Northwestern Mutual Life Ins. Co. v. Whitesell (Texas), Insurance-Policy in Favor of Wife Subsequently Divorced, R. D. 200. Onondaga Gulf & C. Club (New York), Carriers-Discrimination at Common Law, R. D. 256. People ex rel. v. McCall (New York), Power of Courts in Reviewing Rulings of Public Service Commissions, Ed. 383. People v. Cole (New York), Physicians and Sur- Poteet v. Imboden (W. Virginia), WitnessesNo Waiver of Incompetency by Cross-Examination, R. D. 3. Ramlow v. Moon Lake Ice Co., et al. (Michigan), Damages-Proximate Cause, ann. case 318. Rawleigh Medical Co. v. Osborne (Iowa), Contracts-Restraint of Trade, ann. case 135. Raxworthy, et al. v. Heisen (Illinois), Master and Servant-Independent Contractor, ann. case 335. Read Drug & Chemical Co. v. Nathan (Maryland), Specific Performance-Essentials of Agreement Set Forth, R. D. 128. Rodell v. Relief Department of C. B. & Q. R. Co. (Minnesota), Is Limiting Recovery From Railway Relief Fund Forbidden by Federal Employers' Liability Act? Ed. 237. Royal Casualty Co. v. Puller (Missouri), Corporation-Ratification of Agreements by Promoters to Pay Solicitors for Stock Subscriptions, R. D. 164. Royer v. Rasmussen, et al (North Dakota), Action-Joinder of Parties, ann. case 174. St. Louis Union Trust Co. v. Curators of University of Missouri (Missouri), IncomeStock Dividends as Belonging to Life Tenant or Remainderman, R. D. 182. Salas v. United States (U. S. C. C. A.), CourtsConspiracy to Defraud Government Acting in Commercial Capacity, R. D. 310. Slack v. Joyce (Wisconsin), Appeal and Error Reduction of Damages by Exclusion of Incompetent Evidence, R. D. 39. Smythe v. Muri (North Dakota), Chattel Mortgage-Replevin, ann. case 45. Southern Ry. Co. v. Sewell (Georgia), Removal -Misfeasance of Servant Making Controversy Non-Separable, R. D. 328. Southworth v. Rosendahl (Minnesota), Attorney and Client-Compensation Upon Compromise by Client, R. D. 128. Spain v. Spain (Iowa), Divorce-Modifying Alimony, ann. case 99. State v. Clausen (Washington), Compulsory Arbitration the Logical Evolution of Workmen's Compensation Acts, Ed. 199. State v. Houghton (Minnesota), Police PowerOrdinance Prohibiting the Erection of Stores in Residential Districts, R. D. 182. State v. Jamison (Missouri), False Pretenses in Misrepresenting Law, Ed. 55. State v. Matthews (Maine), Criminal Law-Suggestion of Inference as Expression of Opinion, R. D. 38. Criminal State v. Sterrin (New Hampshire), State Public Utilities Com. v. Monarch Refg. Co. (Illinois), Controlling Plants for Refrigeration and Storage of Necessities of Life and Sale of Products Therein, Ed. 419. Turman v. Seaboard Airline Ry. Co. (South Carolina), Carrier-Willful Tort by Servant to One Riding on Free Pass, R. D. 221. United States Fidelity & Guaranty Co. v. Parsons (U. S. C. C. A.), Conditional Sale-Lien . on After-Acquired Property not Valid Against, Though Unrecorded, R. D. 329. United States v. Chicago, M. & St. P. R. Co. (U. S. D. C.), Commerce-Aggregate of Time Between Connecting Carriers Under 28 Hour Stock Law, R. D. 275. United States v. United Shoe Machinery Co. (U. S. D. C.), The Leasing Clause in the Clayton Anti-Trust Act, Ed. 255. Van Tuyl v. Carpenter (Tennessee), ComityStatutory Assignee Protected by Faith and Credit Clause, R. D. 238. Virginia v. West Virginia (U. S. S. C.), StatesImmediate Execution Against Denied, R. D. 93. Western Union Tel. Co. v. Smith (Texas), Telegraphs and Telephones-Recovery for Mental Anguish for Non-Delivery of Interstate Message, R. D. 367. White v. East Side Mill & Lumber Co. (Oregon), Rule of Negative Pregnant in Pleading Applies Only to Averment of Material Facts, Ed. 145. White v. Hatcher, et al. (Tennessee), Bills and Notes Negotiability, ann. case 209. White v. State (Georgia), Criminal Law-Circumstantial Evidence to Show Corpus Delicti, R. D. 75. Whitman v. Cook (Michigan), Equity PleadingFailure of Answer to Ask for Affirmative Relief, R. D. 74. Williams v. Philadelphia Life Ins. Co., et al. (South Carolina), Insurance Delivery of Policy, ann. case 228. Willis v. O'Connell (U. S. D. C.), Restraining Malicious Publication Injurious to Business, Ed. 1. Wilson v. Grand Trunk R. Co. (New Hampshire), Is Limiting Recovery From Kailway Relief Fund Forbidden by Federal Employers' Liability Act? Ed. 237. Wurdeman v. City of Columbus (Nebraska), Municipal Corporations--Competitive City Bidding, ann. case 153. Central Law Journal. ST. LOUIS, MO., JULY 7, 1916. RESTRAINING MALICIOUS PUBLICATION INJURIOUS TO BUSINESS. In 82 Cent. L. J. 414, this journal considered the question of "Injunction Against Libel and Slander as Injurious to Life, Liberty and Pursuit of Happiness," and the view there taken by us was that the constitutional right to a jury trial, in libel or slander, in no way militated against the right to enjoin a wrong of this kind. Neither does it seem to us that constitutional provisions that the right of free speech shall not be enjoined but one is responsible only for license in its use, affects this question. See also 80 Cent. L. J. 88: "Injunction Against Libel as Injurious to Property Rights." In Willis v. O'Connell, 231 Fed. 1004, Clayton, D. J., holds, as by the great majority of cases in lower Federal courts, that equity will not restrain by injunction the publication in the press of a libel, even though its effect will be to injure one in his reputation, property or business. The learned judge goes into quite an extended discussion of the principle that equity will not enjoin the publication of libel because everyone has the right of free speech, and a free press is a constitutional right. But all of these rights are conditioned upon responsibility for the abuse of the right. Even when constitutions say that "no law rightfully can be passed to restrain or abridge the freedom of speech or the freedom of the press," it is nowhere asserted that a law making one responsible for abuse would be excluded thereby. Therefore, liability for abuse is no argument to claim lack of freedom in speech or by the press. But, if there may be liability post hoc, why may a court of equity refuse to consider anticipatory damage from the publication of a libel? In some kinds of cases equity has intervened by injunction, as the opinion by the learned judge shows. Thus in Advance Platt & Co. v. National Harrow Co., 121 Fed. 827, 58 C. C. A. 163, a patent case, statements were made intended to coerce one and injure his business. The judge endeavors to distinguish this as being unfair competition. But there was injunction and all defendant had done was to publish a libel. The same may be said about Farquhar v. Harrow Co., 102 Fed. 714, 42 C. C. A. 600, 49 L. R. A. 755. Then the judge cites a boycott case where the injunction was against one who was sending out circulars, among other things to induce the customers of a business from trading with it. Beck v. Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421. Then he cites a case where one merchant, acting by himself, was enjoined from maintaining a placard in his window reflecting on the business of his next-door neighbor. Gilly v. Hirsch, 122 La. 966, 48 So. 422, 20 L. R. A. (N. S.) 972. The learned judge does not deny the correctness in ruling of these cases but he says: "I think it not unfair to say that the cases cited and relied upon by plaintiff, as a general proposition, may be divided into three classes: (1) Where patent rights were infringed; (2) where unlawful violence was threatened and imminent; and (3) where unfair and illegal methods were resorted to by competitors in trade." But if these kinds of cases are without the operation of the constitutional provisions or without the rule that equity will not enjoin a libel, why should others not be? The reason for the interposition of equity in any one of these cases would be the irreparable injury threatened. This as a principle is not confined to infringement of a statutory property as a patent is, or where physical violence is imminent and, certainly, competitors have no peculiar rights against other competitors. The truth of the matter rather is, that relief is grantable, not on the theory of statements being libelous or non-libelous, Lut rather upon the fact, that the one making them maliciously intends injury by means of words as acts, whether they be truthful words or not. If a merchant is struggling along in business, has another, whether a competitor or not, the right to pry into his business and maliciously publish the fact of his difficulty and thereby precipitate his ruin? He may not have overstated matters at all, but some confidential relation may have been betrayed in the publication. Shall he escape because the truth in libel may be a complete. defense? We think courts have failed to grasp the difference between speech as a libel and speech or writing as a fact. If one have a duty to report to another as to a condition, a truthful report excuses, though it work irremediable injury to another. But, if there is no duty to report, a truthful report by a mere busybody is a wrongful act and one against whom it is about to be made has a right to the report being withheld. Why may he not assert his right and obtain an injunction? Should he have less right to restrain a false report, when, whether false or true, it is about to be made maliciously? Suppose again one has, by being in a confidential relation, become enabled to libel one in a very harmful way, and destroy his - business or character, shall he not be able to arrest publication of the libel? But it may be said the position of confidence makes this case an exception. This may be true, but we are supposing exceptions and were we to go on supposing and supposing, we might make of the rule itself an exception. Courts, we believe, should not be adhering to a rule, though it may have precedents behind it, which rather encourages violations of right, than prevents them. Courts have said this would throw abundance of litigation into courts, but, if a rule protects or tends to protect valuable rights, this is merely argumentum ab inconvenienti, which is about the weakest thing in jurisprudence of which we know. NOTES OF IMPORTANT DECISIONS. EASEMENT-USE OF SURFACE NOT INTERFERED WITH BY WIRES OF TELEPHONE COMPANY.-In Illinois Cent. R. Co. v. Centerville Telephone Co., 186 S. W. 90, decided by Supreme Court of Tennessee, there was a proceeding to restrain a telephone company from crossing a railroad's right-of-way with its wires strung in the manner they were being strung. It does not appear that the plaintiff was contending that the wires could not cross above at all, but the court finds occasion to say: "Having only an easement, the railroad company is not entitled to have its way open to the sky, and the grant to it is not interfered with by constructing overhead telephone wires so long as the reasonable and safe use of the easement is not impaired." There are cited several cases to this proposition, one of them holding that "the owner of the fee may build a bridge for his convenience over the easement or passageway" if the use of the easement is nct seriously obstructed. While this seems just from the standpoint of what grantor and grantee may be supposed to have contemplated by the grant of the easement, yet it suggests a something in divisibility by a sort of sandwiching that is quite unusual. The old rule of the common law that the owner of the fee owns it usque ad coelum took into consideration the resting of structures on the soil and extending them upward. This he could not do if an easement intervened, at least not perpendicularly. By an offset, so to speak, he might cover an easement used as a way. But would this right be implied? Suppose an easement covered all the surface of grantor's fee, could he acquire adjoining property and occupy the space overhead by extension over the easement and then it be left to courts to say this brought about no serious interference? In common law days the stretching of wires for telegraph or telephone purposes was as little contemplated as aviation and possibly other things of this later time. Would a leaning tower of Pisa then have been deemed an invasion of an owner's fee, or, at least, of rights in an easement? Our Contemporary, New York Law Journal of June 26, 1916, has a very interesting editorial discussion on "Separate Horizontal Ownership of Land" and allusion is there made to Kemmerer v. Midland Oil & Drilling Co., 229 Fed. 872, decided by Eighth Circuit Court of Appeals and especially to what is said in the opinion about splitting of portions of a building in separate horizontal ownerships. WITNESSES-NO WAIVER OF INCOMPETENCY BY CROSS-EXAMINATION.—West Virginia Supreme Court of Appeals holds that if timely objection to incompetency of a witness is interposed, there is no waiver of the incompetency by cross-examination confined to the subject-matter of what he testifies to in chief. Poteet v. Imboden, 88 S. E. 1024. It is not said in this case, however, what would be the effect of drawing out new matter, but we imagine, that if the new matter would be something that the objection for incompetency would be equally available against, this would be waiver by both sides. It is stated that if the cross-examination is confined to the subject matter in chief, and objection for ind, the entire evidence iscompetency is sustaine excluded. There are a number of cases, however, which support the rule of waiver by any kind of a cross-examination. It seems to us, however, that the ruling of West Virginia court ought to govern. One offering a witness as competent submits him, of course, to cross-examination. All that the other side can do is to make objection to his competency. He ought not to encounter the peril of a waiver by exercising a right he undoubtedly has as to a competent witness. This would give his adversary an advantage in a situation he creates for his own advantage. The West Virginia court said: "Conclusiveness (of probable cause) seems to be based on the general deduction that, where the facts on which the accusation is predicated, were such as to generate in the mind of a reasonable man, moved by proper motives, a belief in the guilt of the accused and the inquisitorial and trial juries, upon an ex parte investigation in the first instance and a full hearing under the supervision and direction of the trial judge in the second, have concurred in such belief, the inquiry as to the existence of probable cause should be foreclosed, and a further investigation precluded except for fraud or perjury.” This rule places the matter of probable cause on a practical rather than on a technical basis, and while possibly it should not be deemed universal, seems sufficient for every day administration of the law. Mere misdirection by the judge in instructions ought not to count greatly against conclusiveness of verdict, as showing probable cause for a prosecution, yet if facts as matter of law failed to show any guilt, why should an accused suffer from a judge's misapprehension of law? Though matter of law may be hard for a judge to determine, yet all who are not judges are presumed to know the law. CAUSE SHOWN BY JUDGMENT OF CONVICTION THOUGH REVERSED.-West Virginia Supreme Court of Appeals holds that a conviction of larceny though reversed on writ of error and accused discharged from further prosecution, is conclusive evidence of probable cause for believing him guilty of that offense, so that a petition in a suit for malicious prosecution is subject to demurrer where it fails to allege that the conviction was procured by fraud. Haddad v. Chesapeake & O. Ry. Co., 88 S. E. 1038. It is said there is no invariable rule for determining what facts authorize inference of probable cause in a given case. There are a great number of cases cited to sustain this holding, while other cases give to such conviction conclusiveness until reversal and thereafter regard it as prima facie evidence of probable cause. Some courts distinguish as to probative effect of judgments in courts of general jurisdiction and those of magistrates where judgments remain unreversed and still other states accord the same weight to conviction in courts of record and those before justices. Introductory.-There have been decisions. by American courts in jurisdictions following the common law as the rule of decision, regarding the right of a child or lineal descendant of an adopted child to inherit from his adoptive parent, but none (of which I know) as regards the right of the child of an adopted child to inherit from the ancestors or next of kin of the adoptive parent, that is to say, as if he were kin in blood of the adoptive parent. There also have been decisions regarding the right of an adopted child to inherit from collateral kindred of the adoptive parent, and these decisions have considered whether or not the adopted child was to be regarded in law as kin in blood of his adoptive parent, notwithstanding that his old relation, as a natural child, was in no way affected by his having become adopted. These latter decisions have only an indirect bearing on the question involved in the former, or rather, I may say, the principle declared in the latter decisions, and the reasons therefor, may be invoked as leading to or refuting the deductions sought in the former cases. I purpose to consider herein what right has any next of kin of an adopted child, be he lineal or collateral, to take through the adoptive parent in cases where such child predeceases such parent. The cases may not be more plentiful than if I were inquiring as to the status of the child of an adopted child, in the contingency mentioned, but this broader way of stating the matter seems to present more room for suggestion or argumentation. Source of Property Vested in Adopted Child. I can think of no principle of law, whatever adoption statutes may otherwise provide, that would deflect from the ordinary course in descents property once vested in an adopted child, because of the source from which it came. Thus in a Missouri case1 it was urged that the estate of an adopted child, derived from his adoptive parent, did not go to his relatives by blood, but the court said: "In the consideration of this question, it is not material from what quarter the estate of the child is derived. It may seem great injustice that the property derived from one source should go in a channel never contemplated by the donor; but we may suppose in this case, that the property vested in the adopted child came from an entire stranger to the blood of either her natural or adopted parents, and the same rule must prevail."2 In the Upson case, supra, it was said: "The (Ohio) state, in so far as it changes the general course of descents and distribution of intestate property, and ignores all merit on account of blood, should be (1) Reinders v. Kooppelman, 68 Mo. 482, 496, 30 Am. Rep. 802. (2) Upson v. Noble, 35 Ohio St. 655; Hale v. Robbins, 53 Wis. 514. strictly construed. And while we find in it a clear declaration that the adopted child shall be the 'legal' heir of its adopting parents, there is no express provision that it shall be capable of inheriting from any other person, or of transmitting an inheritance to anyone." The natural mother was, therefore, held to take a child's estate though derived from his adoptive parent. In Hale v. Robbins, supra, it was said: "The statute having expressly declared that the adopted child shall inherit from the adopted parent, and having omitted to declare that the adopted parent shall inherit from the child, we think it must be held, according to the rules of construction, that the general law of inheritance was not intended to be changed in favor of an adopted parent." But a statute may even be more precise as to the relations between adoptor and adoptee and still be insufficient to change the general law as to descents and distribution. Thus Indiana statute provided that: "After the adoption of such child, such adopted father or mother shall occupy the same position towards such child that he or she would if the natural father or mother, and be liable for the maintenance, education and in every other way responsible as a natural father or mother." In a case where an adopted child died and his sister, the natural child of the adopting parent, claimed to inherit his part of the adopting parent's former property. This was opposed by the adopted child's mother by blood. It was claimed that when she "consented to the adoption, she thereby relinquished and gave up all her rights as mother and that she cannot inherit from him as such." The mother was declared to be the heir of deceased adopted child.* 3 These cases depended on statutory construction, but all hold, that, there being no (3) Barnhizel v. Ferrell, 47 Ind. 335. (4) See also Com. v. Nancrede, 32 Pa. St. 389; Schafer v. Even, 54 Pa. St. 304. |