life there must be imminent danger to the person sought to be saved, and the method adopted must not be rash or reckless in the judgment of prudent persons.-Wilson v. New York, N. H. & H. R. Co., R. I., 69 Atl. Rev. 364. 85.- -Failure to Keep Premises in Repair.Where a plumber went to defendant's establishment to buy a piece of pipe, and upon the invitation of one in authority went to the top of the building to get it, and in coming down a dark flight of stairs was injured by tripping over a large spike projecting from a landing, defendant was liable.-Roth v. G. A. Feld Co., 110 N. Y. Supp. 427.

86.- -Places Open to Public.-A water company held not liable for the death of a nine year old boy caused by falling from a floating foot bridge across the company's canal.-Indianapolis Water Co. v. Harold, Ind., 83 N. E. Rep. 993.

87. What Constitutes.-A person injured by the falling of a trunk which he had assisted defendant's employee to elevate from a basement held not entitled to recover because of defects in the trunk handle.-Childs American Express Co., Mass., 84 N. E. Rep. 128.

88. Pardon-Conclusive

V.

Evidence.--Where

one of the conditions of a pardon for the crime of larceny is that the convict should thereafter lead a law-abiding life, and he is subsequently convicted of a second larceny such subsequent conviction is conclusive evidence of the violation of such condition in such pardon.-Henderson v. State, Fla., 46 So. Rep. 151.

89. Parties-Rights of Plaintiff.-The court cannot compel plaintiff to accept as a defendant a person against whom no summons has been issued, because that person was served with process.-American Oilcloth Co. v. Slonov, 110 N. Y. Supp. 289.

90.

Partnership-Dissolution.-On the dissolution of a partnership where a firm indebtedness to one partner is established, fixing a lien upon the share of the other for the entire indebtedness and authorizing execution for the full amount against such share held error. -Meeve v. Eberhardt. Tex., 108 S. W. Rep. 1013.

91. Party Walls-What Constitutes.-Where a wall is a party wall, neither of the adjacent owners may maintain windows therein, and equity will enjoin the maintenance thereof, and require the restoration of the wall to a solid wall. 523.

Kiefer v. Dickson, Ind., 84 N. E. Rep.

93. Process Remedy of Person Wrongfully Served. Where a person against whom no summons has been issued is served with process, he may appear to indicate that the summons has been served upon the wrong person, and, if plaintiff refuses to withdraw the summons, he may answer, and have the complaint dismissed, or he may move to set aside the service.-American Oil Cloth Co. v. Slonov, 110 N. Y. Supp. 289.

94. Property-Secret Formula.-The inventor of an unpatented secret formula is entitled to maintain the secrecy, and to prevent its disclosure or use by one who obtained knowl

edge of it through fraud or breach of contract. -O'Bear-Nester Glass Co. v. Antiexplo Co., Tex., 108 S. W. Rep. 967.

95. Public Lands-Title to Bed of Stream.A patent from the United States invalid when made after five years must be deemed to have the same effect against the United States in a suit to remove a cloud as though valid when issued, in view of Act March 5, 1891. c. 561, sec. 8, 26 Stat. 1099.-United States v. ChandlerDunbar Water Power Co., U. S. S. C.. 28 Sup. Ct. Rep. 579.

96. Railroads-Highway

Crossings.-Where

a railroad company constructed an underneath passage under a charter provision requiring it to keep the same in repair, it was bound to keep the pavement in such passage in repair.-Borough of Metuchen V. Pennsylvania R. Co., N. J., 69 Atl. Rep. 465.

97. Injuries to Employees.-Where a railroad maintains a post too near the track to be safe for brakemen on passing freight trains, it is liable for an injury to an employee resulting therefrom unless the employee knew of the danger or had competent means of knowing it.-Wilson v. New York, N. H. & H. R. Co., R. I., 69 Atl. Rep. 364.

98. Negligence.-In an action against રી railroad for injuries to a pedestrian, the manner of submitting the negligence proximately causing the injuries held not prejudicial.— Chicago, R. I. & G. Ry. Co. v. Johnson, Tex., 108 S. W. Rep. 964.

99. Negligence.-If a window of a railroad car falls because the latch is defective, and inflicts injury to a passenger, the carrier is prima facie guilty of negligence.-Cleveland, C. C. & St. L. Ry. Co. v. Hadley, Ind., 84 N. E. Rep. 13.

100. Receivers—Appointment Without Notice. -A receiver may be appointed without notice if the defendant is beyond the jurisdiction or cannot be found, or some emergency exists under which a receivership is necessary to prevent waste, destruction, or loss of property.-Mann v. Gaddie, U. S. C. C. of App., Fifth Circuit, 158 Fed. Rep. 42.

Consideration.

re

101. Removal of Causes Consent to Federal Jurisdiction.-Plaintiff must be deemed to have consented to the jurisdiction of the federal circuit court over a suit removed from a state court on defendant's petition, where he files an amended petition in the federal court, and signs stipulations for continuances.-In Moore, U. S. S. C., 28 Sup. Ct. Rep. 585. 102. Sales Where one makes a proposition to do something provided the other performs a certain act, the performance of that act is a sufficient consideration to compel the proposer to perform.-Ganss v. J. M. Guffey Petroleum Co., 110 N. Y. Supp. 176. 103. Schools and School Districts-Salary of Teacher. The principal of a private incorporated school and the high school of a city, which were administered not together held entitled to recover a portion of his salary from the trustees of the private school as on an express contract.-Dickey v. Trustees of Putnam Free School, Mass.. 84 N. E. Rep. 140.

104. Shipping-Delay in Moving Vessel. A charterer bound by the contract to furnish the vessel with a berth for discharging held liable for extra wharfage which the master was obliged to pay at a designated berth, and also for overtime paid to a government inspector due to delay in discharging for which he was responsible.-Hammett v. Chase, Talbot & Co., U. S. D. C., S. D. N. Y., 158 Fed. Rep. 203.

105. Specific Performance-Oil and Gas Lease. A lease of land to enter and prospect for oil and gas, which provides that the lessee may surrender the lease, is not void for want of mutuality, even though the power of revocation deprived the lessee of the right to specific performance.-Watford Oil & Gas Co. v. Shipman, Ill., 84 N. E. Rep. 53.

106. States-Fraud of Officers.-False statements by one of three prison commissioners are not the statements of the board, and the state is not responsible in damages for such false statements.-Albin Co. v. Commonwealth, Ky., 108 S. W. Rep. 299.

107. Statutes-Mistake in Wording.-Apparent mistakes in the wording of a statute will be considered as corrected, where the other provisions of the act or the legislative journals furnish the means of correcting the same SO that the intention of the legislature is clearly manifest.-State v. Brackin, Ala., 45 So. Rep.

841.

to Pedes

108. Street Railroads-Injuries trians.-Care to be exercised by operators of street cars and pedestrians crossing the street held to depend on the character of the street, its congested condition, and the frequency of the running of the cars.-Boyce v. New York City Ry. Co., 110 N. Y. Supp. 393.

109. Negligence.-In an action for injuries to a street collision car passenger caused by the of the car with a locomotive at a crossing, where the rate of speed of the street car while approaching the crossing had to be taken into account in considering whether the locomotive was visible to the motorman, and there was no evidence as to its rate of speed, the usual rate could be assumed.-Lindenbaum v. New York, N. H. & H. R. Co., Mass., 84 N. E. Rep. 129.

110. Operation.-Where the condition of the street will not permit driving outside of the car track, it is not negligence to drive in an easterly direction on the east-bound track with the curtains of the wagon fastened down. -United Rys. & Electric Co. of Baltimore City v. Cloman, Md., 69 Atl. Rep. 379.

111. Subrogation-Persons Making Voluntary Payments.-Administrator paying out of his own money interest on mortgages and taxes held not subrogated to the rights of the persons to whom the payments were made.-In re Bernstein's Estate, 110 N. Y. Sunn. 473.

112. Sunday-Validity of Contracts.-Though a contract made on Sunday for the transmission of a message may have been void the telegraph company affirmed it by delivering the message on a subsequent week day.-Hoyt v. Western Union Telegraph Co., Ark., 108 S. W. Rep. 1056.

113. Taxation-Assessment.-Coal brought into the state and stored for an indefinite period, subject to orders for future sale and delivery held liable to local taxation while awaiting orders for shipment.-Susquehanna Coal Co. v. Borough of South Amboy, N. J. 69 Atl. Rep. 454.

114.- -Constitutional Provisions.-It is within the power of the legislature to exempt corporate property from a property tax in order to avoid double taxation where a reasonable excise tax under Const. pt. 2, c. 1, sec. 1, art. 4, is lawfully imposed thereon.-In re Opinion of the Justices, Mass., 84 N. E. Rep. 499.

115. Exemptions.-Property purchased for an institution of learning whose property is

exempt from taxation, the title to which is held by a third person until the institution can pay the price, is subject to taxation while the title is So held.-People V. St. Francis Xavier Female Academy, Ill., 84 N. E. Rep. 55.

116. Telegraphs and Telephones-Damages for Failure to Deliver Message.-Measure of damages for failure of telegraph company to deliver a message, whereby plaintiff lost the sale of a horse, stated.-Hoyt V. Western Union Telegraph Co., Ark., 108 S. W. Rep. 1056. 117. Trespass to Try Title-Proceedings.In trespass to try title, evidence of the cutting of timber and other acts of ownership by defendants and of nonclaim and nonassertion of ownership by grantor and those under whom she claims any interest in the land for over 30 years should have been submitted to the jury. Hirsch v. Patton, Tex., 108 S. W. Rep. 1015.

118. Suit to Try Title. In a suit to try title between the grantees of the decedent's heirs and the grantees of her administrator, a deed held properly admitted in evidence and sufficient to pass the title to the land described therein.-Fields v. Burnett, Tex., 108

S. W. Rep. 1048.

119. Trial-Inferences. While nothing will be inferred by the court in aid of facts specially found by the jury, inferences by the jury, where the facts in the absence thereof are uncertain, may become ultimate esential facts. Zeller, McClelland & Co. v. Wright, Ind., 83 N. E. Rep. 1030.

an

120.- -Instructions Ignoring Issues.-In action for loss from defendant's failure to furnish cars as agreed for transporting cattle to market, there being evidence showing a ratification of an agreement by defendant's agent to furnish the cars, an instruction ignoring the issue of ratification was properly refused. St. Louis, I. M. & S. Ry. Co. v. Boshear, Tex., 108 S. W. Rep. 1032.

121. Special Charges.-Where an issue is fully presented in the charge of the court, there is no necessity for repeating it in a special charge.-Herring v. Galveston, H. & S. A. Ry. Co., Tex., 108 S. W. Rep. 977.

for

122. Trover and Conversion-Action Trespass.-A cause of action for trespass to land and conversion of personalty wherein the only damage alleged is the loss of the value of the personalty, is the same as a cause of action for conversion of personalty.United States v. Ute Coal & Coke Co., U. S. C. C. of App., Eighth Circuit, 158 Fed Rep. 20. 123.-- -Damages Recoverable.-One electing to sue for the value at the time it was converted of timber wrongfully cut from his land may recover the value of the property at the time it was taken with interest from such time. Dennis Bros. v. Strunk, Ky., 108 S. W. Rep. 957.

and

124. Waters Water Courses-Flooding Lands. A town collecting surface waters in a channel along a street, and then obstructing the channel, thereby causing the waters to flow on adjacent property, is liable for the injuries sustained. Incorporated Town of North Judson v. Lightcap, Ind., 84 N. E. Rep. 519.

125. Wills-Claim Against Estate.-A receipt for household goods held under the circumstances not to estop a legatee thereof from asserting a much larger claim against the tate.-Alerding v. Allison, Ind., 83 N. E. Rep.

1006.

es

Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 4, 1908

granted to him the privilege of planting oyster beds in lands adjoining his property.

Judge Whitfield, in a decison reversing a judgment of the lower court in favor of the defendant, shows by a short argument, which is a model of exact logic, that tide lands constitute the shores of nav

TO TIDE LANDS OR EXCLUSIVE PRIVILEGE TO PLANT OYSTERS, OR TO CONDUCT ANY OTHER PRIVATE ENTERPRISE THEREON.

Quite an interesting question, and one of considerable importance to residents along the coast lines of Our southern states is ably handled by Judge Whitfield of the Supreme Court of Florida in the recent case of State v. Gerbing. The ques

tion in this case involves the right of the state to convey the title to tide lands to individuals, or to grant exclusive privileges to private enterprises to plant oysters thereon, or to conduct thereon any other business not especially charged with a public interest.

It is fortunate that a question of such momentous importance should have come before a jurist of such splendid attainments as Judge Whitfield, and that he should have written the opinion setting accurately the landmarks for future guid

ance.

In this case the defendant is sought to be ousted from the possession of certain tide lands along the Amelia river, in the State of Florida, which he had staked off for the purpose of planting them with oysters. The tide lands did not extend into the channel of the Amelia river, but were low mud flats over which the tide ebbed and flowed between high and low water mark. The defendant claimed that these lands were marsh lands, and that he had a conveyance from the state especially, conveying to him the title to such lands up to the channel of the Amelia river, and that in addition thereto he had

and uncovered alternately by the action of the tides, they are, nevertheless, the beds of navigable rivers in which such tide ebbs and flows, the learned judge, saying that "the navigable waters in the states and the lands under such waters including the shore or lands between ordinary high and low water marks are the property of the states or of the people of the states in their united or sovereign capacity, and are held not for the purposes of sale or conversion into other values, or reduction into several or individual ownership, but for the use of all the people of the states respectively for the purpose of navigation, commerce, fishing and other useful purposes afforded by the waters in

common

to and for the people of the states."

The most difficult question which the court had to meet was the argument of the defendant by which he set up the cession by congress to the new state of Florida of all the swamp and "overflowed" land within its borders as a source of the right of the state to grant to him title to the overflowed lands near the mouth of the Amelia river.

convey

After first laying down the proposition that "a patent issued by the United States to the state purporting to swamp and overflowed lands under the act of 1850 covering lands under navigable waters of the state did not affect the title held by the state to lands under navigable waters by virtue of the sovereignty of the state," the learned judge proceeds, with remarkable clearness to distinguish swamp and overflowed lands which a state may dispose of to individuals for private exploitation and tide lands which a state can hold and dispose of only in its sovereign

"Swamp and overflowed lands within the State of Florida, not under navigable or tide waters, that became the property of the United States by the treaty of cession from Spain and had not been previously granted, were by the act of Congress approved September 28, 1850, granted to the state for purposes of drainage and reclamation. Within the meaning of this act of Congress, swamp lands, as distinguished from overflowed lands, are such as require drainage to dispose of needless water or moisture on or in the lands in order to make them fit for successful and useful cultivation. Overflowed lands are those that are covered by non-navigable waters or are subject to such periodical or frequent overflows of water, salt or fresh (not including lands between high and low water marks of navigable streams or bodies of water nor lands covered and uncovered by the ordinary daily ebb and flow of normal tides or navigable waters), as to require drainage or levees or embankments to keep out the water, and thereby render the lands suitable for successful cultivation. When the lands are not covered by the waters of navigable streams or other bodies of navigable waters at ordinary.

high water mark, and drainage, reclamation or leveeing is necessary to render the lands suitable for the ordinary purposes of husbandry, they are within the terms of the act of congress, and the title passed to the state, if the lands were the property of the United States at the time of the act of congress, making the grant to the state."

The opinion in this case is an effective declaration of the inviolability of the rights. of the public in the navigable waters of the states. Too often our legislatures are prone to bargain away the public birthrights for some mess of pottage. Such a decision as this imposes a wholesome striction on legislative extravagance, and charges our legislators to a careful consideration of their obligation as trustees of the public domain.

re

STREET RAILROADS - LIABILITY FOR CROWDED CONDITION OF CARS.-Dunham v. Public Service Corporation of N. J. (N. J.), 69 Atl. Rep. 1012, discusses the duty which a street car company owes passengers who suffer injuries due to the crowded condi tion of the cars. The declaration alleged that the street car company carelessly and negli gently suffered and permitted its cars, exits and running boards to be greatly crowded with passengers, whereby plaintiff while attempting to alight was thrown and injured. Demurrer was interposed, thus raising the question of whether or not the allegation stated facts sufficient to constitute a cause of action. On this point the court says:

"The argument that if plaintiff entered the crowded car he thereby contributed to his injury is not presented by a proper construction of this declaration, for the fair inference is that the plaintiff entered, and the defendant then suffered its car to become crowded, thereby creating a condition which, under the case of Hansen v. North Jersey Street Railway Company, 64 N. J. Law, 697, 46 Atl. Rep. 718, imposed liability upon the defendant. Nor can we say, in the light of the doctrine enunciated in that case, that a passenger by entering a public conveyance more or less crowded, his fare being accepted, and the relation of passenger and carrier having been thereby created, ipso facto was charged with negligence. We should say, rather, that the condition is akin to that presented by a passenger who stands upon the running board of a crowded car. There, it may be truly said, the danger is obvious, and yet the Court of Errors and Appeals in Whalen v. Consolidated Traction Co., 61 N. J. Law, 608, 40 Atl. Rep. 645, 41 L. R. A. 836, 68 Am. St. Rep. 723, held that, by taking his stand upon the running board of the car, the plaintiff assumed the risk of such damages as were obviously incident to that position; still the company, by accepting him there as a passenger, owed to him the duty arising out of that relation.' To the same effect is City Railway Co. v. Lee, 50 N. J. Law, 435, 14 Atl. Rep. 883, 7 Am. St. Rep. 798. The acceptance of plaintiff as a passenger under the conditions affords the ratio decidendi in this, and other, jurisdictions," citing West Chicago Street Ry. Co. v. McNulty, 64 Ill. App. 549; Wood v. Brooklyn City Ry. Co., 5 App. Div. (N. Y.) 492, 38 N. Y. Supp. 1077; Abel v. Northampton Traction Co., 212 Pa. 329, 61 Atl. Rep. 915; Seller v. Market St. Ry. Co., 139 Cal. 268, 72 Pac. Rep. 1006; Elliot v. Newport St. Ry. Co., 18 R. I. 707, 28 Atl. Rep. 338, 31 Atl. Rep. 694, 23 L. R. A. 208; Geitz v. Milwaukee Ry. Co., 72 Wis. 307, 39 N. W. Rep. 866.

The court then says: "And so in the case at bar, it would seem to be a rational deduction or corollary, from the rule that a common carrier is required to exercise due care to anticipate danger, and to employ care to avert it, that the acceptance by it of a passenger upon a crowded car presents a condition re quiring it to exercise due care, under conditions and over an environment due to its own creation; and whether such care was exercised, and whether the passenger was chargeable with contributory negligence, in view of the conditions, necessarily become questions for the jury."

See also Scott v. Bergen Co. Traction Co., 63 N. J. Law, 43 Atl. Rep. 1060, holding it not negligence per se for passengers to ride upon platform of electric street car, or to go there while awaiting opportunity to alight; Babcock v. Los Angeles Traction Co., 128 Cal. 178, 60 Pac. Rep. 780, sustaining recovery by passenger injured by lurch of car after he started to leave, without waiting for it to co.ne to full stop.

TRUST BURSTING UNDER THE COMMON LAW.

The meeting of the attorneys general of the various states of the Union, held at St. Louis recently, and which by the way is to be an annual affair, is destined to accomplish great and much needed reform in legislation; not only so, but the opportunity which these conventions give to the heads of the legal departments of the states for consultation and to adopt means and measures for the more successful carrying out of the laws we have, will be of great advantage to the country at large.

One of the objects to be subserved is to make the laws of each state more uniform with the laws of the others, to suggest needed legislation, the idea being by an exchange of views to promote uniformity, especially in matters of divorce, extradition and kindred subjects in which all the states are interested; and possibly, most important of all, they discuss means and ways and exchange ideas and come to conclusions as to the best manner of enforcing state legislation against trusts and monopolies of all kinds, where there are statutes enacted prohibiting such trusts.

At the recent convention held in St. Louis, on the 30th of September to Ist of October, the matter was emphasized by the members that some of our states have no statutes upon the subject, and the matter was discussed, past history related and precedents cited by which it became apparent to the attorneys general present that the common law provided a remedy in such instances often more efficacious than carelessly and inartificially drawn statutes, by which, oftentimes the power of the courts are hampered and restricted.

At this meeting a secretary was appointed and the members of the convention were requested to advise by letter of any new legislation enacted and premeditated, and also of any suits or proceedings instituted by any of them which in their judgment might be of interest to the legal representatives of the other states. It was made the duty of said secretary to keep a record of such communications as he might receive, indexed for easy reference and each attorney general was notified that whenever he might have a matter of public interest and importance under consideration that if he would communicate with the secretary, he would receive from him the consensus of opinion contained in any and all letters on the matter which may have been furnished him by the various attorneys general throughout the Union,

We will remark here, parenthetically, that the attorney general from the state of Texas, the oldest and most experienced of the delegates, stated, in open debate that the members would also have the advan tage of the counsel and advice of the various assistant attorneys general throughout the Union, "Which," he said, "is a more important matter, as we all recognize that they do all the work."

Colorado has no constitutional or statutory provisions prohibiting trusts or monopolies; and yet there has been for years past in that state a conspiracy and combination between certain parties to fix and maintain the prices on various food products and commodities, the necessaries.