72. Guardian and Ward-Setting Aside Sale of Land.--To entitle a minor to set aside a voidable sale of his land purchased by his guardian, he must offer to restore whatever benefits he has received under the sale.-Bank of Wetumka v. Walkley, Ala.. 53 So. 830.

73. Habeas Corpus-Invalid Ordinance.-One convicted and sentenced for violating an ordinance held property discharged on habeas corpus, where the ordinance could not lawfully be applied to his acts.-Cason v. Quinby, Fla., 53 So. 741.

74. -Validity.-Divorce in foreign state without personal service O appearance held valid in New York only when recovered in the state of defendant's domicile or the matrimonial domicile. People v. Catlin, 126 N. Y. Supp. 350. 75. Husband and Wife-Authority as Agent. In an action by a wife as owner of certain land against a telephone company for trimming trees along a highway, evidence to show the authority of plaintiff's husband to give permission to cut such trees was inadmissible. where defendant dealt with the husband as owner of the land, and not as his wife's agent. -Delaware & Atlantic Telegraph & Telephone Co. v. Jordan, Del., 78 Atl. 401.

76. Expenditure by Wife for Necessaries.A wife, obtaining necessaries through her own means and earnings, on being deserted by her husband, held entitled to recover therefor of him, under the doctrine of subrocation.-De Brauwere v. De Brauwere, 126 N. Y. Supp. 221.

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79. Intoxicating Liquors-Civil Damage tion. In an action by a wife against a saloonkeeper. the husband's intoxication may be deemed the proximate cause of an injury to the wife's means of support.-Duckworth 'v. Stelnacker, W. Va., 63 S. E 850.

80. Judgment-Merger and Bar. The doctrine of merger of a cause of action in a judgment thereon is applied to final decrees in equity as well as to judgments at law, but the judgment or decree to operate as a merger must be valid.-Brown v. Fletcher, C. C. A., 182 Fed. 963.

81. Landlord and Tenant-Leases.-"Renew," as used in a lease, means to execute a new lease, and indicates that the lessee must give notice to the lessor of his election to renew.Whalen v. Manley, W. Va.. 69 S. E. 843.

82.- -Liability for Repairs.-Unless the landlord has agreed to repair the demised premises, he is not liable to the tenant for failure to make such repairs.-Young v. Rohrbough, Neb., 129 N. W. 167.

83. Libel and Slander-Privileged Communications.-Libelous publications in reports of public officers, other than in judicial or legislative proceedings are only qualifiedly privileged.-Peterson v. Steenerson, Minn., 129 N. W. 147.

84. Libel Per Se.-A letter written by defendant concerning plaintiff to the mayor of New York, and published, charging plaintiff with scoundrelism held libelous per se.-Bingham v. Gaynor, 126 N. Y. Supp. 353.

87. Life Insurance-Construction of Policy. The provision in a life policy making it void on failure of insured to pay any premium, or any note given for such premium, is intended for the benefit of the insurer. and it is optional with it to declare a forfeiture or not.-Union Central Life Ins. Co. v. Zihlman, W. Va., 69 S. E. 855.

88. Marriage Fraud.-If a contract of marriage has not been consummated, the court should require no greater quantity of proof to sustain a finding of fraud or of mental incapacity in a suit to annul that contract than in any other cause.-Kutch v. Kutch, Neb., 129 N. W. 169.

89.- What Law Governs.-The law of the matrimonial domicile of the parties held to govern an action to annul the marriage, regardless of where the marriage was solemnized, though the lex loci contractus governs as the validity of a marriage, unless it is odious by the common consent of nations.-Earle v. Earle, 126 N. Y. Supp. 317.

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90. Master and Servant-Defective Appliances. In an action for injuries to a servant caused by defective appliances furnished him, it is competent to show the kind of appliances in general use by like concerns for similar purposes, but not to show a particular kind used by one concern.-Heiser v. Cincinnati Abattoir Co., 126 N. Y. Supp. 265. 91.

-Duty to Guard Machinery. The degree of diligence required of the owner of dangerous machinery, in guarding it as directed by statute, is greater than is ordinarily required of a master to see that appliances furnished by him are free from defects.-Brown v. Douglas Lumber Co., Minn., 129 N. W. 161.

92. Injury to Servant.-Where a servant is injured by alleged unsafe machines or instrumentalities provided by the master, he must allege knowledge of the danger or its equivalent on the part of the master.-Worden v. Gore-Meehan Co., Conn., 78 Atl. 422.

93. Injury to Servant.-That a boy under 14 years of age, employed in a coal mine, misrepresented his age, does not preclude him from suing for damages caused by violation of Code Supp. 1909, sec. 412, prohibiting the employment of boys under 14 years of age in coal mines.-Norman Virginia-Pocahontas Coal

V.

Co., W. Va., 69 S. E. 857.

94. Vice Principal.-A foreman is the vice principal of the subordinate working under his orders, and assumes the danger arising from the latter's negligence.-Linemueller v. Arthur, La., 53 So. 732.

95. Mines and Minerals Oil Lease.-A lessee with right to bore for oil cannot extent the terms of the lease on the ground that he has failed to find oil.--Cooke v. Gulf Refining Co., La., 53 So. 874.

96. Municipal Corporations-Special Tax.Taxpayer, signing petition for an election to vote on levy of special tax, and joining in movement to have the tax voted, held estopped to sue to have the election declared a nullity.Burdin V. Police Jury of St. Martin Parish, La., 53 So. 861. 97. Names Signature by Initial.-Where Christian name is signed by the initial only, the initial of the Christian name and that of the middle name should be considered the Christian name for the purposes of signature.First Nat. Bank of Opp v. Hacoda Mercantile Co., Ala., 53 So. 802.

98.

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Negligence-Children.-A child aged five years and four months is not chargeable with contributory negligence either as a matter of fact or as a matter of law.-Johnson v. Bay City, Mich., 129 N. W. 29.

99. Nuisance-Right to Use Property.-A person held entitled to make reasonable use of his own property and he will not be restrained without clear proof that the use is unreasonable, materially injurious to his neighbor, and permanent. Herrlich v. New York Cent. & H. R. R. Co., 126 N. Y. Supp. 311.

100. Officers-De Facto Officer.-An office is occupied de facto when it is held by one under an appointment or election giving color of title, though the appointment or election be invalid. -State v. Hempstead, Conn., 7. Atl. 422.

101.- -Powers.-The rule that a principal is not bound by a contract which his agent makes with himself extends to public officers.-Baars v. Township of Laketon, Mich., 129 N. W. 7.

102. Partnership-Action Between Where Common Membership Exists.-When two copartnerships have a common member, neither firm may sue the other at law, but may maintain an equitable action, in which the individual rights of all the members of both firms may be adjusted.-Noyes v. Ostrom, Minn., 129 N. W. 142.

103. -Contracts.-A contract for loan of money, in consideration of an obligation to pay

a

fixed sum, involving no agreement for the sharing of profits of the business, is not a contract of partnership.-Turregano V. Barnett, La., 53 So. 884

104.- -Conveyances.-A deed executed in the firm name, conveying firm realty, conveys only the interests of the partners who have actually executed it.-Tinnin V. Brown, Miss., 53 So. 780.

103. Real Eestate.-Where land is bought with partnership money for a partnership purpose, and taken in the name of one of them, held a trust in favor of the partnership results. -Hardin v. Hardin, S. D., 129 N. W. 108.

106. Patents-Invention.-That a patentee took but a short step over prior devices in the art, which seems simple. does not necessarily negative invention. Kellogg Switchboard & Supply Co. v. Dean Electric Co., C. C. A., 182 Fed. 991.

107. Perpetuities-Creating Future Estate.That the interest of the grantee in a deed to growing timber continues indefinitely does not offend the rule against perpetuities.-Cawthon v. Stearns Culver Lumber Co., Fla., 53 So. 738.

108. Suspension of Power of Alienation.To make a future estate valid, the suspension of the power of alienation must, under the circumstances, terminate at ΟΙ before the termination of the second life in being.-Eggleston v. Swartz, Wis., 129 N. W. 48.

109. Physicians and Surgeons-Services.-That defendant called plaintiff. a physician, to perform an operation on defendant's brother, held insufficient to raise an implied promise by defendant to pay for the physician's services.Churchill v. Hebden, R. I., 78 Atl. 337. 110. Pleading-Amendment.-The test of whether an amendment to a complaint sets up a new cause of action held to be whether a recovery on the original complaint would bar an action on the amended pleading.-Gropp V. Great Atlantic & Pacific Tea Co., 126 N. Y. Supp. 211.

111. Complaint.-An objection that the complaint does not state a cause of action is not waived by answer or a general appearance, but may be taken advantage of at any time.McDonald v. MacArthur Bros. Co.. N. C., 69 S. E. 832.

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112. Pledges-Disposition of Collateral Pledgee. A pledgee of collateral security cannot be required to produce and surrender the same as a condition to enforcing the obligation secured, where he has disposed of it, but may only be required in such case to account for its proceeds or value.-Warburton v. Trust Co. of America, C. C. A.. 182 Fed. 769.

113. Principal and Agent-Imputed Knowledge.-A servant's knowledge of the vicious propensites of a horse when driven on the street held imputable to his employer, so as to make the latter liable for injuries resulting therefrom.-Gropp v. Great Atlantic & Pacific Tea Co., 126 N. Y. Supp. 211.

114.- Liability of Surety.-A surety, executing a bond to release a mechanic's lien, held not entitled to plead as a defense that the contract for the work was obtained by duress.--George Colon & Co. v. East 189th St. Bldg. & Const. Co., 126 N. Y. Supp. 226.

115. -Ratification of Unauthorized Act.Ratification of an unauthorized act of a stranger may not be implied as a conclusion of law from silence of the party affected by the act. Uniontown Grocery Co. v. Dawson, W. Va., 69 S. E. 845.

116. Removal of Causes-Causes Removable. -An action brought by an alien in a state

court against a nonresident, who is a citizen of another state, is removable by the defendant where the requisite amount is involved.-Rones v. Katalla Co.. C. C.,. 182 Fed. 946.

117. Rewards Persons Entitled. A person employed as a detective by a railroad company held not entitled to share in a reward offered by the company for apprehension and conviction of a criminal, though his efforts contributed thereto. Forsythe v. Murnane, Minn., 129 N. W. 134.

118. Sales Breach.-Upon breach of a contract of sale, necessary expenses incurred by one party in carrivng it out may be recovered as damages.--Maddox v. Washburn-Crosby Milling Co., Ga., 69 S. E. 821.

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119. Readiness to Deliver.-To entitle purchaser to recover money paid under a contract of sale upon rescission thereof for cause by the purchaser, he must be ready at all times after rescission to tender the goods, and the goods are not held subject to the seller's order, of the purchaser at any time after rescission treats them as his own.-Comer v. Franklin. Ala., 53 So. 797.

120. Specific Performance-Contracts Enforceable.That a vendor in a contract for sale of land has only a bond for titles, which was known to the purchaser when the contract was made, held not to defeat an action by the purchaser for specific performance.-Mims v. Jones, Ga., 69 S. E. 824.

121. Street Railroads-Injury to Passenger.Passenger on front platform of motor car may assume that, if there is any danger requiring the closing of gates, they will be closed.McMahon v. New Orleans Ry. & Light Co., La, 53 So. 857.

122. Taxation-Tax Deed.-Where tax titles were invalid, one purchasing such titles from the holder thereof was entitled to receive from the original owner of the land only the amount paid for the titles, as a condition precedent to quieting title.-Morrison v. Semer, Mich., 129 N. W. 1.

123.- -Tax Sale Certificates.-Owner of tax sale certificates, may pay subsequent general taxes and obtain receipts from the county treasurer, and the amounts paid shall constitute additional liens on the land.-State v. Furstenau, N. D., 129 N. W. 81.

124. Trusts-Following Trust Property. - A person who has been induced through fraud to part with his money or other property may recover his money, or property or the proceeds thereof, where he can trace or identify it, but the identification cannot be aided by a legal presumption, as fraud alone does not create equities superior to those of general creditors. -Stilson v. First State Bank of Corwith, Iowa, 129 N. W. 70.

125. Appointment of New Trustee.-The validity of the appointment of a substituted trustee and the power of the trustee under it held not open t collateral attack Evangelical Lutheran Church of the Epiphany v. Rabell, 126 N. Y. Supp. 306.

126. Resulting Trusts.-For a resulting trust in land to arise when the purchase money is paid by one person and the land is conveyed to another, the payment must actually come from the cestui que trust.-Anderson v. Gile, Me.. 78 Atl. 370

127. Vendor and Purchaser-Constructive Notice. The recording of a deed in the Mortgage Record Book held not to render the record ineffectual as constructive notice to subsequent purchasers-Cawthon v. Stearns Culver Library Co.. Fla., 53 So. 738.

128. Water and Water Courses-Diversion.The burden is on a riparian owner seeking to enjoin another from diverting waters, to show that the course in which the waters were confined, constituted a water course within the leal meaning of that term.-S. O. & C. Co. v. Ansonia Water Co., Conn., 78 Atl. 432.

129. Wills-Construction-Where testator gave two-thirds of his residuary estate to A, and the other one-third to B., and B. died before testator, his share does not pass to A. under the will, but remains undisposed of by the will.-In re Kingss County Trust Co.. Sur., 126 N. Y. Supp. 287.

Central Law Journal.

ST. LOUIS, MO., APRIL 21, 1911.

THE NEW YORK DECISION DECLARING WORKMEN'S COMPENSATION ACT UN

CONSTITUTIONAL.

Whatever else may be thought of the unanimous holding of New York Court of Appeals, that the Workmen's Compensation Act is unconstitutional, one significant thought appears. That thought is one that should receive the serious attention of the American Bar Association, and of the Commissioners on Uniform Laws.

courts have worked both clauses to their limit.

Decision of federal courts in regard to things utterly foreign to the frame, structure and purpose of the federal government has necessarily proceeded along the lines of literalness. This is for the very obvious reason that as to foreign matters federal courts are deprived of judicial cognizance. State courts should command more respect in deciding such questions, because such cognizance is presumed to aid them. What may seem in federal decision to be based on judicial cognizance strictly should be classed as speculation or theory.

Thus the advocates of constitutionality of the Workmen's Compensation Act before New York Court of Appeals relied strong

Supreme Court may have already held, if it did, in effect, so hold, that the New York Workmen's Compensation Act would be constitutional under the state's police power, so far as the Federal Constitution is concerned, yet that court would, as interpreting due process of law under the New York constitution, declare the legislation void.

Possibly it might be thought better to preserve due process of law clauses in state constitutions for fear of federal construction giving to the police power a wider sweep than the policy of a state desires. Nevertheless, the thought has been that the due process of law provided for in the federal constitution has fettered states unduly in the exercise of their police power.

This clause has seemed to us an inconsistency with sovereign right, put into the federal constitution out of the same fear that brought in the clause authorizing jurisdiction to be provided for in diversity of citizenship. And it cannot be denied that Congress and the federal

Court upholding the Oklahoma Bank Guaranty law. Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186.

In that case we find the following latitudinarian view: "It may be said in a general way that the police power extends to all the great public needs. Campfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. Among matters of that sort probably few would doubt that both usage and preponderant opinion give their sanction to enforcing the primary conditions of successful commerce."

On this theory the federal court arriving at the conclusion, based upon something akin to a cognizance it could not so well be supposed to have as a state court, said: "We cannot say that the public interests to which we have adverted, and others, are not sufficient to warrant the state in taking the whole business of banking under its control. On the contrary, we are of opinion that it may go on from regulation to prohibition except upon such conditions as it may prescribe. In short, when the Ok

lahoma legislature declares by implication that free banking is a public danger * * * this court certainly cannot say it is wrong."

The sum and substance of this seems to be that the federal court is ignorant on the subject, and have no judicial cognizance and it will presume the legislature, legislating with respect either to "a prevailing morality or strong and preponderant opinion," thought that to prevent free banking was "necessary to the public welfare."

Judge Werner of New York Court of Appeals says rather caustically that, if the Noble State Bank case and one following it "go so far as to hold that any law, whatever its effect, may be upheld because by the "prevailing morality" or the "strong and preponderant opinion" it is deemed "to be greatly and immediately necessary to the public welfare," we cannot recognize them as controlling our construction of our own constitution."

Our esteemed contemporary, the New York Law Journal, in whose columns we find the decision of Ives v. South Buffalo Ry., 45 N. Y. L. J. 41, on Workmen's Compensation Act, speaks of the case being unappealable to the federal supreme court, because it was affirmatively held that a right secured by the federal constitution has been invaded. It expresses the hope that a case upholding such an act may get there, and if such an act were there upheld, "the moral authority" of the federal supreme court might induce New York's highest court to take a different view.

It seems to us that such language as is found in the bank guaranty case does not greatly accentuate such "moral authority.” There seems about it a looseness tending to put us more at sea about the reach of police power and the check upon it in the constitutional guaranty of due process of law than ever before.

Possibly such manner of the federal Supreme Court viewing the due process of law clause should be welcome to the states. To virtually nullify it, as such language seems to do, leaves the states to enforce similar clauses in their own constitutions

and their domestic affairs and policies be unhampered by federal interference.

On the other hand it is to be regretted that such a large question as is involved in Workmen's Compensation Acts cannot be settled by federal decision for the country at large. It seems to us that the inevitable logic of the bank guaranty cases is to sustain their constitutionality.

The New York Court of Appeals is possibly the strictest court in the country in its protection of rights under the due process of law clause, but even it has gone to an extent that seems to us to have embraced constitutionality of this New York statute.

Chief Justice Cullen, in his concurring opinion in the Ives case, says: "I concede the most plenary power in the legislature to prescribe all reasonable rules for the conduct of work which may conduce to the safety and health of persons employed therein. But I deny that a person employed in a lawful work, the effects of which are confined to his own premises, can be made to indemnify another for injury received in the work unless he has been in some respect at fault." He also concedes that the legislature may abolish assumption of risk and contributory negligence as defenses, and we suppose he would not say the doctrine of comparative negligence is unconstitutional. These things come pretty near to the result aimed at in the compensation law.

It also is to be noticed that the New York decision dwells upon the fact that the statute does not purport to regulate, and the court cannot see it is in aid or intended to be in aid of public welfare, as in the exercise of police power. But the statute is confined to dangerous occupations and excepts willful negligence.

It ought not to be very difficult to deduce intention under the police power, in that assumption of risk being abolished, employers would be extraordinarily careful against latent and obvious dangers alike— the one being as inevitably to their cost as the other, and life being by the law better conserved.

NOTES OF IMPORTANT DECISIONS

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APPEAL AND ERROR-MANDAMUS TAKE PLACE OF APPEAL OR WRIT OF ERROR WHERE FEDERAL CIRCUIT COURT REFUSES TO REMAND CIVIL CAUSE TO STATE COURT.-The purely artificial jurisdiction of the Federal Circuit Court with respect to causes removed from State Courts, where properly brought, is notwithstanding the elaborate reasoning of the Chief Justice to demonstrate that it should be viewed from a logical legal standpoint, well illustrated in the case ex parte Harding 31 Sup. Ct. 324.

In considering the question of granting or denying leave to file, in the above case, a petition for mandamus to compel a Circuit Court to remand a civil cause to, a state court, whence it had been removed, as presenting a separable controversy between citizens of different states, the Chief Justice endeavors to reconcile apparently conflicting cases decided by the Supreme Court.

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This seeming conflict is regarded serious as to make it the "plain duty" of the court "while not questioning the general doctrine announced in any of the cases, yet to disapprove and qualify ex parte Wisner (23) U. S. 449); Re Winn (213 id. 458); Re Moore (209 id. 490) to the extent that those cases applied the exceptional rule of Virginia v. Rives (100 U. S. 313), and thereby secure the broad distinction between the general doctrine announced in Ex parte Hoard (105 id. 578) and the cases which have followed it and the exception established by Virginia v. Rives and the cases which have properly applied the doctrine of that case." The Hoard case announced that mandamus would be refused where "jurisdiction has been given to the Circuit Court to determine whether a cause ought to be remanded."

In the Rives case it was held proper to issue mandamus to remand, where a murder case was removed from a state court, because there was in the Circuit Court "an extraordinary abuse of discretion disclosed by the power attempted to be exerted."

It is a little difficult to see where "discretion" in such a question comes into play at all. It is not for a Circuit Court to say in its discretion that it will or not remand a case. If as a matter of law a case is removable, a motion to remand is denied and vice versa. In the Rives case the court thought, as matter

of law it was removable and it had jurisdiction to determine this question.

In Virginia v. Paul, 148 U. S. 107, the Rives case was approved, the court saying there was a gross abuse of discretion. In the Wisner case the diversity of citizenship consisted in neither party being a resident of the state where suit was brought. This showed an "absolute want of authority of the Circuit Court over the cause," and yet it is said the issuance of mandamus is disapproved as extending the exception in the Rives case too far. What is that exception? As we gather it there must be such a plainly erroneous decision in the retention of jurisdiction as to show a gross abuse of discretion-and yet the Wisner case was not even attempted by the statute to be provided for.

Of the Wisner case it was said: "As the Circuit Court had no jurisdiction to proceed, mandamus is the proper remedy." If there is no separable controversy, there would seem to be "no jurisdiction to proceed," and if so, why should mandamus not be the proper remedy?

I seems to us, that every condition precedent ought to be conclusively determined before a substitute court should be allowed to take the lace of the original court. It is not a necessary adjunct in the administration of justice. It is a mere privilege tribunal. Its selection is in invitum. It should have no right to move an inch until it is demonstrated it has the right to act. Its right to say a particular case is or not removable is not strictly deciding upon jurisdiction. It is merely a preliminary inquiry in the assertion of jurisdiction.

In these federal courts it is not at all a question of jurisdiction over the subject matter, nor is there a question of jurisdiction in personam. The only theory in removal cases is to take the necessary step in removable cases. Where it is attempted to be applied to non-removable cases, the adversary party would seem to have the right to ignore what has been done and rightfully ask the court of proper jurisdiction to proceed. If, however, this is not true, departure from this principle ought to be strictly looked at without allowing the general rule announced in the Hoard case to interfere. A mere rule of practice ought to be deemed inadequate to meet such an emergency. A substitute court ought conclusively to be shown to be such before such rule of practice should be applied. In other words, the cart should not be placed before the horse. As the matter is, it looks like the rule is not a hard and fast one, but it bites the dust in the case of a very, very foolish decision needing to be condemned.