35.

Divorce-Bed and Board.-The abandonment and desertion which entitle a party to divorce from bed and board differs from that which is a cause for divorce from the bonds of matrimony only in the period for which the desertion must continue.-Ringgold v. Ringgold, Va., 104 S. E. 837.

36. Public Policy.-Divorce will not be granted merely because the court may believe that the ends and objects of society will best be subserved thereby.-McMillan v. McMillan, Wash., 193 Pac. 673.

37. Eminent Domain - Speculative Damages. -In condemnation proceedings for an oil pipe line, special damages on ground that oil would contaminate water supply for cattle, and that persons inspecting the pipe line would frighten cattle from drinking at their usual places, cannot be recovered. because too speculative and remote.-Texas Pipe Line Co. v. Hildreth, Tex., 225 S. W. 583.

38. Equity-Amending Pleadings.-A substantive cause, or a new cause different from that declared on in the original action, cannot be introduced by amendment.-Watson v. Brunner, Va., 105 S. E. 97.

39. Estoppel-Change of Ground.-It is a recognized principle of law that, where a party gives a reason for his conduct and decision touching anything involved in the controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration.-Fruit Dispatch Co. v. Petropol, Ga., 105 S. E. 48.

Parol evidence

Testa

40. Evidence Admissibility. is admissible to establish that a written contract has been mutually rescinded or canceled. -Rowe v. Hosher, Wash., 193 Pac. 688. 41. Executors and Administrators mentary Direction.-Where a person is made an executor of a will and is directed in the will to pay the debts, and has sufficient funds from the estate to pay such debts, such executor is not permitted to allow a sale to be made and buy under such sale; and purchasers from such executor will not acquire a title good against the devisees or heirs of the testator, but take only such title as the purchaser acquired.-Belt V. Adams, Miss., 86 So. 584.

42. Fraudulent Conveyances-Bona Fide Purchaser. A bona fide purchaser from the fraudulent grantee takes the title even against the creditors of the fraudulent grantor, purged of the anterior fraud that affected the title.-Fly v. Cline, Cal., 193 Pac. 615.

43. Subsequent Creditors. Where a husband at a time he was not insolvent, and had no expectation of becoming, made his wife a present of money and she purchased an automobile, the automobile cannot be reached by the husband's subsequent creditors. Ranger V. First Nat. Bank of Haskell, Okl., Cal., 193 Pac. 790.

44. Gifts-Confidential Relation.-Where confidential relations existed between donor and donee, the donee is required to prove, not only the making of the gift, but also the absence of fraud or undue influence.-Dahne v. Dahne, Cal., 193 Pac. 785.

45. Homicide Dying Declarations.-Evidence of dying declarations is admissible only in cases where the declarant has abandoned all hope of recovery from the injury received at the hands of the accused and is convinced that his death is inevitable and near at hand.-Richardson v. State, Fla., 86 So. 619.

46.-Dying Declarations-In prosecution for wife murder, the admission, as dying declarations, of statements by deceased as to defendant's whipping and beating her on other occasions held error, since dying declaration should he confined to the immediate facts of the homicide. Hill v. State, Tex., 225 S. W. 521.

47.————Evidence.-Evidence of threats by the accused against the class of persons or race to which the deceased belonged are admissible in evidence against the accused upon a trial in which he is charged with the murder of a member of such class or race-Guyton v. State, Fla., 86 So. 618.

48.- -Self-defense. The theory of self-defense must be viewed from the defendant's viewpoint; and, where he shot deceased, who was

holding and trying to shoot accused's brother, the fact, unknown to accused, that the pistol was so broken that it could not be discharged, did not destroy his plea of defense of the brother. White v. State, Tex., 225 S. W. 511. 49.- -Specific Intent.-The intent to kill, which is a necessary element of first degree murder, need not be directed against any specific person, and if there is an intent to kill any person who may attempt a certain thing, and a person is killed because he made such attempt, the intent is the same as if it were direct against that specific person.-Williams v. Commonwealth, Va., 104 S. E. 853.

50. Insurance Delivery of Policy. Where the application and insurance policy both provided that the policy should not become effective until it was delivered to insured in good health, a policy which was approved by the company and mailed to its agent for delivery to the insured after the insured was dead, of which fact the insurance company was ignorant, was void, and the retention by the insurance company of the premium paid cannot waive the objection.-Young v. Intersouthern Life Ins. Co., Ind., 128 N. E. 940.

51. Forfeiture.-A fraternal insurance association receiving the same dues after notice that insured had entered a more hazardous occupation waived payment of larger premiums and is estopped to claim forfeiture of the policy. Sovereign Camp, W. O. W., v. Little, Tex., 225 S. W. 574.

52. Intoxicating Liquors-Eighteenth Amendment. The Eighteenth Amendment to the federal Constitution and the Volstead Act did not supersede or repeal an ordinance of the city of Shreveport, prohibiting the operating of blind tigers. City of Shreveport v. Mark, La., 86 So. 603.

53. Judgment-Collateral Attack.-A consent judgment cannot be impeached collaterally, but only by a direct proceeding for fraud.-Morriss . tigers. City of Shreveport v. Mark, La., So. 603.

54. Landlord and Tenant-Mortgage Lien.A landlord, suing his tenant and purchasers of cotton on which he claimed to have a landlord's lien, who agreed to the sale of the cotton by his tenant, and also consented in advance to appropriation of so much of the proceeds as would be sufficient to satisfy a note which he and the tenant had executed to a bank secured by mortgage lien on all the crops, waived his lien, and by accepting part of the proceeds of the sale, which the tenant had deposited in the bank to his credit as rents, ratified the sale.-Brod v. Luce, Tex., 225 S. W. 553.

55. -Void Conveyance.-A lease made by parties who had previously conveyed their interest in the property is void.-Requa v. Joseph, Tex., 225 S. W. 585.

56. Larceny-Recent Possession. - - Possession of property recently stolen and unexplained by the defendant is a circumstance which may be proven and taken into consideration by the jury, and if, in connection with the other facts and circumstances proven in the case, it induces in the minds of the jury a belief beyond a reasonable doubt of the guilt of the defendant, it becomes sufficient to warrant a conviction.Pearrow v. State, Ark., 225 S. W. 311.

57. Life Estates-Adverse Possession.-Possession cannot be adverse, and the statute of limitations cannot run against remaindermen during the lifetime of the life tenant.-Youmans v. Youmans, S. C., 105 S. E. 31.

58.- Taxes.-As a general rule, ordinary taxes must be paid by the life tenant.-Reddish v. John, Iowa, 179 N. W. 951.

59. Limitation of Actions-Insanity.-Limitations did not run against the right of a grantor of unsound mind or her heirs to set aside the deeds until her death, the heirs having until then no right to sue.-Sherwood v. Sherwood, Tex., 225 S. W. 555.

60. Master and Servant-Assumption of Risk. -A servant does not assume the risk of the master's negligence unless he is aware of it and appreciates the danger.-Central Coal & Coke Co. v. Fitzgerald, Ark., 225 S. W. 433.

61. Assumption of Risk. The common-law doctrine of assumption of risk may be abolished by statute with respect to any duty of

the

master, and therefore, where he violates a statutory duty to carry a light on mining cars, the doctrine cannot be invoked.-Carter Coal Co. v. Bates, Va., 105 S. E. 76.

62. Workmen's Compensation Act.-Testimony that, when injured, the employee had pulmonary tuberculosis, and that the injury, while not causing the disease, hastened its progress and excited it to a fatal termination, was enough to warrant the Industrial Board's finding, against the employer's insurer, that the death resulted from a personal injury in the course of employment, within the Workmen's Compensation Act.-Glennon's Case, Mass., 128 N. E. 942.

63. Mechanie's Liens.-Assignment.-Where a party contracts to erect a building and assigns such contract before the service of statutory notice on the owner by materialmen and subcontractors, the assignment is valid, and the assignee of such contract will be given the proceeds of such contract, even though materialmen and subcontractors have furnished material or labor in the erection of such building which have not been paid.-Delta Lumber Co. v. Greenwood Bank & Trust Co., Miss., 86 So. 590.

65. Mortgages Defeasance Clause.-A "defeasance clause" is such a provision as will of itself render the instrument null and void upon the mere payment of the obligation by the debtor, and without the interposition of any act on the part of the grantee.-McCrimmon v. National Bank of Savannah, Ga., 105 S. E. 44. 66. Undue Influence. Where mortgagor conveys the mortgaged property to the mortgagee, the conveyance is prima facie made under undue influence, but not so where there was a mortgage to secure a debt, to which the grantee as his surety and the grantor was debtor, to a bank of which the grantee was president, for money borrowed.-Chilton v. Smith, N. C. 105 S. E. 1.

67. Negligence-Contributory Negligence. Though plaintiff was guilty of negligence, yet, where his negligence did not so contribute to the injury as that but for such negligence on his part he would not have received the injury, it does not bar recovery.-Adams v. Parrish, Ky., 225 S. W. 467.

68. Pleading Inconsistent Defenses. Although it is permissible to set forth inconsistent defenses, they must not be so inconsistent as to be incompatible. Advance-Rumely Thresher Co. v. Terpening, Mont., 193 Pac. 752. 69. Principal and Agent-Scope of Agency. An agent can only bind his principal when acting within the scope of his powers; and persons dealing with the agent must know powers and the scope and limit thereof.-IsmertHincke Milling Co. v. Natchez Baking Co., Miss., 86 So. 588.

his

ing stolen property, it is essential that the state, either by direct or circumstantial evidence, prove guilty knowledge on the part of defendant at the time he received such property that the same was stolen.-Davis v. State, Okla., 193 Pac. 745.

74. Replevin-Burden of Proof.-When plaintiff relies on title to recover possession of personal property wrongfully withheld from him, he must show a legal title, and mere equitable title will not suffice; and an agent having no general or special property in personal property cannot sue to recover possession, though he sues for the use of his principal, but the action should be brought in the name of the real plaintiff.-Dobbs v. Bell Laundry, Ga., 105 S. E. 53.

75. Sales-Executory Contract.-The delivery of goods under an executory contract must be of the exact quantity ordered, otherwise the buyer may refuse to receive them; and it is not necessary that he base his refusal on this specific ground, but, having refused to accept the goods on other grounds, he may defend an action for the purchase price upon this ground. -Prescott & Co. v. J. B. Powles & Co., Wash., 193 Pac. 680.

76. Specific Performance-Equity.-In a suit for specific performance of a contract to pay commissions on a sale in corporate stock, a court of equity having obtained jurisdiction by the demand for equitable relief will award money damages if specific performance cannot be granted.-Olsen v. United States Fidelity & Guaranty Co., N. Y., 128 N. E. 908.

77. Innocent Purchaser. It is a well-settled rule of law that specific performance will not be enforced where, prior to the commencement of suit, the premises were transferred to an innocent purchaser.-Barnard v. Akers, Okla., 193 Pac. 738.

80.

Trade Marks and Trade Names-CocaCola. The word "dope" is one of the most featureless known, even to the language of those who are incapable of discriminating speech, and the owner of the trade-mark "coca-cola" cannot restrain a competitor from using the word "dope," though in some places that word was used to call for coca-cola, since it equally would have been used to call for anything else having about it a faint aureole of poison.-Coca-Cola Co. v. Koke Co. of America, Ū. S. S. C., 41 Sup. Ct. 113.

81. Trusts Constructive Trustee. A bona fide purchaser cannot be held as a constructive trustee, regardless of the fraud of his vendor. -Reeves v. Shook, Tex., 225 S. W. 429.

82. Vendor and Purchaser-Vendor's Lien.Payment of a note secured by vendor's lien extinguishes the lien, which cannot be revived by reissue of the note-Star Lime & Zine Mining Co. v. Arkansas Nat. Bank, Ark., 225 S. W. 322.

83. Wills-Objects of Bounty.-One must not only know the natural objects of his bounty when he comes to make a will, but must have capacity to know and realize his duty to them; both matters being essential.-Frye's Ex'r v. Bennett, Ky., 220 S. W. 499.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 25, 1921

HOW THE STUDY OF THE LAW BECOMES A PASSION OF THE SOUL.

Law cannot be taught, it must be studied; it cannot be imparted, it must be acquired; it cannot be exhibited, it must be lived. The teacher can lend his aid and lend it gladly, but the student must achieve the law alone. The lawyer is not a passively acquiescent recipient and spectator, he is an actively questioning producer and participant. For the law is not merely a subject-matter, to be tossed about like confetti, but is a discipline, a passion and a consecration.

Though we say that the law is "not merely a subject-matter," we do not mean to belittle that subject-matter. Far from it. The body of the law is tremendous in its extent and ramifications. There is no other subject that is as varied, as inclusive, as vitally important as the corpus juris. It touches each of us and all of us, all of the time. From the moment we are quick in our mothers' womb until the time a friend draws a sheet reverently over our face, the law touches and holds us and constrains us to its will.

We cannot speak our thoughts, nor write them, if they be to the hurt of another; we cannot dispose of our property, nor receive the property of another, nor enjoy the fruits of our labors, and the results. of our toil, without the aid and sanction of the law. Whether one is lowly or of high degree the law curbs and constrains him. It is no respecter of persons. When a king of England appealed to his Divine Right as a king, and said he ruled under the sole suzerainty of God, he was told by the judges, in no uncertain terms, that he ruled "sub Deo et sub lege." Chimneysweep or emperor, it is all one to the law.

Not only individuals but social and political institutions are under the law. Home, state and nation; all practical applications. of science, art, religion, business and education, are governed and controlled by the legal order. We cannot get married nor raise a family, nor educate our children nor give them religious instruction or corporal punishment; we cannot perform a chemical experiment nor paint a picture nor read a poem; we cannot build a ditch, nor dig a well, nor erect a house, nor tear down a fence; we cannot go on a journey, nor sleep or eat on boat or train; we cannot aid a fellowman in suffering nor save a city from pestilence or fire; we cannot enter into business or retire to private life, without the sanction and aid of the law. It is all-embracive, all-pervading, all-overshadowing. In it we live and move and have our being. The subject-matter of the law is

not to be belittled.

Yet, we repeat, the study of the law is not merely a study of a subject-matter. For the law is a discipline. It is the sharpening of one's mother-wit. It is the awakening of faculties dormant and unused. It is the creation and development of capacities that were non-existent before. It is the strengthening of powers of discrimination; the refining of logical distinctions; the discernment of likenesses and differences; the utilization of mental processes with clarity and poise; the development of judgment, and the acquisition of a sane and healthy standard for the solution of vital problems. It is clear, straight, hard thinking. It is wrestling with problems that cannot be solved by wishing. It is tackling difficulties that will not vanish at a mere bidding. It is encountering obstacles that are real, ponderable, mighty, that call into play every mental power, every physical endurance, every moral capacity you may have. It is an unending process, a ceaseless growth, a dynamic development of mind and soul. The study of law is a discipline.

As one develops his mental keenness by struggling with the subject-matter of the law, there is engendered in his spirit a passion for the law which is comparable to the artist's love of color and the musician's joy in sweet harmonies. This love for the law drives us to greater and deeper researches. It possesses us every waking moment. It causes us to grudge the time we must give to sleep. Social relations lose their flavor and are looked upon as mere distractions, while acquaintances are ignored, friends are neglected and loved. ones are driven to distraction for fear that we are overtaxing our strength and undermining our health. Yet the law drives us on and we glory in its relentless urge. As one's comprehension of it deepens the beauty and majesty of the law enthralls him, and he yearns to become more and more a part of that glowing structure of beauty and life. No point is too trivial for careful consideration, no rule is so obvious that it can be ignored, no principle is so familiar that it can be passed with a bare nod of recognition, no standard 'so trite that we do not examine it anew with ever-increasing delight. The parts of the law which have outlived their usefulness we treat with dignity and respect, and we consider with deference those sections of the law which, through historic accident or through the blindness of men who barter wisdom for folly and justice for expediency, remain as blemishes upon and mar the beauty of the subject we love, even while we take thought how best these blemishes may be removed. The law kindles in the souls of its devotees a deep, abiding passion that makes light of work, mocks at arduous effort, and ever drives on to greater exertion and achievement.

But this passion, which grows at first out of personal joy, soon ceases to be a selfish passion. As one's insight grows he sees that the law is a method of social control; that it is the instrument by which

organized society tries to make concrete the yearnings of the human soul for justice and righteousness in the practical affairs of life; that it is a functional discipline; that it has as its purpose disinterested service. to mankind. That is why it is so human, so touched with the weals and woes of so

ciety. It is a part of, and grows out of the history of humanity; it is a human structure; it deals with human needs and aims at the satisfaction of human desires. The reported cases are not merely laboratory materials like so many chemical compounds, they are the records of human suffering and strife. Statutes are not simply expressions of opinion or fiats of will, they are the outgrowth of the ambitions of men and the fears of society. Text books are not only compendiums of information, they are the efforts of lovers of law to shape the law more nearly to the needs of the times. The law is built out of men's lives and is held together by the soul of humanity.

ALBERT LEVITT.

NOTES OF IMPORTANT DECISIONS.

CAN FORFEITED LIQUORS BE USED IN EVIDENCE AFTER SEIZURE WITHOUT PROCESS?-The rule of Silverthorn's Case (251 U. S. 385, 40 Sup. Ct. 182) that the unlawful seizure of defendant papers and property prevents their subsequent use as evidence, does not seem to apply to the case of the unlawful seizure of whisky and an automobile in which the whisky was being unlawfully transported. United States v. Fenton, 268 Fed. 221. In this case United States District Judge Bourquin (D. Mont.) held that intoxicating liquors and the automobile in which they are being unlawfully transported are already forfeited to the United States, so that the forcible seizure of such property without process by officers of the United States, even if irregular, was not a seizure of the property of defendants, and did not violate Const. Amends. 4 and 5, so that the whisky and automobile so seized were competent evidence against accused, notwithstanding a motion for return of the property.

In this case it appeared from the evidence that the arrest and seizure were about 75 miles south of the boundary line; that the officers had heard that several unnamed persons and autos were that night coming with whisky smuggled from Canada; that to capture them they located themselves 20 yards apart along the road; that about 3:30 a. m. defendants' auto slowly approached from the north; that the officer nearest turned a flashlight upon them and ordered them to halt, which they refused to do; that so likewise ordered the second and third officer, as defendants reached and passed them; that when the auto was a length or so past the first officer he fired to puncture the tires; that when it was about 10 feet past the third officer he overtook it, mounted the running board, and was ordered off by defendants with gun display; that the officers, with display of weapons, forced defendants to stop, arrested them, searched, found the whisky, some of which was visible before search, in part of Canadian brand, and seized auto and whisky.

The state contended that this should be regarded as an offense committed on the presence of the officers, or at least that there were grounds of suspicion considering all the circumstances. But the Court declared that it made no difference whether the arrest was legal or illegal, as far as the use of the whisky and automobile as evidence was concerned since under the Volstead Act this whisky and the automobile were already the property of the United States having been forfeited by the illegal transaction in which they were engaged. On this point the Court said:

"An unlawful arrest of an offender does not work a pardon in his behalf, and seizure without process and by force of government property, of which it is entitled to immediate possession, does not entitle the offender to a return of the property, nor to exclusion of its use in evidence against him. The auto and whisky, by virtue of the National Prohibition Act (41 Stat. 305), were forfeited, and thereby transferred to the United States, the moment defendants embarked upon the unlawful transportation. The United States was then vested with the right of property and possession. Even as any other owner of property in like circumstances at common law, the United States without process could recover possession by force. And, however, if at all, irregularly the officers proceeded, the defendants have no right to return of the property, nor to object to its use in evidence, whatever other, if any, right or remedy they may have. See U. S. v. Stowell, 133 U. S. 16, 10 Sup. Ct. 244, 33 L. Ed. 555, and cases; Taylor v. U. S., 3 How. 205, 11 L. Ed. 559; Boyd v. U. S. 116 U. S. 623, 6 Sup. Ct. 524, 29 L. Ed. 746."

THE POWER OF CONGRESS TO ESTABLISH PEACE.*

The power of Congress to establish peace by joint resolution as a corollary to its power to declare war has become of great practical importance by its recent proposed exercise consequent upon the Senate rejection of the Treaty of Versailles. Hitherto it had hardly reached the stage of academic discussion, doubtless because the need for its assertion had never reached the dimen-· sions of a remote probability. But we live in unusual times, and nations are confronted with problems of novel and complicated character which cannot be evaded, whose solutions are unavoidable and whose gravity tests the capacity of modern statesmanship. Among them is the authority of the Legislative Department over foreign affairs.

Ours being a government of delegated powers operating under and controlled by a written constitution, the gravity of any affirmative solution of such a question as this lies in the precedent it establishes. We cannot foresee all that is beneath the horizon of the future, nor how or when or what we do today may protect or plague us hereafter. Hence the need of calm and dispassionate consideration of the assertion of new or the revival of moribund prerogatives, whether executive or legislative, before they be finally or formally recognized or applied. The instant situation, however grave, cannot be more so than the remoter crises sure to unfold themselves as the years go by.

The need for such exhaustive and careful preliminary inquiry is emphasized whenever the problem involves a collision between Congress and the Executive. For ours is a government wherein these two great departments may be and frequently are, mutually antagonistic; a condition always unfortunate and sometimes deplor

*This careful discussion by Senator Thomas of Colorado of a constitutional question which is likely to assume great importance will be found interesting to lawyers of all shades of political belief.-Ed.