference to appraisement. In 30 Cyc., page 273, it is said in the article on Partition that there may be appraisement for the purpose of preventing a sale, "but generally no appraisement to precede a sale in partition is required."

In Nebraska an appraisement law was said to be "designed to prevent a sacrifice.

of the debtor's property by providing that it should not be sold upon judicial process for less than two-thirds of the value of his interest as fixed by the appraisers." Hart v. Beardsley, 67 Neb. 145, 93 N. W. 423.

Presumably, no system of enlightened jurisprudence contemplates that debtors. shall be unduly harassed, beyond any reasonable necessity, in the collection by creditors of the debts they hold against them. Therefore, the right to prescribe for sales, upon due and proper notice comes, is within the regulatory power of the state. If the state, however, should provide for the taking away of one's property under a judicial sale with little or no notice of publicity, it might well be deemed an attempt at confiscation.

However, there have been enacted in many states provisions for notifying the public, and of parties directly interested in a proposed sale under judicial process. Generally speaking, provision has not been made against property being sacrificed, where all statutory requirements have been observed. The statute assumes that by such observance a sufficient proportion of the general public will be in attendance at the sale and prepared to bid, as would bring about fair competition among would-be purchasers.

This assumption is, we think, violently opposed to the facts, generally speaking. For one to be prepared to bid he must have opportunity to examine real estate advertised for sale, for it cannot be brought to the place of sale, usually the front door of the courthouse of the county. And were this possible, advertisements often are not required to state whether it is incumbered or unincumbered. Verily, in many cases it is like buying a "pig in a poke" to buy property at a sale to which the doctrine of caveat emptor applies.

The courts are exceedingly jealous about irregularities attending such sales, and for fair, or a chance for fair and full, competition being assured, or possibly assured. Their practice has been greatly to magnify

the importance of small departures from strict observance of statutes, but legislatures have not seemed greatly to concern themselves to provide full, accurate and necessary preparatory steps for the conduct of a sale and protect an owner against sacrifice. of his property.

The policy of protecting interests of estates and of minors represented by administrators and guardians from being sacrificed, and against mortgaged property being sold for less than a given proportion of its value, is found in many more states, than where there is provision regarding sales upon ordinary execution. And this is notwithstanding the fact that the officer conducting a sale on execution may be deemed to be acting ministerially, as has been held.

In this day and generation, when the world is flooded with so much more printed matter and newspapers than formerly was the case, it seems like an invidious distinction to prefer one sort of publicity as giving constructive notice over another. What should be aimed at in constructive notice is that the medium therefor should be something presumptively drawn to the attention of the general public and not to a limited part thereof. Or, if it affects a matter in rem, publication should be made where the res is located, or attached thereto in a conspicuous way, as say a notice of sale on the premises.

Furthermore, if trust property, such as that of decedents or minors, is guarded, and properly so, against sacrifice at public sale, by providing in advance for what is commonly understood as an upset price, why not other sales? It is familiar for decrees in chancery thus to provide, which practice goes far to show its underlying equity. But, if there be no statute specifically to guard against sacrifices in the following of a rule, shall our courts be embarrassed in inventing some such principle as avoiding judicial sales for inadequacy of consideration? Possibly we now have as much judge-made law as comfortably we may absorb.

NOTES OF IMPORTANT DECISIONS.

DUTY OWED TO INVITED GUEST BY THE OWNER OF AN AUTOMOBILE.-The Supreme Court of Michigan considers what it calls "the interesting and meritorious question in the case as to the rule of conduct" of one in control of an automobile toward a social guest, in the gratuitous service that was being rendered. Roy v. Kern, 175 N. W. 475.

Appellant contended that he was bound only to refrain from intentional injury or gross negligence, which is the equivalent of intention.

It was said the question was a new one in Michigan, but the court quotes the following from Avery v. Thompson, 117 Me. 120, 103 Atl. 4, L. R. A. 1918D 205, as stating the correct rule as to a guest:

"The thing undertaken was the transportation of the guest in the defendant's automobile. The act itself involved some danger, because the instrumentality is commonly known to be a machine of tremendous power, high speed and quick action. All these elements may be supposed to have been in the contemplation of the guest when she accepted the invitation. In a sense she may be said to have assumed the risks ordinarily arising from those elements, provided the machine is controlled and managed by a reasonably prudent man, who will not by his own want of due care, increase their danger or subject the guest to a newly created danger. In other words, we conceive the true rule to be that the gratuitous undertaker shall be mindful of the life and limb of his guest, and shall not unreasonably expose her to additional peril."

There were cited by the Maine court a great many cases, some of which may well be thought to antedate the advent of automobiles, and one case shows that in Massachusetts a different rule was declared in the case of Mascaleti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C 264, Ann. Cas. 1918B 1,088.

This case is very elaborate in the length with which it goes into the question of the different degrees of negligence, but it seems to us to make no distinction such as is made in Hutchinson on Carriers between carriers of goods and carriers of passengers. Mr. Hutchinson says:

"The carrier of the passenger is bound to the utmost care and caution, whether paid by the passenger or not; and this distinction is based upon wholly different reasons of public policy, being in the one the value which it puts upon human life and personal safety, and in the other the necessity of preventing frauds and combinations, to the undoing of all persons who may have dealings of that kind with the carrier."

Neither in the instant case nor in the Fitzroy case is the distinction stated by Hutchinson

referred to. It may be thought, however, it is recognized, impliedly, in the instant case. But, in our opinion, it ought to be stressed as a sound rule of law. One may commit his goods to the keeping of another under whatsoever terms he sees fit, but it hardly may be thought a deliberate intrusting of his life and safety to another in the acceptance of his kindness or courtesy. There should be thought to be an assurance of care or skill in the management of a dangerous machine in which one is invited to ride. This view may be thought but an extension of the principle of the doctrine of the last clear chance, in the implied assurance that danger of that kind shall arise.

ACCIDENT ACCELERATING DEATH NOT SOLE PROXIMATE CAUSE THEREOF.-Two recent decisions, one by the Supreme Judicial Court of Massachusetts and the other by the Supreme Court of Georgia, treat a question of great importance in accident insurance law, and, as they rest on not wholly dissimilar facts and reach directly opposite results, are hereinbelow contrasted. Leland v. Order of United Commercial Travelers, Mass., 124 N. E. 517; Pacific Mut. Ins. Co. v. Meldrim, Ga., 101 S. E. 305.

The facts in the Leland case show that deceased insured was a commercial traveler, apparently in good health, and had been for several years. In the morning, as he was going from his cellar to his room upstairs, he tripped and fell twice, becoming unconscious. He was assisted to his bed, regained consciousness, complained of pain in his right side, was treated by a physician, had difficulty in breathing and died that evening. An autopsy revealed heart and lung and other lesions in his system. Physicians testified that death resulted from heart failure at the time of the fall, his heart being pre-disposed to such failure from shock or overexertion.

The Court said: "The deceased confessedly was suffering from disease or diseases which actively co-operated with the fall causing death. The disease and the fall were concurring, efficient and proximate causes in producing death. Either alone without the other would not then have resulted fatally. It cannot be held, with any due regard to the meaning of words in the contract here sued upon, that the death of the insured resulted from the accident 'alone and independent of all other causes' as 'the proxi mate, sole and only cause.'"

In the Meldrim case the facts need not be expressly set out to understand the particular

bearing of what was said by the court. The policy provided for an exception as to death not resulting "directly, independently and exclusively of all other causes in death."

The Court stated that if such a clause were given "absolute literal meaning," the policy would be worth nothing to an insured.

In support of this statement it quoted as follows from a prior decision by Georgia Supreme Court:

"To hold in any case that a contract which stipulates that the loss for death should be payable only when the loss results solely and exclusively from an injury would be to hold that death must, in every case, be instantaneous and the immediate effect of the injury in question, for it is a matter of common knowledge that almost every human being has some weak spot in his organism, which might to a larger or smaller degree contribute to bring about death in a particular way in that particular case, although another person under the same circumstances might not have died. Except in the case of a human being who is in perfect health, or unless death is instantaneous, death never supervenes when it cannot be said that there was perhaps more than one cause which contributed to the fatality."

While it may be that the Georgia court states the matter too extremely, yet it ought to be thought that accident insurance companies in insuring against accidental death do take risks among people as they ordinarily appear, or, as may be, they are. They are not selected risks on a basis of health, or upon activity, strength or age. And we believe they are not particularly graded on any basis of this kind. Our inclination, upon the whole, is rather towards the Georgia, than the Massachusetts, ruling. Certainly it is not to be thought the policy is to be taken in a strictly literal way.

THE DISTINCTION BETWEEN COLLATERAL AND DIRECT ATTACK UPON A JUDGMENT.

The word "collateral" as applied to an attack upon a judgment has been used with less discrimination between it and its antithises than any other word in legal phraseology.

The meaning which has been given to the word collateral by lexicographers and the sense in which the word is used by bankers, in reference to securities, are responsible in a great measure for the confu

sion which has arisen in attempting to distinguish between the two kinds of attacks that can be made upon a judgment. As applied to an attack upon a judicial proceeding, the word collateral has a separate and distinct meaning from that given by the lexicographers, and different from that which it carries with reference to securities, and courts and text writers have so often referred to a direct assault upon a judgment as being a collateral attack that practitioners sometimes fall into an erroneous idea, that a collateral attack upon a judgment is any proceeding to set it aside, other than by a motion for a new trial or by appeal. If this were true, there would be no way to escape the effects of a void judgment after the time for taking an appeal had expired, and a void judgment would have the same force and strength of validity that a valid one would have. A valid judgment would stand upon its merit, while a void judgment would stand because it could not be attacked. There are two distinct methods of procedure by which a false judgment can be exposed. In one proceeding the record can be flatly contradicted, while in the other proceeding the record must be accepted as

true.

A judgment is the final adjudication and determination by a court of competent jurisdiction of the rights of the parties to an action in and to the subject-matter of the litigation. If it is for money, it is a debt of record. If it is for a lien on property, it is a lien of record, and, if it is for property,

it is a title. If it is rendered in an action for

money and is a denial of the plaintiff's right to recover, then it is a shield for all time and a protection to the defendant against the assertion of any further claim of the plaintiff in any court.

There are two kinds of judgments: Judgments are either in personam or in rem. They are in personam when the proceedings are again the person of the defendant. A judgment in personam is a contract, a fixed liability, which follows the party against

whom it is rendered into any and every part of the world. A judgment in rem is not a fixed liability against the defendant, but is an adjudication pronounced upon the status of some particular subject-matter. It gives one party a title to, an interest in, or a lien upon some particularly described property owned or claimed by the other. A judgment determines and forever settles the rights of the parties to it. It is absolute, incontestable, and irrevocable, and can never again be called into question by any court, either domestic or foreign. Such an absolute and irrevocable determination of the rights of men can only be made by a court of competent jurisdiction and in a proceeding free from fraud.

While the Constitution provides that full faith and credit shall be given in each state to the judicial proceedings of every other state, to entitle a judgment to this unquestionable recognition, it must really be a genuine judgment. A void judgment is not a judgment; and to determine whether a judgment is valid or void is simply to determine whether it is or is not a judgment. A void judgment is entitled to no faith or credit anywhere. It can neither give a right nor take one away. The full faith and credit clause of the Constitution does not prevent an inquiry by the courts of a state into the jurisdiction of the court in which a foreign judgment is rendered.

By an Act of Congress, known as the Authentication Act, the records and judicial proceedings of the courts of any state or territory shall be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, when there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.