and that that issue was properly submitted to the jury -AMER. NAT. BANK OF ARKANSAS CITY, KAN., v. WIL LIAMS, U. S. C. C. of App., Eighth Circuit, 101 Fed. Rep. 943.

84. NEGLIGENCE-Infant - Imputed Negligence.-A jury should not be controlled in its action, except when the testimony will support no other verdict than that which is directed. The capacity of a child between 4 and 5 years of age to care for its own safety is a ques. tion for the jury, and not for the court. A child who, by reason of its mental capacity, is non sui juris, is not to be charged with the negligence of the person in whose custody it is.-MARKEY V. CONSOL. TRACTION Co., N. J., 46 Atl. Rep. 573.

85. PRINCIPAL AND AGENT - Authority-Notice.-One whose duties and authority as cashier is restricted to the payment of money under the direction of his em ployer is not the agent of his principal for the purpose of receiving notice of the assignment of wages by an employee.-STRAUCH V. MAY, Minn., 83 N. W. Rep. 156. 86. PRINCIPAL AND AGENT-Factor's Lien.-An agreement between plaintiff's assignor and defendants by which the former agreed to ship to defendants, for sale, the entire output of his canning operations during the season of 1895, does not make defendants joint owners with plaintiff's assignor of such output, but es. tablishes between them merely the relation of princi pal and agent.-ELWELL V. COON, N. J., 46 Atl. Rep. 580. 87. PRINCIPAL AND SURETY-Treasurer's Bond-Term of Employment.-Where a banking institution at an annual meeting elected a treasurer "for the ensuing year," and such treasurer gave bond to faithfully administer his trust "during his continuance in office," the sureties on such bond were not liable for defaults made by such treasurer after the expiration of a year from his election.-ULSTER CO. SAV. INST. v. OSTRAN. DER, N. Y., 57 N. E. Rep. 627.

88. PROHIBITION-Judicial Officer - License to Sell Liquor.-Since a license to sell liquor is neither property nor a contract with the State, but a mere permit, subject to revocation, an excise commissioner authorized by Rev. St. 1899, § 3021, to revoke such licenses for violation of the liquor laws, is not, by reason of such power, a judicial officer, and hence a writ of prohibition will not lie against him.-HIGGINS V. TALTY, Mo., 57 S. W. Rep. 724.

89. PUBLIC LANDS-Pre-emption.-A private corporation in possession of a large ranch, the title of a por. tion of which was still in the government, to perfect title thereto employed a person to go on such govern. ment land in the guise of a settler under the home. stead law, and, when title thereto had been secured to such employee, he should immediately convey it to the company, and in the meantime he should harvest the alfalfa thereon and feed it to the company's cattle, re ceiving a salary for his services. Held, that where such employee repudiated the trust, used the alfalfa for his own benefit, and asserted that the pre-emption was in his own behalf, a court of equity will grant no relief to such company, restraining such trespass or granting damages therefor, as such contract was con trary to public policy and the pre-emption law.-PACIFIC LIVE-STOCK CO. V. GENTRY, Oreg., 61 Pac. Rep. 422.

90. QUIETING TITLE-Pleading-Cause of Action.-Under Act March 15, 1897, authorizing actions to deter mine the interest of parties in land whether in posses. sion or not, a petition to try title to real estate, alleg. ing plaintiff's ownership of the land in fee, that it is wild land, not in actual possession of either party, and that defendants assert an adverse title therein of a nature unknown to the plaintiff, is sufficient, though it does not plead traversable facts.-HUFF V. LACLEDE LAND & IMPROVEMENT CO., Mo., 57 S. W. Rep. 715. 91. RAILROAD COMPANY — Crossings · Contributory Negligence.-Where a person approaching a railway track at a street crossing did not stop, look, or listen, and, in ignorance of the rapid approach of a train

which would have been apparent to her had she done so, went on the track and was killed, she was guilty of contributory negligence, precluding recovery in an action counting on negligence of the railway company in failing to whistle and ring the bell, and in running at a greater speed than permitted by an ordinance, and so fast that the train could not be stopped before it reached the crossing.-CENTRAL OF GEORGIA RY. CO. V. FORSHEE, Ala., 27 South. Rep. 1006.

92. RAILROAD COMPANY-Death at Crossing-Contrib. utory Negligence.-Plaintiff's intestate tried to cross defendant company's tracks in front of a train, whose approach could be seen several thousand feet. The engine had whistled a short interval before, the bells were ringing, and the gates were down. He was struck by the train and killed. Held, that he was guilty of contributory negligence, and plaintiff could not recover, notwithstanding the train was running at a higher rate of speed than permitted by a city ordinance.-PETERSON V. ST. LOUIS, ETC. Rr. Co., Mo., 57 S. W. Rep. 709.

93. RAILROAD COMPANY - Excessive Speed-Proxi. mate Cause.-Code 1892, § 3546, enacts that railroad companies may run their engines and cars through cities, towns, and villages at the rate of six miles an hour. One was injured, while walking along a path made by pedestrians parallel to a railroad track, by being struck by a rod projecting from one of defend. ant's freight cars, running at a greater speed than six miles an hour within a corporated town. Held that, to entitle plaintiff to recover for the injury because of the excessive speed, the speed must have been the proximate cause of the injury, and the plaintiff must have been free from contributory negligence, unless the injury was willfully, wantonly, or recklessly in. flicted.-ALABAMA & V. RY. Co. v. CARTER, Miss., 27 South. Rep. 993.

94. RAILROAD COMPANY-Frightening Horses-Negli. gence. Failure of the employees in charge of a loco. motive to stop it or to give signals when approaching a crossing is not negligence, in case of a horse frightened thereby, but which was seen by such employees approaching the crossing too far off for a collision, and giving no indication of fright.-SOUTHERN RY. Co. v. COOPER, Va., 36 S. E. Rep. 388.

95. SALE-Conditional Sale-Record.-Where one delivers to another a certain amount of money with which, as his agent, to purchase live stock, and the purchase is accordingly made, the title to the stock vests in the principal; and if he agrees that the agent shall use the stock for a certain rental, and further agrees that the agent may, whenever he desires to do so, purchase the stock from the principal for the cost, with interest, this latter agreement is not a sale with reservation of title, and need not be recorded, under section 2776 of the Civil Code.-EVANS V. NAPIER, Ga., 36 S. E. Rep. 426.

96. SALE-Failure to Deliver Possession.-P, to secure a debt he owed a bank, executed to it a bill of sale of horses which were then in charge of a trainer under a contract which had not expired. In a short time the bank notified the trainer of its claim, and within 10 days P died insolvent. The executor took charge of the horses and sold them; agreeing to hold the proceeds subject to the bank's lien, if any. The bill of sale was not recorded. Held that, as it was impracti cable to deliver the horses, the fact that possession did not accompany the bill of sale, as required by Ky. St. § 1908, did not invalidate the transfer, and therefore the bank has a prior lien on the proceeds of the horses. -Bourbon Bank V. PORTER'S EXR., Ky., 57 8. W. Rep.

609.

97. TAXATION-Exemption-School Buildings.-Buildings in which plaintiff conducted a school, and in which he resided with his family, are not used exclusively for school purposes and exempt from taxation. -CITY OF SAN ANTONIO V. SEELEY, Tex., 57 8. W. Rep. 688.

98. TAXATION National Bank Stock-Assessment.Under the statutes of this State, the tax levied on account of the shares of stock in national banks held by non-residents is not imposed upon the banks,-it is im. posed upon the shares, being assessed in form only to the banks, which are required to pay the tax only out of dividends declared on the stock; and these statutes are in accord with the act of congress permitting the States to tax such shares.-MECHANICS' NAT. BANK OF TRENTON V. BAKER, N. J., 46 Atl. Rep. 586.

99. TRUST Devised Lands - Rents and Profits.Where lands are devised charged with a trust for plaintiff's maintenance, and in a suit to enforce the trust the jury find a certain monthly allowance sufficient for his support, and it appears that the revenues of the lands are sufficient to pay this charge in addition to the cost of management, error assigned in excluding the devisee's evidence of the expense of providing a manager for the land is immaterial.-MCCREARY V. ROBINSON, Tex., 57 S. W. Rep. 682.

100. TRUST-Powers-Revocation.-Where much time and labor were expended, and valuable contingent rights were acquired in compensation for their services, by stockholders in a corporation, in reliance on a proxy and power of attorney given them by the ma jority stockholders, conditioned to be irrevocable for a certain term, and giving possession and control of the stock in trust to carry out the eorporate purposes for their equal benefit, with power to sell or exchange the same, equity will not revoke such document during such term, in the absence of misconduct or breach of trust.-CHAPMAN V. BATES, N. J., 46 Atl. Rep. 591. 101. TRUST-Voluntary Association Specific Performance.-The alumni association of defendant sem. Inary donated to it a sum of money to be used for the endowment of a professorship; the donation being on certain conditions. Subsequently the voluntary association became incorporated as the present plaintiff. Held, that plaintiff is the successor in rights and interests of the voluntary association, and as such can maintain an action for the enforcement of the trust created by the donation.-ASSOCIATE ALUMNI OF THE GENERAL THEOLOGICAL SEMINARY OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA V. GENERAL THEOLOGICAL SEMINARY OF THE PROTEST. ANT EPISCOPAL CHURCH IN THE UNITED STATES, N. Y., 57 N. E. Rep. 626.

102. TRUST AND TRUSTEE-Removal.-A will directed that certain shares of stock be held by the executor in trust for the testator's children during their life, and then to go their children; the stock being a controlling interest in a company of which the testator was presi. dent. The executor became president of the company by his own vote, and had its by-laws amended giving him greater control. Previous to his election, he referred to the trust which had developed upon him. The testator's estate was free from debt. A few days after assuming the presidency he paid the first dividend to his cestuis que trustent. Held, that for any misconduct as president of the company the court has power to deal with him as trustee.-LISTER V. WEEKS, N. J., 46 Atl. Rep. 558.

103. VENDOR and PurchaSER-Rescission-Fraud.-A bill to rescind a contract of sale of land for fraud, alleging a conveyance thereof by the grantee and his wife to their daughter, who is joined with them as a party plaintiff, and making tender of a deed, does not show a transfer of the land placing plaintiffs beyond equity jurisdiction, since the deed tendered is suffi. clent to revest all the title received.-CLINKENBEARD V. WEATHERMAN, Mo., 57 S. W. Rep. 737.

106. WILLS Construction - Limitation Over - Remainder.-Where, in a will probated in 1847, a life es. tate was bequeathed to testator's daughter, with remainder to her children, followed by an executory bequest to other legatees in the event she "should die without issue" the issue meant was such children, and not issue at large, and so the failure of issue contemplated was a definite, not an indefinite failure; and, the failure contemplated having happened-that is, the donee for life having died childless-the limitation over took effect.-CRAWFord v. Clark, Ga., 36 S. E. Rep. 404.

107. WILLS-Construction-Substitution.-A testator devised a share of his estate to his daughter C for life, and after her death to her heirs, with a direction that, in case she died without issue, then her share should be divided between his other two children, J and E, "or their heirs." Held, that the children of J and E on the death of their parents before C, who died without issue took her, share per stirpes and not per capita.— BARTINE V. DAVIS, N. J., 46 Atl. Rep. 577.

108. WILLS-"Heirs."-A testator devises his real es tate to his wife during her life, and adds, “At the death of my wife all the property to go to my daughter, Isa. bella Mathews Baer, for the benefit of her heirs." The daughter, surviving the life tenant takes the property in fee-simple under the will.-BAER V. FORBES, W. Va., 36 8. E. Rep. 364.

109. WILLS-Legacy-Election by Widow.-Where a testator provides a fund to furnish a certain income for his widow, designating the amount of the income, and providing that it shall be paid each year, and that securities shall be selected sufficient to secure that result, the selection of such securities in the first intance does not constitute a specific and changeless fund or legacy, the income of which must necessarily be diminished upon diminution of the producing capacity of such fund.-MERRIAM V. MERRIAM, Minn., 83 N. W. Rep. 162.

110. WILLS-Property Bequeathed-Bank Deposit.-A bequest of "all horses, harnesses, wagons, machinery, and all other personal property used in my butchering business, including all choses in action," does not pass a bank deposit, it appearing that the account was resorted to in connection with testator's general busi ness; that accounts were paid out of it in no wise con. nected with his butchering business; that it was not at all necessary to the conduct of that business, which was an established and profitable one; that there were motives for opening the account growing out of a con templated visit abroad; and that there were accounts due by customers to the butcher business satisfying the provision as to choses in action.-Koss v. KASTELBERG, Va., 36 S. E. Rep. 377.

111. WITNESSES-Competency-Deceased Mortgagor. -Under Ann. Code, § 1788, providing that every person, whether a party or not, shall be competent to give evidence in any suit, and not incompetent because of any interest, in the result thereof; and section 1740, providing that a person shall not testify to his own claim or defense against the estate of a deceased per. son which originated during the lifetime of such deceased person-the testimony of the wife and daughter of a deceased mortgagor was admissible in a foreclosure suit, to show their interest by descent in the lands in question, since their claims did not originate in the lifetime of the mortgagor. — COVINGTON V. FRANK, Miss., 27 South. Rep. 1000.

112. WITNESS-Credibility.-The record of conviction of an offense below the grade of a felony is not admis. sible to affect the credibility of a witness.-YOUNG MEN'S CHRISTIAN ASSN. OF LINCOLN V. RAWLINGS, Neb., 83 N. W. Rep. 175.

Central Law Journal.

ST. LOUIS, MO., SEPTEMBER, 21, 1900.

It

The case of Greenleaf v. Gerald, recently decided by the Supreme Judicial Court of Maine, should be studied by those pursuing what may, for want of a better description, be termed the professional biographical business. The sound conclusion of the Maine court in that case will, wherever known, be a wholesome lesson to those engaged in that industry. And in passing it may be said that the members of the legal profession are not by any means exempt as victims of its tempting snares, and the opinion, therefore, to some, will have an increased value. appeared in that case that the defendant entered into a contract relating to a work to be published, entitled "Men of Progress," providing for the publication of his portrait and biographical sketch therein, the delivery to him of one copy of the work, and for his payment therefor upon the issue of the part containing his portrait and sketch. The action was by an assignee of the publisher to recover the amount which the defendant had agreed to pay. The latter defended upon the ground that the contract was void because he was induced to execute it by means of false and material representations as to the character of the work which was to be published, made by the agent of the publisher at the time of the execution of the contract, and that such false and material representations were relied upon by him. The defendant introduced evidence tending to prove that the agent of the publisher who obtained his subscription for this work represented to him at the time that only three other residents of the town in which the defendant lived would be solicited to be subscribers to this work, and to have their biographical sketches and portraits published therein, and also that the portraits and sketches of only 300 persons in all would be published. The court held that these representations respecting a book of this character to be published were material; that, if all of the other necessary elements were proved to exist, a contract induced thereby could not be enforced; and that it was error not to instruct

The case of State v. Bee Pub. Co., recently before the Supreme Court of Nebraska, is a good example of what is known as "constructive" contempt of court, and the opinion of the court which is in line with the best precedents on the subject forcibly lays down the doctrine upon which courts are justified in holding acts committed out of court as in contempt of its authority. The acts involved in this case consisted in the publication by and in the defendant newspaper of articles deliberately calculated to influence judicial action, which threatened the judges of the Nebraska supreme court with public odium and reprobation in case they decided a pending cause in a particular way. The court held this to be constructive contempt, quoting with approval the words of Chief Justice Lawrence of Illinois, in the decision of one of the leading cases on the subjectPeople v. Wilson, 64 Ill. 195-wherein he says: "A court will, of course, endeavor to remain wholly uninfluenced by publications like that under consideration; but will the community believe that it was able to do so? Can it even be certain with regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced, nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude." Equally pertinent are the following remarks of Elliott, J., in People v. Stapleton, 18 Colo. 568, 33 Pac. Rep. 167: "Judges are human. They are possessed of human feelings; and, when accusations are

publicly made, as by a newspaper article, charging them, directly or indirectly, with dishonorable conduct in a case pending before them, and about to be determined, it is idle to say that they need not be embarrassed in their consideration and determination of such cause. They will inevitably suffer more or less embarrassment in the discharge of their duties, according to the nature of the charges and the source from which such charges emanate. When a judge tries and determines a cause in connection with which public charges against his judicial integrity have been published, the public, as well as parties interested, are frequently led, by the publication of the charges, to distrust the nonesty and impartiality of the decision, and thus confidence in the administration of justice is impaired. It is not only important that the trial of causes shall be impartial, and that the decisions of the courts shall be just, but it is important that causes shall be tried and judgments rendered without bias, prejudice or improper influence of any kind. It is not merely a private wrong against the rights of litigants and against the judges; it is a public wrong-a crime against the State -to undertake, by libel or slander, to impair confidence in the administration of justice. That a party does not succeed in such undertaking, lessens his offense only in degree."

"We feel quite sure," the Nebraska court adds, "that the publications herein in question have not in the least deterred us from discharging with fidelity our duty in the case of State v. Kennedy, 83 N. W. Rep. 87, but they were manifestly intended to overawe and intimidate us. They appear to have been put forth for the purpose of preventing a decision in favor of the State. They were, under the circumstances, palpable acts of journalistic lawlessness, calculated to weaken the independence of the court, and destroy confidence in its judgment. To justify them is to deny the supremacy of the law, and assert the doctrine of newspaper absolutism. To admit that publishers may promote their interests in pending litigation by resorting to methods not available to others is to strike down our much vaunted principle of 'equality before the law,' and to declare that journalists who choose to become malefactors are a privileged class, and entitled as such to go unwhipped of justice. But the law recog

nizes no such distinction; it never has recognized such a distinction. 'It accords to publishers,' says Chancellor Walworth, 'no rights but such as are common to all. They have just the same rights as the rest of the community have, and no more.' King v. Root, 4 Wend. 113. Another distinguished judge has said: 'A man who speaks in a newspaper has no greater right than he who speaks out of it. A newspaper is no sanctuary behind which a person can shield himself for breaking the laws of the land.' We have not acted in this case out of any spirit of resentment. Indeed, we have no reason to feel specially aggrieved, for the offensive articles do not charge us, or any of us, with official misconduct. Their natural tendency, however, was

to interfere with and obstruct the due administration of justice, and it was the unanimous opinion of the court when the citation issued that it was our duty to take notice of them, and call the defendant to account. And it is still the judgment of the members of the court who take part in this decision that we acted wisely, and that we could not have ignored the defendant's attempt to coerce our decision without being guilty of a craven faithlessness to duty."

NOTES OF IMPORTANT DECISIONS.

CONSTITUTIONAL LAW-OBLIGATION OF CONTRACT-CHANGE OF REMEDY-EXEMPTION OF WAGES.-The Supreme Court of Utah holds, in Kirkman v. Bird, 61 Pac. Rep. 338, that any change or limitation of a remedy which does not materially abridge the right does not impair the obligation of the contract, and that a recent statute of that State, which absolutely exempts to married men, or heads of families, their earnings for personal services rendered within sixty days next preceding the levy of execution, by garnishment or otherwise, being reasonable, and directed to the remedy, and not the right, does not impair the obligation of contracts entered into prior to its passage, and is not in violation of section 10, art. 1, Const. U. S.

itors shall not send any note, account, or chose in action, out of the State for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this State, is repugnant to the fourteenth amendment of the federal constitution, prohibiting a State from depriving any person of property without due process of law, in that the right to sue, which is one of the essential attributes of property, is taken away.

"2. Rev. St. 1899, § 2356, providing that every person, or corporation, who shall send out of the State any note, bond, account, or chose in action,' for the purpose of instituting suit to subject to the payment thereof the wages of any resident of this State shall be guilty of a misdemeanor, is repugnant to article 4, § 2, of the federal constitution, providing 'that the citizens of each State shall be entitled to all privileges of citizens in the several States, as citizens of foreign States can violate such statute with impunity.

"3. Rev. St. 1899, § 2356, providing that every person, firm, or corporation, who shall send out of the State any note, bond, account, or chose in action, for the purpose of instituting suit to subject to the payment thereof the wages of any resident of this State shall be guilty of a misdemeanor, is repugnant to Const., art. 4, § 53, forbidding the legislature to grant any special or exclusive right, privilege, or immunity, and is therefore void.

"4. Rev. St. 1899, § 2356, providing that creditors shall not send any note, account, or chose in action, out of the State, for the purpose of bringing suit to subject to the payment thereof the wages of a resident of this State, and making it a misdemeanor so to do, is repugnant to the fourteenth amendment of the federal constitution, prohibiting a State from denying to its citizens the equal protection of the laws, in that it undertakes to arbitrarily separate wage earners from other classes of people, and provides for them a different rule or action."

STATUTE OF FRAUDS-AGREEMENT TO INDEMNIFY.-In Warren v. Abbett, 46 Atl. Rep. 575, decided by the Supreme Court of New Jersey, it was held that an agreement by A to indemnify B for becoming accommodation indorser for C is not within the statute of frauds, and therefore need not be in writing; and the assumption of the responsibility of an accommodation indorser, on the faith of such agreement, is a sufficient consideration to support it. The court said:

"The material facts presented by the testimony in this case are as follows: The plaintiff, who was the president of the American Electrical, etc., Company, was liable, as an accommodation indorser, upon certain of its paper to the extent of $6,000. Upon the paper falling due the holders thereof pressed for payment, but consented to renew, provided plaintiff would indorse the renewal notes. Before agreeing to do so the plaintiff consulted with the defendant, Abbett, and with one Duryea, who were directors of the company, and told them that, if they would each be re

sponsible to him for one-third of the amount of the renewal notes in the event of his being compelled to pay them, he would renew his indorsement, but that otherwise he would take up the past due notes, and enforce them against the company. The defendant and Duryea each agreed to be responsible to the extent asked by the plaintiff, and the latter thereupon indorsed the renewal paper. Subsequently the company went into the hands of a receiver, and the holders of the paper notified plaintiff that they would hold him on his indorsement. Negotiations followed, which resulted in the release of the plaintiff from his liability as indorser by the payment to the holders of the paper of the sum of $2,000. This payment was made after consultation with the defendant and Duryea, and after a promise by each of them to the plaintiff that they would each pay onethird of that amount. All of these transactions took place in the City of New York. This suit having been instituted to collect from the the defendant his one-third of the $2,000 paid by the plaintiff as the consideration for his release from liability, on his indorsement, the defendant interposed as a defense: First, that his promise to be responsible to the plaintiff to the extent of one-third of the amount which the latter should be compelled on his indorsement was not in writing, and was, therefore, void under the New York statute of frauds; and, second, that there was no consideration to support the said promise. The trial court directed a formal verdict to be entered, and allowed this rule for the purpose of having determined, at the bar of this court, the applicability of the New York statute to the facts presented.

"The pertinent provision of the statute invoked by the defendant is in these words: In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith. * 2. Every special promise to answer for the debt, default or miscarriage of another person.' 2 Rev. St., p. 135, sec. 2. The defendant's contention is that the promise sued on is an agreement to answer for the debt or default of another, within the meaning of the statute, and is, therefore, void. This agreement is, in substance, a promise to indemnify the plaintiff pro tanto against liability upon his indorsement, and the case, therefore, presents the question whether a promise by one person to indemnify another for becoming an accommodation indorser for a third is a promise 'to answer for the debt, default or miscarriage of another.' Judicial opinion is not at one upon this question. In some of our sister States, where a statute of frauds almost identical with that of New York is in force, it is considered that such a promise is within the statute, and therefore void; while in other States, and latterly in England, a contrary view prevails. The courts of New York and of this State consider the the true doctrine to be that contracts of this kind are not within