for convenience and safety of public.-Fisher v. Cedar Rapids & M. C. Ry. Co., Iowa, 157 N. W. 860. 91. Navigable Waters-Riparian Rights.Conveyance of land by riparian owner may carry riparian rights to submerged lands, unless such rights are reserved or contrary intent appears. -Panama Ice & Fish Co. v. Atlanta & St. A. B. Ry. Co., Fla.. 71 So. 608. 92. Negligence-Negligence per se.-A violation of a statute or municipal ordinance is negligence per se, and no recovery can be had for injury resulting to one while engaged in the prohibited act if it contributes to the injury.— Fisher v. Cedar Rapids & M. C. Ry. Co., Iowa, 157 N. W. 860. 93. Parent and Child-Imputable Negligence. -Where a child's custodian was careless in allowing him to play near the unguarded shaft into which he fell, contributory negligence bars recovery by the child's parent. Conway v. Monidah Trust, Mont., 157 Pac. 178. 94. Partition-Parties to Suit. The division of lands of the husband by his heirs at law when the title to the tract was in the wife, who was not a party to the division, was res inter alios acta, in no wise affecting the title to the land.-Roberts v. Dale, N. C., 88 S. E. 778. 95. Perjury.-Affidavit.-Affidavit made basis of charge of perjury need not have been sworn to before officer in judicial capacity: it being sufficient if he acted officially.-Sistrunk v. State, Ga., 88 S. E. 796. 96. Perpetuities-Trust.-A conveyance of lands to one for life, to be held in trust for the children of such person and another, the trust to end when the youngest child should reach the age of 21 years, with provisions over in event that such children should die without heirs, held not bad as a perpetuity; the estates being vested. Springs v. Hopkins, N. C., 88 S. E. 774. 97. Post-Office-Scheme to Defraud.-Persons using false representations in sale of farms held engaged in scheme to defraud within Cr. Code, 215, making criminal the use of the mails in execution of such a scheme.-United States v. New South Farm & Home Co., U. S. S. C., 36 Sup. Ct. 505. 98. Principal and Agent-Secret Instructions. -Secret instructions to agent, however binding between principal and agent, have no effect on third person, who deals with agent in ignorance of instructions, in reliance on apparent authority. New Mexico-Colorado Coal & Mining Co. v. Baker, N. M., 157 Pac. 167. 99. Principal and Surety-Discharge of Surety. In action on contractor's bond, fact that owner discovered that contractor was not paying his bills, but did not notify surety, it not appearing that bills on the owner's building were then due, etc., held not to discharge surety, though bond required notice of any act or omission of contractor that might involve loss.Zalesky v. Fidelity & Casualty Co. of New York, Iowa, 157 N. W. 858. 100.- -Notice of Loss.-Under an indemnity 'bond requiring immediate notice of acts of the employe probably involving loss, and of loss incurred, and requiring action within six months after presentation of claim, where the company was advised by telegram of suicide of employe, and later by letter of amount of loss, the six months began to run from date of letter, not telegram.-City of Seaside v. Oregon Surety & Casualty Co., Ore., 157 Pac. 150. 101. Quo Warranto-Title to Office.-A policeman is an "officer," and his title to office may be tried by quo warranto.-State v. Shores, Utah, 157 Pac. 225. 102. Railroads-Look and Listen.-Where pedestrian in the daytime steps upon a railroad track, where the view is unobstructed, and is injured, and had not looked or listened, his own negligence is the proximate cause of the injuries and will preclude recovery.-Davidson v. Seaboard Air Line Ry. Co., N. C., 88 S. E. 759. spite of frequent demands and then seek to compel the other to receive them, but such party does not forfeit his right to deliver by waiting formal demand for delivery.-Watson v. Feibel, La., 71 So. 585. 105. Specific Performances Part Performance. Doctrine of part performance of oral contracts applies only to such agreements as would have warranted specific performance had the contract been in writing instead of oral.-Heran v. Elmore, S. D., 157 N. W. 820. 106. Statute of Frauds-Original Promise.-A custom of defendant railway company to deduct claims against its employes from their wages, when authorized in writing by them in the time book, held not to constitute an assumption of primary liability for goods purchased by them. -St. Louis, Southwestern Ry. Co. of Texas v. Ragsdale, Price & Co., Tex., 185 S. W. 654. 107. Street Railroads-Pedestrian.-Subject to due regard for rights and safety of others, a traveler may walk or drive on any part of highway, and cross from side to side, wherever convenient, irrespective of street railroad tracks.Fisher v. Cedar Rapids & M. C. Ry. Co., lowa, 157 N. W. 860. 108. Taxation-Exemption.-It is within the power of the legislature to exempt, from other forms of taxation, property which pays a specific tax, regardless of whether the specific tax is on the property or the right to use it in a certain way. Jasnowski v. Dilworth, Mich., 157 N. W. 891. 110. Tenancy in Common-Partition.-Plaintiffs, two of three tenants in common, and those under whom they claimed having been in possession of a tract for more than 60 years preceding their institution of an action for partition, had title to two-thirds of the tract.Roberts v. Dale, N. C.. 88 S. E. 778. 111. Vendor and Purchaser-Place of Contract. Where plaintiff, by an agreement in writing made in Cuba, gave defendant an option to buy a concession for the construction of a railroad in Cuba, the existence of the contract must be determined by the Cuban law.Reilly v. Steinhart, N. Y., 112 N. E. 468, 217 N. Y. 549. 112. Waters and Water Courses-Extraordinary Flood.-The question whether a flood is extraordinary is to be decided by considering past rains, climatic conditions, nature of drainage and soil, presence of trees or herbage, and whether a reasonably prudent man should have foreseen and provided against the danger.Soules v. Northern Pac. Ry. Co., N. D., 157 N. W. 823. tes 113. Wills-Life Estate.-A devise to tator's wife, "for her sole use and benefit and to any children which may be born to us," held to give her a life estate, and the children thereafter born the remainder.-Lacey's Ex'x v. Lacey, Ky., 185 S. W. 495. 114. Probate.-Where a paper undertaking to dispose of property and another, in testatrix's handwriting, reading, "I, Julia W. Johnston, do make the paper inclosed herewith as my will," are found in a blank envelope among her valupapers, after her death, they can be probated as her holographic will.-Alexander v. Johnston, N. C., 88 S. E. 785. able 115. -Restriction on Alienation.-Devise for life, with gift over to bodily heirs, held to create a vested life estate, free from any restrictions as to alienation or incumbrance, and not a spendthrift trust.-Millard v. Beaumont, Mo., 185 S. W. 547. Cross-Examination. On cross-examination as to accused's good character, it is permissible as a test of witness' information to ask if the witness has not heard persons in the neighborhood impute particular wrongful acts to accused.-Lewis v. State, Ala., 71 So. 617. 116. Witnesses Central Law Journal. ST. LOUIS, MO., AUGUST 11, 1916. FORMULAE FOR FINDING PRESENT WORTH IN RECOVERIES FOR DEATH. In Chesapeake & O. Ry. Co. v. Kelly, 36 Sup. Ct. 630, there was reversal of state courts for error in an instruction in a suit under federal Employers' Liability Act for a death. This instruction was that: "If the jury find for the plaintiff they will find a gross sum for the plaintiff, which must not exceed the probable earnings of Matt. Kelly had he lived. The gross sum to be found for the plaintiff, if the jury find for the plaintiff, must be the aggregate of the sums which the jury may find from the evidence, and fix as the pecuniary loss above described, which each defendant member of Matt Kelly's family may have sustained by his death." truth in every day life. When we consider that even an actuary can arrive at nothing more than a probable sum based on expectancy and not on fact, there are contingencies which properly ought to make the solution of the question referable rather to the general rule in unliquidated damage cases the enlightened conscience of the jury as practical men. This rule, if apjury as practical men. propriate at all, is comprehensive enough to excuse any special allusion to the present worth theory. This is but one factor in the jury arriving at a proper verdict and to mention it specifically might be to stress its importance to the disadvantage of other considerations of perhaps equal importance. The Supreme Court, however, is enamored of the present worth theory and that it should be brought to the jury's special attention. It says: "The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased." There was request for instruction that this jury should "fix the damages at that sum which represents the present cash value of the reasonable expectation of pecuniary advantage" to the widow and minor children during their minority. This requesting at the sum of that compensation. Why was refused. Kentucky Court of Appeals, in affirming the judgment of the trial court said, as to the loss by death, that: "While that loss is, in a measure, future support, the father's death precipitated it, so that it is all due, and we are not impressed with the argument that the sum due should be reduced by rebates or discount. The value of a father's support is not so difficult to estimate, and the average juryman is competent to compute it, but to figure interest on deferred payments, with annual rests and reach a present cash value of such loss to each defendant is more than ought to be asked of any one less qualified than an actuary." Whatsoever lawyer may read this observation by the Kentucky court, can but sympathize with it as the expression of a While this is true, yet it does not answer the question why a particular feature should be called to the jury's attention in arriv not tell them to consider whether a widow is robust or infirm, or one or more of the children are or not anaemic or deformed or have not emerged from danger of infantile paralysis, or the climate where the family lives is or not conducive to long life? The Supreme Court goes on to say that: "The putting out of money at interest is at this day so common a matter that ordinarily it cannot be excluded from consideration in determining the present equivalent of future payments, since a reasonable man, even from selfish motives, would probably gain some money by way of interest upon the money recovered. Savings banks and other established financial institutions are in many cases accessible for the deposit of moderate sums at interest, without substantial danger of loss; the sale of annuities is not unknown, and, for larger sums, state and municipal bonds and other securities of almost equal standing are commonly available." It seems to us, that the very fact that the court feels it necessary to resort to argumentation of this kind to support the present worth theory, detracts from rather than strengthens its conclusion. If the things it instances are in judicial cognizance, that cognizance also knows, that commonly the bereft widow and children of an intestate employe do not know anything about them and, if they did, the immediate need of means to purchase a home would appeal more than an investment in municipal bonds. The investors' world is less apt to embrace a widow and children who have been deprived of their bread winner than any other persons. They are suing for the anticipated value of his day's wages and presumptively they need the sum of his stipends. The court goes on in its financial way and says: "We do not mean to say that the discount should be at what is commonly called the 'legal rate' of interest, that is the rate limited by law, beyond which interest is prohibited. It may be that such rates are not obtainable upon investments on safe securities, at least, without the exercise of financial experience and skill in the administration of the fund. *** This, however, is a matter that ordinarily may be adjusted by scaling the rate of interest to be adopted in computing the present value of the future benefits, it being a matter of common knowledge that, as a rule, the best and safest investments and those which require the least care, yield only a moderate return." This is all right for enhancing the present worth by computing a small interest return, but if we are to take judicial cognizance into consideration at all, why not recognize that ordinarily the prudent widow does not invest in interest paying securities but in a home, which is to become more and more valuable by loving care in its improvement and the refuge which it gives makes its dearest charm. It seems to us that the present worth theory is based on a very partial view. It presents a good basis for a defendant, but to the one entitled to recovery from him, it is but one of many elements to be considered. The same liberality of law that awards compensation for a death should not stint the ways it is to be computed. Its only care should be that the compensation should be reasonably adequate, and a wrongdoer should have little voice as to the method whereby this is ascertained. NOTES OF IMPORTANT DECISIONS. JUDGMENT-ENTRY OF APPEARANCE BY NON-RESIDENT SPECIALLY TO PROTECT INTEREST IN PROPERTY SEIZED BY ATTACHMENT.-In Cheshire Nat. Bank v. Jaques, 112 N. E. 500, decided by Supreme Judicial Court of Massachusetts, it was held that a non-resident defendant, whose property has been levied on by attachment, may appear specially to protect his property rights, for such purpose may contest the attachment suits on its merits and if he loses this appearance is not a general one, so that the judgment is res judicata under the faith and credit clause of the Constitution. The court said: "It is contended that because the defendant, after the entry of the order of the court to the effect that he could not appear specially but must submit to the jurisdiction generally if he desired to make any contest, answered generally, attempting to continue his special appearance and also filed cross-interrogatories for the taking of a deposition without questioning the jurisdiction, he has waived his special appearance and has, in fact, submitted himself generally to the jurisdiction of the court. But this contention cannot be supported. After having raised the point seasonably, he did not waive it by proceeding in accordance with the rulings of the court, which until reversed were the law of the trial." In another part of this opinion it was said: "It is elementary law that the doctrine of res judicata does not operate as an estoppel unless it is mutual and affects both parties alike. In a situation like that at bar, the plaintiff puts his cause in issue no further than does the defendant. The bar of whatever judgment may be rendered, where a non-resident defendant appears specially merely for the purpose of protecting his interest in attached property, extends no further against the plaintiff than it does against the defendant. It relates only to the property of the defendant held under effectual attachment. The record of the judgment and the form of the execution when rendered against the defendant explicitly show this. It runs only against the property so attached and not otherwise. * ** When a defendant pursues this course he cannot at the same time claim the boon of a general judgment if he wins, and the shelter of his special appearance if he loses." As we understand this reasoning, special appearance gives to a defendant more than the right to resist an attachment on formal technical grounds, but he may go into the merits, and not be bound as having entered a general appearance as to a suit in rem. So, also, if plaintiff wins, he cannot claim in another jurisdiction res judicata as to the merits of his claim; if defendant restricts his appearance as to either party, elsewhere the merits of the case again may be contested. We think it has been the general view that once the merits have been tried out an action has not been deemed one in rem, notwithstanding that there is retained what has been seized on mesne process. The court says that, "this precise question does not appear to have been (heretofore) decided." BENEFIT SOCIETIES-CHANGE IN RATE OF ASSESSMENT.-In 81 Cent. L. J. 74, we called attention to the fact that the Supreme Court had ruled that faith and credit clause of the Constitution, protected state construction of charter of home state of a corporation, that construction being that raise in assessments of members of a benefit society was lawful. See Sup. Council R. A. v. Green, 35 Sup. Ct. 724. Now we have similar construction by the Supreme Court of the charter of a congressional corporation. Sup. Lodge Knights of Pythias v. Mims, 36 Sup. Ct. 702. In this case the Supreme Court goes into the reasoning for its determination, saying: We assume without argument that by § 3 of the charter and his assent thereto, the plaintiff became a member of the organization, with whatever rights he might have as such. It is not to be conceived, however, that the charter was intended to create a privileged class, or that the right of the corporation to amend its laws was less in his case than in that of one joining after 1894. As to later members, we can have no doubt, notwithstanding the difference of opinion in state courts, that the right to amend extends to a change in the rates to be paid. Persons who join institutions of this sort are not dealing at arm's length with a stranger whose mode of providing for payment does not concern them, but only his promise to pay. They are joining a club the members of which have to pay any benefit that any member can receive. The corporation is simply the machine for collection and distribution. It is manifest, therefore, that it would be a perversion of its purposes if, through some ambiguity of phrase, the necessary source of benefits were closed in favor of certain members, while their right to insist upon payment remained. The essence of the arrangement was that the members took the risk of events, and if the assessments levied at a certain time were insufficient to pay a benefit of a certain amount, whether from diminution of members or any other cause, either they must pay more or the beneficiary take less." In 72 Cent. L. J. 19, this journal advocated that the right of a fraternal benefit association to re-rate its members was a law of necessity, and for them to unite on any other principle, with the corporation being nothing else than a sort of clearing house for collection and distribution, was to plant in its union the seeds of destruction. The corporation is not the nexus of union; it is but a facility the union uses. But many courts, in spite of the fact that the corporation has no independent power to carry on any business at all, yet consider that members contract with it instead of contracting inter sese. We welcome very greatly the following of our great tribunal on the line of Reynolds v. Sup. Council R. A., 192 Mass. 150, 7 L. R. A. (N. S.) 1154, 7 Ann. Cs. 776. These societies have a very hard time existing at all and nothing has made this harder than the courts in refusing to allow them to operate in the real spirit of the union of their members. A late case in St. Louis Court of Appeals takes the view taken in the Mims case, but it seems to us that whether it is right or wrong depends rather on how the home state of defendant construed its charter. Dessauer v. Macabees, etc., 191 Mo. App. 76. STATES IMMEDIATE EXECUTION AGAINST DENIED.-In Virginia v. West Virginia, 36 Sup. Ct. 719, defendant state resisted present service of execution on judgment previously entered on the ground that as it had no power to pay the judgment in question except through its legislative department, oppor tunity should be afforded her to make satisfac tory compliance at the next meeting of her legislature in due and ordinary course. The court thought this expressed adequate reason for delay, with leave to plaintiff state to renew her application after the next legislative session should have adjourned. There is no discussion of this ruling. A court has the right to control its own process where, at least, statute is not mandatory. Our constitution gives to the Supreme Court judicial power in cases of controversies between two or more states, it having original jurisdiction in this class of cases. It does not appear that statute has attempted to prescribe in what way judgments shall be enforced. It seems to us that, as state sovereignty is thus exceptionally subordinated, it may interpose exceptional reasons by application to our great tribunal in the exercise of its peculiar jurisdiction. Turner, a United States Immigrant Inspector at St. John, the plaintiff was examined by a physician who reported that he was suffering from trachoma, and, acting on this report, the Board of Inquiry at St. John, refused to allow him to enter the United States. About this time one George Serafic, an officer or detective in the employ of the United States Department of Commerce and Labor, came to St. John and approached the plaintiff. He represented that he was a Greek merchant from Montreal, that he could get the plaintiff into the United States for $40, and that if the plaintiff would give him $15 (Serafic) would provide the balance. Serafic's real business was to look after the smuggling of aliens into the United States, and he arranged with Morey and THE EXTRAORDINARY CASE OF Corey, two Assyrians at St. John (whom PAPAGERORGIOUV v. TURNER. The case of Papagerorgiouv v. Turner, decided by the New Brunswick courts in 1906 and fully reported in Volume 37 of the N. B. Reports, is interesting to American lawyers for several reasons. The case brought out several new and intricate points of law; it was popularly supposed that the Greek and American governments were the real parties; eminent counsel were employed on both sides; and the circumstances under which the case arose read like a chapter from a modern novel. The facts, which certainly bear out Chief Justice Tuck's statement that the case was "an extraordinary one," may be briefly stated. The plaintiff, a native of Greece, came to Montreal from Antwerp in July, 1903, and made application to enter the United States, but was refused admission by a Board of Special Inquiry as a prohibited alien under the Act of Congress of 1903. He then came to St. John, and a similar application was made. At the request of the defendant, he suspected of being smugglers), to take the plaintiff into the United States for $50, which he paid them and took a receipt for the amount. Serafic then placed the plaintiff in charge of one of the Assyrians who took him to Campbello, where they took a steamer for Eastport, Maine, and Serafic with the other Assyrian went to Eastport by a different route. When they arrived there, Turner (who was present in consequence of a telegram from Serafic) with the help of some United States officers, arrested the plaintiff, the two Assyrians and Serafic. Shortly before their arrest Serafic placed the receipt for the $50 paid to Morey and Corey in the plaintiff's pocket, and Turner afterwards took it from him. The arrest of Serafic was merely a blind, and he was released in a few hours, but the two Assyrians were tried and imprisoned for bringing a prohibited alien into the United States, and did not get back to Canada for nearly two years. The plaintiff was first taken to Portland to testify against the two Assyrians and then to Ellis Island at New York, where he was placed on a steamer and taken to Naples in Italy. At Naples he obtained assistance from the |