they will be in a position of safety and use reasonable diligence in taking such positions.Sorrell v. Missouri, K. & T. Ry. Co., Tex., 230 S. W. 768.

51. Mines and Minerals-Reservation.-Under the settled law of West Virginia that the word "mineral" is not capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it to be ascertained from the language of the deed, the relative position of the parties, and the nature of the transaction, where a controversy over the title to land was settled by a conveyance of the land by one party to the other, who was in occupancy of the surface, with a reservation of "all the minerals, mineral substances, and oils of every sort and description," with the right to mine, bore welis, and use so much of the surface as required in operating mines or wells, the reservation held to include natural gas.-Dingess v. Huntington Development & Gas Co., U. S. C. C. A., 271 red. 864.

52. Monopolies-Fixing Prices.-An attempt by the manufacturer of a patented article, by means of a system of so-called license contracts, which wholesale and retail dealers were required to sign, to control the resale price of such article, after it had sold and received payment for the same, and after such article, under the law as settled by prior decisions of the Supreme Court, by reason of such sales, had been freed from the patent monopoly, held an unlawful restraint of trade, in violation of Anti-Trust Act, § 1.-Victor Talking Mach. Co. v. Kemeny, U. S. C. C. A., 271 Fed. 810.

A

53. Municipal Corporations-Negligence. property owner is not estopped from recovering from defendant city damages suffered by him by reason of the city's negligence in making a paving improvement whereby surface water was collected in front of the owner's lot because he petitioned the city with others for the improvement; the petition not being construable as a request to make the improvement without reference to consequences to plaintiff resulting from negligence. City of Greenville v. McAfee, Tex., 230 S. W. 752.

54. Negligence-Slippery Platform.--In an action against a lessee of a store by a customer, who slipped upon a concrete platform at the entrance as she was leaving on a rainy day, held, that there was no evidence to show that defendant was guilty of negligence, where it was not shown that he constructed the platform, or that there had been accidents of a similar kind on other rainy days, due to the slipperiness of the surface, or that slipping was due to the wet condition of the platform or its improper construction.-Schaefer v. De Neergaard, N. Y., 188 N. Y. S. 159.

55. Physicians and Surgeons-Negligence.It is incumbent on a physician to give such instructions as are proper and necessary to enable the patient or his nurses and attendants to act intelligently in the treatment of the case, and a failure to do so is negligence, which will render him liable for injury resulting therefrom.-Everts v. Worrell, Utah, 197 Pac. 1043.

56. Principal and Agent-"Contract of Sale." -An order for merchandise, given by plaintiff and signed by one as salesman for defendant, held not to constitute a "contract of sale."-C. F. Bally, Limited v. Quaker City Corporation, U. S. D. C., 271 Fed. 957.

57. Railroads-Excessive Charges. Under Federal Control Act, § 10, allowing actions at law against carriers without defense that the carrier is an instrumentality of the federal government, an action to enforce an order by the Interstate Commerce Commission. requiring the carrier to repay to the shipper excessive charges collected before the government took control, can be maintained against the company during the period of government control.-Vicksburg, S. & P. Ry. Co. v. Anderson-Tully Co., U. S. S. C., 41 Sup. Ct. 524.

-

58. Sales Breach of Warranty. Where a contract of sale contains a warranty and provision for a remedy in case of breach, that remedy is exclusive.-J. I. Case Threshing Mach. Co. v. Rose, Ky., 230 S. W. 545.

59. -Measure of Damages.-Where buyer's failure to accept all ties conforming to specifi

cations on seller's delivery of 211,000 feet, and loss of a portion of the ties delivered was the result of confusion caused by seller's delivery of large numbers of ties not conforming to specifications, and seller's noncompliance with provision of contract, requiring delivery with the different grades and dimensions of ties segregated, and stevedores' refusal to handle all of the ties because of such confusion, the fact that some of the ties sent back complied with specifications of the contract, and that some of the ties were lost, did not excuse the seller's failure to make further deliveries.-Stimson Mill Co. v. Rogers, Mylroie Lumber Co., Wash., 197 Pac. 919. 60. Taxation-Bequest to City.-A bequest to the city of Duluth, in trust "for the establishment of a free and public hospital," is exempt from the transfer tax; such city being empowered by its charter to receive gifts for such purposes. In re Miller's Estate, N. Y., 188 N. Y. S. 320.

61. Increased Value of Stock.-Where the owner of corporate stock in good faith made gift thereof, and the stock had considerably enhanced in value between the first of the year and the date of the gift, the owner is not liable to taxation under the Income Tax Law on account of the increase, for it was of no pecuniary benefit to him.-People v. Wendell, N. Y., 188 N. Y. S. 273.

62.- -Movable Property.-Sulphur, which had been removed from underground in a liquid state and allowed to solidify, is not part of the realty, but was properly assessed as movable property, though it was in such large blocks it would have to be blasted before it was loaded for shipment. -Union Sulphur Co. v. Reid, U. S. D. C., 271 Fed. 978.

63.

Tender-Actual Production Unnecessary. -One tendering money did not have to produce actually the money where there was a refusal to accept the amount offered, which was admitted on the trial.-Murray v. Bryan, N. Y., 188 N. Y. S. 254.

64. Trusts Money on Deposit.-Money deposit payable to mother or daughter, or survivor, held not a trust for mother to daughter for benefit of all the children.-Kauffman v. Edwards, N .J., 113 Atl. 598.

65. Wills Contradictory Provisions.-Under a will: "I give and bequeath to my wife *** all my personal estate her lifetime or widowhood, at her death or marriage I bequeath to my niece all my estate, both real and personal. * * * I also bequeath to my wife all my real estate, if any there be, at my death"-held, that wife took only life estate in the real estate, and that the niece on the death of the wife took an absolute fee simple estate.-Carey v. Dykes, Md., 113 Atl. 626.

66.- -Duty of Witnesses.-The word "attested," used in § 5078, Code of 1906. is broader in meaning than "subscribed," and the purpose of the statute in requiring two witnesses to attest the will is to have more than the mere signatures to the will. It is the duty of the attesting witnesses under the statute to observe and see that the will was executed by the testator; and to observe his capacity to make a will; and where the testator did not sign the will in the presence of one of the witnesses, nor declare his signature, nor identify the paper or signature, nor declare it to be his will, it was improper to instruct the jury that the will was duly and legally executed.-Maxwell v. Lake, Miss., 88 So. 326.

67. "Heirs."-The word "heirs" within provision of will directing that on son's death "without heirs him surviving" the property bequeathed to the son should become the property of named daughter, held mean children, not heirs generally, in view of the fact that the ultimate taker, as the son's sister, was his presumptive heir.-Hines v. Reynolds, N. C., 107 S. E. 144.

to

68. Witnesses-Privileged Communications.— An attorney cannot be required to testify concerning communications made to him in that capacity, notwithstanding no objection is made by the client, who, not being a party to the litigation or present at the trial, has no opportunity to consent or to object to the testimony.O'Brien v. New England Mut. Life Ins. Co., Kan., 197 Pac. 1100.

The recent case of Scott v. Triggs, 131 N. E. 415 (Ind.) raises the question whether a subscription to a charity is enforceable. It held that such a subscription is enforceable if relied upon by those in charge of the fund to which the subscription is made.

In that case defendant signed a subscription to the Huntington County (Ind.) War Chest, a fund collected by the citizens of Huntington County, Ind., to be distributed to the various war charities in discharge of the quotas for which the county was morally obligated as a community. Defendant failed to pay his subscription and the court gave judgment against him on the ground that "the association, relying on the pledge so made by the appellant and on the pledges made by others, incurred various expenses and obligations for the purpose of carrying out the objects of the association, which obligations have not all been paid by the association, but that a portion of said obligations are now due and owing."

So long as a consideration is necessary to sustain a contract under the English common law, a subscription can never be regarded as anything but an offer. This result shows the absurdity of the common law rule requiring a consideration to support a promise, and in this case as in many other cases the courts have been diligent to to find ways of escape from such an unjust condition. In every system of jurisprudence on the continent of Europe, a promise is good irrespective of the fact that the promissor reaps a benefit or the promisee suffers a detriment. And this is true in English law in the case of specialties. As Dean Ames, of Harvard, has pointed out, a sealed instrument was valid without a consideration, not because the seal im

ported a consideration, but simply because a promise attested by one's seal created an obligation based on such promise. A written contract today is, in most states where seals have been abolished, as solemn a proceeding as the execution of a sealed instrument at the early common law, and any man who solemnly binds himself to pay a sum of money or perform an act ought not to escape performance by showing lack of consideration. If his promise requires the performance of an act by the other party or the prior or continued existence of some article or status, such requirements should more properly be regarded as conditions, either precedent or subsequent as the case may be.

In the case of a subscription to a charitable enterprise, the promissor engages to pay a sum of money on a date certain in aid of a particular purpose. The fact that others are interested in the same enterprise and that one subscription is made on the faith of another, is hardly a consideration for the promise of any one subscriber. It might possibly be a condition express or implied. I might agree to contribute $200 provided a sum of $10,000 is raised by similar subscriptions. In such case no subscription would be binding until subscriptions amounting to $10,000 had been received at which moment all subscriptions would become binding.

Where no conditions are attached to the subscriptions they become binding under the common law just like other offers to induce the performance of an act, namely, by the performance of the act.

It is almost impossible to draw up a subscription contract that will be binding until the promisee starts upon the performance of the task for the accomplishment of which the subscription was made. Until that moment the contract is unilateral and unenforceable. Twenty-third Street Baptist Church v. Cornell, 117 N. Y. 601, 23 N. E. 177, 6 L. R. A. 807; Philips Limerick Academy v. Davis, 11 Mass. 113, 6 Am. Dec. 162; Johnson v. Otterbein University, 41 Ohio State. 527.

Logically, the act called for by a unilateral promise should be completed before the promisor is bound, but in the case of subscriptions it is generally held that if work has been done or money expended in reliance upon the subscription being paid, such entry upon performance constitutes an acceptance of the contract and furnishes the consideration to make the subscription a binding obligation.

The objection is made to this rule that it is theoretically fallacious in the reasoning on which it is based. If I agree to give A one dollar if he will cut the grass on my lawn, A is not entitled to the compensation until he has cut over the grass on the entire lawn. A few strokes of the sickle would not entitle him to bring suit for the dollar which I promised him. But the case of a subscription is different. The money I promise is not compensation to the promisee for services to be rendered but is the instrument by which such services are rendered. So when the promisees have bound themselves to carry out the object of the subscription contract, the promisor is bound at once to supply the promisee with the means of carrying into execution the act called for by the subscriber's promise.

The courts have reached a right result simply by acting on their sense of justice, so the Supreme Court of Ohio admitted in the case of Irwin v. Lombard University, 56 Oh. St. 9, 22, 46 N. E. 63, 60 Am. St. Rep. 727, 36 L. R. A. 239. In that case the court felt compelled to admit that "it is not unlikely that some of the cases in which subscriptions have been enforced at law, have been border cases, distinguished by slight circumstances from agreements held void for a want of consideration."

The confusion into which some of the courts have fallen, is due to the fact that they have regarded the subscriber's promise as an offer to pay for the accomplishment of a charitable purpose, when clearly the promise is to furnish the means for the performance of an act, desired by the promisor. The offer in such cases is virtually

this: "If you will undertake to build a church or a school, etc., I will give you $200 to enable you to complete the enterprise." Here the act called for is not the completion of the enterprise but the assumption of an obligation to complete it. When the promisees assume obligations to perform the task called for, they have performed the act required by the promisor who is now bound to furnish the means to carry on the task he desired the promisees to undertake.

NOTES OF IMPORTANT DECISIONS

LIABILITY OF BANK FOR WRONGDOING OF DEPOSITOR'S AGENT WHERE PASSBOOK BALANCE IS CHECKED BY SAID AGENT.-Some courts have applied too strictly the rule of estoppel arising in favor of a bank with respect to a depositor's examination of the periodical statements furnished by the bank, where such statement is checked by the agent of the depositor.

It is undoubtedly true that knowledge of a dishonest agent of fraudulent entries and incorrect balance is equally the knowledge of his principal, with the qualification, however, that the principal is chargeable, not with the knowledge of wrongdoing the agent possessed from the fact that he himself was dishonest, but with knowledge of such facts as an honest agent, unaware of the wrongdoing, would acquire when examining the statements within the scope of his employment. The dishonesty of the agent does not change his relationship to his principal, and accordingly does not change the rule charging his principal with knowledge of such facts. Dana v. National Bank of Republic, 132 Mass. 156; First National Bank v. Allen, 100 Ala. 476, 40 South. 335, 27 L. R .A. 426, 46 Am. St. Rep. 80; Critten v. Chemical National Bank, 171 N. Y. 219, 63 N. E. 973, 57 L. R. A. 529; Leather Manufacturers' Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed. 811.

But this rule does not apply to instances of wrongdoing on the part of the agent which are distinctly contrary to the agent's powers where the authority of such agent is filed in writing with the bank. First National Bank v. Farrell, 272 Fed. Rep. 371. In this case Farrell, the plaintiff, opened an account with the First National Bank of Philadelphia and authorized the bank to honor the checks of his agent, Snyder, up to an amount not in excess of one thousand

dollars. He also authorized the agent to check and accept the bank's periodical statements. The agent drew and cashed many checks for his own use in amounts in excess of one thousand dollars before his rascality was discovered. This suit is brought to recover from the bank the amounts in excess of $1,000 which plaintiff's agent drew upon and cashed at defendant's bank. To the contention of the defendant that plaintiff was bound by the periodical statements submitted by his request to his agent, the Circuit Court of Appeals (3rd Cir.) said.

V.

"The general rule arising from the examination of pass book or statements by the depositor himself, and the variation of the rule arising from the examination of them by his authorized agent, involve in practically every reported instance wrongdoing where the negligence of the bank was not involved and where the wrongful act was entirely that of a person other than the bank. Both the rule and its variations disappear altogether where the bank has been negligent in detecting the fraud; National Dredging Co. v. Farmers' Bank, 6 Pennewill (Del.) 580, 69 Atl. 607, 16 L. R. A. (N. S.) 593, 130 Am. St. Rep. 158; Manufacturers' National Bank Barnes, 65 Ill. 69, 72, 16 Am. Rep. 576; Myers v. Southwestern National Bank, 193 Pa. 1, 44 Atl. 280, 74 Am. St. Rep. 672; when the neglect of the bank to observe the limitation of a drawing power was, as here, the primary and proximate cause of the loss; and particularly where, as here, the wrongful act (in the sense of conduct beyond the scope of its authority) was the act of the bank itself, but for which the criminal act of the trusted agent could not have been carried into execution. In honoring checks beyond the authority granted it by the depositors' power of attorney-a document in its possession--the bank in this case knew, or was charged with knowledge of, its own unlawful conduct. The depositors' failure personally to examine the periodical statements and promptly to acquaint the bank with its own wrongdoing misled the bank in nothing. Therefore the law did not impose upon depositors in this case the duty to check up a pass book or examine monthly statements to prevent the defendant bank from continuing its own wrongful conduct.”

A GOVERNOR CANNOT BE LAWFULLY ARRESTED OR PUT UPON TRIAL WHILE IN OFFICE.

A Governor cannot be arrested and put upon trial for a supposed criminal offense, whether committed before or after he took office, without an encroachment of the Judiciary upon the Executive Department. We adhere to our position that this principle is well settled upon the principle and by

authority, notwithstanding the criticism and comment of Professor Henry W. Ballantine, published in the CENTRAL LAW JOURNAL of August 19, 1921. His comments prove the slight investigation he has made of the authorities and the unsoundness of his position. The drift of his comment is characterized by Professor Burgess of Columbia University, a distinguished authority on Political Science and Constitutional Law, in volume 2, page 245, in these words:

"Democratic doctrinaires have tried to make it appear that such privileges can only spring from the monarchic principle that the 'King can do no wrong'; but their argumentation is a tissue of sophistry. All states have found it necessary to recognize the complete personal independence of the executive head of the government, and some of them have founded it upon the doctrine that the 'King can do no wrong.' But there is another and deeper principle than that of the immaculate character of the king, upon which both the monarchic doctrine and the republican doctrine of the executive independence rest, viz: the necessary order of authority in every political organization.'"

It is admitted by Professor Ballantine that no Court can enjoin the Governor or mandate him, or prohibit him with respect to the performance of executive duties. That admission is a practical concession of the soundness of our position. The Constitution of Illinois vests in the Governor supreme executive power. It commands him to "take care that the laws be faithfully executed," and requires him to take an oath to support the Constitution. is, therefore, vested with the duty of determining when the powers of the executive office are about to be invaded by the action of the Judiciary and he alone is authorized to determine that question.

He

In the case of People v. Bissell,1 the Supreme Court of Illinois disclaimed the right to directly determine the limits of executive power and authority which may not be passed by the Judiciary and held that the Judiciary can only determine that question when it arises in suits to which the Governor is not a party, and said:

"When final action upon any subject is confided to either of the other departments, there the responsibility must rest of conforming such action to the law and the constitution." (The People ex. rel. v. Bissell, 19 Ill. 231; People v. Dunne, 258 Ill. 449. See also ex parte Moore, 64 N. C. 802; Ex parte Kerr, 64 N. C. 816; State v. Shields, 272 Mo. 342.)

Governor Small, upon full investigation

and the advice of counsel, has determined that he would violate the provisions of the Constitution requiring him to take care that the law be faithfully executed and to uphold the constitution, if he should consent to his arrest and incarceration, or to being placed upon trial upon a criminal charge for the reason that such procedure would obviously suspend the operation of executive government, which he alone can personally function. This makes it his duty. to oppose the effort of the courts to encroach upon his department. Therefore, if a Court can determine otherwise and coerce him to observe its process that would, as said by the Supreme Court of Missouri," make the judges the interpreters of the will of the executive and the independence of the executive department as a co-ordinate branch of government would be virtually destroyed."

2

Professor Ballantine cites the case of Ekern v. McGovern,3 and quotes therefrom in support of his position. That case holds, contrary to the weight of authority and the decisions of the Supreme Court of Illinois, that a Governor is subject to the process of the courts to coerce or restrain him in the performance of an official duty.*

In the case of People v. Dunne, Justice Cartwright, construing the constitution and speaking for the court, said:

"By section 6 of article 5, the supreme executive power of the government is vested in the Governor. In the great majority

(1) 19 Ill. 231.

(2) State v. Shields, 272 Mo. 342; State v. Fletcher, 39 Mo. 508.

(3) 142 N. W. 595, 46 L. R. A. (N. S.) 795. (4)

People v. Dunne, 258 Ill. 441.

of jurisdictions it is held that in view of the division of the powers of government, there is no power on the part of the courts to enforce by mandamus the performance of any duty, whether discretionary or ministerial, imposed upon the chief executive by virtue of his office. (26 Cyc. 230; 6 Am. & Eng. Ency. of Law, 2d ed., 1017.) All authorities class this state with the

majority as holding that doctrine. The independence of the judicial department and its freedom from interference by the other departments has been maintained. (Rockhold v. Canton Masonic Mutual Benevolent Society, 129 Ill. 440; In re Day, 181 id. 73; Witter v. Cook County Commrs., 256 id. 616.) Of course, it would be expected that the court enforcing the provision of the constitution by which the powers of government are partitioned among the several departments, for its own protection from interference would accord the same degree of independence to the other departments. We shall see with what scrupulous care this has been done."

Reference to the classifications of authorities in Cyc. and Am. & Eng. Ency. of Law will disclose that the Supreme Court of Wisconsin is with the minority on this question and that its decision is in direct conflict with that of the Supreme Court of Illinois. Moreover, the fallacy of its position is shown by the quotation in Professor Ballantine's comments. Referring to the possibility of executive resistance to the process of the court, it is said:

"This court has never yet acknowledged the existence of either the want of power to enforce its writs, or want of courage to vindicate it."

This is high sounding phrase, but its fallacy exists in the fact that the Governor is a chief executive, bound by oath of office to take care that the law be faithfully executed and to support the constitution of the state. Should the Court coerce him against his judgment and will in a matter relating to the performance of his duties under the constitution or law, as it so boastfully threatened, it would plainly substitute the judgment and will of the supreme judiciary for that of the supreme executive department contrary to the express commitment of au