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Weekly Digest of Important Opinions of the
State Courts of Last Resort and of the Federal Courto,
Copy of Opinion in any case referred to in this Digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.
.13, 22, 24, 31, 34, 53 California
....1, 16, 17, 32, 51, 61 Georgia
..43, 45, 57 Indiana
...15, 18 Iowa
.............12, 39 Kentucky
35, 47, 49 Maryland
.21, 36, 60, 62 Michigan
.27, 30, 38, 41, 42, 44 Minnesota
..23, 26 New York
..14, 19, 28, 48, 50, 56, 58, 63 North Carolina
..,3, 25 Oklahoma
.........20, 33 South Dakota
.4, 46, 59 United States C. C. A... ..7, 8, 10, 37, 54, 55 United States D. C......
..5, 6, 9, 52 West Virginia
...2, 11, 29
1. Attachment-Amendment of Complaint.A surely company, executing a bond to release an attachment, such bond undertaking to pay any judgment obtained in the action is not discharged, under Cin, Code, Š 2819, by an amenament of the complaint, not setting up a new cause of action, but mereiy increasing the amounts demanded for breach of contract.Turner v. Fidelity & Deposit Co. of Maryland, Cal., 200 Pac. 959.
2. Attorney and Client-Attorney's Lien.An attorney by whom a judgment or decree was obtained for his client has a lien upon a fund arising from enforcement of such judgment or decree against the land of the debtor, by another attorney employed by his client, prior and superior to the lien thereon of such subsequently employed attorney, unless he has expressly or impliedly assented to such subsequent employment or, in some way, relinquished his right further to represent his client in the matter, or, by negligence or other misconduct warranting his discharge, has lost it. -Brown v. Erwin, W. Va., 108 S. E. 605.
3.--Authority of Attorney.-In a summary proceeding in ejectment, where the jury gave possession of the property to the owner and fixed the rental at $111.66, contrary to the testimony of what a fair rental should be, and an intimation by the court that the verdict would be set aside as against the weight of evidence, unless plaintiff consented to a reduction in the rental to $60, held, where it is established that attorney's consent to such reduction and compromise is without express authority from the client and contrary to his instruction, such judgment will be set aside.-Bizzell v. Auto Tire & Equipment Co., N. C., 108 S. E. 439.
4.--Value of Services.-An attorney employed to perfect title to certain land under a contract entitling him to certain interest in the land for such services could not, on client's termination of contract before he had fully performed services, recover as reasonable value of the services, upon quantum meruit, more than the value of the land which would have been his compensation for his services had the title been perfected.–Smith v. Thompson, Tex., 233 S. W. 876.
5. Bankruptcy-Motion to Intervene.--Motion to intervene in bankruptcy proceedings by applicants who allowed a default of nearly two months to run against them without any excuse whatever may be denied, in the discretion of the court.-In re Tidewater Coal Exchange, U. S. D. C., 274 Fed. 1011.
6. -Partnership.-Bankr. Act. § 5a, providing that a partnership may be ajudged a bankrupt, treats a partnership as an entity, and in view of General Order in Bankruptcy No. 8, providing that a member of a partnership who refuses to join in a petition to have the partnership declared bankrupt "shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership," that he shall be served with notice, and "shall have the right to appear
and to make proof if he that the partnership is not insolvent or has not committed an act of bankruptcy and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act, “a petition filed against a partnership by one partner alone must conform to the requirements of an involuntary petition and must allege insolvency and an act of bankruptcy by the partnership.-In re Ollinger & Perry, U. S. D. C., 274 Fed. 970.
7.-Priority of Payment.—The United States Shipping Board Emergency Fleet Corporation, incorporated under the general corporation law of the District of Columbia. pursuant to Act. Sept. 7, 1916, $$ 11, 13, given the President's authority to construct, purchase, and requisition vessels under Act June 15, 1917, by the President's executive order of July 11, 1917, was not entitled to priority of payment under Bankruptcy Act. $ 64, and Rev. St. $ 3466, of a debt due it from a bankrupt with whom the corporation made a contract as a principal, and not as the agent of the United States government, on the theory that the debt was one due to the United States, since, the corporation having been organized as a private corporation under the District of Columbia's general incorporation law, the government's ownership of the stock did not divest it of its character as a private corporation, in view of $$ 607, 608. -In re Eastern Shore Shipbuilding Corporation, U. S. C. C. A., 274 Fed. 893.
8.-Taxes.-Under Bankruptcy Act, $ 64a, claim of the government for taxes is not ordered paid in its entirety as matter of course and the trustee remitted to proceedings under Rev. St. $ 3226 to have the money returned, but the bankruptcy court passes on and determines validity of the tax in the first instance; it not being a case where the trustee is seeking to maintain a suit for recovery of internal revenue taxes illegally assessed, the government and not the trustee being the moving party, and this notwithstanding the trustee moves that the government's proof of debt be reconsidered and rejected, a verified proof of debt in bankruptcy having probative force and making out a prima facie case requiring the objector to go forward. In re General Film Corporation. U. S. C. C. A., 274 Fed. 903.
9.-"Unincorporated Association." The Tidewater Coal Exchange, an association organized by shippers of bituminous coal during the war with Germany, at the instance of the Council of National Defense for the purpose of speeding the transshipment of coal from cars to ships at tidewater, etc., involving a general pooling arrangement for coal, with debit and credit charges against and for each member, held an "unincorporated company" within Bankruptcy Act, $ 4B, so as to give the District Court jurisdiction of involuntary petition against it.-In Tidewater Coal Exchange., U. S. D. C., 274 Fed. 1008.
10.-Voluntary Petition.—There is no presumption of authority in an officer of a corporation to make and file a voluntary petition in bankruptcy, and he may not do so without the consent of the directors.--Regal Cleaners & Dyers v. Merlis, U. S. C. C. A., 274 Fed. 915,
11. Bills and Notes-Liability of Endorser.To render an endorser liable on a negotiable note, it must be presented at the particular time and place specified therein and timely notice of its dishonor given the endorser, unless it is alleged and proven that he in some way waived such notice.-Hastings v. Gump, W. Va.. 108 S. E. 600.
12. Brokers-Commission.-A commission is earned when the broker produces a purchaser accepted by the principal, and the subsequent
agreement of the principal and the buyer to abandon the contract will not defeat the broker's claim for commission, nor place on the broker the burden of restoring to the purchaser a deposit on the price not in excess of the agreed commissions.-Smith v. Eells, Iowa, 184 N. W. 385.
13. -Commission.-A broker who undertakes to find a purchaser for land at a stipulated price earns his commission when he procures and produces to his principal a person who is able, ready, and willing to buy at that price, and he does not earn his commission if he fails to produce such a purchaser; but, if a broker has brought the parties together and they conclude a contract, he is not deprived of his right to a commission by the fact that the contract differs in terms from the one which he was authorized to negotiate, provided the negotiations commenced by the broker continued uninterruptedly.-Dancy v. Baker, Ala., 89 So. 590.
14. Constitutional Law-Due Process.-It is a violation of the Fourteenth Amendment of the federal Constitution, if a judgment in a personal action is enforced, which has been entered by default on the service of the summons by publication: but, unless process is issued on the judgment in an effort to enforce it defendant cannot claim his rights are violated.-Cahill v. Broadwell Productions, N. Y., 190 N. Y. S. 225.
15. Contracts-Mutual Agreement.-A contract, “We, the undersigned, children of R., and the only beneficiaries under her will," agree to turn over to the executor an eighth part of the property of the testatrix from our distributive share, with the understanding that the same shall be paid to disinherited grandchildren, who did not sign held obviously drawn as a mutual agreement between the several parties, to be signed by all of them, which was not binding on any of them, where all did not sign.-Hess v. Lackey. Ind., 132 N. E. 257
16. --Public Policy.-In contracting with a lumber company that the latter assume liability for the loss of lumber deposited on a wharf during a strike of longshoremen. the whartinger violated no law against public poliny.Northwestern Mut. Fire Ass'n v. Pacific Wharf & S. Co. Cal.. 200 Pac. 935.
17. Corporations-Purchase of Stock. — An agreement of a corporation with an intending purchaser of stock to take back the stock on demand is enforceable by such purchaser.Williamson v. Marshall. Cal., 200 Pac. 1058.
18. Criminal Law-Sufficiency of Indictment. -Burglary indictment, charging that defendant broke into named person's private garage, held to charge crime with sufficient certainty. notwithstanding failure to define the word "garage," or to state that the private garage was a building; the word "garage" being well understood to mean a building for the storage of antomohile vehicles.-Taylor v. State. Ind., 132 N. E. 294,
19. Eminent Domain-Railroad Property.Railroad property is not to be condemned for a street, though it be not actually in use, it it will be needed for the company's use in the future and this, though the railroad's franchise from the city to operate on certain streets has been forfeited hv the city.-In 221st Street, N. Y., 190 N. Y. S. 235. 20.
a valid gift, where it was not shown that such depositor, in his lifetime, released control and dominion over it.—Pearre v. Grossnickle, Md., 115 Atl. 49.
22. Guardian and Ward-Illegal Agreement. -Although the guardian, mother of the ward, had a right to use and enjoy his property as her residence during her life, her contract as guardian, with a purchaser made privately, to let him have all the property would bring on sale by court order above a certain amount, was known to the purchaser to be illegal and void, and he cannot maintain an action against her personally thereon.--Wilson v. McKleroy. Ala., 89 So. 584.
23. Highways Negligence. Where the traveled track of a public road is to one side of the center thereof, it is not negligence as a matter of law to drive in such track, though it be upon the left side of the road to the particular driver.-Keane Butner, Minn., 184 N. W. 571.
24. Homicide - Trespasser. - Officers who went on the porch of accused's house in peaceable manner and with lawful purpose, and without intent to search his barn for intoxicating liquors without warrant. if he objected were not trespassers, and court properly refused to so charge in a homicide case. Lakey v. State, Ala., 89 So. 605.
25. Insurance Crops.-Although under C. S. $ 2355, the possession and title to all crops raised by tenant or cropper in the absence of a contrary agreement are deemed to be vested in the landlord until the rent and advancements have been paid, this does not divest the tenant of an insurable interest in the crops before division.-Batts v. Sullivan. N. C., 108 S. E. 511.
26. -"Immediate Notice.”—The policy corering the case required that, in event of accidental death, immediate notice must be given to the company. This means within a reasonable time. Almost immediately after death the soliciting agent who negotiated the policy procured it and surrendered it to the company as plaintiff claims without her authority. It was never returned to her though later de. manded. Held, this and other circumstanceg in the case excused plaintiff from giving notire of death.-Frommelt v. Travelers' Ins. Co. Minn.184 N. W. 565,
27.—-Proof of Loss.-Where insurer's adjuster, on being notified by insured that his automobile had been stolen. promised to take care of him, took charge of the matter, examined the policy and other papers, made a record of the
from answers to questions asked of insured, and promisen they would return the car or pay for it within 60 days, it waived subsequent tender of proof of lose. Doubles Insurance Co. of North America, Mich., 184 N. W. 539.
28.-Repairs.-A marine policy provision that no claim of loss shall go hevond the cost of actual repairs. considered with provision for estimating loss, held merelv limitation or claim for loss to the cost of repairs. if made, and if no repairs are made. ineuren mav re
damages found survev.-Walker Liverpont & Tondon & Globe Ins. Co.. X. Y.. 190 N. Y. S. 255.
Fish-Police Power. The state mav, under its police power. for the protection in the streams, lakes, and ponds of this state, and for the purpose
of encouraging the breeding of fur-hearing animals and other game which have access to the public waters of the state prohibit the depositing of crude nil and other deleterinus substances therein.-State v. Wheatley, Okla.. 200 Pac. 1004.
21. Gifts-Joint Bank Deposit.-A bank's transfer of a savings account, if made in conformity with an order of the depositor authorizing its change to a joint account between himself and wife, subject to withdrawal by check of either, the balance on the death of either to belong to the survivor would not be
29. Insurrection and Sedition-Martial Law. ---Martial law operating, in the
government of territory, as a substitute for the civil law, or as an addition thereto. so as to restrict the liherties of citizens and angment the powers of offirers, is an incident of military oneratione and of actual militarv ocrunation of the tersi. tos so governen: wherefore it rannnt ahtain in the absence of such operations and Onnintion.--Ex narte Lavinder, W. Va., 108 s E. 128.
30. Intoxicating Liquors Liability for Wife's Acts.-In a prosecution of a husband. his wife already having pleaded guilty to violation of liquor law in their home, the act being malum prohibitum and not malum in se, it is not necessary to prove his criminal intent, his liability. if not doing what he could to prevent her violating the law, resting. not on the presumption of his coercion of his wife. but on his authority to control the household
affairs and reasonable mean's to
31.- -Sufficiency of Proof.--In a proceding
32. -Validity of Ordinance.-A liquor ordi-
33. Landlord and Tenant--Liability for Rent.
34.---Tenancy at Will.-If a lease for "about
ordinance, enacted within the police
slight mistake is made in calculating
payment of all reasonable
36. Master and Servant-Compensation Act.
37. -Hours of Service.-A railway telegraph
train dispatcher, held not
-Malpractice of Physician.—To render
39. -Subrogation.-Injured employe.
40. Municipal Corporations-Defective Side-
41.- -"Motor Vehicle."-A bicycle is not
42.- Safety Zone.-In action for injuries
43.- Unauthorized Contract.-Not liable for
Nuisance-Garage.—The construction of
business than for residential pur-
45. Principal and Agent-General Agent.-
46. Sales — Misrepresentation. — A corpora-
was purchased, stored where it
47. Searches and Seizures Owner's Consent.
tha search.-Bruner v. Common-
48. States--Public Welfare.-The object of
in Putrire conflirts -Peonle v. Westchester
49. Street Railroads--Collision. - Where a
Stipulations Jurisdiction. Supreme
56.-Rates.-Despite the Home Rule Act,
word "grandchildren" does not include
58.-Intent.-Where a will states testator's
and jurisdiction of Public Service Commission
51. Taxation-Alien Poll Tax Law.-The
52.--Foreign Corporation.—New York Tax
53. Vendor and Purchaser-Vendor's Lien.-
54. War---Seditious Utterances—The indict-
55. Waters and Water Courses-Boundary.--
59.- -Joint Will.-Survivor of joint testators
60.-Remainder.- Where testator gave his
61.- -Undue Influence.-A will leaving only
62. Witnesses-Reference to Books.-In ac-
had been lost at time of trial, was properly
on such calendar sheets after refreshing her
63. Work and Labor-Implied Contract.-In
TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEADING
SPONDENCE AND BOOK REVIEWS IN VOL. 93.
A separate subject-index for the “Digest of Current Opinions" will be found on page 457,
when death intentionally caused by another
is accidental, 3.
inheritance by and through adopted chil-
validity of arbitration agreements, 263.
how the English chased the ambulance
the spoilsmen-is this enough, 312?
to be held, 285, 340, 392.
ican Bar Association, 51.
Bar Association, 70.
ciation, 340, 357.
Bar Association, 430.
Bar Association, 206.
Bar Association, 105.
Bar Association, 195.
is a governor privileged by his office from
arrest and prosecution in crime, 111?
put upon trial while in office, 149.
is it arson to burn another's house at the
owner's request, 364?
ATTORNEY AND CLIENT,
how the English chased the ambulance
to test authority of attorney to represent
right of auctioneer to change terms of sale,
right of mother of illegitimate child to sue
tual rights of inheritance, 329.
a uniform negotiable instruments law of the
negligence of driver as imputable to guest
or passenger, 246.
indemnity bond from operator of automo-
bile for hire. 373.
ing, motorist striking a person to render
a trustee in bankruptcy who turned a bank-
rupt business into a solvent going con-
reviews of encyclopedias,
Corpus Juris, volume 24, 106.
Public Profession of the Law, 212.
Bogert on Trusts, 52.
McMath's Speculation in Gambling, 231.
BANKS AND BANKING,
carrier's liability for goods under the forty-
eight-hour clause of bill of lading act
where car is entered by consignee, 95.
when a subscription to a charitable enter-
prise is enforceable, 147.
liability of stockholders, 83.
checked by said agent 148.
practice as to re-transfer, 422.