broker of another upon a basis of division of commission as compensation.-Armstrong v. J. H. Webber & Co., Wash., 158 Pac. 957.

21. Carriers of Live Stock-Delivery. That a railroad had for a long time always delivered shipments of cattle before a certain hour at a certain market destination, and that it knew that such shipments delivered later could not be sold on the day of receipt, does not prove an agreement to deliver such shipments at such time.-Wood v. Boston & M. R. R., N. H., 98 Atl. 480.

22. Negligence.-Under live stock shipping contract, carrier held not exempt from the results of its own negligence and, if ordinary care required, bound to protect the stock from injury until the shipper could unload it, or to unload the stock itself.-Chicago, R. I. & G. Ry. Co. v. Pavillard, Tex., 187 S. W. 998.

23. Carriers of Passengers-Termination of Relation. The relation of carrier and passenger does not terminate until the passenger has reached his destination, alighted from the train, and has had a reasonable opportunity to leave the place where passengers are discharged.— Spofford v. Central R. Co. of New Jersey, N. J., 98 Atl. 246.

24. Common Carriers-Exclusive Privileges. -A railroad and depot company may lawfully exclude some hackmen or carriers of baggage from entering its grounds or station for the purpose of soliciting patronage, while it gives to others the exclusive privilege of doing so.Skaggs v. Kansas City Terminal Ry. Co., U. S. D. C., 233 Fed. 827.

25. Chattel Mortgages Agency. Where mortgagor of crop, under agreement with mortgagee, removed crops from land and delivered them to defendant for sale in name of mortgagee, held, he was agent of mortgagee, and, though he delivered crops in his own name, the mortgagee's lien was not lost under Civ. Code, § 2972, providing that crop liens continue so long as the crops, though severed, remain on the land.-Crosby v. Fresno Fruit Growers' Co., Cal., 158 Pac. 1070.

26. Application of Payments.-Where a creditor held chattel mortgages on a debtor's cotton and stump puller, a credit obtained by delivering some of the mortgaged cotton to the mortgagee should be applied on the cotton mortgage. Jenkins v. Morgan, Tex., 187 S. W. 1091. 27. Exchange of Property.-Chattel mortgage provision allowing mortgagors to swap or exchange mortgaged property, the property secured in exchange to stand in place of the exchanged property, is valid between the parties. - Bright v. Mack, Ala., 72 So. 433.

28. Junior Mortgage.-Where the holder of a purchase-money note secured by a recorded mortgage retook the property at an agreed valuation, to be applied on the debt, and canceled the note, and sold the property to another, the latter took title as against a junior mortgage made by the original buyer and unforeclosed when the property was returned, provided the value at that time did not exceed the purchase money due, and there was no fraud. Read Phosphate Co. v. Brooks, Ga., 89 S. E. 528.

29. Commerce-Constitutional Law.-St. 1915, p. 1163, relating to branding of imported eggs, cannot be sustained as a valid exercise of the police power, but is void as interfering with foreign commerce; its obvious purpose being to discriminate against imported eggs, and not to protect public health.-Ex parte Foley, Cal., 158 Pac. 1034.

30. Federal Employers' Liability Act.-A railroad's painter, using a paint gun to paint engines and cars used in interstate transportation, was engaged in interstate commerce within the Federal Employers' Liability Act.-Baltimore & O. R. Co. v. Branson, Md., 98 Atl. 225.

31. Constitutional Law-Special Tax Bills.Special tax bills for sewer construction being legislative assessments, no notice to property owners of proceedings resulting in their issuance is necessary, within the inhibition against depriving one of property without due process of law. Mullins v. Mt. St. Mary's Cemetery Ass'n, Mo., 187 S. W. 1169.

32. Corporations-Acceptance of Benefits.Where agents obtained stock subscription for corporation through fraud, if the company ac

cepts benefits of misrepresentations, it is liable for the fraud.-McLean v. Southwestern Casualty Ins. Co. of Oklahoma, Okla., 159 Pac. 660.

33. Corporate Seal.-The contract of the president of a corporation evidenced by note signed in name of corporation with seal, by the president, binds the corporation.-Spiller-Beall Co. v. Hirsch, Ga., 89 S. E. 587.

34. Gratuities.-Majority stockholders may not cause the corporation to pay gratuities, unauthorized by by-laws or charter, to one of their number, whether or not such payment is for valuable services rendered.-G. W. Jones Lumber Co. V. Wisarkana Lumber Co., Ark., 187 S. W. 1068.

35. Organization.-Where

the

organizers

of a corporation paid for their stock by conveyance of land of inferior value, plaintiff, who purchased stock from one organizer, was not a creditor of the corporation.-La Veine v. Tiffany Springs & Land Co., Mo., 187 S. W. 1186.

36. Ownership of Stock.-That one corporation owns all the stock of another does not make them the same, nor does it pass to one the property of the other, nor render one liable for acts of the other.-Erickson v. Minnesota & Ontario Power Co., Minn., 158 N. W. 979.

37. Subscription.-That one of several subscribing stockholders had an agreement that no assessment would ever be levied on his unpaid stock, and that he would not be required to pay any more thereon, was not such fraud as would release the liability of other subscribers.-Bergman v. Evans, Wash., 158 Pac. 961.

38. Covenants-Building Restriction.-A 20family apartment house, with a flat roof, about 46 feet high, with the usual improvements, cannot be deemed "a detached dwelling house constructed for one family only."-Dollard v. Whowell, N. Y., 160 N. Y. Sup. 544.

Law.

39. Criminal Law- - Constitutional Laws 1911, c. 133, § 20, as to giving information after automobile accident, is not unconstitutional as violating Bill of Rights, art. 15, by requiring accused to furnish evidence which might be used against him in a criminal proceeding. State v. Sterrin, N. H., 98 Atl. 482. 40. Damages-Elements of. The expenditure by plaintiff in searching and developing water on his ranch made necessary by defendant's interference with his easement to a water right was not a proper element of damage, where no showing was made that the improvements varied the difference in the value of the land with and without water, or the difference in the rental value.-Cheda v. Bodkin, Cal., 158 Pac. 1025. 41. Evidence.-The mere opinion of an agent selling on commission as to what sales he could have made, but for breach of contract, does not afford sufficient certainty to be the basis of recovery in damages.-Findlay Brick Co. v. American Sewer Pipe Co., Ga., 89 S. E. 535. 42. Fright.-Fright is an element of damages where it accompanies or follows a wrongful physical injury.-Easton v. United Trade School Contracting Co., Cal., 159 Pac. 597.

43. Measure of. Where policy provides for payment of stated sum and monthly installments until a certain sum is paid, and states commuted value of installments, beneficiary is entitled on insurer's breach to recover present value of installments, with interest at legal rate from date of demand.-Metropolitan Life Ins. Co. v. Day, Ga., 89 S. E. 576.

44. Death-Excessive Verdict. Verdict in favor of widow for $16,000 under federal Employers' Liability Act for death of conductor who was earning $113 a month and had an expectancy of 34 years, plaintiff being younger, held not excessive.-Phillips v. Union Pac. R. Co., Md., 158 N. W. 966.

45. Personal Representative.-Under federal Employers' Liability Act, widow could not, as an individual, sue husband's employer for his death, but action must be brought by personal of representative decedent.-Hein Great Northern R. Co., N. D., 159 N. W. 14.

V.

46. Descent and Distribution-Contingent Remainder. Where there is a contingent remainder to a definite person who dies intestate before

held out as a member.-Guin v. Grasselli Chemical Co., Ala., 72 So. 413.

96. Physicians and Surgeons Advertising Profession.-It is not merely unethical, but immoral, to get money from the poor, the simple or the ignorant, by advertising the cure of incurable diseases.-State Board of Medical Examiners v. Jordan, Wash., 158 Pac. 982.

97. Practicing Medicine.-A system of "Suggestive Therapeutics" in which defendant indulged in prayers, laying his hands on the patient, manipulating the muscles and nerve controls, and claimed cures, is "practicing medicine," and the name and method a mere subterfuge to escape the requirement of license.State v. Pratt, Wash., 158 Pac. 981.

as

98. Principal and Surety Contribution.Surety, with others, on postmaster's bond, aginst whom judgment was rendered, when all other cosureties, except plaintiff, as well principal, were at all times since the payment of the judgment insolvent, was liable to contribution to the paying surety.-Lindblom v. Johnston, Wash., 158 Pac. 972.

99. Equity.-Relation of principal and surety is fixed by arrangement and equities between the debtors or obligors, and may be known to the creditor or unknown.-Bright v. Mack, Ala., 72 So. 433.

100. Indorsement.-One indorsing a note as surety upon the express agreement that payee will file no materialman's lien against certain lots is released if the payee does file such lien.J. S. Mayfield Lumber Co. v. Mann., Okla., 158 Pac. 1190.

101. Private Roads Licensees.-A landowner inviting others to use its private way as though it were a public street, and under the belief that it is such, owes them no greater duty than that owed by the public to one using a highway.Reaney v. Central R. Co. of New Jersey, N. J., 98 Atl. 258.

102. Railroads-Exclusive Use.-A railroad company is entitled to the exclusive use of the tracks in its switchyard, and there can be no implied license to the public to use such tracks inconsistent with such right.-Wright v. lantic Coast Line R. Co., Ga., 89 S. E. 595.

At

103. Look and Listen.-It is negligence for pedestrian not to stop, look, and listen before entering narrow space between freight cars on switch track while locomotive is approaching end of train.-Thompson v. Illinois Cent. R. Co., La., 72 So. 421.

-Statutory

V.

104.- -Negligence. That a horse was killed by locomotive prima facie shows negligence of defendant railroad company.-Perryman Charleston & W. C. Ry. Co., S. C., 89 S. E. 497. of Construction.-Laying 105.third track for switching, etc., but few feet from railroad's double tracks, in operation for more than 50 years, intersected since 1891 by another double-track road, held not to constitute the third track a "new railroad," within Railroad Law, 22, or a "steam railroad hereafter constructed," within section 98, relating to intersections of roads.-Buffalo Creek R. Co. v. New York Cent. R. Co., N. Y., 160 N. Y. Supp. 546. 106. contract Sales-Executory Contract.-A to purchase cordwood on cars or at station at various prices, which fails to state time of payment or delivery, is an executory contract under which title does not pass until delivery.-Kondo v. Aylsworth, Ore., 158 Pac. 946.

107. Misrepresentation.

Misrepresentation by the seller that the excise commission had transferred or authorized the transfer of a license for the sale of intoxicating liquors to the buyer, and that this approval was lawful authority for the buyer to engage in the sale of intoxicating liquors, when in fact such authorized transfer had not been made, as required by Acts 1911, p. 260, § 15, is such misrepresentation as may avoid executory contract of purchase upon discovery of the misrepresentation.-Greil Bros. Co. v. McLain, Ala., 72 So. 410.

108.- -Rescission.-An executed sale of personal property cannot be rescinded for a breach

an

of warranty in the absence of fraud or agreement authorizing_rescission.-Elliott Supply Co. v. Johnson, N. D., 159 N. W. 2.

109. Specific Performance-Right of Action.Where the vendee failed to perform on the day set and record his option contract, he could not compel specific performance in suit against the vendor only, who, on failure to perform and prior to recording the contract, sold to a third person without notice.-Klausner v. Watson, N. J., 98 Atl. 271.

110. Sunday-Labor.-One is not barred from recovery for injuries received while working in violation of the Sunday law.-Lisle v. Anderson, Okla., 159 Pac. 278.

111. Labor.-That accused did not personally labor on Sunday held no defense to a prosecution for Sabbath breaking, under Penal Law, § 2143, in operating his factory, where he was present overseeing and carrying on the business in exactly the same manner as on week days.People v. Adler, N. Y., 160 N. Y. Supp., 539.

112. Telegraphs and Telephones-Constitutional Law. Stipulation on printed form of telegrams that company will not be liable for mistakes or delays in unrepeated messages beyond amount received for sending them is valid as to interstate messages, and not affected by Const. art. 23, § 9.-Western Union Telegraph Co. v. Orr, Okla., 158 Pac. 1139.

113. Vendor and Purchaser-Installments of Purchase Money.-Under a contract for sale of land on installments evidenced by notes providing that on default in two or more payments the purchaser should forfeit sums paid, the purchaser cannot, by refusal to pay, terminate the contract and escape liability on the unpaid notes. -Higgins-Jones Realty Co. v. Davis, Okla., 158 Pac. 1160.

114. Waters and Water Courses-Burden of Proof. The party asserting that a small lake, lying wholly within a single section and not exceeding 16 feet in depth, is meandered has the burden of proving that fact. Giddings v. Rogalewski, Mich., 158 N. W. 951.

115. Easement.-Where a water conduit extending through all of grantor's land had been for more than two years used permanently for irrigation, the sale of a part of such lands passes title to the grantee to an easement in the use of such conduit in bringing water across the land retained by the grantor.-Rodemeyer v. Meger, Cal., 158 Pac. 1047.

act, where

116. Injunction.-Defendants' they owned lands adjoining plaintiff's lands, in turning surface waters upon plaintiff's land, was the efficient cause of his continuing injury and ground for injunctive relief against them, though they sold their land immediately adjoining plaintiff.-Holloway v. Geck, Wash., 158 Pac. 989.

117. Wills Construction.-An estate was not exhausted by devise to two sons in common for life, subject to life estate in widow, with remainder over to sons' children yet unborn, there being a remnant in the nature of a base determinable fee which, on disclosure that the contingent event cannot occur, would ripen into a remainder in fee.-Coquillard v. Coquillard, Ind., 113 N. E. 481.

118.- Construction.

Where testator bequeathed to a niece a share of the estate for life, the same upon her death without issue to be divided among her brothers and sisters, or, should she leave none, then her share to revert to the general fund, to be divided among the remaining nephews and nieces of testator, held that, upon her death without issue, brothers, or sisters, her share went only to the nephews and nieces living at the time of her decease.-In re Leonard, N. Y., 113 N. E. 491.

119. Lapsed Legacy.-Bequest of a sum to one if he should be in testator's employment at the testator's death lapses, where the legatee testator and severed business relations with died before testator.-Johnson v. Folsom, Ga., 89 S. E. 521.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 3, 1916.

SEPARABILITY IN STATUTE ΤΟ SAVE

CONSTITUTIONALITY.

A statute of North Dakota provides that "every common carrier shall be liable for all damages which may result from the negligence of any of its officers or employes or by reason of any defect due to its negligence in its cars, machinery, track, roadbed, ways or works, resulting in death or injury to any employe." This statute was held constitutional by North Dakota Supreme Court because of the peculiarly hazardous nature of employment by railroads, so far at least as regards running of trains, keeping tracks in repair and other similar work. Gunn v. Minn., St. P. & S. S. M. Ry. Co., 158 N. W. 1004.

The employe in this case having been. killed in unloading a freight train was held to come within the class of employes in extrahazardous work.

The court says, arguendo, that: “It is not necessary for us to enter into a general discussion of the general question as to whether the statute of North Dakota would be constitutional, if construed according to its natural import and to cover all of the servants of a railway company no matter in what particular kind of employment or branch of the service they happened to be engaged. It is enough to say that all of the authorities are agreed that such statutes are constitutional if construed to apply only to those employments which are strictly related to the operation of the trains of a railway company and can fairly be said to be within the class of extrahazardous."

This statement amounts to saying that the North Dakota court would not stop to consider the question whether this statute was divisible in its parts or not and then determine whether or not it would likely have been passed if one part were eliminated and the rest allowed to stand.

All of us are acquainted with the principle that a statute ought not to be de

clared constitutional unless courts are led irresistibly to the conclusion that it is repugnant to constitutional safeguards. But this does not prevent courts from interpreting statutes in their plain, ordinary sense. If doing this they contain matter which separably considered is unconstitutional along with other matter that is constitutional, and it appears that the two are linked together in a way that they must stand or fall together, courts will not arbitrarily say they may be separated.

The rule for invalidity has been thus expressed: "When the provisions are so interdependent as to raise a presumption that the legislature intended the act to operate as a whole and would not have enacted the valid provisions alone, the entire statute will be adjudged invalid." 6 Am. and Eng. Encyc. Law, 1089. And: "When the unobjectionable portion is distinct and complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that portion which is invalid, the former will be upheld." Ibid. 1088.

It seems very difficult indeed to say this statute meets with the requirements of either of the above rules, especially to say there may be a separation of the parts "in accordance with the apparent legislative intent." The apparent legislative intent seems strongly in favor of enacting a statute against common carriers as a business and not at all to give to employes in hazardous work a remedy, whether this be given to other employes of these masters or not.

The statute says "every common carrier shall be liable to any of its employes whether injured by negligence of its other servants or from defects in machinery." It seems difficult to state more clearly legislative intent regarding employes of all classes and kinds of business in which they are employed. It seems like sophistication to spell out of the statute separability in legislative intent. Courts, while inclined to uphold statutes as constitutional, are not expected to ascribe to legislatures a possibility in intent, which is merely that and nothing more. It ought to have some reasonable probability of existence.

sult of that pasture being practically destroyed by an act of God. Such of as it remained was used in pasturing the cattle. It should, therefore, seem that this contract not specifically guaranteeing the future existence of the pas ture, there was no failure of performance by the promissor. There was nothing to show, that in the event of an act of God intervening to destroy the pasture, there was any obligation to transfer the cattle to another pasture. In this case the promisee was shown the pasture and the fact that he was a resident of Texas and the promissor a resident of Kansas had little to do with the question.

NOTES OF IMPORTANT DECISIONS.

CONTRACT — ACT OF GOD EXCUSING NON-PERFORMANCE.-In Berg v. Erickson, 234 Fed. 817, decided by Eighth Circuit Court of Appeals, it is held that while an act of God excuses non-performance of a duty imposed by law, this rule is not generally applicable to a duty imposed by contract, except in a few special cases, as for example, where there is an agreement to deliver a specific thing.

Applying this rule in regard to contracts, it was ruled, that where a resident of Kansas agreed to furnish pasture and good grass for a herd of cattle on a particular pasture for a season and an unprecedented drought, that is, unprecedented in its severity, prevented the carrying out of the contract, he was not excused for non-performance-the contract constituting a guarantee.

It is said that such contracts are to be construed according to the surrounding circumstances, but the general rule is that one who makes a positive agreement to do a lawful act is not excused from performance by a subsequent impossibility caused by an act of God.

While we have little doubt this is the general rule, yet the facts show that in this case the party who sued for damages for non-performance did not secure from the other party a general agreement to pasture and feed the cattle, but he did point out to him the particular pasture where the cattle was to be placed, and the agreement was that they were to be placed. Failure to perform was the re

COURTS CONSPIRACY TO DEFRAUD GOVERNMENT ACTING IN COMMERCIAL CAPACITY.-It was ruled by Second Circuit Court of Appeals that there was no jurisdiction in a federal court to prosecute for a conspiracy to defraud the United States where it was merely conducting a business enterprise. Salas v. United States, 234 Fed. 842.

This is, we believe, a sound principle, but whether it applied to the facts in evidence well may be doubted.

Thus the opinion states: "The theory of the United States is that the Panama Railroad Company is a governmental department and Burke, though on the pay roll and paid by that company, was an officer of the United States. The trial judge so held as matter of law. The Isthmian Canal Commission was an agency of the United States under the supervision of the War Department, having complete control of the building of the canal."

So far this presents no reason for saying the United States was engaged in a commercial venture. But the opinion proceeds: "The United States was also the owner of the whole stock of the railroad company, absolutely dominating it and solely interested in its profits and losses. The government, however, continued the original corporate organization of the railroad company for its own purposes, among others to avoid the restrictions of certain laws of the United States applicable to the commission."

It seems to us, that, conceding this avoidance to be lawful, this makes but a departmental detail, which in no way shows an abandonment of governmental sovereignty. But we quote from the dissenting opinion as follows: "The evidence showed a conspiracy to divide profits which otherwise would have gone and should have gone to the United States, if Burke had done his duty. This was defrauding the United States, even though there was an intermediate party in the form

of a corporation representing the United States as agent for the government business. Burke was also a government officer and failed (through the efforts of this conspiracy) to do his duty, even though the acts by which he directly carried out the conspiracy were done in Panama for the agent corporation, and while he was a civil employe thereof."

This refining as to government sovereignty being abandoned, when the whole purpose was to obtain a workable way to carry out a governmental object, is to stress a technicality in favor of one who had no legitimate nor ostensible interest in that technicality being recognized. In a civil demand one might rightly claim the contractual responsibility of the Panama Railroad Company. A sort of estoppel might be insisted upon.

COURTS-CONVICTION FOR INFAMOUS CRIME IN STATE COURT NO DISQUALIFICATION OF WITNESS IN FEDERAL COURTS.-It was held in Brown v. U. S., 233 Fed. 353, decided by Sixth Circuit Court of Appeals, that a state statute making one incompetent as a witness in any court of justice. in the state, could not apply in any case tried in a federal court sitting in that state.

There is referred to reasoning by Chief Justice Taney in Reid v. U. S., 12 How. 364, 365, that until federal legislation is had to declare the practice under the Judiciary Act of 1789, which failed to make any provision concerning the mode of conducting a criminal trial, it was the intention of Congress that it must be governed by some known and established rule supposed to be familiar and well understood in such trials. This rule may be thought to refer federal courts to the common law.

Later it was held in Logan v. U. S., 144 U. S. 263, that a judgment of conviction for perjury in North Carolina would not disqualify a witness in a trial in Texas in a federal court, under the principle that otherwise there would be given extraterritorial effect to a penalty.

In Spear v. U. S., 144 U. S. 303, a witness was held competent in a federal court in a state where a pardon by the governor removed disability.

In the Brown case it is conceded that there is no federal statute on the subject, and it is also conceded that according to the doctrine summarized by Prof. Greenleaf judgment of conviction for an infamous crime is effective to disqualify a witness and this is a known and established rule.

The question then is whether the Logan case prevents its recognition in a federal

court in a state where a conviction for an infamous crime has been rendered, on the theory that such a court is as foreign to the state where rendered as a federal court sitting in another state.

It would seem that the Spear case intimates that it would not, because a pardon was adjudged to restore competency. But the Brown case says that in the Spear case "the point was not before the court. For Spear's com petency the court manifestly did not look beyond the fact of the pardon, which the court had already held (Boyd v. U. S., 142 U. S. 450) was sufficient to remove the disability."

The Brown case cites many cases to show that the government and a state are independent political entities, but if the Reid case shows that, if there is some rule left yet to be supplied by federal statute such as remained after enactment of the Judiciary Act of 1789, the principle stated by Greenleaf would apply, this would seem to dispose of all inference about independent jurisdictions. We have seen that this would not carry over to a federal court sitting in another state a penalty, but then a rule well recognized as a disqualification would be recognized in a federal court of the state, where a conviction of infamous crime was had. The Spear case seems very strongly to support this view.

THE INHERITANCE TAX ON NONRESIDENT ESTATES.

There is a universal and well-founded complaint that the labors of those employed in settling estates of decedents holding diversified investments become increasingly difficult and costly as the several state legislatures from year to year, innovate or extend the scope of existing inheritance tax statutes with intent to reach all transfers of property which may be said to have its situs in the taxing state.

Nowadays, perhaps, it is too much to expect that law makers, intent upon producing adequate revenues for the ever enlarging activities of government, should have a proper regard for the conservation of those resources of wealth upon the continuance of which they must rely for future levies; otherwise, the repeated warnings of sound.