have made of the old wall prior to its removal. -Stevenson v. Mellor, Pa., 92 Atl. 713.

103. Quieting Title-Law of Forum.-The law of the forum and of the situs of the land control the method and procedure of canceling contracts in an action to determine adverse claims, though the contracts were executed in a foreign state without stipulating for performance within the state of the situs.-Wilson v. Kryger, N. D., 149 N. W. 721.

104. Shipping-Exemption from Liability.-A negligence clause exempting a shipowner from liability for damages to a shipment from "any act, neglect, or default of pilot, master, mariner," etc., is a good defense to an action in the United States for damages to cargo from negligence in handling, where the destination is not the United States or any country under whose laws such clauses are proven to be invalid.The Miguel di Larrinaga, U. S. D. C., 217 Fed. 678.

105. Seaworthiness.-A shipowner warrants his ship to be seaworthy and fit for the cargo and particular service for which she is engaged at the commencement of the voyage, and such warranty is an absolute undertaking, and covers latent defects as well as those which are discernible by inspection.-Benner Line v. Pendleton, U. S. C. C. A., 217 Fed. 497.

106. Specific Performance-Definiteness.-A contract whereby defendant agreed to purchase a farm and convey it to plaintiff, his son-in-law, when a substantial part of the price was paid, giving the plaintiff such time as he required for the payment, held sufficiently definite to be specifically enforced.-Dingman v. Hillberry, Wis., 149 N. W. 761.

107. Evidence.-In an action for specific performance of a contract to convey a tract of land, "less four village lots" which "are an addition to the village," in which defendant pleaded mistake, evidence held to show that the parties intended to except the four blocks which constituted the addition, and not merely four lots.-Morrow v. McWilliams, Wis., 149 N. W.

696.

108. Undisclosed Principal.-Specific performance may be enforced against an undisclosed principal when his duly authorized agent, in his own name, within the scope of his agency, contracts concerning the sale or purchase of land.-Forgey v. Gilbirds, Mo., 170 S. W. 1135.

109. Waiver.-Where a purchaser of a hotel and lots on which it was situated negotiated for a sale of the property to a third person without knowing the deficiency of one-seventh of an acre in the quantity of the land represented by the vendor as 11⁄2 acres, he did not thereby waive the misrepresentation as to quantity, but could rely thereon to defeat specific performance.-Taliaferro v. Boyd, Ark., 171 S. W. 105.

110. Subrogation-Voluntary Payment.--One who, to protect his interest under a deed from a surviving wife of an owner of land incumbered by a prior mortgage, redeemed from a foreclosure, held subrogated to the rights of the mortgagee.-Bailly v. Farmers' State Bank of Sisseton, S. D., 150 N. W. 942.

111. Telegraphs and Telephones-Free Delivery Limits.-Under a writen contract for the delivery of telegrams by a mesenger company as modified, held that the telegraph company must pay for deliveries outside the free delivery limits.-City Messenger & Delivery Co. v. Postal Telegraph Co., Ore., 145 Pac. 657.

112. Tender-Waiver.-Where а tender of money was rejected on the sole ground that it was less than the amount claimed to be due, there was a waiver as to the kind of money tendered.-May v. Findley, Ala., 66 So. 463.

113. Trade Unions-By-Laws.-The by-law of a musicians' union and its enforcement by a vote of directors, prohibiting members from entering the employment of one desiring to employ them, held not in itself unlawful.-Rhodes Bros. Co. v. Musicians' Protective Union, Local No. 198, A. F. of M. of Providence, R. I., 92 Atl. 641. 114. Treatles-Inheritance Tax.-Code Supp. 1907, § 1467, so far as it imposes a collateral inheritance tax at a higher rate where property passes to non-resident alien, violates the treaty between this country and Great Britain, as applied to non-resident subjects of Great Britain,

and a tax of 5 per cent and no more may be collected on property so passing.-McKeown v. Brown, Iowa, 149 N. W. 593.

115. Trover and Conversion-Demand.--One who takes possession of chattels of another, even under a bona fide belief of right, is guilty of a conversion thereof, so that no demand is necessary before suing.-Meador v. Evans, Ala., 66 So. 446.

116. Trusts-Resulting Trust. That the principal had paid none of the purchase money did not preclude him from establishing a resulting trust in a contract to purchase land taken by the agent in his own name in violation of his fiduciary duty.-Havner Land Co. v. MacGregor, Iowa, 149 N. W. 617.

117. Resulting Trust.-One who by agreement with the heirs of the mortgagor purchased land at foreclosure, taking the deed in his own name as security for money advanced for the purchase, held a trustee under a resulting trust.-Comfort v. Winters, Miss., 66 So. 532.

118.

Venue-Joinder.-Where substantial eqaitable relief is prayed against a defendant, whose domicile is in the county, and jurisdiction is acquired as to him, another necessary party may be joined, though he resides in another county. Crawford v. Wilson, Ga., 83 S. E. 667.

119. Vendor and Purchaser-Presumption.— Where a vendor contracted to receive bonds of a corporation to be formed in part payment for the land, but the contract was silent as to the amount of the bond issue, it would be presumed that it was to be in such amount as would make their real value equal to their par value.Campbell v. Goldthwaite, Ala., 66 So. 483.

by

120.- -Rescission.-A representation agents of a vendor to a purchaser that the vendor and others would construct improvements in the neighborhood which would enhance the value of the property, was not ground for rescission.-Manns v. Boston Harbor R., S. S. & Land Co., Wash., 144 Pac. 535.

121. Waters and Water Courses-Diversion.Where a complaint against a railroad company for diverting surface water onto complainant's land by the stoppage of a sewer and the opening of another did not negative the fact that in failing to keep its sewers open, it was sufficient to sustain a recovery.-Atlantic Coast Line R. Co. v. Woolfolk, Ala., 66 So. 464. the injury was caused by the fault of a city

122. Impure Water.-Where the conditions of defendant's watershed were such that a jury might find defendant was bound to exercise some precautions to purify the supply, but it did not, and plaintiff was infected with typhoid therefrom, such failure would be actionable negligence, though there was no history of typhoid among the permanent residents of that watershed. Hayes v. Torrington Water Co., Conn., 92 Atl. 406.

123. Wills-Deeds.--Where a testator's widow was given a life estate with power to convey, a deed by her, which conveyed the remainder, reserving a life estate to herself, and which stated that the deed should vest the title to the estate in the grantees, was a present conveyance and not one in the nature of a will.Priest v. McFarland, Mo., 171 S. W. 62.

124. -Intention.--A codicil reciting the death of one of the residuary devisees, without any further disposition of the residue, manifests an unmistakable intention to give the whole residue to the surviving residuary devisees, preventing the lapsed interest therein becoming intestate property.--Gibbons v. Ward, Ark., 171 S. W. 90.

125. Undue Influence.-Where there is no mental decay or domination, no presumption of undue influence arises from proof of meretricious relations and an unnatural will.-In re Ewart's Estate, Pa., 92 Atl. 708.

126. Witnesses-Privilege.-Where defendant and K. employed the same attorneys to bring about a mortgage redemption and to convey the land to defendant as security for the redemption money loaned to K., the attorneys represented both, and neither had a right as against the other to have communications made to the attorneys treated as privileged.-Sewell v. Holley, Ala., 66 So. 506.

Central Law Journal.

ST. LOUIS, MO., APRIL 2, 1915.

EMPLOYERS' LIABILITY INSURANCE AS OPPOSED TO PUBLIC POLICY.

There is a very interesting review by Kentucky Court of Appeals of the question whether an employer's liability policy could be construed as or not solely for the benefit of assured or could also inure to the benefit of one to whom the assured should become liable in an accident covered thereby. Fidelity & Casualty Co. v. Martin, 173 S. W. 307.

The Kentucky court follows, as conceded by a dissenting minority of two of the five members of the court, the greater weight of authority on this subject, to the effect that the usual policy as written by casualty companies insures the holder of it not against liability, but solely against loss, and that it is for the exclusive benefit of the assured.

This Journal has frequently alluded to these policies as being in its opinion opposed in their strict construction to sound public policy, exemplified in the rule against maintenance and champerty. Upon this theory it expressed its hearty agreement with ruling by Minnesota Supreme Court in Patterson v. Adan, 119 Minn. 308, 138 N. W. 281, 48 L. R. A. (N. S.) 184. See 76 Cent. L. J. 73; 73 id. 147.

We take great pleasure, therefore, in referring to and quoting from the dissenting opinion in the Martin case, supra, in the construction herein submitted that there should be legislation on this subject.

The Martin case, like the Patterson case, showed a judgment against an insolvent, where the insurance company controlled the defense and in so doing interfered with any settlement or attempted settlement between the only parties who, independently of the policies, would not have had any interest in the subject-matter of litigation at all.

The majority in the Martin case merely construes the terms of the policy as if no one else were interested therein or interfered with thereby and none of the numerous cases cited and quoted from in its support appear to have regarded the matter from any other standpoint.

It is said in the Martin case, quoting from the majority opinion, that: "It is complained by appellee (plaintiff in judgment) that to construe the contract of insurance as insisted by appellant would ignore the numerous equities that exist in behalf of appellee and subject him to the hardship of being deprived of compensation for his injuries. It is sufficient response to say that we can do no more than determine the rights of the parties under the contract of insurance."

But the Patterson case said: "The company assumed the defense and has carried on the litigation to the bitter end, even after defendant left this jurisdiction. The assured retained no voice or interest in the litigation. The company substituted its interests and its judgment for that of assured in the action. By so doing, it assumed a relation to this plaintiff, and to every plaintiff, where under its policy it steps into a suit, which must be considered in construing the contract. *** The policy here should be so interpreted, if possible, that its provisions do not run contrary to law, and that result is reached by holding that the undertaking to defend means something more than carrying on litigation in court." Even then, we think, the company should not be allowed, according to the well-settled objections to maintenance, to contract to carry on litigation in which it is otherwise not interested, if a plaintiff, at least, should care to object. He surely would object, unless the company agreed to stand in the breach as to liability, or upon some other consideration satisfactory to plaintiff. The Patterson case spoke of such interference as "officious intermeddling."

The dissenting opinion in the Martin case views such policies, where they only inure to the benefit of assured, as being in the nature of "wager contracts," because if in a master and servant case it is not for the benefit of the employe, as to whose life the employer has no insurable interest, he gambles upon being made safe in the event of his death from accident in the course of employment.

The dissenting opinion also thinks the contract offends policy as being barratry, maintenance and champerty and: "It certainly is not conducive to safety of employes, because a reckless employer, feeling secure in the indemnity, will be careless and indifferent to the safety of places, tools and appliances where and with which his servants work."

But the opinion observes that these things have been thought counterbalanced by the protection such insurance gives to industries "against sudden and unexpected liability." In other words, safety of business is weighed against safety of life and limb and it pulls down the beam on its side, with no benefit to him whose safety of life or limb is lessened thereby.

The opinion says also that this benefit to industry is taken away when the policy is construed as one for liability only and not for actual loss. "It leaves no protection to industry against unexpected liability. It, in fact, makes insolvency or bankruptcy more probable. The contract, as construed by the company and upheld by the court, means that the employer voids it if he pays the loss, and, if he does not pay it, there is no liability on the company. So construed, the contract necessarily encourages bankruptcy." This means, of course, "if he pays the loss," without the company's consent before judgment.

The opinion then considers the clause as to liability of the company to the assured after "payment in money" for a

loss, and says: "It is unreasonable to presume that it was intended that after the assured had surrendered all control of the litigation to insurer, and after the insurer had exercised absolute control of the defense until judgment, then the assured must convert his assets into money, if he can, or be driven to the brink of bankruptcy or insolvency to pay a judgment in order that the company may be compelled thereafter to pay the insured."

The dissenting opinion further suggests that "the right construction is to recognize an insurable and enforceable interest in the party or class who may have such a claim against the insured as amounts to a liability which may be imposed by law."

It cannot be denied that these policies do have a tendency towards endangering the lives of others than the assured. Nor can it be denied that, if the insurance aids in protection of industry "against sudden and heavy liability arising from accident to employes," there ought to be some way of making it promptly available for the benefit of employes, or their families, maimed or killed by accident. The business in which they are injured or lose their lives pays the premiums for such insurance and if the policies are paid upon a loss something in the nature of a trust should attach to the proceeds. To pay to an individual a loss that arises in his business out of accident and allow him to put it beyond the reach of the employe who suffers accident or death, certainly enables the individual to gamble and reap profit from such accident or death. If he is solvent, regulation of distribution can harm him in no way.

In the same way, it seems to us, should the law provide in all liability policies. for accident or death that the sufferer should be reimbursed and not he who does the injury. Even if the latter could lose nothing in damages thereby because his policy protects him, yet he could make nothing thereby.

NOTES OF IMPORTANT DECISIONS

POLICE POWER-RIGHT OF PUBLIC SERVICE COMMISSION TO INVALIDATE CONTRACTS PREVIOUSLY MADE.-The Washington Supreme Court recognizes the rule, rule, often held by itself as well as other courts, that contracts within the police power are subject to termination as being void under subsequent legislation. State v. Public Service Commission, 145 Pac. 215.

The case of the L. & N. Ry. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671. is the most prominent of the cases which, by analogy, sustains this exercise of power.

The Washington court, however, appears to us to apply the principle very gingerly in the above stated case to a contract by a water company with certain mill companies entered into prior to legislation vesting power in the Public Service Commission to fix rates.

The question turned upon a section of the commission act which recognized the validity of prior contracts and the rates therein scheduled with a proviso that "the commission shall have power in its discretion, to directly order that such contract or contracts shall be terminated by the company party thereto, and thereupon such contract or contracts shall be terminated by such company as and when directed by such order."

The court goes into argumentation, somewhat involved, it seems to us, in an attempt 'to show, that this provision being in the act, the prior contracts were neither void nor voidable, and, therefore, they could not be avoided without compensation being paid.

There is however, nothing said in the section referred to about compensation being made, but it is expressly stated that in the Commission's discretion and by special order it may assume control over such contracts the same as if the law had not provided, in the absence of such special order, that they did not come within its regulation.

The court lays stress on the fact that the proviso "shall be terminated by the company," and then says the company, though ordered by the commission, cannot do this without making compensation. But this seems to us to be sticking in the bark. It amounts to police power taking away from one party all beneficial effects without compensation and requiring compensation to be paid to the other, when police power affects both of the parties alike.

It seems to us that all that was intended by the proviso was that the company party shall give notice to the other party that by direction of the board the contract is terminated. The

company in this way is merely made the medium of communication to other parties to the contract which are to be lived up to until they are notified.

The court says, "They (these contracts) were valid and binding obligations which the statute does not attempt to avoid, but expressly exempts." We think they are not absolutely exempted, but only upon condition that the commission does not make any special order with regard to them. To hold otherwise would make classification in exemption of a positive nature, when to hold as we contend makes classification of a conditional nature, within control of the Commission. It should be remembered that this section of the Commission act creates an exception and should be construed strictly and with the limitations imposed.

WITNESS-RIGHT OF COUNSEL TO COMMENT ON ACCUSED CONFINING TESTIMONY TO A SINGLE FACT.-The rule in the Federal Courts is that the cross-examination of a witness is confined to the matter about which he testifies in direct examination. In some states the right of cross-examination as to defendant in a criminal case taking the stand is unlimited. Other states have the same rule as that followed by the Federal Court.

The question in First Circuit Court of Appeals lately was presented whether where an accused testified as to a single fact and crossexamination accordingly was limited, prosecuting counsel in his argument to the jury was prevented from making unfavorable comment upon his failure to testify fully. It was ruled that there was no waive of the constitutional right of accused to be "free from unfavorable comment on matters to which his testimony did not relate and as to which he said nothing." Myrick v. U. S., 219 Fed. 1.

Two of three judges spoke upon this, while Putnam, C. J., voted for affirmance of the case on the ground that, if it was good, the question was not properly raised on the record, and there was no material error in the charge on this point. The court charged, however, with great particularity on this point, saying the constitutional privilege could not be waived piecemeal and when defendant came upon the stand "he steps outside of the circle which the constitution draws around him" and his intentional failure "to adduce evidence within his knowledge upon the points at issue, by whatsoever reason it is prompted is always a very pertinent matter to be considered by the jury." We must, therefore, either think that Judge Putnam dissented in principle from the major

ity or the constitutional right is not much more than a shadow.

The court says the point has never been decided by U. S. Supreme Court but refers to Balliet v. U. S., 129 Fed. 689, 64 C. C. A. 201, where the holding was not direct on the point, it being held that the instruction was faulty for other reasons. Judge Sanborn, however, held that there was no waiver of any constitutional right as to things not testified about. There was no question in this case of comment unfavorable to accused.

It seems to us that waiver of the constitutional right does not depend upon a mere matter of administration in court procedure. When an accused interjects his evidence into a case he proposes for it to be considered as a fact with reference to other facts and not as an isolated fact. He has the right under rules of evidence to be free from general cross-examination but that freedom does not compel the other side to view what he says as dissociated from other facts. A privilege is something relied upon for personal defense and not to be used for an ulterior purpose. If it is fair comment to speak of inadequacy of testimony, this seems to us to involve comment on how it could have been made complete, and accused by taking the stand opens the door for the latter comment.

that

OF THE RIGHT TO "CUSS" THE JURY.It has been thought by a good many the losing lawyer has something of an immemorial right to go outside and "cuss" the court, and now comes along Kentucky Court of Appeals and holds that he actually has such a right in regard to a jury which has rendered a verdict against his client. Smallwood v. York, 173 S. W. 380.

All of this, however, is to be taken with a grain of allowance, for he must not attribute to the jury "the commission of a crime involving moral turpitude for which the 'jury' might be indicted or punished." This leaves, nevertheless, large latitude in explosive utterances for the relief of a mind surcharged with grief and commendable anxiety to explain the defeat of an attorney to his once hopeful client.

While the court let the attorney off in the above case, in which one of the jury objected to his vitriolic eloquence, employed after verdict, we are somewhat grieved to see it deploring the use by the attorney of this safety valve by calling it "highly improper." Pretty soon we may expect, that such a court will be announcing that there ought to be some restriction on practitioners in Kentucky when

they may wish to submit some oral or written remarks in free and liberal criticism—and which should not be printed-of itself. Must the loser find no balm in Gilead for his wounded spirit?

PRACTICE OF LAW BY CORPORATIONS IN NEW YORK CITY.

No bar has been more active in preventing the practice of law by laymen, including corporations, than the New York County Lawyers' Association. After three years' investigation by the committee on general affairs of this association, they have submitted to the legislature in New York an amendment to Section 280 of the penal law, which prohibits the practice of law by corporations.

The report of the Committee states that exhaustive testimony, taken with the aid of the New York County Lawyers' Association, disclosed that the practice of the law is undertaken by three classes of corporations, trust companies and title companies, insurance companies and collection agencies.

These corporations, the report maintains, not only interfere with the business of qualified lawyers, but have given rise to a new evil in the practice of law-that of intrusting weighty legal problems to young, inexperienced and underpaid attorneys, who work for the offending corporations as clerks.

The violation of the statute, the report charges, has also led in the case of collection agencies to "gross inefficiency and actual corruption." It says that "these corporations which were offending the proprieties and jeopardizing a confiding public" are able to circumvent the statute by a "joker" in the law which exempts "any corporation lawfully engaged in a business authorized by any existing statute."

The committee's report on the "joker" says that "no more complete way to kill a statute could have been devised. No corporation would object to the first part of the statute, if it could have the last part enacted."

Section 280 of the penal law says that any corporation found guilty of practicing law shall be fined not more than $5,000, and "every officer, trustee, director, agent, or employe, who directly or indirectly engages in any of the acts herein prohibited, or assists such corporation to do such prohibited acts, is guilty of a misdemeanor. The fact that any such officer, trustee, director, agent or employe shall be a regularly admitted attorney at law shall not be held to permit or allow such corporation to do acts prohibited herein, nor shall