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though at the possible risk of thus omitting so far forth to discourage unlawful acquisition? The balance of public policy, if we thus attempt to estimate the relative weight of alternative evils, requires, it seems to us, that the larceny should be punished.”
It has been held that larceny of gaming checks can be committed, although gaming is illegal (Bales v. State, 3 W. Va. 685), and that it is no defense to an indictment for stealing intoxicating liquors that the liquors stolen were kept for sale in violation of law (State v. May, 20 Iowa, 305; State y. Sego, 161 Iowa, 71, 140 N. W. 802; August v. State, 11 Ga. App. 798, 76 S. E. 164).
One who loses his money in a gambling game and surrenders it to his adversary, may be guilty of robbery in regaining it by force, but if he was induced to part with it through deceit or fraud, he would not be guilty, as one obtaining property by false pretenses is guilty of theft. Temple v. State, Tex. Cr. App., 215 S. W. 965.
involve interstate relations. He attained a deserved leadership in the deliberations of the American Bar Association and of the National Conference of Commissioners on Uniform State Laws, of which latter he was president during the two years preceding his election, in 1920, as president of the American Bar Association.
While Mr. Blount's success in his profession gave him pre-eminence as a practitioner, his great accomplishments were through his constructive work in connection with the building up of the legal systems of his own state and of the nation.
In both phases of his activities he was alwas a thorough student and showed up at the critical moment with the utmost preparation. He presented his points with such clearness and incisiveness of statement and in such logical form as to compel conviction. He was always considerate of the opinion of others and judicial in his approach to and consideration of any subject. He was a high-class Southern gentleman, genial, lovable, a loyal friend and inspired in others the utmost friendship and respect.
The news of his sudden death, in this, the seventieth year of his life, will be a great shock to thousands of American lawyers who had the privilege of his acquaintance.-ROME G. BROWN in the Minneapolis Tribune.
ITEMS OF PROFESSIONAL
A TRIBUTE TO MR. W. A. BLOUNT.
SUPPLEMENTARY ANNOUNCEMENT OF
THE AMERICAN BAR ASSOCIATION
In the closing days of his year's service as president of the American Bar Association, William A. Blount, of Pensacola, Florida, died last Wednesday, at the Johns Hopkins Hospital, Baltimore, Maryland. Well known in Minnesota by those lawyers of this state who had the privilege of contact with him during his many years of service with the American Bar Association, Mr. Blount was a representative American lawyer. His death deprives the American Bar of a member of the highest standing in character and efficiency.
He prepared for his profession at the University of Georgia, where he graduated with the highest honors, both in the Bachelor of Arts course and in law. In his own state of Florida he was pre-eminently the leader of the bar. He was a member of the Florida Constitutional Convention of 1885, and chairman of many state commissions from time to time to revise the statutes of his state and to simplify the system of pleading and practice in Florida courts.
He was for years a Florida member of the National Conference of Commissioners on Uniform State Laws and was responsible, perhaps more than any other one lawyer, for the prep. aration and adoption by the various states of uniform state legislation upon commercial and other subjects, and thereby the elimination of unnecessary conflict of laws as to rights or remedies in business and other matters which
Former President William H. Taft will act as toastmaster at the annual dinner of the American Bar Association, to be held in Cincinnati in connection with the convention of the organization from August 30 to September 2. Mr. Taft's acceptance of the invitation to preside at the dinner, which will be held at the Hotel Gibson on the evening of September 2, was received on Monday by Province M. Pogue, Chairman of the Executive Committee, having charge of the arrangements for the convention.
There will be a number of other noted speakers at this dinner, among them Rt. Hon. Sir John Simon, of London, former Secretary of State for Home Affairs of England; Hon. John W. Davis, ex-Ambassador to Great Britain; ex-United States Senator Charles S. Thomas, of Colorado; Hon. Elihu Root; Hon. Harry M. Daugherty, United States Attorney General; Senators Atlee Pomerene and Frank Willis, several foreign ambassadors and probably President Harding, who will endeavor to arNature and Incidents; XIV, The Remedies of the Cestui Que Trust-How Enforced or Barred; XV, The Termination of the Trust.
It would be wrong to regard this book as a mere students' handbook. A work which discusses and classifies over seven thousand cases will necessarily have much value to lawyers.
Printed in one volume of 675 pages and bound in buckram,
range his affairs so that he may attend the convention.
It was announced Monday that through the recent death of Hon. William A. Blount, President of the American Bar Association, Mr. Hampton L. Carson, of Philadelphia, Chairman of the Executive Committee of the Association, would automatically become president of the organization until such time as a successor to the presidency was elected.
In honor of the late Judge John W. Warrington, who had been appointed Honorary Chairman of the Reception Committee for the convention, it has been decided by the Executive Committee to continue his name at the head of this committee, no appointment of a successor being made. Mayor Galvin, who was appointed chairman of the Reception Committee, will have as his assistants many of the leading barristers of the middle west, including seven members of the Supreme Court of the State of Ohio.
HUMOR OF THE LAW.
When Jones' rich grandmother passed away, all his poverty-stricken friends rallied about him with words of cheer and comfort; but Jones remained sad and dejected.
"She left a last will and testament, I suppose?" murmured Jenkins carelessly.
"Oh, yes," said Jones, "she left a will and testament."
They hung expectant while sobs choked back his words.
"I," he declared at last, "am to have the testament."--Jack Canuck (Toronto).
BOGERT ON TRUSTS.
A new general treatise on the subject of trusts has just appeared from the pen of Mr. George C. Bogert, Professor of Law in the Cor: nell University College of Law. It is a handbook primarily intended for students, but so thorough is the author in his discussion of the origin and history of the principles of the law of trusts that lawyers will find in its pages convenient starting points from which to begin their researches into more complicated questions of the law of trusts.
The author has made a few changes in the customary classification of the law of trusts, these changes being made mainly with a view to classify the material under headings "which represent the principal, practical problems arising in the administration of trusts." The author's classification is as follows:
Chapter I, Introduction and History; II, Distinction Between Trusts and Other Relations; III, Creation of Express Trusts; IV, Creation of Resulting Trusts; V, Creation of Constructive Trusts; VI, The Trust Purpose-Private Trusts; VII, The Trust Purpose-Charitable Trusts; VIII, The Settlor; IX, The Subject Matter; X, The Trustee: His Qualifications, Appointment and Removal; XI, The Powers of the Trustee; XII, The Duties of the Trustee; XIII, The Interest of the Cestui Que Trust-Its
William Ryan is the only man in a New York town who says that he understands Einstein's theory of relativity. Ryan states that after reading the book carefully three times he had a dream or a revelation, during which the earth had left him and he was treading air inside a sphere, the walls of which were in. visible. He further explains:
"The eonglomeration of cosmos apparently retarded the continuity of motion, and the distance decreased depressingly as the altitude reached the zenith, near the apex. While the electro-dynamics are in evidence at short periods, the rays of the radio decline in ratio with the apparent lengthening of the declina. tion. To simplify the problem, let G equal the length of the declined ray; let I equal the alti. tude, plus the base; and add N, the result be. ing a transparent concoction of Juniper, used for many years by the scientists before Prof. Pussy foot propounded the problem of prohibi. tion.”
The police asked Ryan where he got it, and now he's arrested, but still talking of relativity. -St. Louis Post-Dispatch.
“Yes," said the man who was proud of his library, "whenever I find one of my books with a torn leaf I put it through a legal process."
“What legal process?" his visitor asked.
"I have it bound over to keep the piece."Boston Transcript.
1. Animals Dipping Cattle.-Acts 36th Leg. (1920), Third Called Sess. c. 38, § 15, authorizing the Live Stock Sanitary Commission to require the dipping of cattle exposed to fevercarrying tick within nine months prior to the passage of the act, and making violation of such direction a misdemeanor, is not an ex post facto law.-Walker v. State, Tex., 229 S. W. 513. 2.
Attorney and Client-Authority of Attorney.--Except in an emergency, there is no authority in an attorney to enter a stipulation to settle and compromise a cause of action without the knowledge or consent of his client.Matteson v. Blaisdell, Minn., 182 N. W. 442.
3.-Knowledge of Attorney.-Knowledge acquired by an attorney prior to his employment by a client could not be imputed to the client.Ives v. Culton, Tex., 229 S. W. 321.
4.—Unpatriotic Conduct. Acts committed and opinions expressed by an attorney of this court during the war which were not in accord with the standard of patriotism set by the Bar Association and observed by the average citizen theless did not amount to treason, nor to a vioand member of the profession, but which neverlation of the espionage law then in force, or of any federal or state statute, nor to a violation of the oath and duties of an attorney, as prescribed by the statutes and the decisions and rules or this court, do not constitute legal ground for disbarment or suspension.-In re Clifton, Idaho, 196 Pac. 670.
5. Bankruptcy-Action by Creditor.—That a creditor has in good faith attached his debtor's property within four months does not disqualify him from presenting or joining in a petition to have the debtor adjudicated a bankrupt, although the attachment has not been formally
released, but the court may require the attachment lien to be vacated before an adjudication is entered.-In
Automatic Typewriter & Service Co., U.S. C. C. A., 271 Fed. 1.
6.--Farming.–Under Bankruptcy Act, $ 46, an act committed by a person who was at the time engaged chiefly in farming cannot be charged as an act of bankruptcy and made the basis of involuntary proceedings.-In re Doroski, U. S. D. C., 271 Fed. 8.
7. Banks and Banking-Duty of Commissioner.-The statute making it the duty of the bank commissioner to take charge of a bank immediately upon a showing of insolvency, or of a willful violation of the banking act by its officers, does not require the closing of the bank under such circumstances, nor does it deprive the commissioner of his discretionary power to take such steps to meet a particular situation as may be called for by the circumstances.State v. Wilson, Kan., 196 Pac. 759.
8.-Joint Bank Deposits.-Comp. Laws 1915, § 8040, relative to joint bank deposits payable to the survivor, is valid, and in the absence of competent evidence to the contrary the presumption created is sufficient to establish title to the deposit in the survivor.-In re Taylor's Estate, Mich., 182 N. W. 101.
9. Bills and Notes—Failure of Consideration. -In action against drawer of a check indorsed by payee to plaintiff, it was not error to refuse to compel plaintiff to make the payee as indorser a party defendant to the action.-Murphree v. Wrens Motor Co., Ga., 106 S. E. 741.
10.-—-Stipulation.-Where a note contained a stipulation that under certain contingencies it should be surrendered to the maker without payment, the payee cannot avoid the provision on the theory that it did not sign the same.--Cooper Grocery Co. v. H. T. Hammick & Co., Tex., 229 S. W. 356.
11.- Transfer.- -Transferee of negotiable notes who takes note by method of transfer other than indorsement under the statutes and law merchant takes note subject to the rules that govern the transfer of non-negotiable paper.-Jones County Trust & Savings Bank V. Kurt, Iowa, 182 N. W. 409,
12. Brokers -Commission.-If a sale is made by the owner on more liberal terms to a buyer produced by the broker, the broker is not entitled to recover where the sale was not made by the owner until the broker's efforts, after fair opportunity and without fault ur the uwner, had come to naught.-Wilcoxsın v. Suddeth, Tex., 229 S. W. 352.
13.- Unilateral Contract.-In an action on a contract giving plaintiff an exclusive agency to sell defendant's real estate signed only by defendant, a petition alleging that defendant procured a purchaser ready, able and willing to buy, and who actually offered to buy, held not subject to demurrer on the ground that the contract alleged was unilateral.-Porter v. Forsyth, Ga., 106 S. E. 746.
14. Canals-Village a "Person."--Under Canal Law, § 47, giving "every person" sustaining damages from canals the right to recover damages in proceeding before the Court of Claims, a village could recover for damage to sewer system and sewage disposal plant sustained in the construction, maintenance, and operation of
a canal; the village being a "person" within the statute, in view of General Construction Law, § 37, and General Municipal Law, $ 2.–Village of Seneca Falls v. State, N. Y., 187 N. Y. S. 409.
15. Carriers of Goods--Conversion of Shipment.-In an action for the conversion of an interstate shipment of lumber brought, not against the initial carrier, but for a conversion alleged to have occurred after the transportation had been completed and the consignee had redelivered the lumber to be carried on another contract, the state rule that the measure
of damages is the value of the property at the time and place of conversion was properly applied.Buschow Lumber Co. v. Hines, Mo., 229 S. W. 451.
16. Carriers of Live Stock-Suitable Cars.It is the duty of a carrier to furnish suitable cars in which to transport a shipment of cattle, and he cannot escape liability for failure to perform that duty, because the shipping contract required the shipper to bed, inspect and accept the cars.--Mexico Northwestern Ry. Co. v. William, Tex., 229 S. W. 476.
17. Carriers of Passengers-Proximate Cause of Death. - Where a subway passenger, after suffering an injury resulting in the bruising of her body, died of pneumonia, it must be shown that the injury was the proximate cause of the death in order to recover; that is, that there was an unbroken connection between the wrongful act and the injury, and though it is not necessary to show that the injury was the only cause of death, to establish that it was the proximate cause, it must be shown that it set in motion other causes which produced the disease and death.--Santolo V. Interborough Rapid Transit Co., N. Y., 187 N. Y. S. 390. 18.
Constitutional Law-Due Process.-There is no lack of due process because Code Supplemental Supp. 1915, § 1989a8, does not provide for notice to property owners, as well as contractors, of letting of contract for drainage improvement; the notices to them of the proceedings for establishment of the district and of levy of assessment for the expense, otherwise provided for being sufficient.--Horton Tp. v. Drainage Dist. No. 26, Iowa, 182 N. W. 395.
19,— Impairment Contract.-The state, acting through its reserved police power, which was largely delegated to the Public Service Commissions, under the Public Service Commissions Law, may change the franchise rates accepted by a gas company without violating the constitutional inhibition against impairment of contracts, for contracts relating to public utilities are made ordinarily in contemplation that the state possesses power to regulate such rates.-Village of Warsaw v. Pavilion Nat. Gas Co., N. Y., 187 N. Y. S. 351.
20. Corporations-Liability of Stockholder.Whatever remedy defendant stockholder might have had before appointment of receiver for her company, in an action brought by the receiver for the benefit of creditors to recover the difference between the par value of her stock and what she actually paid for it, the receiver suing pursuant to decree of the appointing District Court of the United States for the District of Connecticut, the stockholder cannot avoid the liability created by the Connecticut statutes by setting up the fraud of the corporation.-Butterworth v. Ross, Mass.. 130 N. E. 678.
21. Deeds-Condition in Restraint.-Where, on the death of defendant's wife, her children by a prior marriage conveyed to him a life estate in two-thirds of a parcel of land on condition that the estate should terminate in event of his remarriage, the condition, though in restraint of marriage, is valid; the marriage being a second one, and the law upholding the validity of such a condition both as to men as well as to women.-Stauffer v. Kessler, Ind., 130 N. E. 651.
22. Divorce_Default Judgment.—Where, alter obtaining a judgment of divorce by default. the plaintiff wife remarried, the defendant husband's motion to open the default will not be granted, unless it is apparent that he was acting from good motives, and not from any expected personal advantage.--Bandler v. Bandler, N. Y., 187 N. Y. S. 358.
23. -Evidence of Disease.—The mere possession by husband suing for divorce of mixtures used as remedies for a venereal disease was not sufficient in itself to establish that he had such disease, though worthy of consideration in connection with other facts.--Wade v. Wade, Mo., 227 S. W. 432.
24. - Habitual Drunkenness. Habitual drunkenness, within the meaning of the statute, may exist, although the party charged may remain sober during business hours.—Matheny V. Matheny, Iowa, 182 N. W. 375.
25. Estoppel-In Pais.-Where plaintiff delegated her sister to open an account with defendant building and loan association, and further intrusted to the sister payments of cash made on her subscription for shares, so that the sister was enabled to present plaintiff's passbook and obtain $350 from the association charged to plaintiff's account without plaintiff's knowledge, the sister giving her name as that of plaintiff, under the rule that, when one of two innocent parties must suffer, the loss must fall
upon him who reposed confidence, and thereby made the loss possible, plaintiff is estopped in pais from invoking liability against the association for the amount withdrawn.Wysokowski v. Polish-American Building & Loan Ass'n of City of Newark, N. J., 113 Atl. 216.
26. Fixtures-Machinery.-Where machinery was sold to a mortgagor under an agreement that it should remain personalty and should be subject to a chattel mortgage for payment, the intention of the seller and mortgagor will control, and the machinery being such that it could be removed without damage to the realty, it did not become part of the realty under the doctrine of fixtures.-Murray v. Simmons, Tex., 229 S. W. 461.
27. Frauds, Statute of-Description of Land. A contract of sale of land contains a sufficient description to satisfy the statute where it contains the street number of the property.–Baller v. Spivack, Mich., 182 N. W. 70.
28. —Destruction of Deed.-Though a grantee in a deed duly executed and delivered cannot reconvey the title to his grantors to enable them to convey it to another by returning to them for destruction the deed before it had been recorded, his consent to the destruction of the deed, in view of the statute, prevents proof of its contents by parol, and therefore he cannot establish his title as against the subsequent grantee.-Kempf v. Michelbach, Wash., 196 Pac. 661.
29.--Redemption.-An agreement by a third mortgagee to buy in the property at a sale under his mortgage and allow the owner of the equity a reasonable time to redeem is not within the statute, and is enforceable in equity.Wright v. Cobb, Mo., 229 S. W. 171.
30. Gifts-"Undue Influence.”—The "undue influence" which is objectionable in the eye of the law and justifies setting aside a gift must be tantamount to force or fear; the influence
of affection, attachment, or gratitude not being sufficient to avoid the gift.-Barron v. Reardon, Md., 113 Atl. 283.
Insurance-Addition to Building.–A silo located 2 feet from a barn and structurally connected therewith is an "addition." within the meaning of a clause in a tornado po y reading, "$500 on frame, metal roof barn and sheds occupied as a cow barn, including foundations and additions," the silo being connected with the barn by a covered chute 4 feet wide and 10 feet high, and the roof of the barn being attached to the silo, and the silage being thrown from the silo to a truck located in the chute and thence conveyed to the cows occupying stalls on either side of the barn.--Henry Clay Fire Ins. Co. v. Crider, Ky., 229 S. W. 128.
32.- Cause of Injury.-Where an insurance policy provides that the insurance is against "injury effected solely through external, violent, and accidental means," the plaintiff or plaiant must prove to a reasonable certainty that the death or injury was so caused. It is not sufficient to prove a declaration made by the deceased to his physician that his injury was so caused. There must be affirmative proof as to how the injury occurred, and the proof must show it was accidental and caused through accidental means.—United States Casualty Co. of New York v. Malone, Miss., 87 So. 896.
33._Renewal.--Where the insurer who had notified the agent that the original policy would be renewed, on receiving a premium and an application for a different policy transmitted a second accident policy, the fact that the in: surer retained such premium will not estop it from denying that there was no renewal of the original policy, though the new policy was never delivered, where the original action by the beneficiary was on the second policy, and, having been defeated in that, she sought to recover on the theory of the renewal. -Wright v. Great Eastern Casualty Co., Mo., 229 S. W. 440. 34.
-Vexatious Refusal.-A vexatious refusal of an insurer to pay a loss under Rev. St. 1919, $ 6337, is not to be deduced from the fact alone that the verdict is adverse to defendant.-Miller v. Firemen's Ins. Co., Mo., 229 S. W. 261.
35. Intoxicating Liquors--Search Warrant.Const. art. 2, § 10, providing that no search warrant shall issue without probable cause supported by oath or affirmation, requires that the magistrate must be satisfied that there is reasonable or prorable cause, and is violated by Pub. Acts 1917, No. 338, $ 25, making it mandatory for the magistrate to issue a warrant to search for intoxicating liquors on presentation of the sworn complaint or affidavit therein prescribed.-People v. Delamater, Mich., 182 N. W. 37.
36.--Seizure of Automobile.—The seizure of an automobile because unlawfully used in the transportation of liquors under Act 1919, p. 6 et seq., is a proceeding in rem, and the statute must be strictly followed, and a proceeding to enforce forfeiture cannot be properly instituted until after the property inculpated is seized by the executive authority; previous seizure being necessary to legal process. In re One Ford Automobile, Ala., 87 So. 842,
37. Landlord and Tenant-Holding Over.-A tenant holding over after expiration of his term is deemed in law to hold over as tenant at the same rent he has previously paid, if no new agreement is made; but if he has notice from the landlord that, if he retains possession, he must pay a higher rent, specified as to amount, and he remains in possession, he must be deemed to have assented to the increased rent.-Machson v. Katz, N. Y., 187 N. Y. S. 411.
38.— Right of Action.--Plaintiff landlord was not required to demand payment of the rent at the time it became due and payable as a condition to his right to sue for its recovery; nor, under G. L. c. 186, § 12, was he required to make such demand as a condition to his right to determine the tenancy at will upon the failure, neglect, or refusal of defendant tenant to pay the rent when it fell due.--Dowd y. Lawlor, Mass., 130 N. E. 674.
39.-Term of Years.-A term for five years was not canceled and superseded by a tenancy from month to month by receipts for monthly rent reciting a monthly tenancy, where the lessee took possession prior to the execution
of the term lease, receiving one such receipt before such execution and receiving several afterwards; the receipts being on a printed form and treated by the parties as mere receipts.Owen v. Frey, Ind., 130 N. E. 656.
40. Maritime Liens-Repairs.-A repairer of a scow on order of a charterer, under a charter requiring return of the boat in good order and condition, ordinary wear and tear excepted, who by direction of a representative of the owner made additional repairs to parts injured or worn through ordinary wear and tear, and which were not within his contract with the charterer, held entitled to a lien therefor, under Act June 23, 1910 (Comp. St. $$ 7783-7787).
The No. 14, U. S. D. C., 271 Fed. 10.
41.Supplies Furnished to Owner.-One furnishing gasoline to a motor boat on orders of the captain, pursuant to an established course of business, under which the bills had been paid periodically by the owner, held entitled to a maritime lien under Act June 23, 1910.–The Norsman, U. S. D. C., 271 Fed. 15.
42. Master and Servant-Assault by Another Servant.-When applicability of the federal Employers' Liability Act is involved, or it is to be determined in a suit whether it is applicable or not, it may generally be determined by inquiring whether, at the time of the injury, the employe was engaged in work so closely connected with interstate transportation as, practically, to be a part of it. The facts in this case do not bring it within this rule as the cars being switched neither carried interstate commerce nor were they to be used immediately in interstate commerce, nor had they been used immediately before in such commerce, but were only used therein whenever the exigencies of the railroad called them into service for that purpose.--Hines v. Green, Miss., 87 So. 649.
43. -Assumption of Risk.- Where plaintiff, a railroad employe, engaged in making secure logs piled on a car, was injured by the fall of a log which with others had been jacked up, it was not incumbent on plaintiff to prove the exact reason why the log fell at that particular time, for the evidence relates to a fact which lies in the realm of physics.-Hines v. Drager, Ind., 130 N. E. 654.
44. -Corporate Officer.--Under Workmen's Compensation Act defining "employees," and article 5246—83, providing that the officers and directors of a corporation are not deemed employees, a stockholder, who was the general manager, director, secretary and treasurer of the employer corporation for a monthly "salary," is not entitled to compensation, though, as part of his duties as general manager, he occasionally performed the work of a laborer in the plant, and was injured while so doing, the language of the state, which used the word "wages,
signifying compensation for mechan. ical or menial labor, and not the word "salary," which has reference to employment above the grade of such labor, showing an intention to exclude corporate officers even before the amendment of 1917.-Millers' Indemnity Underwriters v. Cook, Tex., 229 S. W. 598.
45.- -Course of Employment.-An employee engaged in sorting bales of cotton and hoisting them from the basement upstairs through a trapdoor by means of a rope running over a pulley and attached to an engine, who was injured while going upstairs by means of the rope, was not injured in an accident arising out of and in the course of the employment within the Workmen's Compensation Act, where there was a stairway provided for employees going upstairs, and there was a rule that no man should go up the rope, of which the employee had knowledge, although he was going to the upper floor to attend to matters for the master.-Fournier's Case, Me., 113 Atl. 270.
46.-Negligence.-In a servant's action for injuries when his hand was caught in a machine, evidence that the machine was started by the action of the foreman in leaning forward to reach wrench whereby he was to effect a repair shows that he acted in his capacity as foreman, so as to render the employer liable.-Hancox v. Craddock-Terry Co., Mo., 229 S. W. 271.
47.--Soldier Working for Logging Company "Workman."-One drafted into the army and sent as a member of a military company to work with civilian employees of a logging com