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1. If both of those who have perished were under the age of fifteen years the older is presumed to have survived.

2. If both were above the age of sixty, the younger is presumed to have survived.

3. If one be under fifteen and the other above sixty, the former is presumed to have survived.

4. If both be over fifteen and under sixty, and the sexes be different the male is presumed to have survived; if the sexes be the same, then the older. 5. If one be under fifteen or over sixty and the other between those ages, the latter is presumed to have survived.10

An instance in California of the application of these rules: William Peacock held a benefit certificate for $2,000 in a lodge. His wife he appointed his beneficiary. If she predeceased him and he appointed no substitute beneficiary, his children were to share the fund equally. He had two children, Ida and Ada, the former of whom was the daughter of an earlier marriage. In the calamitous earthquake which desolated California in April, 1906, Peacock and his wife, both under sixty years of age, perished together in their bed, with no "particular circumstances" from which priority of death could "be inferred." The younger daughter, Ada, claimed the whole fund; but the court compelled an equal division, applying the fourth presumption, namely, that the husband. survived.11

Under common-law jurisdictions the courts decline to entertain presumptions even of the most palpable kind. Thus, when a mother and son perished

10 California Code of Civil Procedure, § 1963, subd. 40.

11 Grand Lodge v. Miller, 8 Cal. App. 25, 96 Pac. 22. To the same effect see Succession of Langles, 105 La. 39, 29 South. 739.

in a shipwreck, the former corpulent, short of breath, and fifty-two years of age, the latter twenty-three years old and a good swimmer, the court declined to make any civil-law presumption whatever.12

Let it be borne in mind that no presumptions can be invoked unless there is an entire barrenness of fact. Against ascertained and established facts there can be no presumption. But with this caution I cannot repress the thought that these rules furnish a sane and a satisfactory method of solving the problem that arises when related victims perish unwitnessed in a common calamity. Suppose, in the Stanwix case, Lord Mansfield, when he found that the common law was barren of a conclusion, had been willing to recruit the common law from the Code of Justinian, he would have been tendered a ready and a just decision—a ready decision: the daughter survived her father, her uncle therefore as her heir and next of kin was entitled; a just decision: Holmes was as nearly related to the daughter as the nephew, Connor, was to her father, and was nearer to her by one degree than was the nephew, Connor; hence, had the father been testate, and had he made his daughter his heir-which reasonably he would have done then, in the event of her intestacy, her uncle would have inherited from her to the total exclusion of Connor. And is it unjust to found a presumption upon the customary course of nature, upon the usual trend of events? If the parent's shock of corn is, ordinarily, ripe and garnered, ere the child's has come to maturity, then, under the careful restrictions of the Roman Code, is it do

12 Faul v. Hulick, 18 App. D. C. 9: Young Women's Christian Home v. French, 187 U. S. 401, 23 Sup. Ct. 184.

ing violence to the general fact to presume that a son outlives his sire? The timorous nature, the shrinking disposition, the maternal dangers, of a woman being considered, is it against the face of nature to presume that in an awful, overhanging peril a husband survives his wife? Ought presumptions which are rational and scientific to be banished from a system which boasts that it culls the choicest flowers of every jurisprudence for its garden?

3. The third method of solving the problem now in question does not solve it, but dodges it. This is the method which finally became accepted as the common law of England, and which with great unanimity has been established in the states uninfluenced by the civil law. According to this method the related victims of a common calamity are regarded "as if" they

had all died together. Thereupon any one claiming that a certain one survived the other has the burden of proof. Being unable to bear the burden, he fails in his claim for want of evidence. The immediate successors in estate, having perished with the holder, are thus removed from consideration, and the estate passes as of course to the person or class standing next of kin to the holder, who have no other fact to prove than this kinship. The vices of this procedure are: It regards "as if" true something that is false-namely, that all the victims perished at the same instant; it throws upon a claimant a burden of proof which it is not fair, and which it is impossible, for him to carry; and it deprives our jurisprudence of a system of rules which are based upon common sense and enlightened experience.

Examination in Legal Bibliography

Questions Prepared by ROGER W. COOLEY

Special Lecturer in Legal Bibliography in the University of Michigan, University of
Chicago, University of Virginia, Cornell University, and in Some Thirty
Other Prominent Law Schools

1. You are the attorney in a case which turns upon the provisions of the Sherman anti-trust act. To what book or set of books would you go to ascertain the exact wording of the act, and to ascertain whether there have been any amendments thereof?

2. For a great many years the earlier volumes of the United States Supreme Court Reports have been cited by the name of the reporter. Can you name them?

3. Can you name the nonofficial publications of the reports of the decisions of the United States Supreme Court?

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7. Name the Reporters included in the National Reporter System, and name some of the states included in each Reporter.

8. You have been cited to the case of O'Brien v. Look, 171 Mass, 36, and, not having the state report available, you desire to find the case in the Reporter System. In which Reporter will you find the case, and how will you locate it? 9. The case cited is Richmond Locomotive & Machine Works v. Ford, 94 Va. 627. In which Reporter will the case be found, and how will you locate it?

10. The case cited is Weber v. Lockman, 66 Neb. 469. In which Reporter will the case be found, and how will you

locate it?

11. You are cited to a case as 122 Cal. 609, no title being given. You have not the California Reports available. Can you locate the case in the Reporter System? How will you do it?

12. There are three well-known series of selected cases published in this country. Name them, and give the characteristics of each.

13. Name and describe briefly one of the encyclopedias of American Law.

14. Saunders v. Eastern Hydraulic Pressed Brick Co. is a case decided by the Supreme Court of New Jersey, and involves the liability of an employer for an injury to an employé. It is reported in 76 Am. St. Rep. 222. What does this abbreviation mean? In what other reports or reporters will the case also be found? How would you proceed to find the other reports of the case?

15. Morley v. Chicago N. W. R. Co. is reported in 89 Northwestern Reporter at page 105. How can you find the state report citation of the case?

16. Smith owns an automobile. While his chauffeur was using the machine for his own pleasure, he carelessly ran into and injured a third person. Is Smith liable? Where would you go, and how would you proceed to find authorities on this question?

17. It has been held in Arkansas that as officers of the law have the right to take pictures of persons confined in jail on criminal charges, for the purposes of identification, a person so photographed cannot prevent the use of such picture, unless he can show that it is to be used for an improper purpose.

(a) How will you proceed to find the case?

(b) Can you find a New York case involving a similar question as to the right of officers to photograph criminals?

18. In your state a statute has been passed attempting to regulate employment in bakeries, and fixing the number of days employés in bakeries shall work each week and the number of hours per day. It is contended that the statute is void as an interference with the liberty to contract.

(a) Find a Missouri case involving this question.

(b) How would you proceed to exhaust the law on the general question involved in this case?

19. Wailing v. Toll, 9 Johns. 141, holds that infancy is a good defense to a suit brought by a physician for professional services. How would you proceed to find a late (1910) Missouri case holding the contrary view?

20. In Tiffany's Handbook of the Law of Persons and Domestic Relations (2d Ed.) page 400, it is said that an infant cannot be held liable on an executory contract for necessaries, the author citing Mauldin v. Southern Shorthand

& Business Univ., 3 Ga. App. 800, 60 S. E. 358, in support thereof. Can you find a Michigan case involving a similar point? How will you proceed?

21. Evanston v. Gunn, 99 U. S. 600, is an important and leading case on the admission in evidence of the records of the United States Weather Bureau, on the ground that they are quasi public records, and therefore admissible as documents. You are familiar with the case, but you desire to learn the principles underlying the decision, and to review the discussion of the principles in Wigmore on Evidence. What is the easiest way to find where in the three volumes of the work named the question is discussed?

22. You are interested in the question of the right of a city to appropriate water for public use. You have found in Vol. 4, Am. Dig. (Key-No. Series), in the topic "Waters and Water Courses,"

section 101, the case of Meeker v. City of East Orange, 70 Atl. 167, a New Jersey case, holding that a city has an absolute right to appropriate percolating waters flowing under lands owned by it, though it is an injury to one whose spring the water would reach if it was not so appropriated. This decision is an authority you wish to use if it is final. How can you find whether it has ever been affirmed, reversed, or modified?

23. A contract of sale provides that on the delivery of the goods, the buyer, if he desires to claim an allowance for defective goods, must give "immediate notice" of such defects. Where would you go to find the exact meaning of the words "immediate notice"?

24. Tuckett v. Am. Steam & Hand Laundry is reported in 30 Utah, 273. How would you proceed to find whether

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26. The case of Utah Consolidated Mining Co. v. Paxton was decided by the United States Court of Appeals in 1906. Do you know in what sets of reports you can find the case?

27. Sherman County v. Simons, 109 U. S. 735, involves the rights of a bona fide holder of county bonds. Where and how can you determine whether the case has any great weight and value as an authority, aside from the fact that it was decided by the Supreme Court of the United States?

involves the legality of combinations in

28. Richardson v. Buhl, 77 Mich. 632,

the nature of monopolies. Where and how can you determine the weight and value of the case as an authority?

29. You want to find the case of Jacobs v. Swift. You know it is a Kansas case, but you do not know where it is reported. How would you proceed to find the report of the case?

30. You know there is a case in which a person by the name of Carmony is one of the parties, decided by the Indiana court, and that the case is reported in 87 N. E. How can you find the case?

NOTE.-A list of answers to the above questions or citations, showing where the answers can be found, will be sent by mail to any one who may apply for the same to Charles Lesley Ames, Sec'y Practitioners' Correspondence Course, St. Paul, Minn.

The Small Mortgage and Its Pitfalls

Reprinted from the Saturday Evening Post by Permission

EX

VERY now and then something happens in Wall Street-it may be the collapse of a pool, or the effect of a forbidding message from Washington, or the result of an adverse court decision that causes prices to shiver and gives the timid and conservative owner of securities a jolt. It makes him ask the old question: "Can't I put my money where it is free from market influences?" And the answer is that he can. And this entails the explanation of an admirable form of investment, the wellselected real estate mortgage. It is easy to understand how the great money lenders, like the big insurance companies and the capitalists, get desirable mortgages; but how is the average man or woman with one or two thousand dollars to get one? Here is where the small mortgage comes in.

The good real estate mortgage has the first requirement of any safe investment, which is stability. Land is the most stable of all security. It cannot shrink, save by earthquakes or flood, and these disasters are infrequent; it cannot move away; it is not susceptible to panic or depression. It is, as most people know, the very basis of the world's wealth.

Summed up, the principal advantages of the real estate mortgage as an investment are these:

(1) When well selected it is an investment without speculative features, for the principal neither rises nor falls in value.

(2) It permits a revision of the rate of interest at stated periods. This means that if the mortgage comes due when

money rates are high the lender can raise the rate and take advantage of the prevailing money conditions. With a bond, on the other hand, the rate is fixed all the time.

(3) It is an investment that you can see with your own eyes and watch all the time.

It might be well to explain what a real estate mortgage is. It is a document transferring property from the owner, who is borrowing money, to the lender, on condition that the owner will get the property back if he pays the debt. It is accompanied by a bond or promise to pay the debt. Hence the expression, "bond and mortgage." The bond, or note, is really the evidence of the debt, while the mortgage is the collateral or the security behind it.

A Visit to a Mortgage Shop

There was a time when the real estate mortgage was generally regarded as a very dreadful thing. To-day, the title companies carry stocks of mortgages for sale, just as a grocer carries lines of canned goods.

Let us say, for example, that a man in a city has saved $2,000 and wants to buy a real estate mortgage. He goes to the title company and he is given the choice of a guaranteed or an unguaranteed mortgage. In a guaranteed mortgage the principal and interest are guaranteed by the company, which collects and pays the interest twice a year. If the borrower should default the interest and the property is sold under foreclosure the investor would lose nothing.

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