107.-Official Bonds. A declaration in an action on a tax collector's bond held demurrable because of the variance between the condition relied on in the declaration and in the bond. State v. Wilson, Md.. 68 Atl. Rep. 609.

the

108. Partnership-Liability to Third Persons. -In a firm composed of father and son father will be liable on notes given by the son to cover overdrafts on his individual bank account for money used for firm business.-Mathis v. Bank of Taylorsville, Ky., 106 S. W. Rep. 1174.

109. Pledge of Credit.-Members of a tradine copartnership have implied authority to pledge the credit of the firm by issuance of notes in furtherance of the firm business.-First Nat. Bank v. Stadden, Minn., 115 N. W. Rep. 198.

110. Proof of Partnership.-A general denial in an action against several defendants as copartners puts in issue the existence of the copartnership, and no recovery can be had against defendants jointly unless the proof shows such liability.-Schneider v. Fuchs, 107 N. Y. Supp. 33.

111. Patents-Suit for Infringement.-Proceedings in the patent office, even when a dírect issue is made and passed on, operate as an estoppel in subsequent litigation in the courts only to a very limited extent, and can have no effect as an estoppel, even on a motion for a preliminary injunction, as against one who was not a formal party to any interference.Hildreth v. Curtis & Son Co., U. S. C. C., D. Me., 157 Fed. Rep. 394.

112. Payment-Appropriation by Creditor.— Where a debtor fails to make an application of his payment, the creditor may apply it to the extinguishment of any claim he has against the debtor.-Maryland Jockey Club v. State, Md., 68 Atl. Rep. 613.

either

114. Plending-Amendment.-Under the federal statutes and practice or those of Florida a plaintiff suing as widow of a decedent to recover for his wrongful death may be permitted to amend her declaration to change the relation in which she sues from that of widow to that of administratrix.-Hall v. Louisville & N. R. Co., U. S. C. C., N. D., Fla., 157 Fed. Rep. 464.

115. Error Cured by Verdict.-In an action for injuries to a miner a verdict for plaintiff held to have cured an alleged defect in the petition in failing to allege that plaintiff only continued to work a reasonable time after defendants' promise to prop the entry.-Ballou v. Potter, Ky., 106 S. W. Rep. 1178.

116. Judgment on Pleadings. In considering a motion for judgment on the pleadings. made when the case is called for trial, the court may consider admissions and statements of counsel for showing what he expects prove. Scott v. Northwestern Port Huron Co. N. D., 115 N. W. Rep. 192.

to

117. Principal and Surety-Validity of Contract.-A contract to pay another to become surety or to lend one his credit held based on

a sufficient consideration.-Civens v. Gridley, Ky., 106 S. W. Rep. 1192.

118. Quieting Title-Pleadings.-Bill to cancel deed and remove cloud from title held to contain equity, though not offering to restore consideration.-Mitchell v. Baldwin, Ala., 45 So.

Rep. 715.

119. Tax Deeds.-Where a tax deed was void on its face, equity would not set it aside as a cloud on title, nor enjoin the holder from an attempted transfer of his title.-Beardsley v. Hill, Ark., 106 S. W. Rep. 1169.

120. Railroads-Run Away Teams.-Where a team on a highway is unmanageable and running off toward a crossing, held one in charge of a railway engine is required to exercise ordinary care to avoid a collision at the crossing. -Chesapeake & O. Ry. Co. v. Pace, Ky., 106 S. W. Rep. 1176.

121.- Statute Making Two-Cent Rate.Under the constitution, prohibiting the altering of corporate charters in such a manner as to do injustice to the incorporators, a statute prescribing railroad passenger rates may be unconstitutional, though the rates prescribed are not so low as to be confiscatory.-Pennsylvania R. Co. v. Philadelphia County, Pa., 68 Atl. Rep. 676.

122. Release-Validity.-A written discharge of all claims for injuries to person or property given for money actually received therefor, however small in amount, will not be set aside for fraud, unless the fraud be proven by evidence consistent with proven circumstances.Valley v. Boston & M. R. Co., Me., 68 Atl. Rep. 635.

123. Replevin-Surrender of Chattel.-Where a judgment was rendered for defendant in replevin for the return of the chattel or for the amount found as its value, plaintiff's surrender of the chattel in the condition it was in at the time of the trial satisfied the judgment.-Pabst Brewing Co. v. Rapid Safety Filter Co., 107 N. Y. Supp. 163.

124. Sales-Acceptance of Offer.-Plaintiff held not entitled to a reasonable time in which to accept defendant's offer to buy a carload of eggs, and not to bind defendants by an acceptance wired several hours after the offer was made.-Brewer v. Lepman, Mo., 106 S. W. Rep.

1107.

125. -Construction.-A contract for the manufacture and sale of an automatic stoker construed, and the requirements placed thereby on the seller as to performance determined.McKenzie Furnace Co. v. Mallers, Ind;, 83 N. E. Rep. 451.

126. Illegal Purpose.-Mere knowledge of the seller of a piano that the buyer intended to use it in her bawdy house held insufficient to render the contract void as against public policy.-Hollenberg Music Co. v. Berry, Ark., 106 S. W. Rep. 1172.

127. --Remedies of Buyer.-Under a contract of sale of potatoes. vendors held entitled to such notice of the arrival of cars to be furnished by vendee, as would enable them to complete delivery on specified date, and not receiving the same, the contract being entire, not bound to deliver any of the potatoes.-Pinkham v. Haynes, Me., 68 Atl. Rep. 642.

128. Set-Off and Counterclaim-Liquidated Claims. In an action by R. on a note given by B. held that B.'s demand against R. was not a liquidated claim and the subject of a set-off.Reim v. Bissinger, N. J., 68 Atl. Rep. 88. 129. Specific Performance-Contracts

En

forceable.-In an action for specific performance of a contract by a husband and wife to convey land, made with plaintiff by a broker, in the absence of proof that the wife authorized the contract, held that specific performance will not be granted.-Beattie v. Burt, 107 N. Y. Supp. 153.

130.- -Sale of Land. A contract for the sale of land providing that the vendor should not sue for specific performance, and imposing no such restriction upon the purchaser, held not specifically enforceable.-Wadick v. Mace, N. Y., 83 N. E. Rep. 571.

of Municipali

131. Statutes-Classification ties. The legislature has power to arrange municipalities into different classes and to grant to each class powers differing from those enjoyed by the others.-Eckerson v. City of Des Moines, Ia., 115 N. W. Rep. 177.

132.- Construction.-Statutes supposed to be in conflict should be so construed as to give effect to each where reasonably possible, especially where they were enacted by the same General Assembly.-Eckerson v. City of Des Moines Ia., 115 N. W. Rep. 177.

133.- -Construction.-That a statute is a literal copy of a statute of a sister state held persuasive evidence of a practical re-enactment of the statute, and an adoption of the construction placed on it by the courts of the sister state.-Mann v. State Treasurer, N. H., 68 Atl. Rep. 130.

134. Street Railroads Contributory Negligence. Where deceased was killed by one of defendant's trolley cars while crossing its track and assisting his brother across, if his own negligence contributed to placing himself and his brother in danger, the fact that he then suddenly attempted to save his brother would not absolve him from contributory negligence. -Miller v. Union R. Co. of New York City, N. Y., 83 N. E. Rep. 583.

135.-Injury in Passing Standing Car.-A person crossing in front of a street car while at a standstill has a right to assume that it will not be started or so operated as to strike her until she has had a reasonable opportunity to pass the point of danger.-Mittleman v. New York City Ry. Co., 107 N. Y. Supp. 108.

136.- -Occupancy of Streets.-The occupancy of streets by a street railway company is not an additional burden upon the fee, so as to prevent the road from crossing a railway right of way until it acquires the right to do so by grant or condemnation,-Michigan Cent. R. Co. v. Hammond, W. & E. C. Electric Ry. Co., Ind., 83 N. E. Rep. 650.

137. Taxation-Insane Persons. Where an insane person resided with her mother, the mother's residence was the residence of the insane person, both before and after she became of age. Brookover v. Kase, Ind., 83 N. E. Rep. 524.

A

138. Trial Conflicting Instructions. charge that a servant does not assume risks due to the master's own negligence states a rule directly in conflict with the correct one, and is not cured by other charges giving the correct rule, since it is impossible to tell which charge the jury followed.-Kath v. East St. Louis & Suburban Rv. Co., Ill., 83 N. E. Rep. 533.

139.- -Instructions.-Where a party thinks that the language of a requested instruction is more apt than the language embodied in others, he should have offered that one and retained the others, and cannot complain because the court gave the others.-Clifford v. Pioneer Fireproofing Co., Ill., 83 N. E. Rep. 448.

140.

Trusts-Interest of Cestui Que Trust.A cestui qui trust's rights in the trust fund held acquired upon the delivery of the trust instrument, and not postponed until the creator's death; the power of revocation reserved not rendering the instrument testamentary.-New York Life Ins. & Trust Co. v. Cary, N. Y., 83 N. E. Rep. 598.

141.- -Nature and Form of Remedy.-A beneficiary having no claim superior to ordinary creditors, when the trustee has, in violation of his trust, so disposed of the trust estate that it cannot be followed, his only remedy is at law against the trustee for the breach of trust. -Snyder v. Parmalee, Vt., 68 Atl. Rep. 649. 142. Right of Trustee Sue. A trustee beneficially interested in an estate may appeal in his individual capacity from an order injuriously affecting his interest, though the order is in favor of the cestuis que trustent.Boyce v. McLeod, Md., 68 Atl. Rep. 135.

to

those

143. United States-Nature of Powers.-The powers of the general government are delegated to it. either in express words or following by necessary implication from a power expressly delegated.-Eckerson v. City of Des Moines, Ia., 115 N. W. Rep. 177.

144. Vendor and Purchaser-Tender of Purchase Price.-Where the vendor in an executory contract repudiates the same, and declares that he will not perform, no tender of the balance of the price is necessary to an action for the breach.-Matteson v. United States & Canada Land Co., Minn., 115 N. W. Rep. 195. 145.

Wills-Action to Construe. Where a decree settling executors' accounts on the basis of an agreed plan of distribution has been made under a will, and any one interested therein may appeal to the county court and thence to this court, a bill to construe the will, under Acts 1896, p. 28, No. 40, will not lie.Hall v. Hall, Vt., 68 Atl. Rep. 657.

146. Advancements.-Where testatrix, having made certain advancements to her niece, executed a will disposing of her entire estate without referring to such advancements, they were not chargeable against the share of the estate bequeathed to the niece. Bowron Kent, N. Y., 83 N. E. Rep. 472.

V.

147. -Conditions.-Where a husband's will gave his property to his wife, a provision that SO much of it as should not have been consumed by her should in case of her marriage vest in his children was valid.-Littler v. Dielmann, Tex., 106 S. W. Rep. 1137.

148.- -Revocation.-As a revocation of a prior will, contained in a later one, takes effect only at the testator's death, the intentional destruction by the testator of the later will leaves the former will in force.-Bates v. Hacking, R. I., 68 Atl. Rep. 622.

159. Witnesses--Confidential Relations.—A banker is not privileged to withhold information as to the identity of a person depositing securities with his bank, when such information is material in a lawful investigation, judicial or legislative.-Interstate Commerce Commission v. Harriman, U. S. C. C., 157 Fed. Rep. 432.

150. Work and Labor-Contract for Architects' Services.-Where plaintiff was employed by defendant as an architect to design plans and supervise erection of building, and the erection was abandoned, he could recover on an implied assumpsit for such portion of the work as had been properly done by him.-Stephen v. Camden & Philadelphia Soap Co., N. J., 68 Atl. Rep. 69.

Central Law Journal.

ST. LOUIS, MO., JUNE 12, 1908.

LIABILITY FOR INJURIES ARISING FROM THE USE OF DANGEROUS SUBSTANCES SOLD IN OPEN MARKET.

The case of Cunningham v. The C. R. Pease House Furnishing Co., 69 Atl. Rep. 120, is interesting and based upon sound principles. In the principal case there was a common, law count for negligence and a trial and verdict. The plaintiff's evidence tended to prove that the manufacturers of a stove blacking advertised in Nashua, stating that it was for sale by the defendants. The plaintiff's mother saw the advertisement, called at the defendants' store and asked the clerk if the blacking they were advertising was intended for stoves or for stovepipes. He replied that, "it was for stoves" and that, "the warmer the stove the better it works." She replied, "won't that be fine, I can black my stove without letting my fire go out." Relying upon the representation that the blacking could be safely used on a hot stove, the mother bought a can. Two days later the plaintiff, a member of the mother's family, used some of the blacking on a hot stove, and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naptha.

The court likened the defendant's position to that of "one who puts destructive*** materials in situations where they are likely to produce mischief." 50 N. H. 420, 432, 9 Am. Rep. 267. Such a person must respond in damages to those who are injured because of his acts, if either he knew or ought to have known that the materials were dangerous and the person injured might come in contact with them." Hobbs

stove and that other members of the family were likely to use it. Consequently the plaintiff can recover if the mother could have recovered had she been injured instead of the plaintiff. The defendants will not be prejudiced by the assumption that the plaintiff cannot recover if the mother could not and by the omission to consider whether the situation might not be such that a recovery might be had against both the mother and the defendants. Ricker v. Freeman, 50 N. H. 432, 9 Am. Rep. 267. The case is therefore considered as though it were an action by the mother."

"The court further says the common law imposes upon the seller the duty to refrain from falsely representing material facts for the purpose of misleading the buyer. The seller may praise the good qualities of his wares as much as he pleases and is not bound to disclose their defects to the purchaser, even if he knows of them and is aware that the buyer believes that he is purchasing sound goods. But if for the purpose of inducing the prospective buyer to change his position, the seller sees fit to make any representation, either express or implied, in respect to facts which are material to the subject matter of the sale, he must tell the truth." 74 N. H. 57, and cases cited in the opinion.

"The defendants admit their liability for an intentionally false statement of fact, but contend that they are not liable for a false statement honestly believed to be true, though negligently made," citing Derry v. Peek, 14 App. Cases, 337; Angus v. Clifford (1891), Ch. 449, 470. But the court shows that such is not the law in New Hampshire and cites with Shackett v. Bickford, supra, a number of other cases to the effect that "a person who acts upon a false representation, made for the purpose of inducing him to change his position, may recover the damages he sustains in an action of deceit, when the maker of the statement

"Although the defendants probably did not have the plaintiff in mind when they sold the blacking to the mother, they knew that the mother had bought it to use on her

ligence when he ought to have known it to be so," and concludes that, "If the defendant's false representation that it was safe to use the blacking on a hot stove was the cause of the plaintiff's injury, the fact

that they thought the statement true and had no intention to deceive do not necessarily bar her right to recovery. * * * If the representation was deceitful she could. recover by showing that their fault contributed to cause her injury; but if it was merely negligence, she must show that it was the sole cause of her injury. 14 Harv. Law Rev. 188. The reason for this is that the law makes it the duty of everyone to use ordinary care to avoid being injured by another's negligence; but it imposes the duty on no one to use such care to avoid being injured by another's intentional wrong. In actions for negligence contributory negligence is a defense; in actions for intentional injuries it is not. * * * So in this case, if the defendants, for the purpose of inducing the plaintiff to buy the blacking, told her it could be safely used on a hot stove, and they neither knew nor cared whether their statement was true or false, they would be liable. If they had no thought of deceiving her, it would not be enough to show that they made the representation. She must then go further and show that the ordinary man would not have made it. 14 Harv. Law Rev. 188. The test, therefore, to determine whether the defendants were in fault for making the representation, is to inquire whether the ordinary man, having no more knowledge of the situation and its dangers than the defendants are shown to have had, would have told the plaintiff it was safe to use the blacking on a hot stove. It cannot be said as a matter of law that the ordinary man would have made such a representation unless it is common knowledge that the average man who engages in trade is accustomed to tell his patrons, not what he believes to be the truth in respect to his goods, but what he thinks would induce him to buy. *** It is not common knowledge that the ordinary man is accustomed to make such representations to induce customers to buy his goods; and it cannot be said as a matter of law that an ordinary man selling a new blacking would affirm that he knew it would do all, and more than all, its makers claimed for it, when, in fact, he knew nothing of its qualities, and had done nothing to in

form himself as to the soundness of the maker's claims."

The court held that the plaintiff was entitled to go to the jury on the common law count. This is an interesting case and we have no doubt of the soundness of the reaSee in this connection, Scott v. soning. Shepard, 3 Wils. 403, in Hughes on Procedure, Vol. 2, L. 1172 and the notes thereto. "One who sets a dangerous thing in motion is presumed to intend the natural, direct and probable consequences of his act," is one of the greatest principles of the law. See also fine article on the subject, 14 Harvard Law Review, 188.

NOTES OF IMPORTANT DECISIONS

MUNICIPAL CORPORATIONS-APPROVAL OF PLAN FOR BUILDING BY BUILDING DEPARTMENT-COLLAPSE OF BUILDING DUE TO DEFECTIVE PLANS-LIABILITY OF MUNICIPALITY.-That a city is not liable to a person injured by the collapse of a building in course of erection, though the city building department approved defective plans, is held in Stubley v. Allison Realty Co. (N. Y.), 108 N. Y. Supp. 759. The court said in passing on the question raised by the pleading and evidence:

"It is somewhat difficult to determine from the allegations of the complaint whether the cause of action attempted to be alleged against the city is for negligence or nuisance; but inasmuch as it was contended upon the oral argument of the appeal by plaintiff's counsel, and the same contention is made in the brief presented by him, that it is for a nuisance, I shall, in disposing of the question presented, assume that to be the cause of action alleged. At the trial no proof was offered that the plans and specifications of the building as approved by the building department were defective, or, if so, to such an extent that the construction of the building itself would necessarily result in a nuisance, either public or private. The plans and specifications were not put in evidence, and if they had been, and it had appeared therefrom, or from other evidence, that they were defective, the action of the building de partment or the officers connected therewith in approving the same would not have rendered the city liable. The building department is not an administrative department of the city. It is a bureau created by statute to perform a public service, in which the city itself has no private interest, and from which it derives no special benefit or advantage in its corporate

capacity, and for any neglect, either of omission or commission on the part of the officers connected with such bureau, the city is not liable. Citing Maximilian v. Mayor, 62 N. Y. 160, 20 Am. Rep. 468; Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. Rep. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; McGuinness v. Allison Realty Co., 46 Misc. Rep. 8, 93 N. Y. Supp. 267, affirmed 111 App. Div. 926, 97 N. Y. Supp. 1141; Connors v. Mayor, 11 Hun, 439.

But it is contended that the building, by reason of the defective materials used and the methods adopted in construction, was a public nuisance, because it was a menace to persons using the public street upon which it abutted; that this fact was or should have been known to the city, and, since it was obligated to keep the streets in a reasonably safe condition for public travel, it became liable to any person who sustained injuries from the collapse of the building, even though such person was not at such time upon the street. The building at the time of the collapse had reached a height of 120 feet above the street. It stood entirely upon private property. The entrance to it was five or six feet from the nearest edge of the sidewalk. The street upon which it abutted was between fifty and sixty feet wide, and the sidewalk about fifteen feet. If it be assumed that the condition of the structure, immediately preceding its collapse, was such that it did in fact imperil the safety of persons using the street, I am unable to see upon what principle of law the city can be held liable. It did not fall into the street and no person therein was injured. The plaintiff was at work in the building when it fell. The city cannot be held liable for a failure to pass an ordinance relating to the construction of buildings which would have prevented the collapse, or if such had been passed, for a failure to enforce the same. Landan v. City of New York, 180 N. Y. 48, 72 N. E. Rep. 631, 105 Am St. Rep. 709; Leonard v City of Hornellsville, 51 App. Div. 106, 58 N. Y. Supp. 266."

APPEAL-REVIEW OF RECORD.-In Whitaker v. Michigan Mutual Life Insurance Company (Ohio), 83 N. E. Rep. 899, is discussed the question of the right of a court of appeal to go outside the record in arriving at a decision. This was a case brought in the court of common pleas from which court it was appealed to the circuit court, where it was reversed. A new trial was had, and the case again appealed to the circuit court, where final judgment was rendered. Error was brought in the supreme court, and the supreme court found that in reaching its decisions, the circuit court had not

confined itself to the record in the case then before it, but also made use of its knowledge of the case on the former appeal. The circuit court took the position that its former judgment upon the weight of the evidence was an adjudication of the company's right to a verdict and judgment upon the evidence, and held that the right so determined should have been enforced by the trial court. The supreme court states that even if that were correct as a proposition of law, there were two reasons why it should not have been applied to the case at bar. First-That the trial court was a court of record and the record was presumed to be conclusive of what occurred. This record did not show that the evidence at the second trial was all read to the jury from a bill of exceptions used at the former trial, and that, therefore, there might have been evidence in the first trial which influenced the circuit court in reaching its decision, which was not in the evidence in the second trial.

The second point made by the supreme court was that the company had not requested a peremptory instruction and that the circuit court could not reverse the case on the ground that the court of common pleas had failed to give an instruction which was not requested, stating that error consists not in the failure to give an instruction, but in the refusal to give an instruction to which a party is entitled.

ARE CITIES AND TOWNS LIABLE FOR NEGLIGENCE IN THE MANAGEMENT OF PUBLIC PARKS?

According to the English law a park is an inclosed chase situated upon one's own lands. A park must be inclosed, but a forest or chase are not. Three things must be present to constitute a lawful park: first, the right of ownership; second, an inclosure by pale, wall or hedge; third, it must be stocked with untamed animals.3 This is the meaning of a park, according to the old English law, but in modern England the term "park" has practically the same meaning that it has in the United States. Recent statutes have been passed

(1) Black. Com. 38, where a park is distinguished from a forest, a chase and a free

warren.

(2) Co. Litt. 233a.

(3) 2 Co. Inst. 199; Howard's Case, Cro. Car. 59.