20.

Cancellation of Instruments-Alternative Relief. In an action to cancel a deed for fraud, the court, on refusing to cancel, may enforce payment of a note given for the purchase price of the land deeded.-Van Valkenburgh v. Jantz, Wis., 154 N. W. 373.

21. Carriers of Goods-Rates.-A contract between a shipper and a station agent for a different rate than that specified in the tariffs filed with the Interstate Commerce Commission held void.-St. Louis & S. F. R. Co. v. Pickens, Okla., 151 Pac. 1055.

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22. Waiver.-Acceptance by railroad freight charge less than the rate filed with the Interstate Commerce Commission, by mistake not discovered till after consignee's settlement with his principal, held not to create a waiver or estoppel precluding recovery of the balance from the consignee.-Pennsylvania R. Co. v. Titus, N. Y., 109 N. E. 857, 216 N. Y. 17.

23. -Waiver.-Where a carrier made no objection on the ground that shipper had not properly presented its claim in acordance with bill of lading, but proceeded with negotiations, it waived the right to object to the manner of presentation.-St. Louis, I. M. & S. R. Co. v. Laser Grain Co., Ark., 179 S. W. 189.

Sales.

26. Chattel Mortgages-Conditional The vendee of property in possession under a conditional contract of sale has a property interest which can be mortgaged.-Federal Trust Co. v. Bristol County St. Ry. Co., Mass., 109 N. E. 880.

27. Common Carriers-Regulation.-One engaging in business of a carrier, and obtaining a license to use public streets of a city therefor, holds his property and rights subject to other and different burdens the Legislature may reasonably impose.-Nolen v. Riechman, U. S. D. C., 225 Fed. 812.

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28. Conspiracy-Damages.-Damages to general creditor from defendants' fraudulently conspiring with the debtor to accept and foreclose a chattel mortgage to hinder the creditor held too remote, indefinite, and contingent to be the basis of an action.-Security State Bank of Enid v. Reger, Okla., 151 Pac. 1170.

29. Constitutional Law-Special Immunities. -Pen. Code 1913, §§ 717-720, fixing the hours of work for women and prescribing different standards for railroad eating houses than other businesses, held not to grant special immunities in violation of Const. art. 2, § 13.State v. Dominion Hotel, Ariz., 151 Pac. 958.

30. Contracts-Breach.-On an anticipatory breach of contract, the other party is excused from further performance, and may treat the contract as terminated and immediately maintain an action for damages.-Indiana Life Endowment Co. v. Carnithan, Ind. App., 109 N. E. 851.

31.- -Entirety.-A contract is entire where it contemplates that all its parts and the consideration shall be common each to the other and interdependent.-Dunn v. T. J. Cannon Co., Okla., 151 Pac. 1167.

32. Mutuality.-A contract of sale whereby the seller was not to sell to other purchasers, and the buyer was to buy all his goods from the seller, held mutual.-Western Macaroni Mfg. Co. v. Fiore, Utah, 151 Pac. 984.

33.-Public Policy. In an action by a lawyer to recover his share of a fee collected by his associates in a case, held, that it was no defense that the contract under which the fee was collected was contrary to public policy and void.-Martindale v. Shaha, Okla., 151 Pac.

1019.

34. Restraint of Trade.-Agreement by defendant upon sale of his fish business not to engage in similar business for ten years within 100 miles held not void as an unreasonable restraint of trade.-Morehead City Sea Food Co. v. Way, N. C., 86 S. E. 603.

35. Corporations-Declaration of Dividend.— Where directors declare a dividend, or where the company has earned profits and the directors wrongfully refuse to declare a dividend. a preferred stockholder occupies the position of a corporate creditor to the extent of the accumulated profits due him.-Smith v. Southern Foundry Co., Ky., 179 S. W. 205.

36. Foreign Corporation. It is within the power of the Legislature to impose conditions upon foreign corporations entering the state, and hence Stock Corporation Law, § 70, giving a remedy to such foreign corporations for wrongful distribution of dividends, is a proper exercise of legislative power.-German-American Coffee Co. v. Diehl, N. Y., 109 N. E. 875, 216 N. Y. 57.

37. Remedies.-So far as not penal, courts of Tennessee will enforce laws of another state creating a liability on the party of a single stockholder for the unpaid balance of his stock, although Tennessee laws require that all holders of unpaid stock shall be made parties.Sullivan v. Farnsworth, Tenn., 179 S. W. 317. 38.- -Stockholders Liability.-Additional liability of stockholders of a corporation created by the Constitution and laws of Ohio becomes a primary one and enforceable on insolvency of the corporation and an assessment against stockholders-Irvine v. Baker, U. S. D. C., 225 Fed. 834.

39. Courts -Transitory Actions.-Where defendant's cattle entered upon plaintiff's land and ate plaintiff's wheat, which was in stacks, action for damages wherein no damages for injuries to the realty were claimed is transitory.-Allen v. Allen, Utah, 151 Pac. 982.

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40. Venue of Suit.-A statute authorizing persons who have furnished the holder of a government construction contract with labor and materials to sue in the district where the contract was performed does not require the bond United States to sue on a contractor's for the cost of completing an abandoned contract only in such district.-United States v. Marshall, U. S. C. C. A., 225 Fed. 760. 41. Criminal Law-Dying Declaration.-Declarations of deceased made under circumstances raising a reasonable presumption that they were his spontaneous utterances and were not the result of premeditation held admissible as part of the res gestae.-Morehead v. State, Okla. Cr. App., 151 Pac. 1183. 42.- -Res Gestae.-A statement by one jointwith ly indicted show defendant tending to defendant's participation in the crime held not admissible as part of the res gestae.-Gibbs v. State, Ga., 86 S. E. 543.

43.- -Silence.-Statement made by one to another jointly accused with him of murder, charging him with firing the shot, held competent against person so accused, where the circumstances were such that he would naturally have denied the charge, if false.-Wilson v. Commonwealth, Ky., 179 S. W. 237.

44. Customs Duties-Importation of Goods.Importation of films of prize fight for exhibition

before clubs, societies, associations, and their guests, held prohibited by Act July 31, 1912.Kalisthenic Exhibition Co. v. Emmons, U. S. D. C., 225 Fed. 902.

45. Damages-Mitigation.-An injured person who knows of a way to minimize his damages for alleged negligence by his physician and fails to employ it, cannot recover from the physician for continued pain and suffering caused by such failure. Dahl v. Wagner, Wash., 151 Pac. 1079.

46. Death-Presumption of Survivorship.— Where a husband and wife, making mutual wills, were frozen to death in the same snowstorm, with no evidence as to which died first there was no presumption as to survivorship or simultaneous death.-Fitzgerald v. Ayres, Tex. Civ. App., 179 S. W. 289.

47. Deeds-Conditions.-Where a deed retained a lien and declared it did not become absolute until full performance by vendee, the vendor held entitled to possession under unimpaired title, where the vendees repudiated the conditions.-Imperial Sugar Co. v. Cabell, Tex. Civ. App., 179 S. W. 83.

48. Eminent Domain-Injunction.-Where an illegal effort is made to exercise the power of eminent domain, the landowner may apply for an injunction.-Harrold V. Central of Georgia Ry. Co., Ga., 86 S. E. 552.

49. Surface Waters. Where a railroad condemns land for its right of way, it need make no compensation to abutting owners for surface waters which will be discharged from its bed upon their property.-Harvie v. Town of Caledonia, Wis., 154 N. W. 383.

51. Estoppel-By Conduct.-Husband, though in plaintiff's store when wife purchased alleged necessaries, held not estopped from defeating liability, if he did not know the goods were being charged to him.-Trammell v. Neiman-Marcus Co., Tex. Civ. App., 179 S. W. 271.

52. By Conduct.-Insured, who, after the insurer's alleged repudiation of the contract elected to treat it as in force for the recovery of benefits thereby kept it alive for all purposes, both for himself and for the insurer, and estopped himself from afterwards predicating a suit thereon for damages.-Indiana Life Endowment Co. v. Carnithan, Ind. App., 109 N. E. 851.

53. -Election of Remedy.-Where individuals, in effect, agree that their controversy concerning the rights of one to build a dike to protect his land from surface water came within certain statutes. such individuals are bound by their election.-Harvie v. Town of Caledonia, Wis., 154 N. W. 383.

54. Holding Out.-Where a wife vests her husband with title and possession of personal property, and permits him to hold himself out as owner, thus obtaining credit, she is estopped from thereafter questioning his ownership.Rioux v. Cronin, Mass., 109 N. E. 898.

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55. Evidence-Hearsay.-Except in cases pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible.Pulkrabeck v. Griffith & Griffith, Tex. Civ. App., 179 S. W. 282.

56. Judicial Notice.-The court may take judicial notice, as of a matter of common knowledge, that a sand pile was an attractive nuisance to children two or three years of age.Gnau v. Ackerman, Ky., 179 S. W. 217.

57. Presumption.-Where a fraudulent conveyance was averred, the failure of the defendant wife, who was grantee, to take the stand, and of the daughter, who it was alleged had knowledge of the facts, warrants an inference against the good faith of the transaction.-Rioux v. Cronin, Mass., 109 N. E. 898.

58.- -Judicial Notice. The court will not take judicial notice that an employe engaged in handling molten type from a linotype machine may, in the course of his employment, contract lead poisoning. In re Doherty, Mass., 109 N. E. 887.

59. Exchange of Property-Rescission.Plaintiff who informed defendant he knew nothing of soils, and was falsely told that defendant's land was not white and would not require drainage, and thereupon exchanged his own for it, could rescind the contract.-Held v. Kennedy, Ore., 151 Pac. 968.

60. Food-Negligence.-The duty of one who prepares and markets in bottles or sealed packages foods, drugs, or beverages to exercise ordinary care that nothing unwholesome or injurious is contained therein is based upon negligence. Crigger V. Coca-Cola Bottling Co., Tenn., 179 S. W. 155.

61. Guaranty Discharge of Guarantor.-The extension of time for payment of a note which, when extended by the holder to the maker, will discharge a guarantor, must be based on a valid contract, founded on consideration, and for a definite time.-Marshall v. Hollingsworth, Ky., 179 S. W. 34.

62. Homestead-Dower.-Where a husband dies intestate leaving a son, the widow is entitled to the use of the proceeds of the homestead less her dower interest therein if she elects to receive that presently, during widowhood, and upon her remarriage or death the fund becomes the property of the son. In re Sydow, Wis., 154 N. W. 371.

63. Homicide-Dying Declarations.-Dying declarations, to be admissible, must be made by a person in the article of death, who is conscious of his condition, and must relate to the cause of his death and the person who killed him. Howard v. State, Ga., 86 S. E. 540.

64. Dying Declarations. To render dying declarations admissible, it is not essential that the declarant state that he is expecting immediate death, but is enough if it satisfactorily appears that such was the condition of his mind. Morehead v. State, Okla. Cr. App., 151 Pac. 1183.

65. Evidence. In a trial for murder, contents of letter of deceased in reply to defendant's wife held inadmissible, but that deceased received a letter from her and the registry receipt for it to which his answer was in reply was admissible.--Vollintine v. State, Tex. Civ. App., 179 S. W. 108.

66.-Manslaughter.-Defendant, who had reason to believe that his wife had committed adultery with deceased, and that deceased was then endeavoring to have such relations renewed, and whose mind was rendered incapable of cool reflection, would be guilty only of manslaughter.-Mitchell v. State, Tex. Civ. App., 179 S. W. 116.

67. Murder.-No appreciable length of time is required to exist for deliberation and premeditation in forming the intent to kill which will render a homicide murder.-Faltin v. State, Ariz., 151 Pac. 952.

68. Premeditation.-One who kills another through mistaken identity, while attempting with premeditated design to kill another, is guilty of murder in the first degree.-Hall v. State, Fla., 69 So. 692.

69. Husband and Wife-Loss of Services.Notwithstanding the Married Women's Act, a husband may, as at common law, recover for loss of the services of his wife by reason of her personal injuries.-City of Chattanooga v. Carter, Tenn., 179 S. W. 127.

70. -Separate Maintenance. In wife's ac tion for separate maintenance, the court could grant her application for alimony pendente lite and suit money, although the husband set up an agreement releasing him from his obligation to support.-Robinson v. Robinson, Wash., 151 Pac. 1128.

71. Indians-Allotments.-A valid agricultural lease of a restricted Creek allotment may be made during the existenec of a prior valid lease, if for a fair rental, near the termination

of the existent lease, and not extending more than five years.-Hudson v. Hildt, Okla., 151 Pac. 1063.

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72. Injunction-Multiplicity of Suits.-Equity cannot enjoin criminal proceedings under statute, though it be charged that the act is invalid and that a multiplicity of actions will result in irreparable damage, when complainant's defense at law is adequate.-Alexander v. Elkins, Tenn., 179 S. W. 310.

73. Trespass.-In proper cases, where the other necessary elements of equitable jurisdiction are present, injunction will lie to restrain an owner from willfully and knowingly turning his stock upon the uninclosed premises of a private owner.-Hill v. Winkler, N. M., 151 Pac. 1014.

74. Violation of.-Where a court having jurisdiction of the person and subject-matter grants an injunction, the person enjoined cannot, in view of the Civ. Code 1910, a violation of the injunction on the ground that 5501, justify it was erroneously granted.-Dunn v. Harris, Ga., 86 S. E. 556. 75.

Insurance-Misrepresentation.-To

avoid a policy for misrepresentation, the false statement must have been made willfully and with the intent to deceive, and relied upon by the insurer; and a misrepresentation made innocently and in the belief of its truth will not avoid the policy.-American Nat. lns. Co. Anderson, Tex. Civ. App., 179 S. W. 66.

V.

76. Presumption of Death.-In an action on a life policy, brought on the theory that insured's death was shown by his unexplained absence for seven years, the case was for the jury under the evidence.-New York Life Ins. Co. v. Holck, Colo., 151 Pac. 916.

77. Judgment-Newly-Discovered Evidence.Enforcement of a judgment in favor of the assignee of a note will not be enjoined, several years after rendition, account of newlydiscovered evidence as to fraud affecting only the original transaction.-Hudgens v. Baugh, U. S. D. C., 225 Fed. 899.

78.

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Landlord and Tenant-Repair of Premises. Where a freight elevator in a building is with the landlord's consent used for passenger purposes by the several tenants, held, that it must be kept in the same safe condition as it was at the beginning of the term.-Mikkanen v. Safety Fund Nat. Bank, Mass., 109 N. E. 889.

79. Res Ipsa Loquitur.-Where an iron post, which was substituted for part of a brick chimney, slipped and allowed bricks from above to fall on a customer of the lessee, the doctrine of res ipsa loquitur will apply in an action against the lessor.-Feeley v. Doyle, Mass., 109 N. E. 902.

80.

Libel and Slander-Good Character.-In an action for slander, plaintiff may show, in aggravation of damages, that he is of good character and reputation, though justification is not pleaded.-Deitchman v. Bowles, Ky., 179 S. W. 249.

81. Licenses-Burden of Proof. Where a penal statute fixes conditions precedent to the right to carry on a business, the party seeking to enforce a right dependent upon it has the burden of showing compliance with the statute. -Bright Natl. Bank of Flora v. Hartman, Ind. App., 109 N. E. 846.

82. Malicious Prosecution-Advice of Counsel. Advice of counsel, where there is a complete disclosure to the attorney, is a defense to an action of malicious prosecution.-Carrigan v. Graham, Ky., 179 S. W. 198.

83.

Master and Servant-Hours of Labor.Legislation restricting the number of hours of labor which may be performed in one day, of laborers

when detrimental to the health or a particular class of employes, as women, is a valid exercise of the police power.-State v. Dominion Hotel, Ariz., 151 Pac. 958.

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84.-Proximate Cause.-Railway company is not negligent in placing signal torpedo track, and hence is not liable, when so doing, for failing to use ordinary care in providing reasonably safe place to work.-Gordon V. Chesapeake & O. Ry. Co., Ky., 179 S. W. 210.

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85.- -Respondeat Superior.-Plaintiff ployed by defendant as a car repairer while walking upon its track under foreman's order to repair the house of a son of defendant's superintendent held not within scope of his employment, and a trespasser.-Cumberland R. Co. v. Walton, Ky., 179 S. W. 245.

86. Statutory Duty.-A master's violation of the terms of a statute requiring structures to secure safety in mine shafts was negligence per se, and made him responsible for all injury suffered as a direct consequence thereof.American Zinc Co. v. Graham, Tenn., 179 S. W. 138.

87.- Workmen's Compensation Act.-Bruising of servant's hand between pieces of wood, breaking the skin, held the proximate cause of blood poisoning, and an accident in the cause of his employment, within the Workmen's Compensation Act.-Great Western Power Co. Pillsbury, Cal., 151 Pac. 1136.

V.

88. Mechanics' Liens Construction. Mechanics' liens, though unknown to the common law, are to be liberally construed, to protect workmen, contractors, and materialmen. Mellon v. St. Louis Union Trust Co., U. S. C. C. A., 225 Fed. 693.

89.

Mortgages-Acceptance.-Where a mortgagor agreed to take a new mortgage which should not be effective until the interest on the first mortgage had been paid or settled, a recordation by the mortgagee of the new mortgage without payment of interest constituted an acceptance thereof.-Gray v. Gilliam, Ky., 179 S. W. 22.

90. Municipal Corporations-Estoppel.-After a sidewalk has been completed and accepted by the city council, abutting owners held estopped, on collateral attack in a proceeding to restrain the collection of taxes, to assert that the work was not done in accordance with the contract.-Stott v. Salt Lake City, Utah, 151 Pac. 988.

91.- -Issuance of Bonds.-Where the credit of a city or county is to be used for a proper city or corporation purpose, bonds may be issued, if due authority is given by the Legislature, without a submission of the matter to a vote of the people.-Imboden v. City of Bristol, Tenn., 179 S. W. 147.

92. Officers-Negligence.-Judicial and administrative officers engaged in official acts involving the exercise of discretion are not liable for injuries sustained by individuals through negligence in failing to perform, or in the performance of, their duties, in the absence of corrupt or malicious action.-Hipp v. Farrell, N. C., 86 S. E. 570.

93. Parent and Child-Torts of Child.-A father is not responsible for the torts of his minor child merely by virtue of the parental relation.-Winn v. Haliday, Miss., 69 So. 685.

94. Payment Duress.-"Duress," as a ground for the recovery of money paid, is a relative rather than a positive term, depending on the situation of the parties and all the surrounding circumstances, and must be such as to so strongly influence the payor that his payment is not the act of his own will.-Coon v. Metzler, Wis., 154 N. W. 377.

95. Perjury-Evidence.-Under Laws 1913, c. 224, § 2, a person swearing falsely in an affidavit, that the persons for whom a marriage certificate is asked are of lawful age, may be convicted, though affiant did not know that his statement was untrue.-State v. Rupp, Kan., 151 Pac. 1111.

96. Perpetuities-Restraint

of Alienation.Condition of deed that grantee should not sell or convey to any one except grantor's heirs held void as an unreasonable restraint of alienation. -Chappell v. Frick Co., Ky., 179 S. W. 203.

97. Physicians and Surgeons-Negligence.The fact that there are more modern or more favorable methods which might have been used in treating an injured man does not show negligence on the part of the physician, if there is at least a "respectable minority' in favor of the treatment given.-Dahl V. Wagner, Wash., 151 Pac. 1079.

by the principal when they form part of an act deemed valuable in law, or which forms part of the contract and is a security for money or for the performance of any act deemed valuable.-Quanah, A. & P. Ry. Co. v. Dickey, Tex. Civ. App., 179 S. W. 69.

100.- -Undisclosed Principal.-That a commission company, who had the exclusive sale of butter shipped by a creamery company, sold all the butter at cost to its employe, did not make him an undisclosed principal, as to the creamery company, which had no knowledge of the transaction.-Beatrice Creamery Co. v. Garner, Ark., 179 S. W. 160.

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101. Undisclosed Principal.-While an disclosed principal cannot be held liable for a contract in the agent's name in case of a specialty, he may be held in the case of an ordinary executory contract for the conveyance of land.-First Nat. Bank of Kennewick v. Conway, Wash., 151 Pac. 1129.

102. Railroads Contracts.-A railroad company has incidental power to contract with its employes to pay them half wages during disability resulting from service accidents.--MeAdow V. Kansas City Western Ry. Co. Kan., 151 Pac. 1113.

103.- -Crossings.-One who goes upon a railway track between two crossings, in disregard of warnings, and fails to observe the approach of a train which, had he looked, he must have seen, is negligent, and for his death the company is not liable.-Edwards v. New York Cent. & H. R. R. Co., N. Y. Sup., 155 N. Y. S. 176. 104.- -Receivership.-An order appointing the receivers of a railroad company to be receivers in foreclosure suit under a mortgage given by such company does not vacate the original appointment of the receivers.Pennsylvania Steel Co. v. New York City Ry. Co., U. S. C. C. A., 225 Fed. 734.

105.

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Reformation of Instruments-Burden of Proof. One seeking reformation of contract for exchange of lands must show that it did not locate the lands as claimed by him through fraud, accident, or mutual mistake of the parties.-Stromberg v. Alexander, Iowa, 154 N. W. 414.

106. Sales Bill of Lading.-Where the seller forwards a draft with the bill of lading attached, for the amount of the cotton sold, held, that the buyer does not acquire legal title until he has accepted and paid the draft.-Delgado Mills v. Georgia R. & Banking Co., 86 S. E. 550.

107.- -Implied Warranty.-Defendant, under contract to install in plaintiff's pianos a specific patented type of pneumatic player action, did not breach such contract; there being no implied warranty of fitness for purpose intended. -American Player Piano Co. V. American Pneumatic Action Co., Iowa, 154 N. W. 389. 108. Specific Performance-Evidence. agreement itself and part performance thereof must be shown to justify enforcement of parol agreement by grantee to convey to persons designated by the grantor.-Woolley v. Stewart, N. Y. Supp., 155 N. Y. S. 169.

The

109.Waiver.-In a suit for specific performance, issue as to whether a tract of land had been omitted from the description in the defendant's deed by mistake held waived by the admissions of the answer.-Bryan v. Canady, N. C., 86 S. E. 584.

110. States-Intoxicating Liquors.-Congress has power to require a territory to insert in its Constitution as condition of admission to statehood, a provision prohibiting the sale or manufacture of intoxicating liquors in Indian territory, and their introduction from other parts of the state.-Leisy Brewing Co. v. Atchison, T. & S. F. Ry. Co., U. S. C. C. A., 225 Fed. 753.

who con

111. Subrogation-Parties.-One veys with warranty land which he has himself mortgaged, and who subsequently pays the mortgage to protect his reserved life estate, held not entitled to be subrogated to the mortgage lien. Van Valkenburgh v. Jantz, Wis., 154 N. W. 373.

112.- -Privity.-Where a prinicpal was indebted to an agent, sureties of the agent who had been compelled to pay his debt cannot be substituted to the agent's rights against the principal; there being no privity.-Hodge Tobacco Co. v. Sexton, Ky., 179 S. W. 36.

113. Subscriptions-Indemnity Contract. —A subscription contract in aid of railway construction, providing for a bond to pay damages to abutting owners if relinquishments were not obtained, held an indemnity contract upon which the subscriber is jointly and severally liable primarily for the amount of his subscription, enforceable although not reduced to judgment.-Quanah, A. & P. Ry. Co. v. Dickey, Tex. Civ. App., 179 S. W. 69

Permission

114. Sunday-Discrimination. granted by ordinance to drug stores to sell cercertain tain commodities on Sunday between hours, to the exclusion of other stores, held not unreasonable discrimination.-State v. Medlin, N. C., 86 S. E. 597.

115. Taxation-Corporate Shares.-The state of Vermont has the power to tax all the shares of corporations organized under its laws, whether owned by its residents or those of other states or countries.-Bellows Falls Power Co. v. Commonwealth, Mass., 109 N. E. 891.

116. Deposits.-Where money was deposited in a bank pending suit, pursuant to order of court, assessment thereof was not vitiated because assessed to the bank as receiver.Spring Valley Water Co. v. City and County of San Francisco, U. S. C. C. A., 225 Fed. 728.

117. Telegraphs and Telephones-Mental Anguish. The Louisiana law is that, in an action against a telegraph company for negligent delay in delivering a dispatch, mental anguish may constitute an element of damages.-Western Union Tel. Co. v. Robertson, Miss., 69 S. 680.

118. Trade Unions-Treasurer.-Act of treasurer of labor union in changing form of deposit by drawing checks to pay for time certificates of deposit was not a disbursement for which he was entitled to credit on his accounting to his successor in office.-Tinkler v. Powell, Wyo., 151 Pac. 1097.

119. Trusts-Cestuis que Trust.-An unwarranted surrender of the trust estate by the trustee in consenting to the vacation of a judgment in favor of the beneficiaries and to entry of a judgment against him held not binding upon the cestuis que trust.-Belcher v. Cobb N. C. 86 S. E. 600.

120.- -Constructive Trust. To establish a parol constructive trust, the proof must be such as to leave no rational doubt as to the truth of the necessary facts; and, to establish such trust against documents showing the legal title to be in someone else. the evidence must be strong and convincing.-Holtzclow v. Wills, Ky., 179 S. W., 193.

121. Vendor and Purchaser-Covenant.--The words "grant" and "demise." if unrestrained, impose on the lessor a covenant that he has good title and a right to lease.-Ford v. Ball, W. Va., 86 S. E. 562.

122.- -Deed of Trust.-Where vendee executed a note secured by deed of trust to indemnity indorsers upon a purchase-money note for the property, such lien was not destroyed by a sale subsequently made by him in consideration of the vendee's assumption of the original vendor's lien notes.-Grubbs v. Eddleman, Tex. Civ. App., 179 S. W. 91.

123.- -Marketable Title.-A purchaser of land, before he is required to pay the purchase price, is entitled, unless stipulated to the contrary, to receive not only a good title, but one which is marketable.-Mays v. Blair, Ark., 179 S. W. 331.

Central Law Journal.

ST. LOUIS, MO., JANUARY 11, 1916.

CONDITIONAL SALES CONTRACTS MADE WITHIN PREFERENTIAL PERIOD OF BANKRUPTCY ACT.

The Federal Supreme Court did not have. before it the precise question of the right of a vendor in a conditional sales contract, with possession in vendee made within four months prior to vendee's bankruptcy, independently of its being recorded at the time of bankruptcy. It did hold, however, where such a contract was made more than

not being filed for record until within that time.

*

It is said: "The question next to be considered is whether the contract operated as a preferential transfer by Grant Brothers within the meaning of § 60b of the bankruptcy act * * which declares that 'a transfer' by a bankrupt ‘of any of his property' shall be voidable by the trustee, if it be made or recorded (when recording is required) within four months before the petition in bankruptcy is filed, and 'the bankrupt be insolvent and the *** transfer then operates as a preference,' etc. The section leaves no doubt that to be within its terms the transfer must be one which a

The reasoning followed by Mr. Justice Van Devanter, speaking for a unanimous court, leaves in doubt whether similar recognition of vendor's rights in the proposition first above set forth would be accorded.

The opinion speaks of the rule in Kansas as holding for a distinction between a conditional sale and an absolute sale with mortgage back, and under this distinction in Kansas, there is no inconsistency "with the retention of title in the vendor pending payment of the notes" given for purchase price of an article conditionally sold. What effect the bankruptcy act would have under rulings that such a contract amounted to an absolute sale with mortgage back is not determined. However, the reasoning implies that both the making and recording of such contracts should antedate the four months' preferential period in jurisdictions not recognizing the Kansas rule.

In the Bailey case conditional sales being recognized in the entirety of their provisions, the learned justice discusses the effect of the conditional sales contract, though made prior to the four months' period, yet

which operates to prefer one creditor over another." Here follows allusion to other portions of the bankruptcy act as confirming this view, and the conclusion is drawn that "it is plain that § 60b refers to an act on the part of a bankrupt whereby he surrenders or encumbers his property or some part of it for the benefit of a particular creditor, and thereby diminishes the estate which the bankruptcy act seeks to apply for the benefit of all the creditors."

It is further said that the property in question was not the bankrupt's, but that of the conditional vendor, no ownership being transferred, but only possession, but "no doubt the right to perform it (the contract) and thereby to acquire the ownership was a property right. But this right was not surrendered or encumbered. On the contrary, it remained with the bankrupt and ultimately passed to the trustee, who was free to exercise it for the benefit of the creditors."

But it also is true that a contract of this kind makes the property subject to any lien fastened on it in a suit against the vendee prior to recording. The question then comes up whether the preferential period. relates back so as to cut out as ineffective a recording within that period. To say it does not, seems to give creditors fastening a lien an advantage over the trustee, not