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they will be in a position of safety and use reasonable diligence in taking such positions.Sorrell v. Missouri, K. & T. Ry. Co., Tex., 230 S. W. 768.

51. Mines and Minerals-Reservation --Under the settled law of West Virginia that the word "mineral" is not capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it to be ascertained from the language of the deed, the relative position of the parties, and the nature of the transaction, where a controversy over the title to land was settled by a conveyance of the land by one party to the other, who was in occupancy of the surface, with a reservation of "all the minerals, mineral substances, and oils of every sort and description," with the right to mine, bore welis, and use so much of the surface as required in operating mines or wells, the reservation held to include natural gas.-Dingess v. Huntington Development & Gas Co., U. S. C. C. A., 271 Fed. 864.

52. Monopolies-Fixing Prices.-An attempt by the manufacturer of a patented article, by means of a system of so-called license contracts, which wholesale and retail dealers were

required to sign, to control the resale price of such article, after it

had

sold and receiv ed payment for the same, and after such article, under

the

law settled by prior decisions of the Supreme Court, by reason of such sales, had been freed from the patent monopoly, held an unlawful restraint of trade, in violation of Anti-Trust Act, $ 1.-Victor Talking Mach. Co. v. Kemeny, U. S. C. C. A., 271 Fed. 810.

53. Municipal Corporations—Negligence. — A property owner is not estopped from recovering from defendant city damages suffered by him by reason of the city's negligence in making a paving improvement whereby surface water was collected in front of the owner's lot because he petitioned the city with others for the improvement; the petition not being construable as a request to make the improvement without reference to consequences to plaintiff resulting from negligence.—City of Greenville v. McAfee, Tex., 230 S. W. 752.

54. Negligence—Slippery Platform.--In an action against a lessee of a store by a customer, who slipped upon a concrete platform at the entrance as she was leaving on a rainy day, held, that there was no evidence to show that defendant was guilty of negligence, where it was not shown that he constructed the platform, or that there had been accidents of a similar kind on other rainy days, due to the slipperiness of the surface, or that slipping was due to the wet condition of the platform or its improper construction.-Schaefer v. De Neergaard, N. Y., 188 N. Y. S. 159.

55. Physicians and Surgeons-Negligence.It is incumbent on a physician to give such instructions as are proper and necessary to enable the patient or his nurses and attendants to act intelligently in the treatment of the case, and a failure to do so is negligence, which will render him liable for injury resulting therefrom.-Everts v. Worrell, Utah, 197 Pac. 1043.

56. Principal and Agent—"Contract of Sale." -An order for merchandise, given by plaintiff and signed by one as salesman for defendant, held not to constitute a "contract of sale."—C. F. Bally, Limited v. Quaker City Corporation, U. S. D. C., 271 Fed. 957.

57. Railroads-Excessive Charges. Under Federal Control Act, $ 10, allowing actions at law against carriers without defense that the carrier is an instrumentality of the federal government, an action to enforce an order by the Interstate Commerce Commission, requiring the carrier to repay to the shipper excessive charges collected before the government took control, can be maintained against the company during the period of government control.-Vicksburg, S. & P. Ry. Co. v. Anderson-Tully Co., U. S. S. C., 41 Sup. Ct. 524.

58. Sales-Breach of Warranty. Where a contract of sale contains a warranty and provision for a remedy in case of breach, that remedy is exclusive.-J. I. Case Threshing Mach. Co. v. Rose, Ky., 230 S. W, 545.

59. -Measure of Damages.--Where buyer's failure to accept all ties conforming to specifi

cations on seller's delivery of 211,000 feet, and loss of a portion of the ties delivered was the result of confusion caused by seller's delivery of large numbers of ties not conforming to specifications, and seller's noncompliance with provision of contract, requiring delivery with the different grades and dimensions of ties segregated, and stevedores' refusal to handle all of the ties because of such confusion, the fact that some of the ties sent back complied with speci. fications of the contract, and that some of the ties were lost, did not excuse the seller's failure to make further deliveries.-Stimson Mill Co. v. Rogers, Mylroie Lumber Co., Wash., 197 Pac. 919.

60. Taxation—Bequest to City -A bequest to the city of Duluth, in trust "for the establishment of a free and public hospital," is exempt from the transfer tax; such city being empowered by its charter to receive gifts for such purposes.-In re Miller's Estate, N. Y., 188 N. Y. S. 320.

61. -Increased Value of Stock.-Where the owner of corporate stock in good faith made gift thereof, and the stock had considerably enhanced in value between the first of the year and the date of the gift, the owner is not liable to taxation under the Income Tax Law on account of the increase, for it was of no pecuniary benefit to him.--People v. Wendell, N. Y., 188 N. Y. S. 273.

62.--Movable Property.-Sulphur, which had been removed from underground in a liquid state and allowed to solidify, is not part of the realty, but was properly assessed as movable property, though it was in such large blocks it would have to be blasted before it was loaded for shipment. -Union Sulphur Co. v. Reid, U. S. D. C., 271 Fed. 978.

63. Tender-Actual Production Unnecessary. -One tendering money did not have to produce actually the money where there was a refusal to accept the amount offered, which was admitted on the trial.-Murray v. Bryan, N. Y., 188 N. Y. S. 254.

64. Trusts-Money on Deposit.-Money deposit payable to mother or daughter, or survivor, held not a trust for mother to daughter for ben: efit of all the children.-Kauffman v. Edwards, N.J., 113 Atl. 598.

65. Wills-Contradictory Provisions.-L'nder a will: “I give and bequeath to my wife * * * all my personal estate her lifetime or widowhood, at her death or marriage I bequeath to my niece all my estate, both real and personal. * * * I also bequeath to my wife all my real estate, if any there be, at my death"-held, that wife took only life estate in the real estate, and that the niece on the death of the wife took an absolute fee simple estate.-Carey v. Dykes, Md., 113 Atl. 626.

66. -Duty of Witnesses.—The word "attested," used in $ 5078, Code of 1906, is broader in meaning than "subscribed," and the purpose of the statute in requiring two witnesses to attest the will is to have more than the mere signatures to the will. It is the duty of the attesting witnesses under the statute to observe and see that the will was executed by the testator; and to observe his capacity to make a will; and where the testator did not sign the will in the presence of one of the witnesses, nor declare his signature, nor identify the paper or signature, nor declare it to be his will, it was improper to instruct the jury that the will was duly and legally executed.-Maxwell v. Lake, Miss., 88 So. 326.

67.-"Heirs.”—The word “heirs" within provision of will directing that on son's death "without heirs him surviving" the property bequeathed to the son should become the property of named daughter. held to mean children, not heirs generally, in view of the fact that the ultimate taker, as the son's sister, was his presumptive heir.-Hines v. Reynolds, N. C., 107 S. E. 144.

68. Witnesses-Privileged Communications.An attorney cannot be required to testify concerning communications made to him in that capacity, notwithstanding no objection is made by the client, who, not being a party to the litigation or present at the trial, has no opportunity to consent to object to the testimony.O'Brien v. New England Mut. Life Ins. Co., Kan., 197 Pac. 1100.

or

may be.

Central Law Journal.

ported a consideration, but simply because a promise attested by one's seal created an

obligation based on such promise. A writSt. Louis, Mo., September 2, 1921.

ten contract today is, in most states where

seals have been abolished, as solemn a proWHEN A SUBSCRIPTION TO A CHARITABLE ENTERPRISE IS ENFORCE

ceeding as the execution of a sealed instruABLE.

ment at the early common law, and

any

man

who solemnly binds himself to pay a sum of The recent case of Scott v. Triggs, 131 money or perform an act ought not to esN. E. .

415 (Ind.) raises the question cape performance by showing lack of conwhether a subscription to a charity is en

sideration. If his promise requires the perforceable. It held that such a subscription formance of an act by the other party or is enforceable if relied upon by those in the prior or continued existence of some charge of the fund to which the subscription article or status, such requirements should is made.

more properly be regarded as conditions, In that case defendant signed a subscrip- either precedent or subsequent as the case tion to the Huntington County (Ind.) War Chest, a fund collected by the citizens of In the case of a subscription to a chariHuntington County, Ind., to be distributed table enterprise, the promissor engages to to the various war charities in discharge of pay a sum of money on a date certain in the quotas for which the county was moral- aid of a particular purpose. The fact that ly obligated as a community. Defendant fail- others are interested in the same entered to pay his subscription and the court prise and that one subscription is made on gave judgment against him on the ground the faith of another, is hardly a considerathat "the association, relying on the pledge tion for the promise of any one subscriber. so made by the appellant and on the pledges It might possibly be a condition express or made by others, incurred various expenses implied. I might agree to contribute $200 and obligations for the purpose of carrying provided a sum of $10,000 is raised by out the objects of the association, which similar subscriptions. In such case no subobligations have not all been paid by the scription would be binding until subscripassociation, but that a portion of said ob- tions amounting to $10,000 had been religations are now due and owing."

ceived at which moment all subscriptions So long as a consideration is necessary

would become binding. to sustain a contract under the English Where no conditions are attached to the common law, a subscription can never be subscriptions they become binding under regarded as anything but an offer. This the common law just like other offers to inresult shows the absurdity of the common duce the performance of an act, namely, by law rule requiring a consideration to sup- the performance of the act. port a promise, and in this case as in many It is almost impossible to draw up a subother cases the courts have been diligent to scription contract that will be binding until to find ways of escape from such an un- the promisee starts upon the performance just condition. In every system of juris- of the task for the accomplishment of which prudence on the continent of Europe, a the subscription was made. Until that promise is good irrespective of the fact moment the contract is unilateral and unthat the promissor reaps a benefit or the enforceable. Twenty-third Street Baptist promisee suffers a detriment. And this is Church v. Cornell, 117 N. Y. 601, 23 N. E. true in English law in the case of special- 177, 6 L. R. A. 807; Philips Limerick ties. As Dean Ames, of Harvard, has point- Academy v. Davis, 11 Mass. 113, 6 Am. ed out, a sealed instrument was valid with- Dec. 162: Johnson v. Otterbein University, out a consideration, not because the seal im- 41 Ohio State. 527.

are

Logically, the act called for by a unilateral this: "If you will undertake to build a promise should be completed before the church or a school, etc.,

I will give you promisor is bound, but in the case of sub- $200 to enable you to complete the enterscriptions it is generally held that if work prise." Here the act called for is not the has been done or money expended in reli- completion of the enterprise but the asance upon the subscription being paid, such sumption of an obligation to complete it. entry upon performance constitutes an ac- When the promisees assume obligations to ceptance of the contract and furnishes the perform the task called for, they have perconsideration to make the subscription a formed the act required by the promisor binding obligation.

who is now bound to furnish the means to The objection is made to this rule that carry on the task he desired the promisees it is theoretically fallacious in the reason- to undertake. ing on which it is based. If I agree to give A one dollar if he will cut the grass on my

NOTES OF IMPORTANT DECISIONS lawn, A is not entitled to the compensation until he has cut over the grass on the LIABILITY OF BANK FOR WRONGDOING entire lawn. A few strokes of the sickle OF DEPOSITOR'S AGENT WHERE PASSwould not entitle him to bring suit for the BOOK BALANCE IS CHECKED BY SAID

AGENT.-Some courts have applied too strictly dollar which I promised him. But the case

the rule of estoppel arising in favor of a bank of a subscription is different. The money

with respect to a depositor's examination of the I promise is not compensation to the prom

periodical statements furnished by the bank, isee for services to be rendered but is the

where such statement is checked by the agent instrument by which such services

of the depositor. rendered. So when the promisees have It is undoubtedly true that knowledge of a bound themselves to carry out the object dishonest agent of fraudulent entries and incor

rect balance is equally the knowledge of his of the subscription contract, the promisor is bound at once to supply the promisee principal, with the qualification, however, that

the principal is chargeable, not with the knowlwith the means of carrying into execution

edge of wrongdoing the agent possessed from the act called for by the subscriber's prom- the fact that he himself was dishonest, but with ise.

knowledge of such facts as an honest agent,

unaware of the wrongdoing, would acquire The courts have reached a right result

when examining the statements within the simply by acting on their sense of justice,

scope of his employment. The dishonesty of so the Supreme Court of Ohio admitted in

the agent does not change his relationship to the case of Irwin v. Lombard University,

his principal, and accordingly does not change 56 Oh. St. 9. 22, 46 N. E. 63, 60 Am. St. the rule charging his principal with knowledge Rep. 727, 36 L. R. A. 239.

In that case

of such facts. Dana V. National Bank of Re

public, 132 Mass. 156; First National Bank v. the court felt compelled to admit that “it is

Allen, 100 Ala. 476, 40 South. 335, 27 L. R A. not unlikely that some of the cases in which

426, 46 Am. St. Rep. 80; Critten v. Chemical subscriptions have been enforced at law,

National Bank, 171 N. Y. 219, 63 N. E. 973, 57 have been border cases, distinguished by L. R. A. 529; Leather Manufacturers' Bank v. slight circumstances from agreements held Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed.

811. void for a want of consideration."

But this rule does not apply to instances of The confusion into which some of the

wrongdoing on the part of the agent which are courts have fallen, is due to the fact that distinctly contrary to the agent's powers where they have regarded the subscriber's promise the authority of such agent is filed in writing

with the bank. First National Bank v. Farrell, as an offer to pay for the accomplishment

272 Fed. Rep. 371. of a charitable purpose, when clearly the

In this case Farrell, the

plaintiff, opened an account with the First Napromise is to furnish the means for the per

tional Bank of Philadelphia and authorized the formance of an act, desired by the prom- bank to honor the checks of his agent, Snyder, isor. The offer in such cases is virtually up to an amount not in excess of one thousand dollars. He also authorized the agent to check authority, notwithstanding the criticism and and accept the bank's periodical statements.

comment of Professor Henry W. BallanThe agent drew and cashed many checks for

tine, published in the CENTRAL LAW JOURhis own use in amounts in excess of one thousand dollars before his rascality was discov

NAL of August 19, 1921. His comments ered. This suit is brought to recover from the prove the slight investigation he has made bank the amounts in excess of $1,000 which of the authorities and the unsoundness of plaintiff's agent drew upon and cashed at de- his position. The drift of his comment is fendant's bank. To the contention of the de

characterized by Professor Burgess of Cofendant that plaintiff was bound by the period

lumbia University, a distinguished authorical statements submitted by his request to his agent, the Circuit Court of Appeals (3rd Cir.)

ity on Political Science and Constitutional said.

Law, in volume 2, page 245, in these words: "The general rule arising from the examina

“Democratic doctrinaires have tried to tion of pass book or statements by the depositor himself, and the variation of the rule arising

make it appear that such privileges can only from the examination of them by his authorized spring from the monarchic principle that agent, involve in practically every reported in- the King can do no wrong'; but their argustance wrongdoing where the negligence of the mentation is a tissue of sophistry. All states bank was not involved and where the wrongful

have found it necessary to recognize the act was entirely that of a person other than the bank. Both the rule and its variations disap

complete personal independence of the expear altogether where the bank has been negli- ecutive head of the government, and some gent in detecting the fraud; National Dredging of them have founded it upon the doctrine Co. v. Farmers' Bank, 6 Pennewill (Del.) 580,

that the 'King can do no wrong.' But there 69 Atl. 607, 16 L. R. A. (N. S.) 593, 130 Am. St. Rep. 158; Manufacturers' National Bank

is another and deeper principle than that

V. Barnes, 65 Ill. 69, 72, 16 Am. Rep. 576; Myers

of the immaculate character of the king, V. Southwestern National Bank, 193 Pa. 1, 44 upon which both the monarchic doctrine and Atl. 280, 74 Am. St. Rep. 672; when the neglect the republican doctrine of the executive inof the bank to observe the limitation of a draw

dependence rest, viz: the necessary order of ing power was, as here, the primary and proximate cause of the loss; and particularly where,

authority in every political organization." as here, the wrongful act (in the sense of conduct beyond the scope of its authority) was the

It is admitted by Professor Ballantine act of the bank itself, but for which the crim- that no Court can enjoin the Governor or inal act of the trusted agent could not have been carried into execution. In honoring checks

mandate him, or prohibit him with respect beyond the authority granted it by the depos- to the performance of executive duties. itors' power of attorney--a document in its pos

That admission is a practical concession of session--the bank in this case knew, or was charged with knowledge of, its own unlawful the soundness of our position. The Conconduct. The depositors' failure personally to stitution of Illinois vests in the Governor examine the periodical statements and promptly to acquaint the bank with its own wrongdoing supreme executive power. It commands misled the bank in nothing. Therefore ihe law

him to "take care that the laws be faithdid not impose upon depositors in this case the duty to check up a pass book or examine month

fully executed." and requires him to take ly statements to prevent the defendant bank

an oath to support the Constitution. He from continuing its own wrongful conduct."

is, therefore, vested with the duty of deter

mining when the powers of the executive 1 GOVERNOR CANNOT BE LAW

office are about to be invaded by the action FULLY ARRESTED OR PUT UP

of the Judiciary and he alone is authorized

to determine that question. ON TRIAL WHILE IN OFFICE.

In the case of People v. Bissell," the Sul Governor cannot be arrested and put preme Court of Illinois disclaimed the right upon trial for a supposed criminal offense, to directly determine the limits of executive whether committed before or after he took power and authority which may not be office, without an encroachment of the Ju- | passed by the Judiciary and held that the diciary upon the Executive Department. Judiciary can only determine that question We adhere to our position that this princi- when it arises in suits to which the Govple is well settled upon the principle and by ernor is not a party, and said:

“When final action upon any subject is of jurisdictions it is held that in view of confided to either of the other departments, the division of the powers of government, there the responsibility must rest of con- there is no power on the part of the courts forming such action to the law and the con- to enforce by mandamus the performance stitution.” (The People ex, rel. v. Bissell, of any duty, whether discretionary or min19 Ill. 231; People v. Dunne, 258 Ill. 449. | isterial, imposed upon the chief executive See also ex parte Moore, 64 N. C. 802; by virtue of his office. (26 Cyc. 230; 6 Am. Ex parte Kerr, 64 N. C. 816; State v. & Eng. Ency. of Law, — 2d ed., — 1017.) Shields, 272 Mo. 342.)

All authorities class this state with the Governor Small, upon full investigation majority as holding that doctrine. The in

Governor Small, upon full investigation dependence of the judicial department and and the advice of counsel, has determined

its freedom from interference by the other that he would violate the provisions of the departments has been maintained. (RockConstitution requiring him to take care hold v. Canton Masonic Mutual Benevolent that the law be faithfully executed and to

Society, 129 Ill. 440; In re Day, 181 id, uphold the constitution, if he should con

73; Witter v. Cook County Commrs., 256

id. 616.) Of course, it would be expected sent to his arrest and incarceration, or to

that the court enforcing the provision of being placed upon trial upon a criminal the constitution by which the powers of charge for the reason that such procedure government are partitioned among the sevwould obviously suspend the operation of

eral departments, for its own protection executive government, which he alone can

from interference would accord the same

degree of independence to the other departpersonally function. This makes it his duty

ments. We shall see with what scrupulous to oppose the effort of the courts to en- care this has been done." croach upon his department. Therefore, if

Reference to the classifications of authora Court can determine otherwise and coerce

ities in Cyc. and Am. & Eng. Ency. of Law him to observe its process that would, as

will disclose that the Supreme Court of Wissaid by the Supreme Court of Missouri," consin is with the minority on this quesmake the judges the interpreters of the will tion and that its decision is in direct conof the executive and the independence of

flict with that of the Supreme Court of Illithe executive department as a co-ordinate

nois. Moreover, the fallacy of its position branch of government would be virtually

is shown by the quotation in Professor Baldestroyed."

lantine's comments. Referring to the posProfessor Ballantine cites the case of sibility of executive resistance to the procEkern v. McGovern, and quotes therefrom ess of the court, it is said: in support cf his position. That case holds,

"This court has never yet acknowledged contrary to the weight of authority and the the existence of either the want of power to decisions of the Supreme Court of Illinois, enforce its writs, or want of courage to vinthat a Governor is subject to the process of

dicate it." the courts to coerce or restrain him in the This is high sounding phrase, but its falperformance of an official duty."

lacy exists in the fact that the Governor is a In the case of People v. Dunne, Justice

chief executive, bound by oath of office to

take care that the law be faithfully exeCartwright, construing the constitution and

cuted and to support the constitution of the speaking for the court, said:

state. Should the Court coerce him against “By section 6 of article 5, the supreme

his judgment and will in a matter relating executive power of the government is vested in the Governor. In the great majority

to the performance of his duties under the

constitution or law, as it so boastfully threat(1)

ened, it would plainly substitute the judg(2) State v. Shields, 272 Mo. 342; State ment and will of the supreme judiciary for Fletcher, 39 Mo. 508.

that of the supreme executive department 142 N. W. 595. 46 L. R. A. (N. S.) 795. People v. Dunne, 258 Ill. 441.

contrary to the express commitment of au

19 Ill. 231.

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