was extremely incredulous and exhausted all investigation.-Lyman v. Lyman, Conn., 97 Au.

312.

66. Frauds, Statute of - Performance.Agreement to pay commissions for procuring tenants held not to be performed within one year, where tenants were not accepted unless they fully complied with existing lease having more than a year to run.-Matt J. Ward Co. v. Goelet, U. S. C. C. A., 230 Fed. 979.

67. Fraudulent Conveyances-Consideration. -Where defendant, without consideration, conveyed real estate to his wife after making a contract with plaintiff, but did not record the deed until all orders under the contract had been filled, the conveyance which left defendant without property subject to execution held fraudulent as to creditors.-Grasselli Chemical Co. v. Irelan, Ark., 185 S. W. 262.

time

re

68. Garnishment-Action.-In an action by plaintiff against garnishee, plaintiff may cover if he shows valid judgment against debtor, garnishee summons, answer of garnishee, order directing payment into court, refusal and liability to debtor by garnishee at of service of garnishee summons.-Bell-Wayland Co. v. Nixon, Okla., 156 Pac. 1195. 69. Gifts-Presumption. Presumption that person will accept purely unqualified gift will be acted on as working rule as to such conveyances.-Shaffer v. Smith, Okla., 156 Pac. 1188.

70. Husband and Wife Separate Estate.To reward her secretary's gratuitous services, a married woman could, Irom her separate funds, furnish the purchase money for a house for such secretary, having the deed taken in his name, and, by recording it, give him good title despite Married Woman's Act without her husband joining.-Reizenberger v. Shelton, N. J., 97 Atl. 293.

71. Infants Juvenile Court.-Under the law vesting the juvenile court with jurisdiction to determine when a child answers the description of a neglected child given by the Constitution, the fact of the condition of the child is not strictly jurisdictional, but is only quasi jurisdictional. Norris v. Snyder & McCormick, La., 71 So. 522.

72.Necessaries. Except for necessaries, an infant may, at his election, avoid any executory contract made by him during infancy, including his contract for the performance of labor or personal services.-Cain v. Garner, Ky., 185 S. W. 122.

73.

81.

-Trading Stamps.-Person distributing gratuitously to all comers, and bartering with all comers, for coupons exchangeable for premiums, is engaged in issuing trading stamps within Act No. 47 of 1904, amending and reenacting Act No. 171 of 1898, § 15, and is liable for license tax thereby imposed.-State v. Underwood, La., 71 So. 5-13.

82. Limitation of Actions-Pleading.-The benefit of the statute of limitations cannot be obtained by demurrer to a petition which, while showing that the cause of action accrued more than the limitation period prior to its filing does not show that the petitioner does not come within one of the exceptions avoiding the statutory bar.-Graziani v. Ernst, Ky., 185 S. W. 99.

83. Master and Servant-Convicts.-It is the duty of a contractor employing a convict within the prison, under contract with the prison board, to provide reasonably safe and proper machinery for the work. Jones Holloware Co. v. Hawkins, Md., 97 Atl. 365.

84.Independent Contractor.-An employer is not liable for acts of an independent contractor, except where the work is inherently dangerous, though care be used, or where the necessary consequence is injury to another.Deep Vein Coal Co. v. Raney, Ind., 112 N. E. 392.

85. Guarding Machinery. In Act May 2, 1905 (P. L. 355), § 11, "properly guarded" means suitably guarded, and guard that interferes with machine and renders it useless is not proper protection.-Gross v. Eagle Wheel Mfg. Co., Pa.,

75. Insurance

Under

Average Clause. "average clause" attached to fire policy, covering lumber yard and contents, several buildings and piles of stock within common inclosure will be regarded as one of the premises named in average clause and same class of property on lot across street as another.-Mangold v. American Ins. Co. of Newark, N. J., Neb., 157 N. W. 632.

76. Removal of Suit.-Where fire policy required action thereon within 12 months after loss, and action in common pleas curt was removed to the federal court, and judgment for plaintiff was reversed, new action more than 12 months after loss cannot be maintained.Dalzell v. London & Lancashire Fire Ins. Co. of Liverpool, England, Pa., 97 Atl. 452.

77. Judgment-Discretion. Evidence that defendant in default judgment was an illiterate foreigner, and that he believed the statement of the agent of plaintiff that after service of summons and complaint he would be notified of the day of trial, and that he took immediate action on learning judgment was entered, held not to show an abuse of discretion in vacating the judgment.-Rossi v. Ghiotto, Cal., 156 Pac. 974.

78. Landlord and Tenant-Eviction.-Agreement by landlord of hotel that wife of lessee

86. Interstate Commerce.-Where a brakeman employed in interstate commerce is injured while using in the ordinary mode a grabiron not fastened as demanded by the federal Safety Appliance Act, the company is liable.McNaney v. Chicago, R. I. & P. Ry. Co., Minn., 157 N. W. 650.

87.- -Respondeat Superior. Where truckman needed extra help in moving a piano, and piano company agreed to reimburse him for what he paid the help, no relation of master and servant existed between piano company and one hired.-Brown v. Munn Piano Co., N. Y., 158 N. Y. Supp. 1026.

Where

88. Mechanics' Liens-Assumption. vendor of land under contract for deed did not know of purchase of lumber for improvements till a year later, and did not assume indebtedness, operation of mechanics' lien was restricted to purchaser's equity.-Powers Elevator Co. v. Stolz, N. D., 157 N. W. 693.

89. Building Contractor.-Where there are separate contracts between a building contractor and an owner for the performance of different jobs, then, in order for a lien account to be good for the entire work, it must be filed within the statutory period after the completion of the work, under each contract.-St. Louis Fire Door & Sheet Metal Works v. Viviano, Mo., 185 S. W. 218.

90. -Perfected Lien.-A perfected lien upon irrigation systems is not defeated by the subsequent conveyance of the system to irrigation districts, though the lien laws do not apply to such districts.-Crane Creek Irr. Dist. v. Portland Wood Pipe Co., U. S. C. C. A., 231 Fed. 113.

91. Mortgages-Illegality. Where parents, through threats of imprisonment of their son, execute a note and mortgage for the son's debt, such instruments are voidable.-Anderson V. Kelley, Okla., 156 Pac. 1167.

Central Law Journal.

ST. LOUIS, MO., AUGUST 4, 1916.

PARTICIPATION BY A TRUST COMPANY IN THE FRAUDULENT ORGANIZATION OF A SAVINGS BANK.

XLVIII Chicago Legal News 401, publishes opinion of Smith, J., of Circuit Court of Cook County, Illinois, wherein it appears that business "courtesy"-God save the mark-was held to have entailed a

very serious loss on non-consenting stockholders of a solvent trust company.

The facts show that a savings bank was being organized in Chicago and to do this. successfully under Illinois statute its capital had to be paid in in cash and the money representing that capital was to be counted by the auditor of the state. Naturally, when money is paid in for a certain purpose, say as the capital of a corporation, it becomes its property co instanti its being incorporated. If not, how is the corporation to own it, there being no provision of law that it is to be on hand and tendered to be paid in after the corporation has become a legal entity, or the certificate of incorporation shall be deemed ipso facto a nullity.

The money which was produced and counted in this organization was $1,250,000, which the Central Trust Company of Chicago handed to William Lorimer, one of the organizers of the La Salle Street Savings Bank, to show to the auditor as the paid-in capital of the savings bank, upon the promise of Mr. Lorimer that as soon as the savings bank was organized and certificate of incorporation was issued, the money was to be returned to the Central Trust Company. There does not seem to have been anything more than a turning back by the party who received it, of the identical money that was used for incorporating purposes. The

vaults of the savings bank were wholly innocent of its presence, though it was a necessary factor in the incipient life of the bank.

Counsel for the Central Trust Company urged that "it had been the custom quite largely indulged in for other banks to furnish the money as a mere matter of courtesy as this was furnished by the Central Trust Company." Of course, if this scheme was to enable an organizing bank to make a showing that was apparently true and fundamentally a fraud, hardly may it be thought that this custom would not be deemed vicious and unlawful, though it was intended thereby to exemplify a beautiful courtesy, of which a soulless corporation would be little suspected. The judge was impressed not at all by reliance on "a custom that exists in violation of law."

There was judgment rendered against the Central Trust Company upon the theory that the money was not rightly returned to it, but: "It should have been held for what it was exhibited to the State Auditor, as the capital of the Savings Bank, the company that was being organized."

This ruling seems to us very clear. Whether the officers of Central Trust Company were courteously favoring another or not, they were not favoring the savings bank. It was not then in existence. Their courtesy had its full fruition and effective expression before the savings bank was born. If it had never been born, Mr. Lorimer would owe the bank for money had and received. His disposition of it, however, placed it or not beyond his control. Did it pass from his control?

If one not an officer of the Central Trust Company were to steal from it money and use it as these officers did, would not the bank have the right, at least, to receive it back from whomsoever it passed to, whether a corporation or an individual? Could any compliance with a statute necessary to give life to a corporation interfere with this voluntary return?

Now suppose it were an ultra vires act by the corporation to perform the courteous act referred to, would its officers, no pecuniary consideration accruing to the corporation for the doing of the act, be like thieves taking this money from its vaults, and the corporation therefore entitled to receive it back from whomsoever might voluntarily return it, notwithstanding that the corporation had no right to demand it, because money has no earmarks?

Along with this theory of the right of the corporation to receive the money back, there is suggested the thought, that there was fraud by the officers in using the money and their knowledge of the intended use was not to be imputed to the bank. Against the application of this theory; however, is its limitation to the other party in a fraudulent transaction, in this case Lorimer.

However, it seems to us that the Circuit Court was right in its conclusion, because there seems to have been no voluntary return of the money by the newly organized bank, but a return by one who was merely intrusted with custody of the money and who seemed either not to know or not to care, that the money had passed out of his custody by operation of law. But of this physical, and subsequent constructive, custody, the officers of the trust company were well aware. The trust company received it without any consideration being paid, as of indebtedness by the bank to the trust company, and therefore was rightly held on the principle of money had and received to the use of the bank. The lesson in this case is very valuable and inculcates the necessity of holding officers of corporations strictly to their appointed functions and that assets are not to be touched upon any sentimental consideration or in any other way than in due course of business. A corporation has charter powers to conduct business and not to enable its officers to extend gratuitous accommodations.

NOTES OF IMPORTANT DECISIONS.

GARNISHMENT

INDEMNITY COMPANY GARNISHABLE ON JUDGMENT AGAINST INDEMNITEE.-The Supreme Court of New Hampshire holds that indemnity insurers, who had agreed that if they assumed the defense of a suit to recover for a loss covered by a policy, they would pay or secure release of insurer, but who failed after such assumption to pay an injured party's claim, can be held chargeable as garnishee or in trustee process with the amount of the indemnity. Lombard V. Maguire-Pemilman Co., 97 Atl. 892.

It was argued that as the defendant could recover this indemnity from the company without first paying the claim of injured party, as had been ruled in Fairfield v. Day, 71 N. H. 63, 51 Atl. 263, the conclusion that it could be reached in garnishment was inevitable. For a discussion of the principle that an indemnity company cannot interject itself in a litigation of this sort without making itself liable to an injured party, there is a very interesting discussion to be found in Patterson v. Adan, 119 Minn. 308, 138 N. W. 281, 48 L. R. A. (N. S.) 184. This case was noticed by us editorially in 76 Cent. L. J. 73.

In this case Whitman filed a bill to enjoin Cook from building a right of way over plaintiff's land. The answer prayed that the bill be dismissed the bill, and at the suggestion of ting the usual prayer for affirmative relief.

The court found in favor of defendants and dismissed the bill, and at he suggestion of defendant's counsel entered up a decree fixing the boundaries of the right of way and the conditions under which it should be constructed. Timely objection having been made to the granting of any affirmative relief, plaintiffs appealed. The Supreme Court in affirming the dismissal of the bill, withheld its approval of the balance of the decree, holding that the trial court was without authority to grant affirmative relief on an answer asking only for the dismissal of the bill.

This decision, it is gratifying to note, is by a bare majority of one; three judges dissented. Moore, J., speaking for the minority, contended, that, while the objection made to affirmative

relief prevented the granting of such relief on the existing state of the pleadings, yet it did not preclude the amendment of the pleadings to fit the proofs. On this point Justice Moore said: "In the instant case objection was made and counsel did not ask to amend the answer. The objection is renewed here, and we think it has much force. We have no doubt, however, of our right to direct the pleadings to be amended so as to conform with the proofs so as to ask for affirmative relief."

In

It is time that our appellate courts awoke to the fact that the liberal powers of amendment granted by the legislatures of practically every state offer opportunity to avoid the foolish practice of stopping short of doing complete justice because of some error in pleading. ninety-nine cases out of one hundred in which cases are remanded because of some error in pleading, the opposite party would not be deprived of any of his substantial rights by permitting the pleadings to be amended even on appeal.

Pleadings are essential; they are the basis of the court's jurisdiction and should contain all the facts necessary to constitute the cause of action; they should also state clearly and definitely the relief demanded. These requirements are necessary, not only to give the court jurisdiction of the case, but to give notice of the demand to the defendant and, for purposes of res adjudicata, to give the parties concerned, their privies and assigns, due notice of the matter adjudicated. We believe, therefore, in good pleading; we recognize its importance and are not at all in sympathy with the slov. enly substitutes proposed by many reformers. But when we have said this, we have said all that can be said in behalf of the mere scaffolding of a cause of action. Pleadings are not the matter to be adjudicated, and it is little short of criminal on the part of courts to permit a cause of action to ride off to practical defeat on a point of pleading whenever there is opportunity to correct the pleadings to conform to the proof without at the same time surprising the opposite party or denying to him any substantial right.

CRIMINAL LAW-CIRCUMSTANTIAL EVIDENCE TO SHOW CORPUS DELICTI.-A syllabus is about the last place one would be tempted to go to find embalmed a metaphor in expression of a legal principle. The fancy runs too much to luxuriance in language, and to ornateness, rather than exactness, in speech. But Georgia Court of Appeals seems not deterred for this so as to limit itself to calling a spade a spade, because nothing else may be

meant by the statutory rule that the judgments of its courts are to be found in their syllabi and opinions are by individual members.

Thus, in White v. State, 89 S. E. 175, the above court says: "The circumstances in proof sufficiently established the corpus delicti. The utensils with the accompanying paraphernalia, as well as the evidence of mash and beer and smoke, added to the unmistakable odor of whisky which had been spilled, taken in connection with the extreme seclusion of the spot, which by its signs presented many indicia of having been selected as a sylvan sanctuary of Bacchus, absolutely precludes the inference that so many circumstances of obvious import could have fortuitously occurred. Nor is it reasonable to suppose that the presence of 'the still' was due to chance or accident, while it was in transportation, since it was found away from the road, and there is no evidence that such utensils are as yet transported by aeroplanes."

We find here mythology, fact, inference and suggestion, negative and positive, in all the mazes of confusion, and if the recital may be good as a syllabus to-day, it might take prophecy to say how long it would remain good. We hardly know what is the popular sense of paraphernalia, or if that is here to be applied, or when the odor of whisky is "unmistakable" to one and scarcely perceptible to another, but that the syllabus is refreshing may be "obvious," as the Georgia court might say.

Since the last report of this Committee, there has not been passed by a state legislature any measure providing for Judicial Recall, either in the form of the Recall of Judges, or of the Recall of Judicial Decisions; nor, during the past year, has any proposal for such a measure been submitted to the electorate of a state, either for the adoption of a constitutional amendment or otherwise.

It seems now reasonably certain that no state, which has not already adopted a con

*This is an advance copy of the report to be made to the next meeting of the American Bar Association at Chicago, August 30, 1916.