negligence as compared with the combined negligence of himself and the employer.-Louisville & N. R. Co. v. Thomas' Adm'r, Ky., 185 S. W. 840.

92. -Pleadings. In an action for damages for the burning of plaintiff's residence caused by a fire in the defendant's house due to defective chimney, the count alleging that plaintiff's house was burned as a result of defendant's negligence, without showing any duty owed by defendant to plaintiff, was insufficient.Tarrance v. Chapman, Ala., 71 So. 707.

93. Principal and Surety-Strict Construction. -Surety company cannot invoke rule of strict construction, where owner and building contractor have dispensed with provision of contract and agreed verbally, instead of in writing to alter building contract.-Victoria Lumber Co. v. Wells, La., 71 So. 781.

94. Railroads Contributory Negligence. Although the age of the child may be important in determining his contributory negligence, or the railroad company's duty after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers or bare licensees, not invited or enticed by it, than it is to keep them safe for adults.-Yazoo & M. V. R. Co. v. Smith, Miss., 71 So. 752.

95. Crossing.--Presence of watchman at railroad crossing and his failure to give warning does not relieve one desiring to cross from exercise of care, but circumstances may be considered in determining what precautions a prudent person would have exercised.-New York, C. & St. L. R. Co. v. Shields, Ind., 112 N. E. 762.

96. Licensee. One using a crossing at a street which had been discontinued, held, in view of the use by pedestrians, to be a favored licensee entitled to the same care to which persons crossing at regular crossing were entitled.-Illinois Cent. R. Co. v. Dillon, Miss., 71 So. 809.

a

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97. Trespasser.-Persons loitering upon railroad right of way and walking across it at other places than the necessary crossings necessarily impose upon the railroad an added burden to keep a lookout for them.-Craig v. Ft. Worth & D. C. Ry. Co., Tex., 185 S. W. 944. 98.

Receivers Actions.-Remedy of creditor of dairy company against latter's receiver for breach of trust agreement with plaintiff and other creditors by applying moneys received from sale of dairy company's property to administration of its estate as receiver, held to be in the receivership proceedings, and not by independent suit.-Vette v. Mills, Mo., 185 S. W. 735.

having

99. Release-Reservation.-Plaintiff, sued on several claims, does not by accepting payment of one with express reservation of rights in suit waive right to prosecute suit on remaining claims.-Reynolds v. Board of Com'r of Orleans Levee Dist., La., 71 So. 787.

100. Robbery Instruction.-Where defendant, charged with robbery, claimed that he had obtained money from prosecutor by belt trick, instruction that defendants say they "flimflammed" prosecutor out of it is not error.Nelms v. State, Ga., 88 S. E. 917.

101. Sales Delivery.-Delivery of goods tc the buyer under a contract to buy after inspection or opportunity to inspect passes title and makes the contract an executed one.-Showalter v. Chambers, W. Va., 88 S. E. 1072.

Specific Performance

Instructions.

102. Where parties stipulated that, if plaintiff did not surrender bond for title, note for price had been paid, but, if she did surrender bond for title, that was settlement, instruction that, if plaintiff surrendered voluntarily bond for title. that would end her claims, was not erroneous. -Woodward v. Fuller, Ga., 88 S. E. 974.

103. Pleading.-A petition alleging a contract for the sale of a saloon and restaurant at a fixed price, a part payment of the price, agagreement for subsequent payments, and a repudiation of the contract by the defendant, and requesting an accounting did not state a case entitling plaintiff to specific performance.-Koeurek v. Matychowiak, Mo., 185 S. W. 740.

Contemporan

104. Statutes Construction. eous, uniform, and long-continued construction placed upon the charter provisions of a railroad relating to taxation by the state's public officials would have great weight with the court in the construction of such provisions.-People v. Illinois Cent. R. Co., Ill., 112 N. E. 700.

105. Sunday-Contract.-Contract executed on Sunday is not illegal, unless made in prosecution of ordinary business or calling of party who assumes obligation.-Hall v. Langford, Ga., 88 S. E. 918.

106. Taxation-Tax Sale.-An error of 25 cents in favor of the owner, in the computation of interest at the tax sale, and an error of 5 cents against the right of the owner in the determination of her interest following the sale of the unredeemed land, did not operate to make either the sale or the tax deed void.Welch v. Haley, Mass., 112 N. E. 860.

Telephones-Punitive

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and 107. Telegraphs Damages. In an action against telegraph company, where it appeared that the mistakes were not made by willful or gross negligence. but in good faith, punitive damages were not recoverable.-Western Union Telegraph Co. v Ragsdale, Miss., 71 So. 818.

108. Tenancy in Common-Waste.-A cotenant's deed to a stranger, purporting to convey the whole estate, will not, within the limitation period, destroy the cotenancy or affect the right of the ousted cotenant to recover for waste committed thereon.-Hardman v. Brown, W. Va. 88 S. E. 1016.

109. Trade Unions-Damages.-Where an incorporated union affirmed relator's expulsion by a local unincorporated society, the union is not though relator be reinstated by mandamus, liable in damages, unless the affirmance was the result of fraud or bad faith.-People ex rel. SolDecorators omon v. Brotherhood of Painters, and Paper Hangers of America, N. Y., 112 N. E 752.

110. Trusts-Passive Trust.-Where the trust created by a deed has become passive and the statute has executed the use, the trustee is not a necessary party to a suit to reinvest the land upon the uses declared by the deed.-Lee v. Oates, N. C., 88 S. E. 889. 111.

one

loaned Usury-Void Deed.-Where money at usurious interest to be used in purchase at sheriff's sale and borrower executed deed on land purchased as security, the deed is void, and lender on reduction of note to judgment is not entitled to special lien on land.Lockwood v. Farmers' & Merchants' Bank of Byromville, Ga., 88 S. E. 973.

to

112. Wills-Defeasible Fee. Testator's will heirs devising land of brother, providing that at their death it should go to their legal heirs, and, if any of them should die without issue, his share should go to the other heirs of the brother, created a defeasible fee in every heir Dockery's Ex'rs v. Dockery, Ky., 185 S W. 849.

113.- -Life Estate.-Will construed, and held that a general devise of realty, coupled with power to sell for devisee's use, conveyed only a life estate; the fee being vested in the residuary legatee's claim, subject to such life estate and limited power of conveyance.-Bookover v. Branyan, Ind., 112 N. E. 769.

114.- Probate.-Due execution of will being shown by attesting witness, fact that will is written on several pages of tablet, and that witnesses did not see pages other than that on which testatrix signed, is not ground for refusing probate.-Owen v. Groves, Ga., 88 S. E. 964 115. Witnesses-Competency.-A witness is not incompetent because of religious belief, or lack of it; test being his apparent understanding of nature and obligation of oath and legal consequences following its violation.-Gantz v. State, Ga., 88 S. E. 993.

116.for -Competency. In action injuries testimony of physician as to whether plaintiff was intoxicated when witness came to hospital to treat him was properly excluded, where doctor became possessed of information through professional employment.-New York, C. & St. L. R. Co. v. Shields, Ind., 112 N. E. 762.

Central Law Journal.

ST. LOUIS, MO., AUGUST 25, 1916.

CLAIM FOR INJURY UNDER WORKMEN'S COMPENSATION ACT HAPPENING IN OTHER THAN THE HOME STATE OF EMPLOYER.

In Grinnell v. Wilkinson, 98 Atl. 103, decided by Supreme Court of Rhode Island, the interesting question of the application or not of the Workmen's Compensation Act by that State to an injury suffered by an employe of an employer coming under the act, in another State.

Conceding that by fair construction of the Rhode Island act it was intended to cover such an injury, the question remained whether to apply it was the giving of extra-territorial force to a State law or whether, liability being in effect contractual, the tort theory was merged and the courts of the State where the accident happened would either refuse to take jurisdiction or taking it, enforce the liability.

It is possible to suppose that employer and employe might in any employment put whatever might arise out of the employment on a contractual basis and the fact that the law of another State expresses the terms of that basis would not be giving extraterritorial force to such law. But is there any presumption of law, that it applies to any contract between employer and employe entered into in another State?

Suppose the policy of employer's State directly contemplates that its remedial system expressed in Workmen's Compensation Act includes liability of its domiciliary employer as to outside acts, and the policy of another State is not in complete harmony with that of employer's domicile, may not the other state enforce by its own courts and be entitled to have enforced by other courts, its policy? Where does true comity come in in such a case?

In each of the States having Workmen's Compensation Acts its policy is supposed to

contemplate protection of employes as to accidents happening within its borders without regard to what is the domicile of employer, and if it so happen that the employe in the employ of a non-resident is himself a resident, why should his contract come under the law of the employer's State? What is there that is sacrosanct in the employer's contract that may override the law of the employe's State?

These compensation acts have been held constitutional under the police power of States. This power, however, exerts itself and exhausts itself as to the welfare of a State's citizens and of those who place themselves under the reach of that police power. If a State has a workmen's compensation law, the humanitarian and economical considerations on which it is founded are as to employments therein and not elsewhere according to an employer's residence. The act affects local industries and only those. If an employer is affected as to an industry elsewhere by a compensation act, it would seem not to be relevant to say the home State cannot well work out its theory, unless what is done elsewhere is also taken into account.

The Grinnell case cites Kennerson v. Thames Towboat Co., 89 Conn. 367, 97 Atl. 372, L. R. A. 1916A 436, and Ronnsaville v. Central R. Co., 87 N. J. L. 371, 94 Atl. 392, in support of its view, that the liability. was contractual in its nature and the accident happening outside of employer's State could there be enforced under Workmen's Compensation Act. From the former of these cases there is extensive excerpt from the opinion. But the reasoning is construction of local legislation and there is bald statement that, if the legislation intended to embrace accidents happening elsewhere, this could be done. We challenge the correctness of this principle. It certainly could be limited by express provision in the legislation of another State, as the police power there could take care of the rights of its own residents or of those trusting themselves to the protection of its laws while working in industries within its borders, or it could

give them a right of action for a tort therein committed.

Further, as to action under Workmen's Compensation Acts being in contract, may it not be said the action is for a penalty and that a statutory penalty does not apply outside of the State enacting the statute? Penalty may arise out of contract or what is in the nature of contract, but it is like contract depending upon a record and not upon agreement.

NOTES OF IMPORTANT DECISIONS.

ATTORNEY AND CLIENT-COMPENSATION UPON COMPROMISE BY CLIENT.-In Southworth v. Rosendahl, 158 N. W. 717, decided by Supreme Court of Minnesota, there was suit for an agreed sum by an attorney in a suit contingent upon the successful result of a litigation. Without the attorney's consent this litigation was compromised by the client and the suit dismissed. It was held that the extent of recovery was the reasonable value of the attorney's services, which, however, was not sued for, and it was provided that the judgment in a suit for the specified percentage should not defeat a subsequent action.

The opinion goes into a considerable review of the cases regarding contingent fees, and, advocating the rule, that to hinder compromises is against the policy of the law, the fact that a client exercises his undoubted right is no unauthorized prevention of the enforcement of an executory contract, notwithstanding he may agree in writing not to settle without the attorney's consent.

It may be, says the court, that "where the settlement is made in good faith and without purpose to defraud the attorney, the amount of the settlement may be taken as the basis of the attorney's agreed per cent of the recov ey," but this is not a certain rule at all. The only true theory is reasonable value of services performed and no constraint is to be suffered by client in exercising his right of control over the controversy.

vided for recovery of "loss of either hand by complete severance at or above the wrist." Respondent's hand was crushed across the palm and the entire hand was rendered wholly useless. Amputation left the thumb, but is was of no possible use.

The Supreme Court held that it could not be said there was a "complete severance at or above the wrist" and judgment in plaintiff's favor was reversed.

The court speaks of plaintiff as having made a bargain, but being sui juris he is bound by it. But might it not be said that the intent of insurer was to insure for the loss of a hand, where as the result of an accident amputation was rendered necessary? If the amputation completely destroys use at or below the wrist, may not the severance be said to be complete at or below the wrist, taking the rule that contracts of insurance are to be construed favorably to the insured? In this case, the point of amputation was determined by a surgeon after the accident. This was allowable under the policy, but that policy is not to be read in such a way, that greater amputation shall be made than otherwise might be necessary.

In Moore v. Aetna L. Ins. Co., Ore., 146 Pac. 151, it was held that a stipulation the same as in the policy in the instant case left the company liable where amputation made the hand practically worthless. In a policy providing for recovery for loss of "entire" sight, it was said this does not mean total blindness, but where there is practical loss of entire sight this is sufficient for recovery. International Travelers' Assn. v. Rogers, Tex. Civ. App., 163 S. W. 421. Many other cases on this theory might be cited. It does not seem to us that the question of an insured being bound by a hard bargain, but rather what was a fair interpretation of the obligation of the company by its policy construing that policy as insurance policies ordinarily are construed.

SPECIFIC PERFORMANCE-ESSENTIALS OF AGREEMENT SET FORTH.-In Read Drug & Chemical Co. v. Nathan, 98 Atl. 158, decided by Maryland Court of Appeals, the facts show that a tenant expended large sums of money in improving his leasehold upon the faith of lessor's promise to extend the lease for an agreed term and at a stipulated rental. Upon lessor's refusal to extend the tenant filed his bill for specific performance. A demurrer being sustained to the bill, the Court of Appeals reversed the judgment of the trial court.

One ground of demurrer-that the agreement being oral came under the statute of frauds

was not much pressed, and was easily disposed of because of performance being averred.

The other grounds were that the agreement was not mutual, specific and certain. The court after saying there was no want of mutuality, said: "The agreement is said to be incomplete, and hence incapable of enforcement, because it does not provide for various covenants, which leases of city property usually contain. The bill alleges an agreement to lease a designated property for a prescribed term and at a specified rental. These elements are sufficient to constitute a complete and operative lease. Other provisions may be desirable and useful, but they are not essential to the binding effect of the demise. * * * There is nothing indefinite as to any of the necessary features of the contract, and defendant should not be relieved of its performance merely because it does not contain other and unessential terms, for which the parties might have been expected to make provision."

This ruling appears in no way to militate against the general rule of certainty when a court is appealed to to enforce specific performance of an agreement.

RIGHT OF NEXT OF KIN TO STATUTORY SHARE OF ESTATE OF DECEDENT WHOM HE HAS KILLED.

That a husband might kill his wife or wife kill her husband, and reap the reward of sharing the estate of the victim that statutes of descent and distribution bestow upon the next of kin, has so shocked the judicial conscience that it is not surprising that we should meet with a diversity of opinion as to the result of the crime; nor is it surprising that we find good, bad and indifferent reasons advanced to support the varying opinions.

The weight of authority is that the wrong-doer is entitled to share in the decedent's estate notwithstanding he is a guilty beneficiary. In the effort to solve the problem, the supporters of the.one view or the other follow or reject maxims of the common law, well settled rules of construction and constitutional provisions.

All the decisions agree that the legislative intent must control, but they differ in the method of arriving at that intent.

In a recent case decided by the Kentucky Court of Appeals, the wife murdered. her husband and was confined in the penitentiary for her crime. A suit was brought by the administratrix to settle the husband's estate and the wife filed an answer and cross petition, claiming dower in the real estate and certain exempted personal property allowed by statute to a widow. The court allowed her claim for dower as though no crime had been committed and allowed her an equitable share of the exempted personal property, there being six children.

"The question is, can we, upon the theory that the common law forbids a person to take advantage of his own wrong, or upon the theory that public policy forbids a person from obtaining property by his own. crime, engraft upon the statute regulating the property rights of husband and wife, or upon the Statute of Descent and Distribution, an exception which they do not contain and thus impose upon one guilty of homicide punishment not provided for in our criminal law? It seems to us that there is but one answer to this question. A statutory right cannot be defeated by the application of a common law principle. Nor can a plain, unambiguous statute be disregarded or amended by the court for the purpose of preventing such evil consequences as may flow from the only interpretation of which it is susceptible."

Public Policy-It is often argued with much force that the public policy of a state should forbid a person from reaping the

(1) Eversole v. Eversole, 169 Ky. 793; cases cited by Kentucky Court of Appeals: Wall v. Pfanschmidt, 265 Ill. 180, 106 N. E. 785, L. R. A. 1915c, 328; Carpenter's Appeal, 170 Penn. 203; 29 L. R. A. 145; McAlister v. Fehr, 72 Kan. 533, 3 L. R. A. (N. S.) 726; Owens v. Owens, 100 N. C. 240, 6 S. E. 794; Deem v. Milliken, 53 Ohio St. 668, 44 N. E. 1134; Shellenberger v. Ransom, 41 Neb. 631, 25 L. R. A. 564; Holloway v. McCormick, 41 Okla. 1, 136 Pac. 1111; Gollnik v. Mengel, 112 Minn. 349, 128 N. W. 292; etc.