offering or giving him money to induce him to deliver a trunk to one not the owner is a violation of Crimnial Code, § 39.-Krichman v. United States, U. S. C. C. A., 263 Fed. 538.

12. Carriers of Goods-Perishable Property. -In an action for damages to fruit during shipment, the measure of damages is the difference between the market value of the fruit in good condition at place of destination and the market value in damaged condition at such place; the price at which they were subsequently sold in small lots at another place by the one who bought them being immaterial.Garry et al. v. Los Angeles & S. L. R. Co. et al., Utah, 189 Pac. 71.

13. Charities-Gifts.-Courts of equity favor gifts to charity, and if the mode pointed out for carrying into effect the gift fails, the court will provide another mode by which it will take effect.-Jansen v. Godair et al., Ill., 127 N. E. 97.

14. Chattel Mortgages-Bill of Sale.-An instrument in the form of a bill of sale, reserving title to personalty sold, cannot be properly treated as a mortgage merely because providing that, on payment of notes as they became due, title to an automobile should be in the buyer, with a warranty title thereto.-Roddenberry v. Fouche, Ga., 102 S. E. 869.

15. Conspiracy Husband and Wife.- If defendant conspired with his wife and another woman to steal an automobile, he was guilty of conspiracy, regardless of whether the machine was actually stolen.-Dalton v. People, Col., 189 Pac. 37.

are

18. Reasonable Time.-Generally what is a reasonable time is a question to be passed upon by the jury, but where the facts undisputed and different inferences cannot be drawn from them, the question as what is a reasonable time is one for the court.-American Realty Co. v. Bramlett, Ga., 102 S. E. 873. 19. Conversion-Equity.-Where testator authorizes executor to sell real estate, and it is apparent from the general provisions of the will that he intended it to be sold, although the power of sale is not in terms imperative, the intention to convert the estate will be implied.-McCormick v. McCormick, Ill., 127 N.

E. 78.

a

as

20. Corporations Nonassessability.-Representation that stock is nonassessable is surance that the company has taken all steps necessary to waive right to levy statutory assessments, and is a representation of fact, which if false entitles the subscriber to rescind and is a complete defense to an action on the subscription.-Merchants' Realty & Investment Co. v. Kelso, Cal., 189 Pac. 116.

21. Covenants-Incumbrance. The covenant against incumbrance is a covenant as to things existing at the time it is made. If broken at all, it is broken the moment it is made, and the cause of action then exists, which does not pass by force of any conveyance purporting to grant the premises.-Beecher v. Tinnin, N. M., 189 Pac. 44.

22. Lex Rei Sitae.-The law of the place where the land is situated governs in determining the effect of a covenant running with land.-Langford v. Newsom, Tex., 220 S. W.

544.

23. Criminal Law-Impeachment.-In view of the facts of the case, a charge that a witness may be impeached by contradictory statements, and that that is one of the methods if impeachment recognized by the law, held erroneous, as not giving a full and more adequate instruction thereon; although no request to do so or to charge on the subject was presented. -Williams v. State, Ga., 102 S. E. 875.

24 Instructions.-A defendant has the right to insist that the court shall instruct on all legal questions necessary to reach a true verdict.-Kocher v. State, Ind., 127 N. E. 3. 25. Reasonable Doubt.-A charge that reasonable doubt does not mean mere vague conjecture or possibility, conjured up to acquit the defendant, but such a doubt as arises in the mind of an honest juror seeking the truth, and leaves it doubtful as to truth of a transaction, and that it may arise from having heard the case and the want of weakness or insufficiency of the evidence, was not error.Newsome v. State, Ga., 102 S. E. 876.

27.

Damages-Loss of Earnings.-In personal injury suits, plaintiff may recover for loss of earnings or profits in his business, provided such earnings or profits are ascertainable with reasonable certainty.-Ganz v. Metropolitan St. Ry. Co., Mo., 220 S. W. 490.

28. Death-Presumption of Care.-A pedestrian killed by a train at a crossing is presumed, prima facie, to have been using proper care.-Jones v. St. Louis-San Francisco Ry. Co., Mo., 200 S. W. 484.

30.

Disorderly House Character of Visitors. On a prosecution for keeping a house of illfame testimony showing the character of those who visited it and what they said and did while there is competent to show the character of the place.-State v. Rogers, Minn., 177 N. W. 358.

31. Divorce Abandonment.-Indecent proposals by a husband to his daughter-in-law held sufficient to justify his wife in abandoning him, so that he could not secure divorce for desertion.-Knight v. Knight, Tex., 220 S. W. 609.

32. Equity.-A divorce suit is a proceeding in equity, and the chancellor has full supervision of the trial, and is not incumbered by rules of procedure with the same strictness as in jury trials.-Cole v. Cole et al., D. C., 263 Fed. 633.

33.- -Indignities.-A husband who cooked several meals a day and whose wife was absent a number of nights, without more, held not to have suffered such indignities as to warrant a decree of divorce.-Pierce v. Pierce, Mo., 220 S. W. 506.

34. Eminent Domain-Discontinuing Proceeding.-City may discontinue street extension condemnation proceeding at any time prior to payment or deposit of the sums awarded as compensation for the property proposed to be taken, and by so doing it loses none of its rights under ordinance providing for such extension.-Post Printing & Publishing Co. et al. v. City and County of Denver, Col., 189 Pac. 39. 35. Equity Jurisdiction.-As a general equitable principle, jurisdiction of equity, once existing, is not lost because the courts of law have subsequently acquired a like authority

Harris v. Esperanza Mining Co., N. J., 109 Atl. 826.

36. Execution-Redemption.-The interest of a purchaser of land at foreclosure of mortgage is not subject to levy and sale prior to expiration of the period for redemption.Bailey v. Erney, Col., 189 Pac. 18.

37. Fraud-Attorney Fees. Attorney fees are not recoverable in a tort action based upon fraud.-Baird v. Gibberd, Idaho, 189 Pac. 56.

38. Elements Stated.-The elements of a cause of action for fraud are representation, falsity, scienter, deception and injury.-Bouxsein v. First Nat. Bank of Granville et al., Ill., 127 N. E. 133.

39. Fraudulent Conveyances-Existing Creditors. To constitute a valid conveyance against existing creditors, it is necessary, not only that the consideration be valuable, but also adequate in the eye of the law.-Jones v. Williams, Vt., 109 Atl. 803.

be void is enforceable, in the absence of a statutory enactment to the contrary.-New England Mut. Life Ins. Co. of Boston, Mass., v. Brooks, Ind., 127 N. E. 17.

40. Husband and Wife.-Where ment debtor conveyed all his tangible assets to a corporation, receiving in exchange preferred and common stock of the corporation, a transfer of the common stock without consideration to his wife was a fraud on the judgment debtor and voidable by him.-Harnau v. Haight et al., Mich., 177 N. W. 281.

41. Homicide-Instructions.-In a prosecution for manslaughter, where it appeared that decedent in company with defendants was shot and killed by some unknown person when he and defendants were engaged in committing highway robbery, an instruction that, if several persons conspire to do an unlawful act and death occurs in the prosecution of the common object, all are guilty of the homicide, the act of one in furtherance of the common erroneous, design being the act of all, was

since under it defendants might be held responsible for shooting done by another person when there was no concert of action between him and them.-People v. Garippo et al., Ill., 127 N. E. 75.

42. Husband and Wife-Community Property. -The mere fact that land conveyed to wife was paid out of community property was not in itself sufficient to warrant conclusion that the land became community and not wife's separate property.-Zellner v. Samuelson et al., Tex., 220 S. W. 587.

43. Survivorship.-Where title to standing timber was in husband and wife as tenants by the entirety, after the husband died the wife took title, as survivor, to not only the standing timber but also the logs and lumber severed from the soil before the husband's death; such severance not affecting the application of the rules of tenancy by the entirety.-Morris v. Morris, Mich., 177 N. W. 266.

Principal

44. Indictment and Information and Accessory.-Defendant charged as a principal can be convicted as an accessory.-Mulligan v. People, Col., 189 Pac. 5.

45. Injunction-Foreign Jurisdiction.-Where complainants seek to restrain defendant from suing them in a foreign jurisdiction, the restraint will be granted if complainants clearly show that the prosecution of the foreign suit is against equity and good conscience.-Grover v. Woodward, N. J., 109 Atl. 822.

the

46. Insurance Change of Beneficiary.-The insured may pledge policy to the company for loan without the consent of the beneficiary, where it appears that insured reserved right to change the beneficiary. Beneficiary has no vested right in the proceeds of such policies.-Lamar Life Ins. Co. v. Moody, Miss., 84 So. 135.

47. Estoppel.-Waiver as de applied to fenses to actions on insurance policies is bottomed on the doctrine of estoppel.-Ruddock v. Detroit Life Ins. Co., Mich., 177 N. W. 243.

48. Forfeiture.--An express provision in a policy of life insurance that if the premium or premium notes are not paid in accordance with the terms of the policy the same shall

51. Restrictions.-Landlord in absence of lease restrictions cannot permit signs or advertisements of other parties to be placed against the will of tenants on outside walls of part of building leased.--Hilburn v. Huntsman et al., Ky., 220 S. W. 528.

52.- Tenancy at Will.-A tenant at will is entitled to two months' notice before he is subject to eviction.-Salios v. Swift, Ga., 102 S. E. 869.

53. Larceny-Intent.-To establish the crime of larceny, it is not essential that accused intended to benefit from the taking.-State v. Allen, Utah, 189 Pac. 85.

54. Libel and Slander-Slander of Title. The utterance of false and malicious statements, disparaging the title to property in which one has an interest, if the statements are untrue and cause damage, constitutes slander of title. record Maliciously filing for an instrument known to be inoperative is a false and malicious statement within the rule, but where a man does no more than file for record an instrument which he has a right to file, he commits no wrong.-Kelly v. First State Bank of Rothsay et al., Minn., 177 N. W. 347.

55. Liens Equitable Lien.-The courts have been strict in demanding as a condition to the establishing and enforcing of an equitable lien that the intention of the parties should be clearly found expressed in the contract, without vagueness or uncertainty.-Westinghouse Electric & Mfg. Co. v. Brooklyn Rapid Transit Co. et al., U. S. C. C. A., 263 Fed. 532.

56. Marriage-Mutual Consent.-The two essentials of a valid "marriage at common law" are capacity and mutual consent, and it is well settled that under the common law the marriage relation may be formed by words of present assent, per verba de praesenti, and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage.-Marsicano v. Marsicano, Fla., 84 So. 156.

57. Master and Servant Agency.-Where the agent of a threshing machine company, whose duty required him to see that the new thresher worked satisfactorily, took entire charge of the threshing operation, he is liable for damage resulting from a fire started by the operation of the machine without a spark arrester. Cronkhite et al. v. Whalen, Wash., 189 Pac. 94.

58.- -Assumption of Risk.-An employe assumes the risk of an injury caused by defects in his employer's instrumentalities, of which he either knows or is in fault for not knowing.-Paquette v. Connecticut Valley Lumber Co., N. H., 109 Atl. 836.

59. -Course of Employment.-Where a construction company's employe working by the hour with 30 minutes' intermission for dinner fell from a ladder, used in the work because a

60. --Violation of Rules.-The violation by railroad employe of the company's rules is not necessarily negligence, and the employe is justified in violating the rule where to follow it would accomplish disaster.-Howell V. Southern Ry. Co., S. C., 102 S. E. 856.

Law.

61. Workmen's Compensation Courts cannot look for the same precision in adjudications by the Workmen's Compensation Board as otherwise might be insisted on if the members were required to be learned in the law. Whittle v. National Aniline & Chemical Co., Pa., 109 Atl. 847.

62. Mines and Minerals Forfeiture.-The law applies the rule of strict construction, when a forfeiture is claimed for the breach of a condition subsequent in a conveyance of an interest in minerals in land.-Tickner v. Luse, Tex., 220 S. W. 578.

63. Interest in Land.-A conveyance of an interest in the oil, gas and minerals in and under a tract of land is a conveyance of an "interest in the land."- -Crabb et ux. v. Bell et al., Tex., 220 S. W. 623.

64. Mortgages-Redemption.-The interest or estate of the mortgagor in land mortgaged being but an equity of redemption, when a second mortgage is given such equity is the only estate the second mortgagee acquires an interest in.-Gregory v. Suburban Realty Co., Ill., 127 N. E. 119.

65. Municipal Corporations-Prescription.To establish a highway by prescription, the user must be adverse, open, and notorious, exclusive, continuous, and uninterrupted, for the period required by the statute.-Tri-City Artificial Ice Co. et al. v. Day, Ill., 127 N. E. 106.

66. Parent and Child-Rights of Father.The father has the right to the control and custody of his child, unless he has forfeited this right by immoral conduct, or by an abandonment of the child.-Nickle v. Burnett, Miss., 84 So. 138.

67. Partnership-Undisclosed Partner. One making contract in his own name for benefit of himself and an undisclosed partner may sue for the benefit of himself and partner and recover the full amount of the damages.-Bankers Trust Co. v. Schulze, Tex., 220 S. W. 570. 68. Principal and Agent-Proof of Agency.One dealing with an agent is bound to ascertain the nature and extent of his authority.Texas Co. v. Quelquejeu, U. S. C. C. A., 263 Fed. 491.

69.-Proof of Agency.-Agency may be proved by testimony of the alleged agent as a witness.-Mackle Const. Co. v. Hotel Equipment Co., Ga., 102 S. E. 868.

70.

Principal and Surety-Substantial Breach. --A surety, though one for profit, is relieved of liability where the assured has substantially breached the contract to the damage of the surety.-Berkshire Land Co. V. Moran et al., Mich., 177 N. W. 205.

71. Release-Executed Agreement.-In the absence of fraud or mistake, the executed agreement of settlement made by a railroad company with one injured while in the employment of the company constitutes as conclusive and as effectual an estoppel against the party seeking to repudiate the settlement thus made as the final judgment of a court of competent jurisdiction, to the effect that the rights of the parties are as they are set forth in the agreement. The burden is always upon the assailant of the contract to establish the vice which he

A

alleges induced him, and a bare preponderance of evidence will not sustain the burden. written agreement of settlement and release will not be rescinded for fraud or mistake, unless the evidence of the fraud or mistake is clear and convincing.-Midland Valley R. Co. v. Clark, Okla., 189 Pac. 183.

72. Remainders-Livery of Seisin.-At common law, an estate in remainder could not be aliened by livery of seisin, for to transfer land by that method possession is indispensable.Real Estate Title Ins. & Trust Co. of Philadelphia v. Dearborn, Me., 109 Atl. 816.

73. Sales-Rescission.-A buyer does not waive his right to rescind a contract for the purchase of an organ by making payments induced by promise to fix the organ and by delaying rescission at the request of seller.Ray v. American Photo Player Co., Cal., 189 Pac. 130.

74. Samples.-Where jewelry sold according to sample did not, with the exception of a few of the articles on top in the carton, correspond with the samples, buyer was not required to keep the jewelry conforming to sample, but could reject all of the jewelry, the rule requiring buyer to accept goods corresponding to. sample having no application, where only a nominal part of the items or quantity of the goods corresponds thereto.-National Novelty Import Co. v. Ellis, Ark., 220 S. W. 467.

75.-Tender.-In an action of trespass on the case for conversion of an automobile, where it appeared that when plaintiff attempted to tender defendant the amount of the purchase price owing thereon defendant refused to accept it and left, plaintiff's actions were all that were necessary or possible to comply with the necessity of tender or demand. Wright Dwight, Mich., 177 N. W. 209.

V.

76. Set-Off and Counterclaim-Pleading.For an answer to state a counterclaim entitling defendants to judgment on plaintiffs' failure to reply thereto, it must set up a cause of action which defendant could have maintained in an independent suit against plaintiff.-Turner v. Southeastern Grain & Live Stock Co., N. C., 102 S. E. 849.

77. Specifie Performance Option.-Waiver by the vendor of the exercise of his option of forfeiture, thus continuing the contract, and its abrupt cancellation without notice, puts the vendor, in a measure, in default, making it unnecessary for the vendee to make further tender.-Gannaway 1. Toler et al., Miss., 84

So. 129.

78. Wills-Construction.-Words will not be read into a will unless it is certain beyond a reasonable doubt that the testator has not expressed himself as he intended and supposed he had done.-In re McConnell's Estate, Pa., 109 Atl. 846.

79.-Lex Rei Sitae.-The validity and construction of wills affecting title to land depend upon the law of the state where the land situated.-McNamara et al. V. McNamara

is et al., Ill., 127 N. E. 130. 80.- -Reversion.-When a remainder devised in fee is limited in contingency, the reversion remains in the heirs of the testator until the happening of the event designated in the will for taking it out of them.-City Savings Bank & Trust Co. of Vicksburg v. Cortright, Miss., $4 So. 136.

81.- -Testamentary Capacity-One ses "testamentary capacity" whose mind and possesmemory are sound enough to enable him to know and understand the business in which he is engaged when he executed a will, notwithstanding failing memory and mental and physical powers from old age.-Dripps v. Meader, Conn., 109 Atl. 808.

82. Witnesses - Cross-Examination.-Crossexamination of witnesses is to some extent within the discretion of the court.-People v. Miller, Ill., 127 N. E. 58.

Central Law Journal.

ST. LOUIS, MO., JULY 9, 1920.

BACK TO THE CONSTITUTION.

"It is high time for some one to call the attention of the American people to the fact that the men who founded this Republic were more fearful of democracy than they were of autocracy," said Mr. Harry F. Atwood, of Chicago, to the Franklin County Bar Association at Columbus, Ohio, May 24, 1920. The statement is true and is borne out by a reference to the Federalist, from which Mr. Atwood so freely quotes.

Speaking of the Federalist, we are surprised at the ignorance, not only of the people but of lawyers also, of this great collection of essays which contain the only contemporary construction and definition of the terms of the Constitution to which we have access. Mr. Atwood tells a story that illustrates this deplorable ignorance. He says that he was in Joliet on one occasion making an address. "After we were seated," said Mr. Atwood, "a gentleman came in with his wife and he was so distinguished looking that I inquired who he was. They said he was one of the prominent lawyers of the town. In the course of my address I referred to the Federalist several times, quoted what Hamilton had said and what Madison had said. When I had finished he came up to me, after some of the people had gotten away, and said, 'What is the Federalist? A new magazine that has just been started?'"

The Federalist, or quotations therefrom, should be taught in every high school in order that certain fundamental distinctions between different forms of government

might be made clear and that the theory of our own institutions as adopted by the framers of the Constitution may be thoroughly understood. Mr. Atwood does not exaggerate the importance of the Federalist when he says:

"The Federalist is the greatest governmental discussion in the libraries of the world. If there were any way of persuading the American people to read the Federalist, and to get foreign countries, the people of foreign countries, simply to read the Federalist, it would be a thousandfold greater service than any man has rendered to the world in the Twentieth Century."

Is it true that the framers of the Constitution were in actual fear of a democracy? Nothing can be clearer than that our forefathers carefully canvassed the advantages of every form of government, and Madison, especially, made a study of the institutions of government, and in the Federalist points out the advantages and disadvantages of each form. It is almost with prophetic eye and as if he saw the awful demonstration of its truth in Russia that he penned the following description of the dangers of democracy. He said:

"Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property, and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their professions, their opin ions and their passions."

It is necessary for us to recall that just before the Constitutional Convention met the victorious Colonies had a bitter experience with the dangers of purely democratic rule which was partly the result of the weakness of the Articles of Confederation

and partly of the direct modes of political action which were not uncommon among the earlier colonies. In the short interval between the Revolution and the adoption of the Constitution the mob of 1786 drove Congress from Philadelphia into New Jersey and Shay's Rebellion assaulted the legislature in the State House of Massachusetts. Thus the framers of the Constitution had vivid object lessons of the inherent weakness of direct rule by the people. They saw that the people, no matter how intelligent, were utterly incapable of acting en masse, and that from such forms of government confusion and anarchy was the only possible result. The republican form of government was then devised, by which the people ruled, not by direct participation in the decisions of the government, but through representatives duly chosen by them.

The growing unpopularity of the initiative and referendum, the recall, and every other political instrument designed. to give the people more direct control of governmental machinery, is due to the fact that the inherent common sense of the American people is leading them to the same conclusions which were reached by the framers of the Constitution-that there are natural limitations on the ability of the people to make quick decisions to meet important political emergencies, and that the old Roman precept is true that the people must rely on the judgment of good men to make these decisions for them.

The voice of the mob is not the voice of reason; it is the voice of chaos. The mob cannot act; it either destroys itself or creates a Napoleon or a Lenin to guide it out of the wilderness, and who, through it, are enabled to exercise autocratic sway over the people. What is everybody's business is nobody's business is as true in public as in private life. It is, therefore, the part of

wisdom to impress these facts upon the people and to show them that the framers of the Constitution denied the people a direct voice in government, not because they did not trust the people, but simply because no machinery has ever been devised to register accurately the voice of the people, and because the people are not capable of making wise decisions in most cases without expert advice.

The republican or representative form of government is the ideal of all forms of government. Under it the people have the supreme voice in the selection of the men who shall carry on the government and make its decisions, which leaves the people free to pursue their own callings. In private life the people act in the same manner. If they have a tumor they reserve the right to select the surgeon, but they would not be foolish enough to make the operation. If they are haled into court, they insist on their right to select their lawyer, but they are not so foolish as to try their own case. It is equally as foolish for the people to insist on the right to su pervise and reverse a decision of a court under the so-called right of recall of judicial decisions or to vote on some intricate law like the Federal Reserve Act under the initiative or referendum. No such wise legislation would be possible if the people made the laws, because the majority of us would be without the knowledge or the experience not only to frame such a law, but even to pass on its various provisions. For this purpose we have our representatives who consult experts friendly to the people and a good law is the result. The people are entitled to the best in legislation and that is not possible when the people make the laws.

Pure democracy is primitive. It belongs to the age when the people made their own clothes and spun their own cloth. In this age of specialization the best work is