formance of filial offices, however far they extend beyond legal duty, nor can the affection and good will which comes unsought in return for such kindness be classed as improper or undue. Hamlett v. McMillin, Mo., 223 S. W. 1069. 37. Discovery-Equity. Equity is without jurisdiction of an action to recover royalties under a contract granting an exclusive territorial right or license under a patent because discovery is sought for the sole purpose of ascertaining the amount of royalty que; such evidence being available in a law action under Rev. St. 724.-Loose v. Bellows Falls Pulp Plaster Co., U. S. C. C. A., 266 Fed. 81.

38. Divorce Separate Property.-Under Rev. Laws, § 5843, authorizing the court to set apart such portion of the husband's property as may be necessary to support the wife, to whom a divorce is granted, the court had authority to require the husband to convey a life interest in the home, which his separate property, and was to convey his remainder in escrow to secure a cash payment which the husband was ordered to make.-Greinstein V. Greinstein, Nev., 191 Pac. 1082.

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39. Easements-Implied. - In determining whether there is an easement by implication, it is necessary to determine the extent of the use, the character and the surroundings of the property, the relationship of the parts separated to each other, and the reason for giving such construction to the conveyances as will make them effective according to what must ave been the real intent of the parties.-Bailey v. Hennessey, Wash., 191 Pac. 863. 40.

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Eminent Domain-Estoppel.-Owner who has notice that railroad has entered upon his land and has proceeded to locate and construct its road thereon, and who allows railroad spend large sums of money on improvements for such purpose, will be estopped from ousting the company by ejectment, if the company is willing to then make just compensation for the taking of land, but will not be estopped from claiming just compensation; the payment thereof being a condition precedent to enjoining the ouster at law.-Patterson et al. v. Atlantic Coast Line R. Co., Ala., 86 So. 20.

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41.—Public Use.-The use of property by the United States,when necessary for the purpose of improving the navigability of a navigable river within its jurisdiction, is a public use, for which it is entitled to take such property by the power of eminent domain. In re Condemnations for Improvement of Rouge River, U. S D. C., 266 Fed. 105.

42. Evidence Expert Testimony.-There is no distinction between expert testimony and evidence of other character as regards the weight to be given the testimony in a particular -case, and, where there is a conflict between scientific testimony and testimony as to the facts, the jury or trial court must determine the relative weight thereof.-Rolland v. Porterfield, Cal., 191 Pac. 913.

43. Extradition-Jurisdiction. The exercise of jurisdiction by a state to make an act committed outside its borders a crime against the state is one thing, but to assert that the party committing such act comes under the federal statute, and is to be delivered up as a fugitive from the justice of that state, is quite a different proposition.-Dawson v. Smith, Ga., 103 S. E. 847.

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44. Guaranty-Acceptance.-Where anty is made in response to an offer by the guarantee, its delivery to the guarantee completes the contract, and notice of its acceptance by the guarantee or an intention to act thereunder is not necessary.-Miller v. Oil Well Supply Co., Okla., 191 Pac. 1093.

45. Homicide-Manslaughter. In a case where the indictment charges murder in the first degree, and the defendant pleads self-defense, if there is evidence in the case which would make the crime manslaughter, the court properly instructed upon manslaughter.-State v. Crosby, N. M., 191 Pac. 1079.

mean turn" there was properly admitted.Sinclair v. United States, D. C., 265 Fed. 991.

47. Husband and Wife-Criminal Conversation.-"Criminal conversation" ineans "adultery," which is sexual intercourse by a man and woman, one of whom is married to another person.-Rash v. Pratt, Del., 111 Atl. 225.

48.

Injunction-Equity.-The rule is that, except in peculiar or extraordinary cases, courts of equity have no jurisdiction to enforce a mere legal right, where there is a clear remedy at law.-Bass v. Alderman, Fla., 86 So. 244.

49. Picketing.-Mass picketing by a combination of striking employes and others, for the purpose of forcing employers to adopt the policy of closed shop, accompanied by threats, abuse, domiciliary visits, and physical assaults on employes and potential employes, held unlawful and enjoined.-Langenberg Hat Co. v. United Cloth Hat and Cap Makers of North America, U. S. D. C., 266 Fed. 127.

50. Insurance-Consideration.-After the exact amount of a loss by fire has been definitely determined by the insured and an insurer that carries the entire risk, a partial payment, a receipt by insured in full satisfaction of the loss. and a claim asserted by the insurer, without any foundation in fact, law or equity that other insurance covering a proportion of the loss was in force when the fire occurred, do not constitute a consideration for a compromise and settlement, or for an accord and satisfaction, or require insured to refund or tender back the partial payment as a condition of recovering the balance of the loss.-Johnson v. St. Paul Fire & Marine Ins. Co., Neb., 178 N. W. 926.

51. Proximate Cause.-Fire originating in the coal bunkers of a prize vessel, which despite all efforts to stop it progressed until in the judgment of the commanding officer the vessel could not be saved, held the proximate cause of the loss of cargo, within the terms of an insurance policy, although the ship was then taken into shallow water and sunk.-Hagemeyer Trading Co. v. St. Paul Fire & Marine Ins. Co., U. S. C. C. A., 266 Fed. 14.

52.- -Suicide.-Rev. St. 1909, § 6945, providing that in suits on life policies it shall be no defense that the insured committed suicide in absence of showing that he contemplated suicide at time of application for policy, is not applicable to action on accident policy in case the insured committed suicide while sane, for in such case insured would not have been injured by an accident, and there would be no liability on the policy. Trembley v. Fidelity & Casualty Co. of New York, Mo., 223 S. W. 887.

Intoxicating Liquors

53. Scienter. That seller of intoxicating liquors knew or should have known that liquor was to be taken into other state and sold in violation of law did not preclude him from recovering on travelers' checks accepted in payment for liquor, on the ground that the transaction was against public policy.-Doonan v. Rossi, Wash., 191 Pac. 865.

54. Landlord and Tenant-Estoppel.-A tenant in possession, under a lease giving him the option to have an additional term, who represented to the landlord that he had no further use for the property, and would soon surrender possession, and knew that the landlord relying on such representation was negotiating a lease with another for the same property, is estopped to claim the right to a further lease.-Williams v. Stearns, Cal.. 191 Pac. 965.

55. Malicious Prosecution—Abuse of Process. Malicious abuse of legal process is where a plaintiff in a civil proceeding willfully misapplies the process of a court in order to obtain an object which such a process is not intended by law to effect.-Farrar Lumber Co. v. Hogan, Ga., 103 S. E. 863.

56. -Clouding Title.-In an action for malicious prosecution of a civil action, the pendency of which, as claimed, prevented plaintiff from selling lots in a town site, he is not permitted to show generally depreciation in value of the lots between the time of commencement of the action and its termination, but is confined to actual damages sustained through loss of particular sales due to the clouding of his title. Boland v. Ballaine, U. S. C. C. A., 266 Fed. 24.

57. Master and Servant-Assumption of Risk. -An employe assumes those risks and dangers which are ordinarily incident to the employment in which he voluntarily engages, but he

does not assume extraordinary risks incident thereto, or risks due to the negligence of his employer or of those for whose conduct the employer is responsible, until he becomes aware of such negligent act, defect, or disrepair, and of the risk arising therefrom, or unless the danger is so obvious that an ordinarily prudent person, under similar circumstances, would have observed and appreciated it.-Harness v. Baltimore & O. R. Co., W. Va., 103 S. E. 866.

58. Dependency.-The issue of dependency being one of fact, the Industrial Commission's conclusions are like the verdict of a jury, and will not be interfered with, when supported by some substantial evidence, and if the commission erred in its findings of fact and conclusions, the Supreme Court cannot correct the error.McVicar v. Industrial Commission of Utah, Utah. 191 Pac. 1089.

59.- -Industrial Commission. — Injured employe, on making application to Industrial Commission for compensation under Workmen's Compensation Act, is bound to take notice of the rules and regulations of the commission affecting the application.-Varoukas V. Industrial Commission of Utah, Utah, 191 Pac. 1091.

60. Master's Direction. An experienced quarryman directed to go upon a dangerous ledge to remove a heavy stone with a crowbar, instead of a derrick, ordinarily used, because it was too far away, was not guilty of contributory negligence barring recovery for injuries by the sudden and unexpected slipping of the stone, when he attempted to remove it as directed, and he did not assume the risk arising from his master's negligence in failing to furnish him a derrick for such work.-Walsh v. Union Quarry & Construction Co., Mo., 223 S. W. 1082.

61. Working Place.-A servant called by master to do work upon a scaffold is not required to make an inspection of the platform to ascertain whether it is reasonably safe before beginning his work, especially where the servant had no part in the erection of the scaffold. -Louisville & N. R. Co. v. Deering, Ky., 223 S. W. 1095.

62. Mines and Minerals-Oil and Gas.-Contrary to the ordinarily accepted idea, the word "minerals" is deemed in law to include oil and gas, so a conveyance of all of the minerals will carry with it the oil and gas.-Hudson & Collins v. McGuire, Ky., 223 S. W. 1101.

63. Sole Benefit.-Location of an oil placer mining claim in the names of a number of the locator's family and seven of his neighbors, who knew nothing of the location and refused to ratify it, but conveyed their interest without consideration to the members of locator's family, who later conveyed to him. held to have been in effect for his sole benefit, and invalid. --United States v. Chanslor-Canfield Midway Oil Co., U. S. D. C.. 266 Fed. 142.

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64. Mortgages Junior Incumbrancer. mortgagee cannot be compelled by the mortgagor to assign the mortgage, but can only be required to release or discharge the same, for even a junior incumbrancer redeeming can only demand that the mortgage be delivered uncancanceled. Shirk v. Cornell, Md., 111 Atl. 217.

65. Negligence-Comparative Negligence. Under the common law, the rule of comparative negligence did not obtain, and any negligence on the part of the plaintiff which, taken in connection with the negligence of the defendant, contributed to the proximate cause of the injury would bar a recovery. Under that rule the degrees of the plaintiff's negligence were not considered, but "slight negligence" was taken to mean "a slight want of ordinary care."Hines, Director General of Railroads v. Evitt, Ga.. 103 S. E. 865.

66. -Contributory Negligence.-Contributory negligence is a question for the jury, unless the evidence so plainly and clearly establishes such negligence that no reasonable man could come to any other conclusion.-Martel v. White Mills, N. H., 111 Atl. 237.

67. Invitee.-Where a landowner's agent invites a prospective purchaser without warning onto a rotten porch, which falls, the landowner is liable for the injury.-Bonello v. Powell, Mo., 223 S. W. 1075.

68. Patents-Anticipation.-A process patent can only be anticipated by a similar process, not by a prior apparatus similar to that used

by patentee to effectuate his process.-Window Glass Mach. Co. v. Smethport Window Glass Co., U. S. D. C., 266 Fed. 85.

69. License.-Unless a grant by owner of patent transfers right to make, use and sell, grant creates a license only; but an unrestricted grant by a patentee of the right to manufacture the patented article carries with it the right to use and sell the articles so manufactured.Curtiss Aeroplane & Motor Corporation V. United Aircraft Engineering Corporation, U. S. C. C. A., 266 Fed. 71.

70.- License.-That the right to manufacture a patented article under a license contract was transferred to a corporation does not render the corporation liable for royalties under the contract, in the absence of proof înat it assumed such liability.-Loose V. Bellows Falls Pulp Plaster Co., U. S. C. C. A., 266 Fed. 81.

71. Receivers Holding Corporation. - The revenue from fares collected from a street railway system in the hands of the receiver of the holding corporation is payable for expenses of maintaining the system as a unit, including the payment of rentals to subsidiary corporations necessary to prevent foreclosure of mortgages on the property of such corporation.-Pennsylvania Co. for Ins. on Lives and Granting Annuities v. Philadelphia Co., U. S. C. C. A., 266 Fed. 1.

72. Sales Cancellation. Where the buyer failed to make payments when due under contract for sale, deliveries to extend over a considerable time, and the defaults were substantial, the seller may, there being no modification or agreement for delay in delivery, cancel the contract and refuse further deliveries.-Swinehart Tire & Rubber Co. v. William Whitman Co., U. S. C. C. A.. 266 Fed. 45.

73.- -Unexecuted Contract. Seller's parol agreement to make further deliveries under unexecuted contract and to forbear from canceling the contract for buyer's default in making payments for past deliveries, in consideration or buyer furnishing security guaranteeing payment for deliveries up to specified amount, held valid.-Clements v. Cook, Wash., 191 Pac. 874.

74.

Subrogation-Guaranty.-A guarantor of the bonds of subsidiary street railways companies, which had under its guaranty advanced sums to pay the interest on the bonds, is not entitled to repayment of a part of the sums advanced, from the receiver of a holding corporation, under any theory, legal or equitable, before it becomes entitled to subrogation to the rights of the subsidiary corporation.-Pennsylvania Co. for Ins. on Lives and Granting Annuities v. Philadelphia Co., U. S. C. C. A., 266 Fed. 1.

75. Taxation-Domicile.-Complainant, domiciled in Massachusetts, where he owned two residences, occupied by himself and family alternately in summer and winter, and who also owned an undivided interest, with his brothers, in the former home of his deceased father in Newport, R. I., where he and family occasionally spent a few weeks in summer, by announcing his intention to change his domicile to Rhode Island, removing his securities there, going there on tax day in Massachusetts each year, and voting and paying his personal taxes there, but without any actual change of residence, his houses in Massachusetts being kept open and occupied as before, and his family being in Newport but three weeks in the ensuing two years. held not to have effected a bona fide change of domicile, which exempted him from income tax in Massachusetts.-Agassiz v. Trefry, U. S. C. C. A., 266 Fed. 10.

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76. Tenancy in Common-Entire Interest.Where one cotenant executes a deed purporting convey entire interest in the property described by metes and bounds, and the grantee takes exclusive possession of the property under the deed, there is an ouster of the other tenants. which at the expiration of the statutory period will ripen into title to the entire premises.— O'Banion v. Simpson, Nev., 191 Pac. 1083.

77. Trover and Conversion-Ownership. Where there is a taking of chattels with intent to exercise over them an ownership inconsistent with the real owner's right of possession, there is a conversion.-West Yellow Pine Co. v. Stephens, Fla., 86 So. 241.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 12, 1920.

SHALL THE COURTS BECOME THE ADVISERS OF THE PEOPLE?

The American Bar Association is preparing to push through the next Congress one of the most far-reaching reforms ever proposed in reference to the administration of the law. The Committee on Jurisprudence

and Law Reform of the American Bar Association of which Mr. Everett P. Wheeler of New York is chairman secured the endorsement of the last meeting of the Association at St. Louis of a bill giving the federal courts power "to make binding declarations of rights whether or not consequential relief is or could be claimed at the time."

This new reform comes as a surprise to many lawyers who have been so absorbed in their practice as to give little heed to what is going on around them in respect to changes in the law and its administration. It is even a greater surprise to many lawyers to learn that England has had such a law for over sixty years and that similar statutes have recently been passed in New Jersey, Wisconsin, Florida and Michigan.

All the American acts follow the English Act passed in 1852 (15 and 16 Vict. C. 86, S. 60) which provided that "no suit in said court [Chancery] shall be open to objection on the ground that a merely declaratory decree or order is sought thereby and it shall be lawful for the court to make a binding declaration of right without granting consequential relief."

The demand for a declaratory judgment has grown out of a revolt against the coereive character of common law process. The common law always requires a wrong to be committed before it will define a right, and it refuses to define rights except as incidental to the correction or punishment of wrongs. A law suit therefore always takes the form of an attack upon an alleged

wrongdoer. Even in the equitable remedy of injunction which is in many respects similar to a declaratory action the courts require that a wrong shall be threatened; so that if two persons desire to know whether one of them has the right to build a sewer on the other's land, the one claiming the act must do some overt act, as commencing to excavate or laying sewer pipe on the other's ground, before the injunction will issue. Under the Declaratory Judgment Act in England the parties frame an amicable legal issue without one of them first committing or threatening a wrong to the other and ask the court to declare the rights of the parties in respect of the matter.

The declaratory judgment has become very popular in England. In one volume of reports for last year we noticed that in over half of the cases there had been declaratory judgments, and in the volume for 1917 an examination of all the cases decided on appeal disclosed the fact that 67 per cent were declaratory actions. This does not take into account the many cases decided at nisi prius that were never appealed. These must have been more numerous in proportion for it is reasonable to suppose that declaratory actions are less likely to be appealed than coercive actions. In the latter case the blood of the parties has been raised to white heat by the controversy over an actual wrong done or threatened.

In England under the Declaratory Judgment Act the courts are practically the advisers of the people.. When a business man wishes to know whether a contract is binding on him or not he does not have to breach the contract he simply asks the court about it; when a tenant wishes to know whether he has a right to sublease he does not have to risk the forfeiture of his leasehe simply asks the court about it. The construction of contracts, leases and wills is the question considered in the great bulk of declaratory actions so far as we have examined them. A glance at a few recent

cases will show the character of the questions considered under this novel practice.

In the case of Young v. Ashley Gardens. (1903) 2 Ch. 113 a lessee desired to sublet a part of his premises. The lease contained the usual provision that premises could not be sublet except with the consent of the landlord. The lessor refused his consent except upon what the tenant regarded as unreasonable terms. The tenant filed a petition asking the court to declare that under the particular facts stated the "lessor's consent is being unreasonably withheld." The Court granted the prayer of the petition and the defendant appealed. The appellate court affirmed the judgment. No process, execution or affirmative remedy of any kind was given. The parties regarded the issue between them as being settled and the plaintiff proceeded immediately to make the sublease without the owner's consent. In this case, Cozens-Hardy, L. J., said: "If we refused a declaration here the lessee's property would diminish in value, as his assignee would run the risk of being turned out by the lessor. I cannot imagine a more judicious or beneficial exercise of the jurisdiction to make the declaratory order."

In Stevenson V. Aktiengesellschaft (1916), 1 K. B. 763, it appeared that there was a partnership between an Englishman resident in England and a German resident in Germany for the manufacture in England of a certain article. The profits from the manufacture of this article rose materially after the outbreak of the war, and the Englishman desired to know what the rights of his German partner were in those war profits. He obtained a declaration that the partnership with an alien enemy was completely dissolved upon the outbreak of the war and that the enemy had no share in the profits subsequently earned. The advantage of the declaratory judgment in this case is clearly seen; for the plaintiff did not have to retain his profits for an accounting. after the war but could and did make his accounting immediately with public trustee for alien property and was able

to use all the more he could make to develop his business.

In many cases the court is asked to declare the powers of incorporated associations or of corporations. Thus, in one case the question was raised whether a club. whose object was the welfare of Cyclists had power to devote a part of its funds to the payment of an annuity to its retired secretary. (Cyclists Touring Club v. Hopkinson [1910] 101 L. J. 848.) And corporation lawyers will be interested to know that solicitors are able to secure prompt authoritative judicial declaration concerning the method of computing the fixed value of shares of stock (Collins v. Sedgwick [1917] 1 Ch. 179); concerning the duty of a corporation to apply its profits to the payment of cumulative dividends (Evling v. Israel [1917] 118 L. T. 99); concerning the power of a corporation to forfeit fully paid shares to satisfy a corporate lien thereon (Hopkinson v. Mortimer [1917], 1 Ch. 646); concerning the ultra vires character of certain proposed actions of the corporation (Cope v. Crossingham [1908], 2 Ch. 624).

It is interesting also to note that the declaratory judgment may be negative as well as affirmative. If the one in whose favor an alleged right exists does not seek to have his right declared the other party may have a declaration that no such right exists. In such an action, as in our action to quiet title, the plaintiff asserts no cause of action; in fact he is practically a defendant against whom an alleged right is asserted. The declaratory procedure gives him the right to become the plaintiff and compel the defendant (the prospective legal plaintiff) to prove his claim at once or be forever barred from asserting it against the plaintiff.

This subject of declaratory judgments was ably presented in the columns of this Journal by Prof. Edson Sunderland of Michigan University (88 Cent. L. J. 6), who declared that to secure the adoption of this reform in this country it would be necessary to overcome the unreasonable but