50. Good Will-Competition.-The agreement of the seller with the buyer of a business and its good will not to become a competitor passes, without formal written assignment, to one to whom the buyer sells the business and good will.-Public Opinion Pub. Co. v. Ransom, S. D., 148 N. W. 838.

51. Guardian and Ward-Bond.-An approved guardian's bond cannot be released, even by the court, without the consent of all parties in interest.-Commonwealth V. American Bonding

Co., Pa., 91 Atl. 938.

Where plaintiff

52. Highways-Liability. was injured on a highway which was being repaired in part at state expense, the town under section 6 of the prior act was not liable for the damages sustained.-Town of Hanover v. Burroughs, U. S. C. C. A., 215 Fed. 817.

53. Husband and Wife-Post-Nuptial Agreement.-The validity of a post-nuptial agreement between a husband and wife dividing their property was not affected by any improper conduct of the wife subsequent to its execution, except in so far as such conduct served to explain or interpret her previous acts.-Krug v. Krug, Wash., 142 Pac. 1136.

54.

Indemnity-Settlement.-Where plaintiff delivered freight to defendant for continued transportation, and it was injured by defendant's alleged negligence, plaintiff could settle with the shipper without suit, and recover over from defendant.-Pritchard v. Norfolk Southern Ry. Co., N. C., 82 S. E. 875.

55. Infants-Torts.-Where an infant sold plaintiff a horse and misrepresented his character, and plaintiff rescinded the contract and sued to recover the price, the infant could not escape liability for the tort on the theory that the matter arose ex contractu.-Patterson Kasper, Mich., 148 N. W. 690.

V.

56. Trespassers.-Children non sui juris, invading private property, are not willful trespassers, so as to charge them with negligence or personal responsibility.-Huggett v. Erb, Mich., 148 N. W. 805.

Injunction-Laches.-Where

complain

57. ants sued to enforce a strict legal right by injunction, bare lapse of time less than the delay sufficient to defeat the right itself would not constitute laches.-Longton v. Stedman, Mich., 148 N. W. 738.

a

58. Insane Persons-Jurisdiction.-Where person who has been adjudged incompetent has recovered, relief may be obtained only by application to the court which exercised original jurisdiction.-Chaloner v. Sherman, U. S. C. C. A., 215 Fed. 867.

59.

Insurance-Blanket Policy.-A policy for "$5,000 on their unginned cotton while contained in six frame warehouses, ***" without placing any specific amount on each warehouse. is a blanket policy.-Scottish Union & National Ins. Co. v. Moore Mill & Gin Co., Okla., 143 Pac. 12.

60. Change of Occupation.-A change in the occupation of assured from a receiving clerk to foreman, classed as more hazardous, is not shown by proof that assured, who performed the duties of his occupation, was accidentally killed while temporarily directing other men as to their duties.-Redmond V. United States Health & Accident Ins. Co., Neb., 148 N. W. 913. 61. -Dues.-Where the secretary of a fraternal benefit association, without the knowledge of the assured, reimbursed himself out of funds sent to pay dues, for dues previously advanced by him, the cancellation of the benefit certificate for nonpayment of dues was void. Cunningham v. Modern Brotherhood of America, Neb., 148 N. W. 918.

a

62. -Indemnity Company.-Where defendant liability company appeared in court, after loss, at the return of a writ, and conducted the defense, and gave plaintiff no notice that it intended to repudiate liability because a copy of the writ served on plaintiff was not sent to defendant immediately, as required by the policy, defendant was estopped to deny liability on that ground.-Wilson v. Frankfort Marine, Accident & Plate Glass Ins. Co., N. H., 91 Atl. 913.

63.- -Leasehold.-Where plaintiff leased certain land with the right of occupancy and with a provision that any improvement at the end of the lease should revert to the owner of the property, and he had the right of occupancy of the entire premises, it constituted a leasehold interest which is insurable.-Home Ins. Co. of New York v. Coker, Okla., 142 Pac. 1195.

64. Landlord and Tenant-Repairs.-The lessor is not bound to keep the premises in tenantable repair, unless the lease requires him to do so.-Woodbury Co. v. Williams Tackaberry Co., Iowa, 148 N. W. 639.

65. Larceny-Recent Possession.-On trial for larceny of cow, the hide of which was found in defendant's possession, state held to have proved sufficiently defendant's possession of the cow, within Comp. Laws 1907, § 4355.-State v. Bowen, Utah, 143 Pac. 134.

66. Libel and Slander -Publication. - The sending of a letter containing an alleged libel by defendant to complainant's attorneys in reply to a claim the attorneys were making for complainant against defendant held a sufficient publication.-Brown v. Elm City Lumber Co., N. C., 82 S. E. 961.

of

67. Master and Servant-Assumption Risk. A servant does not asume the risk of injury from a hidden defect, such as defective underpinning beneath а floor.-Anderson Conway Lumber Co., S. C., 82 S. E. 984.

V.

68.- Assumption of Risk.-In an action for the death of a mine employe from an explosion due to gas permitted to accumulate in a mine in violation of Rev. Laws 1910, § 3982, assumption of risk is not available as a defense.Great Western Coal & Coke Co. v. Coffman, Okla., 143 Pac. 30.

69.-Assumption of Risk.-A master is liable for injuries from his negligent failure to furnish the servant a reasonably safe place in which to work and reasonably safe tools and appliances, unless the servant has assumed the risk or contributed to the negligence.-Producers' Oil Co. v. Eaton, Okla., 143 Pac. 9.

70. Burden of Proof.-In an employee's action for injuries, the burden is upon the employer as to contributory negligence and assumption of risk.-McAtee v. Branning Mfg. Co., N. C., 82 S. E. 857.

71. Contributory Negligence.-Decedent's knowledge of the danger confronting him at the time of his injury was an essential factor for the consideration of the jury in determining whether he was guilty of contributory negligence. Great Western Coal & Coke Co. v. Cunningham, Okla., 143 Pac. 26.

72. Fellow Servant.-That one of several employes has some little authority over the others does not prevent his being a fellow servant of them.-Poirer v. Bartlett Lumber Co., Mich., 148 N. W. 750.

73.--Fellow Servant.-In an action for death of a railroad employe engaged in interstate commerce, under the federal employers' liability act, the negligence of a fellow servant is no defense.-Caverhill v. Boston & M. R. R., N. H., 91 Atl. 917.

74.--Imputable Negligence.-Driver of moving van hired and paid by the owner of the van held not the servant of a party who had engaged the owner to move household goods, and driver's negligence, whereby such person was injured, was not imputable to him.-Adams v. Tozer, 149 N. Y. Supp. 163.

75. Instruction to Servant.-Where a master employs workmen for simple tasks, he is not bound either to instruct the laborers or to inquire into their experience.-Jackson Schillinger Bros. Co., Mich., 148 N. W. 735.

V.

76.- -Non-Delegable Duty. Where defendant's superintendent of construction directed the chipping of mechanical testers in defendant's assembling room without any precautions against flying chips, he failed to perform a nondelegable duty of defendant.-Webb v. Buick Motor Co., Mich., 148 N. W. 793.

77. Pleading.-Declaration alleging that defects in boiler were unknown to plaintiff, and that he was in the exercise of due care and caution, held not demurrable as disclosing contribu

tory negligence.-Eberts v. Mt. Clemens Sugar Cc., Mich., 148 N. W. 810.

78. Wrongful Discharge.—A traveling the end of the salesman discharged before month was not entitled to recover the salary and expenses for the month, where he secretly solicited business for a rival of defendant. Mattingly v. Manhattan Oil Co., Neb., 148 N. W. 938.

note a

was

79. Mortgages-Note.-Where given without condition, and a mortgage alleged to have been made to secure the same did not that it was correctly describe it, but stated executed for and in consideration that plaintiff should defeat a divorce decree, plaintiff was entitled to recover on the note, independent of the mortgage.-Lovell v. Musselman, Wash., 142 Pac. 1143.

80. Trustee.-An attorney for a creditor is not incompetent to act as trustee under a deed of trust securing a debt, but is bound to secure the best price possible, and if necessary, to invoke the aid of equity in doing so.-Copelan v. Sohn, W. Va., 82 S. E. 1016.

81. Municipal Corporations-Law of Road.While one may drive on any part of a street, if he violates the law of the road, or an ordinance in that respect, he must exercise a higher degree of care than otherwise, and his failure to observe such law or ordinance, resulting in injury to another, is negligence per se. Moy Quon v. M. Furuya Co., Wash., 143 Pac. 99. 82. Navigable Waters-Riparian Owners.Grants by the United States of lands bordering on streams and other waters, without reservation or restriction, are to be construed as their effect according to the law of the state in which the lands lie; the United States assuming the position of a private owner, subject to the general law of the state, so far as its conveyances are concerned.-Bernot v. Morrison, Wash., 143 Pac. 104.

$3.

to

Negligence-Invitation and License.-An invitation is to be inferred where there is a common interest or mutual advantage, while a license is to be inferred where the object is the mere pleasure or benefit of the person using it. Midland Valley R. Co. v. Littlejohn, Okla., 143 Pac. 1.

а

92. -Inspection.--A buyer who accepted the goods after an examination of part of them is not estopped by his acceptance and payment from claiming damages occasioned by a defect which developed after the inspection.-Wolverine Spice Co. v. Fallas, Mich., 148 N. W. 701.

93.- -Warranty.-Where fertilizer was sold for a tobacco crop under a statement that it was a high-grade fertilizer specially suitable, there was a warranty.-Tomlinson & Co. v. Morgan, N. C., 82 S. E. 953.

94.- Warranty. For breach of warranty of automobile sold, buyer may recover, as special damages, expense of repairs made at the request of seller, to see if it could not be made to come up to the guaranty.-Underwood v. Coburn Motor Car Co., N. C., 82 S. E. 855.

95. Vendor and Purchaser-Burden of Proof. --A defendant, who still holds possession of land and relies on defect of title in an action for the purchase money, must show that the title accepted by him was positively bad, and that there was a superior and undisputable title in another person asserting the same.-Little v. Thropp. Pa.. 91 Atl. 924.

96. Election.-Damages from fraud do not operate as payment on the price until the vendee has elected that they shall be so applied. International Realty & Securities Corporation v. Vanderpoel, Minn., 148 N. W. 895.

97. Possession as Notice. Possession of land is notice of the title or interest of the possessor and of those under whom the possessor claims.-Olmsted v. McCrory, Wis., 148 N. W.

871.

98.--Rescission.-A false representation as to the character, location, and value of land. when made under circumstances justifying the Durchaser in relying thereon, is ground for rescission.-Rawlins v. Myers, Neb., 148 N. W.

915.

99. Waters and Water Courses-Riparian Owner. That riparian proprietors contributed to the maintenance of a dam in specified proportions did not conclusively show that they were entitled to share in the use of the water to drive their machinery in the same proportion.-Lyon v. Piser, 149 N. Y. Supp. 197.

a

$5. Parties--Easement.-One who holds parcel of land in trust may sue to protect an easement appurtenant to the land without joining the persons beneficially

Hood v. New York Cent. & H. R. R. Co., 149 N. Y. Supp. 262.

$6. Principal and Agent-Ratification.-That there may be a binding ratification by principals of their agent's unauthorized act, they must have full knowledge of the material facts. -C. E. Wise & Bro. v. Texas Co., N. C., 82 S. E. 974.

87.Voluntary Agent.-Gratuitous payment. though on request, by a father of his son's debt, to which the father was a stranger, did not constitute a payment by the father as the son's agent.-Cunningham v. Irwin, Mich., 148 N. W. 786.

88. Principal and Surety-Recording Contract. A surety, who completed a construction contract. is entitled to no lien for his work, where the contractor was not entitled to one because the contract was not recorded.-Watterson v. Owens River Canal Co., Cal., 143 Pac. 90.

89. Railroads-Negligence.-Running a train at night without a headlight is a continuing negligence.-Powers v. Norfolk Southern R. Co., N. C., 82 S. E. 972.

90.- -Negligence. It is negligence as to one walking on a railroad track, whether he be a

101. Contingent Remainder.-Postponement of time of payment being for the single purpose of allowing the life-right holders to enjoy the estate does not make the remainder contingent.-Trenton Trust & Safe Deposit Co. v. Moore, N. J., 91 Atl. 908.

102.- -Construction.-A fee simple, explicitly and with technical accuracy devised to H. on the sole condition that she survive the life tenants, held not made determinable, on her death without issue, by the succeeding clause. -Salter v. Philbrick, N. H., 91 Atl. 914.

103. Deed.-Where a husband contributed money to erect a building on land owned by his wife on condition that the wife would devise the house and lot to him, her will made under such agreement, delivered to the husband, could not be construed as a deed of conveyance effective from delivery, instead of being effective at her death.-Banks v. Cornelison, Ky., 169. S. W. 502.

104.- -Disinheritance. Before children will be deprived of their natural right to inherit from their immediate ancestors, the intent to disinherit them must convincingly appear on the face of the will.-In re Hasell's Estate, Cal.. 142 Pac. 838.

Central Law Journal.

ST. LOUIS, MO., JANUARY 15, 1915. OKLAHOMA'S SEPARATE COACH LAW.

In McCabe et al. v. Atchison, T. & S. F. R. R. Co., 35 Sup. Ct. 69, LXVII Chicago Legal News 145, the bill brought by several negroes against different railroads for unlawful discrimination by the latter in supplying only for whites, sleeping cars, dining cars and chair cars, was dismissed by the court, because it failed to state a case for the interposition of a court of equity.

What, however, was said by Mr. Justice Hughes, in obiter way, in the opinion, the other justices merely concurring in the result, is very interesting indeed, upon the question of the constitutional rights of the blacks being interfered with.

In answer to the contention by defendants that the cars as to which there was alleged discrimination that they were, "comparatively speaking, luxuries, and that it was competent for the legislature to take into consideration the limited demand for such accommodations by the one race, as compared with the demand on the part of the other," and that "the plaintiffs must show that their own travel (supposably travel by their race) is in such quantity and of such kind as to actually afford the roads the same profits, not per man, but per car, as does the white traffic, or sufficient profit to justify the furnishing of the facility, and that in such case they are not supplied with separate cars containing the same. This they have not attempted. What vexes the plaintiffs is the limited market value they offer for such accommodations. Defendants are not by law compelled to furnish chair cars, diners nor sleepers, except when the market offered reasonably demands the facility."

The learned Justice, speaking for himself, for, as said above, there was merely concurrence by the other justices in the result, which was dismissal of plaintiffs' bill, said:

"This argument with respect to volume of traffic seems to us to be without merit. It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular fa

cilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which under substantially the same circumstances is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded."

This reasoning, if there is eliminated therefrom, what appears to us mere ipse dixit by the learned judge, seems to bring us to no definite point.

The opinion admits that these luxuries may be denied both whites and blacks, if the conditions of traffic do not justify their being supplied. In such case the particular individuals are ignored and they suffer because they belong to an aggregation not large enough, or traveling enough, to give to the carrier a profit for furnishing them.

It is also conceded the races may be classified so as to carry them in separate coaches. Why, if jointly the two classes may be lumped to ascertain whether the facilities may be demanded, may they not be regarded separately to ascertain by which or both the facilities may be demanded? No more in one case than in the other is the personal right regarded, but solely one's relative status to the population of which he is a part.

It may be true that each one has a personal right so far as discrimination is concerned, but that personal right has relation to the surroundings so far as its being de

mandable is concerned. It would be an absolute right, if the law did not provide for a reasonable classification wherein his claim to the right would fall.

We will suppose that provision is made. for facilities of this kind to through passengers and not for local passengers, because the traffic would not pay a profit in doing so. Would a local passenger, who is put within a reasonable classification, have the right to claim discrimination? There is nothing against him as an individual, but only against him according to the circumstance of expense in supplying the facility. It is nothing to him that the carrier may furnish the through passenger what it is able to afford to furnish, but refuses to furnish him the same thing because at a loss. Neither he nor the carrier creates the condition. It inheres in the situation.

So when the negro is denied what the carrier may not supply him as one of a class except at a loss, where is there any personal right violated, constitutional though it be? One class, if reasonably defined, has no right to play, so to speak, the part of a dog in the manger, and say if my class cannot be accorded certain rights, neither shall another be accorded the rights, which it is equitable and right for a common carrier to furnish.

When the learned justice speaks of the negro being denied "a facility or convenience in the course of his journey, which under substantially the same circumstances is furnished to another traveler," this pronouncement gets us nowhere. If he is member of a class to which the facilities cannot be furnished without loss, and another is a member of another class to which they may be furnished at a profit, the facilities are not denied under substantially similar circumstances as where they are granted.

As we said this part of the opinion seems not concurred in, because Justice Hughes' views on this question had nothing whatever to do with the result arrived at, in which the other justices do concur. Indeed, his views, if given any effect at all, are wholly opposed to the result which was reached.

NOTES OF IMPORTANT DECISIONS

PRINCIPAL AND AGENT-CONTRACTS BY LABOR UNION FOR THE BENEFIT OF ITS MEMBERS-Gulla v. Barton, 149 N. Y. Supp. 952, decided by Appellate Division of New York Supreme Court, appears to involve a variety of presumptions scarcely touched upon by the court in its opinion.

The facts show that plaintiff was working for defendant at a wage of $9.00 per week. While thus employed the labor union, of which he was a member, made a contract that all of the members should be employed at union wages at the rate of $18 per week. The object of defendant in agreeing to pay these wages was to prevent strikes and secure the use of the union label. These labels were furnished by the union and used by the defendant doing business as a union brewery. Plaintiff, apparently ignorant of the arrangement by the union, continued to work at $9 per week, and on ascertaining its existence, sued for the difference. There was judgment in defendant's favor, which was reversed by appellate division.

The court in division rules the case on the simple proposition that the contract was made for plaintiff's benefit and furthermore that the union in making it and supplying the consideration therefor, as plaintiff's agent, considered him embraced therein.

We think this case was rightly ruled above, independently of any presumption of knowledge or even of actual knowledge, by the plaintiff of the union's arrangement. We say this because the court intimates that had there been such knowledge there would arise a waiver. We think there would have to be consideration for such waiver. Plaintiff had a vested right in the contract made by the common agent of the members and this contract, though executory in nature, matured the right to demand all it called for, because in addition to the services rendered his agent continued to furnish and defendant continued to receive the consideration provided thereby. We do not, however, as does the New York court, regard this contract as one made for the benefit of a third person. If we did, we would rather think plaintiff acquired nothing thereby except a gratuity, which would be irrecoverable. But the principle of agency and the delivery and acceptance of benefits is amply sufficient for the judgment in plaintin's favor.

SELF-DEFENSE-DUTY OF RETREAT BY ONE ASSAULTED IN HIS DWELLING.-Sir Edward Coke said: “A man's house is his castle et domus sua cuique tutissimum refugium,"

and Burke elaborated this idea in a burst of eloquence that is famous in literature. Third Institute of Coke, p. 162; Burke's Speech on Excise Bill. See also Lemayne's case, 5 Rep. 91. But does the principle apply when the own. ner of the house is assailed by one lawfully therein, so far as the duty of retreat is concerned? New York Court of Appeals holds that it does, two of the judges dissenting. People v. Tomlins, LII N. Y. Law Journal, 1249, decision rendered Dec. 18, 1914.

The principle of no duty to retreat when an owner is assailed has grown out of the perfervid aloquence of an elder English day and often has it been declared in cases where the owner is assailed from the outside, such owner defending himself on his own doorstep or from within. The New York court says: "The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State, 76 Ala. 8, 14. 'Why,' it was there inquired, 'should one assailed by a partner or cotenant, any more than when assailed by a stranger who is unlawfully on the premises, flee? Whither shall he flee, and how far, and when may he be permitted to return?'"

This case assumes that because one may not be driven from his home by an assailant lawfully therein, so he has no duty to retreat to any position in his own home that may be open to him so as to avoid the necessity of killing his assailant. If assailant and assailed are in the home on equal terms and a sudden affray springs up, there is no case of a man being attacked in his own home in the sense of the principle at issue. Perhaps one cannot be made to retreat beyond the limits of his home, but why he may kill one there with equal right to be there as he, when he can avoid doing so is not clear. The principle is for the protection of the home against intruders and not for the protection of the owner of the home, when there is no intrusion. The owner's protection is derivative and not absolute.

CONSTITUTIONAL LAW-CHANGE OF DECISION BY STATE COURT AS IMPAIRING OBLIGATION OF CONTRACT.-The Supreme Court, after announcing other settled propositions, goes on to say: "It is equally well-settled that an impairment of the obligation of the contract within the meaning of the Federal Constitution, must be by subsequent legislation, and no mere change in judicial decision will amount to such deprivation." Ross v. Oregon, 227 U. S. 150; Moore-Mansfield Constr. Co., v. Electric Installation Co., 234 U. S. 941."

Cleveland & C. R. Co. v. City of Cleveland, 35 Sup. Ct. 21.

The court goes on to say that: "An examina. tion of the record shows that the Federal right set up in court of common pleas and considered in the circuit court, the latter judgment being affirmed by the supreme court without opinion, concerned an alleged change of decision in the supreme court of Ohio, construing a statute concerning the contract upon which the railroad companies relied, the effect of which, it was alleged, would be to do violence to the contract clause of the Federal Constitution. It was not set up that subsequent legislation had impaired the obligation of the contract of the railroad companies. Therefore in the light of the decisions of this court above quoted, no federal right was alleged to have been impaired within the meaning of the constitution of the United States, and no such right was passed upon in the decisions of the courts."

Looking back to the cases referred to, we discover that the latter of them says:

"Courts of the United States are courts of independent jurisdiction, and when a question arises in a United States court as to the effect of a change in decision which detrimentally affects contract rights and obligations entered into before such change, such rights and obligations should be determined by the law as judicially determined at the time the rights accrued. In every such case the Federal courts, while leaning to the view of the state court as to the validity or interpretation of a law of the state, will exercise an independent judgment, and will not necessarily follow state judicial decisions rendered subsequently. Burgess v. Seligman, 107 U. S. 20, 33, 27 L. Ed. 359, 365, 2 Sup. Ct. Rep. 10; Loeb v. Columbia Twp., 179 U. S. 479, 493, 45 L. Ed. 285, 291, 21 Sup. Ct. Rep. 174."

Here is a reminder of all that court has said about "oscillation in decision" and change of decision being in effect an amendment of the old statute, and now we learn, that we have an independent court which will merely lean to the view of state courts in construction of their own statutes, where they oscillate. It makes one think that almost any reason is good enough for that court to refuse to follow the rule that a state court may construe the statutes of its state as to them appears right. In other words, this independent jurisdiction will sometimes apply that as state law which has been decided not to be state law, and at other times they will declare that by later decision a contract has not been impaired by change of decision. They will, however, take no note of any impairment unless in a case before it in ordinary appeal thereto.