out its consent.-City of Richmond v. Pace, Va., 103 S. E. 647.

59.- -Raising Grade.-Where the city raised the grade of a street above the level of abutting lot without making adequate provision for drainage of surface water, city was liable to abutting owner for damage to her property caused by the surface water being thrown back thereon.-Town of Farmville v. Wells, Va., 103 S. E. 596.

60.- -Traffic Ordinance.-A traffic ordinance requiring drivers of vehicles to stop at rear of a street car which has stopped to take on or let off pasengers, SO as to allow passengers free passage between street car and curb and wait until street car has resumed motion, provided that in congested districts vehicles may pass street cars so stopping if they clear six feet from the lower step, though not requiring car stops to be marked, is a proper police regulation. Nichols v. City of Cleveland, Ohio, 128 N. E. 164.

61. Navigable Waters-Avulsion.-"Avulsion" is a sudden disruption of one man's land to another's, which may be followed and identified, as distinguished from that increment which slowly or rapidly results from floods by which accretion is utterly beyond the power of identification, and particularly from "gradual and imperceptible accretion." -Attorney-General Bay Boom Wild Rice & Fur. Farm, Wis., 178 N. W. 569.

V.

62. Negligence--Invitee.-A shopkeeper is under legal obligation to keep and maintain his premises in reasonably safe condition for use as to all whom he expressly or impliedly invites to enter the premises.-Ober v. The Golden Rule, Minn., 178 N. W. 586.

63. Payment Duress.-Where, to protect his business, plaintiff gave securities in escrow on demand of defendant from whom plaintiff's associate in business had embezzled and defendant realized thereon, plaintiff may recover the proceeds regardless of the validity of the escrow agreement, since duress was used preventing a voluntary payment.-Galvin v. Stokes, Col., 191 Pac. 117.

X-Ray-A

64. Physicians and Surgeons physician is not liable for injuries resulting from use of X-ray where he exercises such reasonable care and skill as is ordinarily exercised by reputable physicians in the locality.-Hamilton v. Harris, Tex., 223 S. W. 533.

65. Principal and Ratification.—A Agent principal may by ratification become bound by the unauthorized act of an agent, or the act of one who was not, before such ratification, actually the agent of the principal.-State of Missouri v. Federal Lead Co., U. S. D. C., 265 Fed. 307.

66. Retention of Benefits. One who accepts and continues to take and retain the benefits of an agreement cannot be heard to deny the authority of the agent who acted for him in making the agreement.-Miller v. Belmont Packing & Rubber Co., Pa., 110 Atl. 802. 67. Railroads Highways.-The grant of authority to construct an interurban railway in a public highway does not confer on the company the exclusive use of the portion of the highway on which the track is constructed.--Fairchild v. Lake Shore Electric Ry. Co., Ohio, 128 N. E. 168.

in

68. Receivers Appointment.-The cases which receivers will be appointed are ordinarily limited to those in which it appears that the appointment is necessary, either to prevent fraud or to save the property from injury or threatened loss or destruction, which racts must be established to the satisfaction of the court. -Apalachicola Northern R. Co. v. Sommers, Fia.. 85 So. 361.

69. Seduction-Promise of Marriage. If defendant seduced prosecutrix through a promise of marriage, it is immaterial that no definite time was fixed upon for the marriage.-Klepper v. State, Tex., 223 S. W. 468.

70. Sales-Caveat Emptor.-The maxim caveat emptor applies, so far as quality is con

cerned, as well to executory contracts of sale of chattels by description as to present sales of specific chattels, where in the absence of fraud there has been an acceptance of the subject to the sale.-Latham v. Powell, Va., 103 S. E. 638.

71. Specific Performance Damages. The contract was one which contemplated the giving by plaintiff to her sister of personal care and companionship in her daily life. Her services were of a nature not capable of being measured by any pecuniary standard and cannot be adequately compensated by a money_judgment. -Colby v. Street, Minn., 178 N. W. 599.

72.- Parol Contract.-"Specific performance of a parol contract will be enforced by a court of equity, where one party has wholly and the other party performed it, and its nonfulfillment on the one hand would amount to a fraud On the party who has fully performed it."Evans v. Kelly, Neb., 178 N. W. 630.

73. Statute of Frauds.-A verbal contract to carry waters of plaintiff ditch company through defendant ditch for 99 years, fully performed for one irrigation year, was taken out of statute of frauds relative to contracts for more than a year, so as to authorize specific performance thereof.-Hoehne Ditch Co. v. John Flood Ditch Co., Col., 191 Pac. 108.

Negli

74. Street Railroads — Contributory gence. Contributory negligence of the owner of an automobile struck by a street car at a street intersection does not bar recovery for injury resulting from failure on the part of the motorman, after he discovered the danger, to use proper care to avoid the collision; the automobile owner having done all he could to get his automobile out of the way of the street car as soon as he discovered it.--Southwestern Gas & Electric Co. v. Grant, Tex., 123 S. W. 544.

75. Presumption of Care.-A street railroad is not required to presume that one in the use of a street may be negligent, much less to presume that he may be an active wrongdoer. Sturm v. Tri-City Ry. Co., Iowa, 178 N. W. 525.

76.--- Use of Street.-Traction company may obtain from state with consent of the city a right to such an exclusive use of a street as necessarily excludes or limits the power of the municipality thereafter to interfere.-City of New York v. Hudson & M. R. Co., N. Y., 128 N. E. 152.

77.

Subrogation-Grant of Right.-It is not proper to grant subrogation while a portion of the debt due the company whose obligation was paid with the funds of the company seeking subrogation is still unpaid.-Southern Trust Co. v. Garner, Ark., 223 S. W., 369.

• 78. Taxation-National Bank Stock.—Under Rev. St. U. S., § 5219, permitting taxation of national bank stock, the states cannot impose double taxation on such stock, and therefore cannot require bank real estate which is properly assessed at less than its actual value to be credited to the bank at only its assessed value. which would impose double taxation on the difference between the assessed and the actual value.-Security Sav. Bk. v. Board of Review, Iowa, 178 N. W. 562.

79. Trusts - Revocation.--A complete trust without reservation of power of revocation can only be revoked by consent of all the cestuis. Russell's Ex'rs v. Passmore, Va.. 103 S. E.

653.

80.Selection of Agents.-Though a trustee may not delegate his duties and powers, he must frequently act through agents or attorneys, remaining responsible for their reasonable diligence, and being obligated to select them with reasonable care, and to supervise their acts with such care.-McClure v. Middletown Trust Co., Conn.. 110 Atl. 838.

81. Wills-Signature.-Where no space was left at the bottom of an olographic will, and testator's name was signed in the only blank space which had been left, which was in the upper left-hand corner, held, that the document showed testator's intention to thus authenticate the instrument.-In re Streeton's Estate, Cal., 191 Pac. 16.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 8, 1920.

HAS THE NINETEENTH AMENDMENT

BEEN ADOPTED.

Ex-President Taft's recent appeal to the Vermont legislature to ratify the suffrage Amendment is timely. The present legal situation of this amendment is not at all satisfactory in the view of many lawyers who are themselves friendly to the adoption of the amendment.

The ratification of this amendment by Tennessee and West Virginia was in a manner which, according to the law of the particular states, was not effective as a legislative act. In the case of West Virginia it appears that the amendment was ratified after it had been defeated on a previous day of the same session and a motion to reconsider lost. The rules of the Senate of West Virginia provide that after a measure is defeated and a motion to reconsider is lost it cannot be again considered at that session. In the case of Tennessee a motion to reconsider was pending when the governor certified that the resolution of ratification had been adopted. Whether the action of those opposed to ratification in going beyond the state and preventing action on the motion to reconsider constitutes a justification for the governor's act may for the purposes of this editorial at least be regarded as doubtful.

The recent case of Hawke v. Smith, 40 Sup. Ct. Rep. 495, does not decide the questions involved in the Tennessee and West Virginia cases. In that case the Supreme Court held that the provision in the Ohio Constitution for submitting any final action of the legislature to a referendum of the people was not applicable to a resolution. ratifying an Amendment to the Constitution of the United States since the federal Constitution and not the State Constitution must determine what shall constitute a suffi

cient ratification. The Constitution provides that the "legislature" should ratify and the Supreme Court held that a referendum provision in a state constitution did not make the vote of the people a necessary function of the legislative action.

The Hawke decision seems really to lay emphasis on the resolution of ratification receiving the solemn and regular action of the legislature. The court construes the meaning of that term to be the highest legislative body in the state proceeding regularly under its own rules. In other words, the Constitution of the United States, in the matter of amending the Constitution, exalts the legislature of each state to the point of supreme importance. It does not presume to dictate the manner in which that body shall proceed but leaves the entire responsibility for accepting or rejecting a proposed amendment to the action of the legislature proceeding according to its own rules.

Whether the Supreme Court will also recognize the various restrictions in State Constitutions prescribing special limitations of time and subject matter on the action of the legislature, in adopting an amendment. to the federal Constitution is also still a matter of doubt. The Constitution of Missouri provides that the legislature shall not ratify an amendment to the United States Constitution which would deprive the people of Missouri of the right to regulate elections for state offices. Under the Constitution of Tennessee an amendment to the United States Constitution can only be ratified by a legislature chosen subsequently to the proposal of amendment to the several states. In this respect the following declaration of the Supreme Court in Haire v. Rice, 204 U. S. 294 is in point. The Court said:

"This means that Congress, in designating the legislature as the agency to deal with the lands, intended such a legislature as would be established by the constitution of the state. It was to a legislature whose powers were certain to be limited by the

organic law, to a legislature as a parliamentary body acting within its lawful powers, and by parliamentary methods, and not to the collection of individuals who for the time being might happen to be members of that body, that the authority over these lands was given by the Enabling Act. It follows therefore that in executing the authority entrusted to it by Congress, the legislature must act in subordination to the State Constitution."

To avoid the uncertainty and confusion that would result after a general election by the participation in the election franchise of those who have not the right to vote, it should be the purpose of all those who favor the extension of the franchise to women to bend every effort to secure the ratification of the Nineteenth Amendment by another state. The alternative would be to re-submit the matter to the careful consideration of the Secretary of State for the purpose of determining whether in his opinion there is any reasonable ground for the view that the amendment has not been properly ratified. The case of Fairchild v. Colby, involving all the questions discussed here and many others in respect to the validity of the Nineteenth Amendment comes up at the October Term of the Court of Appeals of the District of Columbia. It is hardly possible for the Supreme Court to reach the case in time for the general election in November.

The personal views of the editor of this kind are wholly immaterial. However, we will state that we have been and are still in favor of giving the right of suffrage to women as an act of justice to them and not with any idea that they will exert any better moral influence in political decisions than the men have done. But we do not see the necessity for the undue haste and unseemly. pressure by which the legislatures are pursued. The adoption of an Amendment to the Constitution of the United States is a solemn act and the legislature of each state should be left free to determine this question without the buttonholing and political clap trap that have been employed in the passage of the last two amendments. We

are frank to say that we like the provision in the Tennessee Constitution providing that amendment can only be ratified by a legislature chosen subsequently to the proposal of an amendment to the several states. If this provision were in every state constitution it would not only give the legislators the opportunity to get the views of their constituency but would add dignity and solemnity to the proceeding to amend the greatest charter of all time.

NOTES OF IMPORTANT DECISIONS.

DISHONOR OF CHECK TAKEN IN PAY. MENT FOR GOODS SOLD AVOIDS THE SALE. While there can be no doubt that a seller can waive the vendee's duty to pay by extending credit or, what amounts to the same thing, by accepting a note therefor, yet no such waiver is to be implied from a sale payable by check on delivery of the goods. In such case the check is a mere conditional form of payment and if the check is dishonored title to the goods does not pass. South San Francisco Packing and Provision Co. v. Jacobsen, 190 Pac. 628. In this case the Supreme Court of California held that in a sale of hogs payable on delivery by check, the acceptance of the check was conditioned on its payment so that on the dishonor of the check the title to the goods remained in the seller. On this point the Court said:

"The evidence shows without conflict that Jacobsen was to pay for the hogs upon delivery by check; and it is argued by the respondent that accordingly, a check having been given and received in payment for the hogs, title to the animals passed to the buyer notwithstanding that upon due presentation the check was dishonored. This argument is supported by reference to cases holding that parties may agree to accept a check or bill or note as absolute payment for goods sold, in which case title to the goods will pass upon such acceptance irrespective of whether the paper is honored upon due presentation or not. We think, however, that the facts of this case do not bring it within the principle referred to, for it is quite apparent that the requirement of the vendor that a check should be given by the buyer upon the delivery of the hogs was intended as the equivalent of an insistence upon payment on delivery; in other words, that it was not a sale on credit, nor for the check as such, but that delivery of the animals and payment for them, though such payment might be

made by check, were to be simultaneous, and the transaction was understood by the vendee in this sense."

Where a check is accepted in payment for goods sold the question whether the sale is completed by receipt of the check or whether the check is only a conditional payment in which case the title does not pass until the check is cashed is usually a question of fact. However, when the facts are undisputed the Court may, as a matter of law, declare that the evidence does not disclose any intention on the part of the seller to accept the check, rather than the cash it represents as payment. general rule, because of the nature of payment by check, the mere receipt of a check in payment of a sale will be regarded as a conditional payment. Benjamin on Sales (7th Ed.) 755; 23 R. C. L., p. 1448; 35 Cyc. 308).

As a

In other words all sales are presumed to be paid for in cash on delivery. If credit is given, that fact must clearly appear, and the mere acceptance of a check will not be considered a waiver. It is conceivable that a sale could be made where a check would be received as absolute payment but that fact must clearly appear. But in the absence of such clear evidence the mere receipt of a check is not payment and title does not pass until check is cashed in due course. Johnson, etc. Co. v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615. In National Bank v. Chicago, etc. Ry., 44 Minn. 224, 46 N. W. 342, 9 L. R. A. 263, 20 Am. St Rep. 566, it is held that where goods are sold for cash on delivery, and payment is made by check, such check is, in fact, payment only when the cash is received on it, and that there is no presumption that a creditor takes a check in payment from the mere fact that he accepts it from his debtor. The presumption is just the contrary. Such payment is only conditional, or a means of obtaining the money. So in Hodgson v. Barrett (33 Ohio St. 63, 31 Am. Rep. 527).

VALIDITY OF CONTRACT FOR CONTINGENT FEE IN CRIMINAL CASES.-The contingent fee has always been a red flag to ethical members of the bar. At first frowned upon as indecent, unethical and contrary to the policy of the law, it was at last grudgingly recognized in civil cases by the Committee of the American Bar Association which prepared the Canons of Professional Ethics, on the express condition that it should always be under the supervision of the trial court. Whether, however, such a contract can be made in a criminal case is not so clear and it was held in a recent case that such contracts would not be enforced when en

tered into between an attorney and those interested in the prosecution of one charged with crime contingent upon defendant's conviction. Baca v. Padilla, 190 Pac. Rep. 730. In explanation of its decision the Court said:

"If the right of a private prosecutor to accept employment for a contingent fee is viewed from the point of necessity, clearly the contract would not be upheld, because the State by its prosecuting officers is presumed to be able to attend to the prosecution of all criminal cases, and, again, probably the power rests in the court in a case of necessity to appoint some member of the Bar to appear and assist in the prosecution. So there would be no occasion for invoking the law of necessity, as is done by the courts in upholding the contingent fee contract in civil cases. Hence it could not be said that the necessities of the case would result in the abrogation of the common-law rule. Unlike a civil suit, where the ability of the plaintiff to pay any fee might depend upon the establishment of his cause of action, here, under no conceivable aspect of the case, could the party's ability to employ a private prosecutor in a criminal case be increased or diminished by the outcome of the prosecution. On the other had, we have injected into the prosecution of a criminal case a prosecutor whose personal interests would be subserved best by securing the conviction of the defendant, and this regardless of the question as to whether or not the defendant were guilty or innocent; that is to say, the size of the fee, or possibly whether he receive any fee at all, would be dependent upon the conviction of the defendant, however innocent he might be. This is contrary to the policy of our law. The State provides a prosecuting attorney, pays him a salary, and no part of his compensation is dependent upon the conviction or acquittal of those charged with infractions of the State law. He is supposed to be a disinterested person, interested only in seeing that justice is administered and the guilty person punished. To permit and sanction the appearance on behalf of the State of a private prosecutor, vitally interested personally in securing the conviction of the accused, not for the purpose of upholding the laws of the State but in order that the private purse of the prosecutor may be fattened, is abhorrent to the sense of justice and would not, we believe, be tolerated by any court."

The contingent fee, after all is said for it that can be said for it, is an Ishmaelite in the law. It savors too much of commercialism. It offers a reward, not for justice secured, but for a result, whether just or unjust. On the other hand, there are cases when justice would be denied if the contingent fee were not permitted. But we agree with the New Mexico Court that the contingent fee should be restricted as narrowly as possible to cases of necessity. It is noticeable that courts have refused to sustain a contract for a contingent fee in alimony cases. Newman v. Freitas, 129 Cal. 283, 61 Pac. 907, 50 L. R. A. 548. In such cases

there is clearly no necessity for a contingent fee, as the court stands ready to compel alimony pendente lite and suit money sufficient amply to compensate the petitioner's attorney. Moreover, in this latter case a contingent fee would stand in the way of a reconciliation of the parties and for that additional reason would be against public policy. Let us keep the contingent fee in its place.

WHY "THE LAWES OF VIRGINIA."

Honorable J. Murray Clark, K. C., M. A., LL.D., of Toronto, President of the Royal Canadian Institute, favorably known to the American Bench and Bar as one of Canada's most distinguished lawyers, has been induced to venture over the line and again add to American legal and historic literature through the leading article in the Virginia Law Register (June). His announced intention to present the reasons moving the Nova Scotian people in adopting the "Lawes of Virginia" as a basis for their government, instead of those of Massachusetts or some other colony much nearer and with which they had relations, did not debar his attention to some profoundly philosophic subjects from a Canadian viewpoint, which one is pleased to observe is not unlike our own.

There are few fundamental governmental differences amongst intelligent free people however much racial customs may vary.

Preferring to point out and depend upon the merits of the preferred model, as the reason for its adoption, except by inference, the learned counsellor gracefully omitted reference to the possible partiality inspired by the friendly feeling then and ever since existing between Virginia and the Mother Country, but which we feel free to mention. To this day there are thousands of Virginians and descendants of Virginians who trace their ancestry back to England and with it a filial emotion. They do not love old England less because they love the Mother of States more and revere the inspiration of her sacred conception, as to

which memory should never dim, merely because religious tolerance now prevails almost throughout the civilized world. Jamestown was settled under the yearning and determination of a martyr people for religious freedom, during the closing years of the almost century old "Religious Wars," and not solely for commercial aggrandizement or personal liberty. The gentlemen "Adventurers" already possessed these things within the British domain. It was part of a great world movement promoted chiefly by Sir Walter Raleigh and was in furtherance of and in entire accord with the mother government in its fight against the hostile Catholic monarchs of Spain and France. The colonization of Virginia was an effort to extend the influence of England to the newly-discovered land, and to thwart the efforts of Spain and France. Sir Walter Raleigh, at the demand of Phillip II of Spain made upon James I of England, paid with his life for the precious. privilege that the establishment of Virginia guaranteed should be the legacy of coming generations-religious freedom in America and in most of the world.

May not this, and particularly the sacrifice of both the fortune and life of the noble Raleigh by a political king have influenced the hardy Nova Scotians. There must have been a natural sympathy between them and the men and women of Virginia who, like themselves, so lately came from England as its professed subjects and who had no grievance against the Fatherland. They were both strengthening Britain's hold upon another portion of the habitable globe in order to prevent colonization by the Spanish and French courts, the then deadliest enemies of freedom of worship.

History leaves no doubt of the inspiration of Raleigh's colonization schemes and the demand for his life by Phillip II. It is persuasive that while the Pilgrim Fathers sailed on the Mayflower from England, Plymouth was but a re-embarkation. for they had lived for several years at Ley