L.R.A. 520, 53 N. E. 265. Therefore, it was held that the state court could not entertain jurisdiction of a second suit for the same cause of action. This decision was based on the case of Cox v. East Tennessee, V. & G. R. Co. 68 Ga. 446, but that merely decided that a renewal of the action in the contract between the parties, evidenced by the policy, is, we think, an evasion of the statute, and tends to defeat the objects for which it was enacted. In clear, emphatic words, the statute declares that in all suits on policies of insurance on life it shall be no defense that the insured committed suicide, unless it be shown that he contem-state court after nonsuit in the Federal plated suicide when applying for the policy. Whatever tends to diminish the plaintiff's cause of action, or to defeat recovery in whole or in part, amounts in law to a defense. When the company denied its liability for the whole of the principal sum, it certainly made a defense as to all of that sum except one tenth. If, notwithstanding the statute, an insurance company may, by contract, bind itself, in case of the suicide of the insured, to pay only one tenth of the principal sum, may it not lawfully contract for exemption as to the whole sum or only a nominal part thereof, and, if sued, defeat any action in which a recovery is sought for the entire amount insured? In this way the statute could be annulled or made useless for any practical purpose. Looking at the object of the statute, and giving effect to its words according to their ordinary, natural meaning, the legislative intent was to cut up by the roots any defense as to the whole and every part of the sum insured, which was grounded upon the fact of suicide. The manifest purpose of the statute was to make all inquiry as to suicide wholly immaterial, except where the insured contemplated suicide at the time he applied for his policy. Any contract inconsistent with the statute must be held void." court was not a part of the original case, nor on the same footing with it with respect to the statute of limitations. In several cases that have since arisen, the doctrine of the Ohio case has been invoked, and in one or more instances the second suit has been dismissed by the state court for want of jurisdiction. But in each instance the court of last resort has decided against the doctrine of the Ohio case. The question was discussed at some length in CASE AND COMMENT for July, 1899, in which it was contended that the Ohio court had reached an erroneous conclusion. The discussion of the question in CASE AND COMMENT has been quoted at length and adopted in the later cases of McIver v. Florida C. & P. R. Co. 110 Ga. 223, 65 L.R.A. 437, 36 S. E. 775, and Young v. Southern Bell Teleph. & Teleg. Co. (S. C.) 7 L.R.A. (N.S.) 501, 55 S. E. 765. The reasoning of CASE AND COMMENT in criticizing the Ohio case was as follows: "The possibility that a plaintiff might improperly permit the dismissal of a cause after removal for the purpose of beginning again in the state court, and thus compel the defendant to remove the cause again or else submit to the state court, is one ground of the Ohio decision. But the unnecessary trouble caused to a defendant by dismissing an action and suing anew is not confined to cases that have been removed from a state court. It does not, in other cases, prevent the plain New Action in State Court after Dis- tiff from commencing a new action after missal of Suit Removed. Some confusion has existed in respect to the right of one who has brought a suit in a state court, which has been removed to a Federal court and there been dismissed, to bring another action for the same cause in a state court. The doctrine that the Federal court had exclusive jurisdiction of the cause of action after the removal of the first action to the Federal court, although that action was dismissed, was laid down by the supreme court of Ohio in Baltimore & O. R. Co. v. Fulton, 59 Ohio St. 575, 44 dismissing the former one, and the difference in respect to actions removed into a Federal court is only in degree. The distinction between reinstatement of an action and the bringing of a new action does not seem to have been much considered in this case. Because a case can be reinstated only by the court that dismissed it, it is said that, by parity of reasoning,' a state court cannot pass on the right of the plaintiff to recommence an action after it has been dismissed by a Federal court. But commencement of a new action, although Ex for the same cause, is not a reinstatement, but a distinct and independent case. clusive jurisdiction of an action is a very different thing from exclusive jurisdiction of all possible actions for the same cause. An election to bring an action in one of two courts of concurrent jurisdiction is not usually irrevocable. After dismissal of the first one, the plaintiff has the same choice between the courts that he had originally. There seems to be no reason why this should not apply where the concurrent jurisdiction is in state and Federal courts. If bringing an action originally in the Federal court does not give it such exclusive jurisdiction of the entire cause of action as to prevent bringing any action therefor in a state court after the Federal suit is dismissed, why should this be the result of removing a suit from a state court into a Federal court? In either case, it is difficult to see why, after an action has been dismissed without prejudice to the right to bring a new action, the plaintiff has not the same election that he had in the beginning with respect to jurisdiction." The above reasoning on the subject is fully established by the authorities, as shown by the note to the Young Case, in 7 L.R.A. (N.S.) 501. All the decisions, except the Ohio case referred to, agree in sustaining the jurisdiction of the state court for a new suit after the dismissal of the prior action for the same cause by the Federal court. Enforcement of contracts of service by courts of equity :-(I.) Scope of note; (II.) subject considered with reference to the general principles which define the limits of equitable jurisdiction; (III.) general rule that equity will not specifically enforce contracts of service; (IV.) rationale of this rule; (V.) qualification of the general rule where the applicant for relief is in the employment of a body of trustees; (VI.) enforcement of stipulations by employees not to perform services for any other per sons than their employers: (a) English cases (b) American cases; (VII.) absence of express negative stipulation, to what extent a bar to exercise of equitable jurisdiction: (a) English cases; (b) American cases; (VIII.) quality of the services, how far a material element: (a) English authorities; (b) American doctrine: (1) generally; (2) to what descriptions of services the doctrine is applicable; (3) doctrine applicable whether the contract does or does not embrace a negative stipulation Wills. Correction of misdescription of land in will:-(I.) Scope of note; (II.) the judicial correction of testamentary errors; (III.) patent and latent ambiguities; (IV.) absence of ambiguity excludes extrinsic evidence; (V.) wills must be in writing; (VI.) wills cannot be changed by parol proof; (VII.) patent ambiguities and parol proof; (VIII.) latent ambiguities and parol proof; (IX.) testator's relations, environment, and estate; (X.) parol identification; (XI.) boundaries and area of land devised; (XII.) inclusion and exclusion; (XIII.) testator's intention: (a) finality of the will; (b) instructions to draughtsman; (c) declarations: (1) in general; (2) anterior to the will; (3) coeval with the will; (4) posterior to the will; (d) sense testator attached to his words; (XIV.) false demonstration; (XV.) devises without ownership; (XVI.) devises void for uncertainty; (XVII.) conclusion Power to create remainder after life estate with absolute power of disposal:- (I.) Introduction; (II.) scope of note; (III.) rule where power of disposal is not considered to be property; (IV.) rule where power of disposal and life estate are considered incompatible; (V.) rule as modified by statute; (VI.) extent of life tenant's power Among the New Decisions. 1115 942 1186 Animals. One who knows, or should know, that his steer is vicious, is held, in Harris v. Carstens Packing Co. (Wash.) 6 L.R.A. (N.S.) 1164, to be liable for injuries inflicted by the animal on travelers, if it strays unattended onto the highway, although the owner is guilty of no negligence, and has taken extraordinary precautions to for a period of ten days, the last carrier is prevent the animal from doing harm. See also NEGLIGENCE. Bills of lading. The purchase of a draft attached to a bill of lading is held, in Lewis v. W. H. Small & Co. (Tenn.) 6 L.R.A. (N. S.) 887, not to transfer title to the goods, so as to render the purchaser of the draft responsible upon the contract in accordance with which the property is shipped. Bonds. See SURBOGATION. Carriers. The right of a conductor to eject a passenger from a car when the station to which his ticket reads is passed, and he refuses to pay additional fare, is sustained in Virginia & S. W. R. Co. v. Hill (Va.) 6 L.R.A. (N.S.) 899, notwithstanding his contract calls for a ticket to a more distant point, and the ticket held by him was issued by mistake. A passenger who, while traveling on a rapidly moving railroad car, intentionally and needlessly projects his arm, or a part thereof, out of the window of the car, is held, in Interurban R. & T. Co. v. Hancock (Ohio) 6 L.R.A. (N.S.) 997, to be guilty of negligence, as matter of law. When a railroad company is fully advised of a quarantine which will make the uninterrupted journey of a passenger impossible, and undertakes through its conductor to inform him on the subject of quarantine, it is held, in Hasseltine v. Southern R. Co. (S. C.) 6 L.R.A. (N.S.) 1009, that it will be liable for the consequences of failing to inform him of the one which will interfere with his journey. Refusal of a connecting carrier to surrender freight,-at least after a reasonable time to ascertain facts,-upon tender of the rate stipulated for in the carriage contract, which is in excess of its own portion of the through rate, because of a way bill in its possession calling for a larger sum, which is subsequently admitted to be a mistake, is held, in Beasley v. Baltimore & P. R. Co. (App. D. C.) 6 L.R.A. (N.S.) 1048, to be a conversion for which trover will lie. Where the agent of a terminal carrier at the station to which freight is carried demands a sum as freight greater than that fixed in the bill of lading issued by the initial carrier, and, in consequence of the consignee's refusal to pay more than the latter sum, the shipment is not delivered held, in Goodin v. Southern R. Co. (Ga.) 6 L.R.A. (N.S.) 1054, not to be liable in damages to the consignee on account of such delay, even though at the expiration of the time named the goods are delivered upon the payment of the amount of freight set out in the bill of lading, where it does not appear that the amount demanded by the terminal carrier's agent was in excess of the legal and proper charges according to the fixed and usual rates, or that there existed between the terminal carrier and the initial carrier contractual relations with reference to transportation charges. Where a common carrier becomes liable to the consignee of goods for damages to the property received in transit, and the amount of such damages equals or exceeds the freight bill on the damaged goods, the lien of the carrier is held, in Missouri P. R. Co. v. Peru-Van Zandt Implement Co. (Kan.) 6 L.R.A. (N.S.) 1058, to be thereby extinguished, and the consignee is held to be entitled to the possession of such goods without payment of freight; and in such a case refusal of the carrier to deliver the goods to the consignee upon demand is held to constitute a conversion. One who, by fraudulent representations as to her age and occupation, procures a student's reduced-fare railroad ticket, is held, in Fitzmaurice v. New York, N. H. & H. R. Co. (Mass.) 6 L.R.A. (N.S.) 1146, not to occupy, while traveling upon it, the relation of passenger towards the carrier, but to be a trespasser, and to have no right to recover for injuries received while upon the train, unless they were received under circumstances which would entitle a trespasser to recover. See also CONSTITUTIONAL LAW. Chattel mortgage. Consent by a chattel mortgagee that the property shall be taken out of the state in which the mortgage was given is held, in Jones v. North Pacific Fish & Oil Co. (Wash.) 6 L.R.A. (N.S.) 940, to be a waiver of the mortgage as against every person except the mortgagor. Constitutional law. An attempt by the legislature arbitrarily to fix the weight of the standards of lumber cars, and to compel the carrier to deduct the weight so fixed from the net weight of the lumber placed on the car, and charge freight on the balance only, is held, in State ex rel. Wash disposing of the land in fee, which, if unconveyed upon the grantor's death, is to be conveyed to his children or their descendants, is held, in Meyer v. Barnett (W. Va.) ington Mill Co. v. Great Northern R. Co. (Wash.) 6 L.R.A. (N.S.) 908, to be void as an unconstitutional interference with the carrier's property rights. Contagious diseases. See LANDLORD AND 6 L.R.A. (N.S.) 1191, to remain the owner, TENANT. Contracts. A contract by one employed as assistant in a dentist's office not to engage in business in that place or its vicinity in competition with him is held, in Turner v. Abbott (Tenn.) 6 L.R.A. (N.S.) 892, not to be invalid as in restraint of trade. The acceptance by telegram of an offer by mail, which does not specify any mode of acceptance, is held, in Lucas v. Western U. Teleg. Co. (Iowa) 6 L.R.A. (N.S.) 1016, not to complete the contract until the telegram is delivered to the sendee. See also INJUNCTION. Corporations. Deceit by corporators in falsely making a statement required by statute, that their articles of association shall set out the amount of their capital stock, and that it is actually paid in, is held, in Webb v. Rockefeller (Mo.) 6 L.R.A. (N.S.) 872, not to render them liable to creditors, on the ground that such statement is required as a condition to the right to do business, and not for the purpose of procuring credit. at least of an equitable estate in fee simple in the land, where, upon consideration of the whole deed, it appears that the intention to reserve to the grantor the absolute and unlimited power of disposition of the land in fee simple is paramount to and intended to prevail over any words of the deed indicating that a life estate only in the land is reserved to the grantor. Dentists. See CONTRACTS; CORPORATIONS. Divorce. A person who has the fixed habit of frequently getting drunk is held, in Page v. Page (Wash.) 6 L.R.A. (N.S.) 914, to be an habitual drunkard within the meaning of the divorce laws, although he has more sober than drunken hours, and the habit does not incapacitate him from performing, during the working hours of the day, ordinary, unskilled, manual labor. Dogs. See STREET RAILWAYS. Drunkenness. See DIVORCE. Electricity. An electric company which, in stringing wires on its poles which, in obedience to a municipal ordinance, it has removed inside the curb line on a public street, stretches a rope across the walk to warn pedestrians not to pass under the poles on which its men are at work, is held, in Newport News & O. P. R. & E. Co. v. Clark (Va.) 6 L.R.A.(N.S.) 905, not to be liable for the death of a child which, in running along the walk, comes in contact with the rope, and is thrown down and fatally injured. Persons who undertake to carry on a dentistry business in violation of local law, under a charter obtained in another state, are held, in Mandeville v. Courtright (C. C. A., 3d C.) 6 L.R.A. (N.S.) 1003, to be personally liable for injury inflicted by the incompetence of their employee, upon a patron who submits himself to treatment without knowing the pretended corporate character under which such persons are operat-tator owned no land is held, in Lomax v. ing. Evidence. That a provision in a will locates land devised in a section where tes Lomax (Ill.) 6 L.R.A. (N.S.) 942, not to admit parol evidence of a mistake in description, although he in fact owned land an Corpse. Parents of an infant child are held, in Long v. Chicago, R. I. & P. R. Co. (Okla.) 6 L.R.A. (N.S.) 883, not to be en-swering the description in another section, titled to recover damages for mental pain of which he did not dispose in the will. and anguish occasioned by the mutilation of the dead body of such infant. Damages. See CORPSE. Dead body. See CORPSE. The waiver of privilege by one seeking damages for personal injuries, so as to permit his physician to testify in the action, is held, in Elliott v. Kansas City (Mo.) 6 Deeds. A grantor in a deed conveying L.R.A. (N.S.) 1082, to extend to subsequent land to a trustee for the use and benefit of trials, so that he cannot object to the introthe grantor, who is to receive the net profitsduction in them of substantially the same of the property on demand, and who re- testimony given under the waiver. serves the absolute and unlimited power of Proof that the plaintiff's agent, in an at See also DIVORCE. Infants. See ELECTRICITY. tempt to deliver a telegraphic message for to estates of married women leaving sepatransmission, used the telephone, calling rate property, which passes into the hands upon the telephone company for a connec- of their personal representatives for adtion with the office of the telegraph com- ministration. pany, and, upon being assured by the person answering that it was the telegraph office, repeated to him the message intended to be sent, is held, in Planters' Cotton Oil Co. v. Western U. Teleg. Co. (Ga.) 6 L.R.A. (N.S.) 1180, not to show that the message was in fact delivered for transmission, so as to impose liability upon the telegraph company for failure to deliver it, where the agent of the plaintiff did not recognize the voice of the person who answered him as that of an agent of the telegraph company or of anyone known to him, and it does not appear that such person was in fact an agent of the telegraph company. Fire. After discovering a fire in progress on his premises, for the kindling of which he is not responsible, the owner is held, in Baird v. Chambers (N. D.) 6 L.R.A. (N.S.) 882, not to be bound to exercise more than ordinary care and diligence to prevent it from spreading. See also WATERS. Highways. See ELECTRICITY; MUNICIPAL Homesteads. A mortgage upon government land, made by a claimant holding under the homestead act, prior to final proof, for the purpose of procuring money to improve the land, or for any purpose, provided it is not thereby intended to transfer the title in evasion of the statute, is held, in Stark v. Morgan (Kan.) 6 L.R.A. (N.S.) 934, not to be void, nor in violation of the homestead laws. Homicide. Where two, in furtherance of a common design, enter upon the perpetration of a burglary armed and prepared to kill if opposed, and, while so engaged, are discovered, and, in the effort to escape, one of the burglars kills one who is trying to arrest him, it is held, in Conrad v. State (Ohio) 6 L.R.A. (N.S.) 1154, that both burglars are equally guilty of the homicide, although one of them was not armed with a deadly weapon, and although such killing was not part of the prearranged plan. Husband and wife. A statute making decedents' estates generally liable for funeral expenses is held, in Schneider v. Breier (Wis.) 6 L.R.A. (N.S.) 917, to apply Injunction. The right to an injunction to restrain a woman from violating her contract to render services in the demonstration and sale of a front-lace corset is denied in H. W. Gossard Co. v. Crosby (Iowa) 6 L.R.A. (N.S.) 1115, notwithstanding she is experienced, competent, and highly efficient in such work, and may be financially irresponsible. Insurance. A provision that, after payment of a certain number of premiums, an insurance policy shall become incontestable, is held, in Thompson v. Fidelity Mut. L. Ins. Co. (Tenn.) 6 L.R.A. (N.S.) 1039, not to apply to contests for failure to pay premiums. A provision in an insurance policy that, if the policy shall have been in continuous force for three years, it shall thereafter be incontestable, is held, in Mutual Reserve Fund L. Asso. v. Austin (C. C. A., 1st C.) 6 L.R.A. (N.S.) 1064, not to be inapplicable to a policy delivered when the insured was not in good health, on the theory that, because the policy provided that it shall not take effect until delivered while the insured was in good health, it never was in force. Joinder. See PARTIES. Labor organizations. The right of members of a labor union to refuse to work on other jobs of a contractor merely because he is employed on a building the owner of which employs, to do part of his work, followers of a trade the work done by which the union is trying to absorb by refusing to do any work on buildings where the work represented by such trade is required, unless such work is given to them, is denied in Pickett v. Walsh (Mass.) 6 L.R.A.(N.S.) 1067. Landlord and tenant. A landlord who rents property upon which has existed a contagious disease, without informing the tenant of that fact, is held, in Finney v. Steele (Ala.) 6 L.R.A. (N.S.) 977, not to be liable for injury through a member of the tenant's family contracting the disease, where he employed an experienced physician and a trained, experienced, and com |