may compromise any claim.-Olston v. Oregon Water Power & Ry. Co., Or., 96 Pac. Rep. 1095. 62. Fraud-Evidence.-Where, in an action for fraud, there was no proof that the representations made were not literally true. or that stock for which certain notes were given was not worth its face value or that the notes were misapplied, plaintiff could not recover.Sheets v. Christie, Iowa, 117 N. W. Rep. 29. 63. Means of Knowledge of Parties.-The rule that mere false assertions as to the value of property, where no warranty is intended, does not constitute actionable fraud, does not apply where the parties have not equal opportunities to form and exercise their own judgment.-Fall v. Hornbeck, Mo., 112 S. W. Rep. 41. 64. Habeas Corpus-Conclusiveness.--A judgment on first application for habeas corpus to obtain custody of a child held not res judicata of a second application where there has been a material change of facts.-Pittman v. Byars, Tex.. 112 S. W. Rep. 102. 65. Threats.-If Homicide-Communicated. threats alleged to have been made by one person against another are communicated to the other, though not true, and he believes them and that the person made them, he will be justified in acting the same as if they had been in fact made.-Huddleston V. State, Tex., 112 S. W. Rep. 64. 66.- -Dying Declarations.-To render a statement of a decedent competent as dying declaration, it is not necessary to show that he expressed a belief in the near approach of death, where his condition of mind is made apparent from his conduct and surrounding circumstances.-State v. Ju Nun, Or., 97 Pac. Rep. 96. 67. Husband and Wife-Community Property. -Where community property was used as a lodging house, the fact that the wife was attending to the business, with the approval of the husband, did not confer on her the power to sell the furniture or rent the premises.Travers v. Barrett, Nev., 97 Pac. Rep. 126. 68. Indictment and Information-Joinder of Offenses. Where a crime may be committed by the doing of several acts in the alternative, they may all be included in one count, and a conviction had on proof of the commission of any 、one, without proof of the commission of the others. People v. Schlessel, 112 N. Y. Supp. 45. 69. Internal Revenue-Liquor Dealers.-Each member of a so-called "Locker Club," illegally licensed by a municipal corporation in Georgia, and which in fact sells or furnishes liquors to its members in violation of the prohibition law of the state, is a retail liquor dealer within the meaning of the internal revenue law, and subject to the penalty for its violation.-In re Charge to Grand Jury, U. S. D. C., S. D. Ga., 162 Fed. Rep. 736. 70. Interstate Commerce-Original Packages. -Where the original packages containing dairy products consisting of interstate shipments are broken, and the products are sold in different packages from those in which they were shipped into the state, the transactions are changed from interstate to intrastate commerce, and become subject to state laws.-City of St. Louis v. Wortman, Mo., 112 S. W. Rep. 520. 71. Intoxicating Liquors-Civil Damage Laws. -Whether person to whom liquor was sold in violation of civil damage laws was intoxicated at the time he committed suicide held immaterial, where the sale was the cause of suicide. -Palmer v. Schurz, S. D., 117 N. W. Rep. 150. 72.—Illegal Contracts.-The price of intoxicating liquors held not recoverable where the liquors were sold to be retailed in violation of law.-Dallas Brewery v. Holmes Bros., Tex., 112 S. W. Rep. 122. 73. Judgment—Conclusiveness. A judgment of the circuit court affirming a probate judgment adjuding a guardian to be indebted to his ward cannot be attacked collaterally on his appeal from a judgment on his bond superseding the probate judgment.-Hands v. Haughland, Ark., 112 S. W. Rep. 184. 75.-Right to Sue For Rent.-A landlord's warranty deed assigns whatever right he has as landlord in the letting of the premises, and if the tenant continues to occupy under the tenancy the grantee may sue for the rent under the original letting.-Starbuck V. Avery, Mo., 112 S. W. Rep. 33. 76. Libel and Slander-Privileged Communications. The headlines of a newspaper publication of the report of judicial or quasi judicial proceedings are not a part of the proceedings, but are the voluntary statements of the publisher. Brown v. Globe Printing Co., Mo., 112 S. W. Rep. 462. 77. Reports of Legal Proceedings.-A publication of privileged words of comment in a legal proceeding held not privileged.-Brown v. Publishers: George Knapp & Co., Mo., 112 S. W. Rep. 474. 78. Limitation of Actions-Accrual of Right of Action.-Limitations do not run against warrants issued by a municipal corporation payable out of a special fund to be created until the fund has been created, and there is money in it with which to pay the warrants.-Rogers v. City of Omaha, Neb., 117 N. W. Rep. 119. 79. Defenses.-If a limitation merely affects the remedy, it must be pleaded in the answer. but, if it is a condition of plaintiff's right of action, defendant may take advantage of a failure to plead compliance to do so under a general denial.-McRae v. New York, N. H. & H. R. Co., Mass., 85 N. E. Rep. 425. 80. Marriage-What Constitutes.-A cohabitation illicit in its origin is presumed to be of that character unless the contrary is proved, and cannot be transferred into matrimony by evidence falling short of establishing the fact of an actual contract of marriage.-Compton v. Benham, Ind., 85 N. E. Rep. 365. 81. Master and Servant-Assumed Risk.-A switchman continuing to work for about a year with knowledge of defect in the roadbed held to have assumed the risk in the absence of a promise to repair.-St. Louis, I. M. & S. Ry. Co. v. Mangan, Ark., 112 S. W. Rep. 168. 82.- -Defective Machinery.-A servant thoroughly experienced in the work, who continues to operate a defective machine, without promise on the part of the master of guaranty against injury or of mending the machine, assumes the risk, where he has full knowledge of the defect and of its effect on the operation of the machine.-Continental Oil & Cotton Co. v. Scott, Tex., 112 S. W. Rep. 107. 83. Fellow Servants.-Where the hook tender who attached hooks for the purpose of raising the log which fell on plaintiff, and the operator of the crane by which it was raised, were mere operatives, charged with the performance of no positive duty which the master owed to plaintiff, they were fellow servants of plaintiff, for whose negligence the master was not liable.-Allen v. Standard Box & Lumber . Co., Or., 96 Pac. Rep. 1109. 84. Fellow Servants.-A telegraph operator in charge of a block signal, and in absolute control of the operation of trains within such block, held a vice principal, and not a fellow servant, of a trainman killed in a collision due to the operator's negligence in permitting a train to proceed while the block was occupied. -Salmons v. Norfolk & W. Ry. Co., U. S. C. C., S. D. W. Va., 162 Fed. Rep. 722. 85.- -Fellow Servants.-In an action for injuries to a servant by negligence of a fellow servant, plaintiff must prove that the fellow servant was incompetent, that the injury was caused thereby, and that the master, with notice of the incompetency, negligently retained the servant.-Tucker v. Missouri & K. Telephone Co., Mo., 112 S. W. Rep. 6. 86. Injury to Servant.-A lumber company onerating a logging road held required to maintain reasonably safe appliances for the protection of its servants.-Cavaness v. Morgan Lumber Co., Wash., 96 Pac. Rep. 1084. 87.-"Res Ipsa Loquitur."-The rule that the maxim, "Res ipsa loquitur," does not apply to cases between master and servant, does not prevent the establishment of a master's negligence by the circumstances surrounding the accident.-Reed v. Norfolk & W. Ry. Co., U. S. C. C., S. D. W. Va, 162 Fed. Rep. 750. 88. Mechanic's Liens-Right to Lien. Mere expectation, permission, knowledge, or acquiescence by a vendor in the act of a vendee in possession in improving the property held insufficient to charge the vendor's interest with a materialman's lien for materials furnished the vendee under Comp. Laws, 1907, Sec. 1372.Belnap v. Condon, Utah, 97 Pac. Rep. 111. 89. Mines and Minerals-Construction of Oil Lease. An oil lessee, having an exclusive right to explore for and remove oil from the leased premises, has a right of action to recover damages against one who without his consent enters upon the premises and removes oil therefrom during his term.-Backer v. Penn Lubricating Co., U. S. C. C. of App., Sixth Circuit, 162 Fed. Rep. 627. 90. Fixtures.-Buildings, machinery, etc., constructed on land leased for mining, held not fixtures, but removable by the lessees, subject to landlord's lien for unpaid royalty.-Cherokee Const. Co. v. Bishop, Ark., 112 S. W. Rep. 189. 91. Mortgages-Partial Release.-A mortgagee who, having actual knowledge of a subsequent lien against parcels of the mortgaged premises, releases other parcels, held to discharge the parcels, subject to such junior lien, wholly or partly, from liability under the mortgage. Schaad v. Robinson, Wash., 97 Pac. Rep. 104. 92. Municipal Corporations-Contracts for Public Service.-Municipal contract for public service will be sustained where the power is given to make the contract, and the terms of it taken with the law controlling it are not clearly violative of some provision of law. State v. Tampa Waterworks Co., Fla., 47 So. Rep. 358. 93. General Powers.-General powers given to a municipality should be construed with reference to the purpose of its incorporation, and the general grant of powers includes all powers fairly within the terms of the grant and essential to the purpose of municipality.State v. Tampa Waterworks Co., Fla., 47 So. Rep. 358. 94.-Ordinances.-The ordinances of the city of St. Louis, in order to be valid, must be consistent with the general laws of the state and must be in harmony with the legislative policy of the state, manifested by its general enactments and as provided for in express terms by the Constitution.-City of St. Louis v. Klausmeier, Mo., 112 S. W. Rep. 516. 95. Power to Make Improvements.-The proposition adopted by the voters of a village as to the construction of a sewer system, held to authorize the village trustees to raise by taxation a certain sum for the construction of the system.-Mead v. Turner, 112 N. Y. Supp. 127. 96. Repeal of Ordinance.-The repeal of a city ordinance pending a prosecution under its provisions operates to relieve the defendant, unless it is otherwise provided in the act repealing the ordinance.-City of St. Louis V. Wortman, Mo., 112 S. W. Rep. 520. 97. Navigable Waters-State Control of Lands Under Waters.-The state cannot abdicate general control over the lands under navigable waters within the state.-State v. Gerbing, Fla., 47 So. Rep. 353. 98. Nuisance-Acquisition of Rights by Prescription. One who owned and lived on land before it was injured by a nuisance held entitled to recover, though the residence on the property was erected after the nuisance came into being.-Gordon v. Village of Silver Creek, 112 N. Y. Supp. 54. 99.- -Injunction.-Where a doubt arises as to the right of plaintiff to maintain a suit or as to the existence of the nuisance complained of, equity will not interefere until the questions are setttled by a judgment at law.-Van Buskirk v. Bond, Or., 96 Pac. Rep. 1103. 100. Obstructing Justice-Legal Process.One charged with resisting an officer in the levying of an execution held entitled to show that the judgment was void and that the officer had knowledge thereof.-State v. Knopf, Wash., 96 Pac. Rep. 1076. 101. Payment-Mistake of Law.-Money paid in ignorance of facts is recoverable; while money paid under a mistake of law, with knowledge of the facts, is not recoverable.Scott v. Ford, Or., 97 Pac. Rep. 99. Negligence.--An adult 107. Contributory person who voluntarily left a railroad car in which he blocks was riding several before reaching a station, and stood upon the open platform, where he was killed in a collision, no one inside the cars being seriously injured, held chargeable with contributory negligence which precluded a recovery for his death.-Chicago Great Western Ry. Co. v. Mohaupt, U. S. C. C. of App., Eighth Circuit, 162 Fed. Rep. 665. 108. Effect of Appointment of Receiver.The appointment of a receiver of a railroad company held not to dissolve the company nor to hinder the exercise of corporate functions except those involved in the management of the property by the receiver.-United States & Mexican Trust Co. v. Delaware Western Const. Co., Tex., 112 S. W. Rep. 447. 109. Release-Fraud.-At common law a release cannot be questioned in an action at law except for fraud affecting its execution, and for fraudulent representations affecting the consideration equity alone can give relief.-Olston v. Oregon Water Power & Ry. Co., Or., 96 Pac. Rep. 1095. 110. Religious Societies-Judicial Supervision. -Secular courts have no jurisdiction over purely ecclesiastical matters, and mandamus held not to lie to require the appointment of arbiters to determine a relator's right to reinstatement as a member of a church.-State v. Cummins, Ind., 85 N. E. Rep. 359. 111. Sales Conditional Sales.-Where an alleged sale with reservation of title until payment is not admitted by the alleged buyer, the burden of proving a continuance of the indebtedness is on the seller.-Black V. Roberson, Ark., 112 S. W. Rep. 402. 112. Time for Delivery.-Acquiescence by a buyer in the delay of a seller in manufacturing the article and making the same ready for shipment operates as an extension of the time for delivery. Tidwell v. Southern Engine & Boiler Works, Ark.. 112 S. W. Rep. 152. 113. Street Railroads-Compelling Operation. -A railroad may be compelled to operate its road continuously when expressly required to do so by its charter, as well as to construct its road and run its cars to a certain point in such case; but not when its charter simply authorizes its construction without requiring it.--Selectmen of Amesbury v. Citizens' Electric St. R. Co., Mass., 85 N. E. Rep. 419. 114. Time-Inclusive or Exclusive.-Whether V. or the Frey, the word "from" shall be construed as inclusive or exclusive depends on the context, subject-matter, and particularly on the expressed intention of the parties.-Budds Minn., 117 N. W. Rep. 158. 115. Trade-Marks and Trade-Names-Good Will of Business.-One, who by advertising and selling a particular kind of bread, acquires a good will, is entitled to protection against any one seeking to avail himself of a demand in the market for his bread.-George G. Fox Co. V. Hathaway, Mass., 85 N. E. Rep. 417. 116. Trover and Conversion-Abandonment of Right to Property.-One may abandon his right to property by evidencing his intention by an act legally sufficient to divest ownership, and another reducing the property to possession after such abandonment is not guilty of conversion. Huggins v. Reynolds, Tex., 112 S. W. Rep. 116. Purchaser's 117. Vendor and Purchaser Right to Possession.-A contract reciting that the owner of premises had received of a person $100 as a deposit on the purchase price, $2,500 balance to be paid upon the delivery of an unlimited certificate of title, does not confer a right of possession upon the person.-Winchester v. Becker, Cal., 97 Pac. Rep. 74. 118. Waters and Water Courses-Construction of Railroad. A railroad held not liable to the owner of adjacent land for surface water damaging the adjacent land because of the ditches on the railroad land being filled up.Sabetto v. New York Cent. & H. R. R. Co., 112 N. Y. Supp. 118. 119.- -Surface Waters.-Lot owner in populous city who obstructs underground drain on his lot to prevent its carrying surface waters from other lots held not liable for damages nor subject to be enjoined.-Levy .v. Nash, Ark., 112 S. W. Rep. 173. of 120. Wills-Construction.-Assignment mortgage by trustee after maturity of note by which mortgage was secured held not void as an attempt by a trustee to convert the estate from one form of security into another.-Bremer v. Columbian Nat. Life Ins. Co., Mass., 85 N. E. Rep. 439. 121.- -Construction.-Will construed and share of son of testator dying without issue after death of brother and sister leaving issue held to go to surviving children of testator and not to the grand-children.-Davies v. Davies, 112 N. Y. Supp. 157. 122.- -Contest.-In proceedings by a son to contest the will of his father, one of the questions being as to whether testator's belief that contestant was illegitimate was an insane delusion, the chastity of testator's wife-contestant's mother-was in issue, and evidence of her chaste reputation was admissible.-O'Dell v. Goff, Mich., 117 N. W. Rep. 59. 123. Testamentary Capacity.-Testamentary capacity being presumed. the burden of proof is on one attacking a will on the ground of insanity, and, if testator's general capacity is conceded, the proof must be of the clearest and most satisfactory kind.-Taylor v. McClintock, Ark., 112 S. W. Rep. 405. 124. Witnesses-Competeney.-A will contest between legatees and disinherited children of testator held not an action "by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.” within Rev. St. 1895. art. 2302. and hence that a party in such an action could testify as to a statement made to her by decedent.-Simon v. Middleton, Tex., 112 S. W. Rep. 441. INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, A separate subject-index for the "Digest of Current Opinions" will be found on page 489 CONSTITUTIONAL LAW, See COMMERCE; POLICE POWER. validity of a statute providing that accept- power of legislature to make contractor the new question of state's rights, 281. right to use gun in threatening manner to is the federal government capable of taking CONTRACTS, failure to perform executory agreement interference with contract relations other validity of contracts agreeing to give rail- measure of damages for failure to deliver a proposition for a new federal court hav- duty of courts to enforce obsolete laws, 141. is there a twilight zone between the nation extent of original jurisdiction exercised by CRIMINAL EVIDENCE. proof of the corpus delicti, 103. CRIMINAL LAW, the crime of perjury, 12. the failure of American criminal law, 411. equity does not adjust differences between equity will not interfere between parties in equity suffers no right to be without a right of equity to enjoin a multiplicity of ESCHEAT, is the federal government capable of taking ETHICS, CRIMINAL TRIAL, right of bail to arrest principal, 1. power of court to indefinitely suspend judg- See POLICE POWERS. FOREIGN CORPORATIONS, foreign corporations pleading capacity to sue, 3. |