The Central Law Journal

82. Judgment--Res Judicata.-Where no appeal had been taken from an order admitting a will to probate in contested proceedings therefor, when an equity suit passed to a decree refusing to set aside the probate, the probate order was res judicata of all matters which could have been properly determined therein.-In re Brown's Estate, Iowa, 117 N. W. Rep. 260.

83. What Constitutes.-A judge's memorandum on a trial docket that judgment had been entered for plaintiff held not a judgment upon which an execution could be issued.-Winn v. McCraney, Ala., 46 So. Rep. $54.

84. Landlord and Tenant--Surrender of Term. -A surrender of a term by operation of law will not be implied on proof that lessees had dissolved partnership and that an unauthorized person had tendered lessor the key.-Creachen v. Achenberg. N. J., 70 Atl. Rep. 160.

85. Libel and Slander-Malice.-On trial of complaining church members for libeling a member charged with wrong doing, the burden is on the latter to prove that the complaint was induced by express malice. Butterworth V. Todd, N. J., 70 Atl. Rep. 139.

86. Life Estates-Reservation.-Where a husband owned certain land subject to his wife's inchoate right of dower, and they conveyed the land, reserving a life estate during their natural lives, the life estate was reserved to the husband individually and not to the wife, nor to the husband and wife jointly-White v. City of Marion, Iowa. 117 N. W. Rep. 254. 87.

Limitation of Actions-Acerual of Cause of Action.-Where by the negligent construction of a railway embankment, surface water is dis charged on the land of an adjoining proprietor, his cause of action accrues at the date of the injury. Morse v. Chicago, B. & Q. Ry. Co., Neb., 116 N. W. Rep. 859.

88. Master and Servant-Assumed Risks.-If a machine at which a servant was put to work were not in proper condition, the servant would only assume such risks as he knew of or ought to have known of, and the dangerous character of which he ought to have appreciated.-Clemens v. Gem Fibre Packing Co., Mich., 117, N. W. Rep. 187.

89. Assumed Risks.-Where defendant railroad had promulgated rules by which plaintiff was governed, if plaintiff violated the rules, he assumed the risks incident thereto, and was prima facie guilty of contributory negligence as a matter of law.-International & G. N. R. Co. v. Brice, Tex., 111 S. W. Rep. 1094.

90. Assumed Risk.-A servant injured by a steel chip from a chisel, while assuming the ordinary risk of the chipping of steel chisels when hammered, did not assume the extraordinary risk of the chipping of a defective steel chisel furnished by defendant.-Manning v. Portland Steel Ship Bldg. Co., Ore., 96 Pac. Rep. 545.

91. Statutory Provisions.-The removal on Sunday of coal from the sump in the bottom of a shaft in a coal mine held a part of the operation of the mine within Pub. Acts 1905, p. 143, No. 100, sec. 3.--Capeling v. Saginaw Coal Co.. Mich., 117 N. W. Rep. 182.

92. Vice Principal.-Where an employee was intrusted with the discretion as to the time of withdrawing other employees from a sewer excavation before the explosion of a blast, he was

the representative of the master, and for any negligence the master was liable.-Polo v. Palisade Const. Co., N. J., 70 Atl. Rep. 161.

Where

93. Mortgages-Consideration. fendant purchased certain mortgaged property, agreeing with the owner of the property to clear the title of all incumbrances and to erect a building thereon, and stated such facts to the mortgagee, who agreed in consideration thereof to extend the mortgage, the agreement was based on a sufficient consideration.-Hall .v.

Parsons, Minn., 117 N. W. Rep. 240.

94. Failure to Record Deed.-The court held without power to set aside a sale in a chancery foreclosure of mortgage on the ground that the deed was not filed in the office of the register of deeds, as required by Pub. Acts 1899, p. 310, No. 200.-Butters v. Butters, Mich., 117 N. W. Rep.

96.

Municipal Corporations-Leaving Vehicle in Street. Merely leaving a vehicle unguarded in a city street a reasonable length of time, for a legitimate purpose, would not constitute negligence per se.-Studebaker Bros. Mfg. Co. v. Carter, Tex., 111 S. W. Rep. 1086.

97. Negligence of Officers.-It was not competent for a commissioner of parks and boulevards to rely wholly on the reports of his engineer and inspectors, or to the same extent that he might, were they appointed by others, and not entirely subject to his own discretion.— Bolger v. Common Council of City of Detroit, Mich., 117 N. W. Rep. 171.

98. Removal of Employee.-Where a deputy inspector of boilers and elevators in the city of St. Louis was illegally removed, his acceptance of a temporary position as hoisting engineer was not incompatible with his duties as such deputy inspector, and does not prevent his recovery of salary for the balance of his official term. -Gracey v. City of St. Louis, Mo., 111 S. W. Rep. 1159.

99. Smoke 'Ordinance.-Where a city charter empowers the adoption of ordinances necessary for the protection of persons and property and preservation of the public health, held sufficient power is given to sustain an ordinanc for the suppression of dense smoke from smokestacks.-Atlantic City v. France, N. J., 70 Atl. Rep. 163.

100. Municipal Corporations-Use of Streets. -A bicyclist and automobilist using a street crossing as travelers owe each other the duty to use it with a reasonable regard to the rights of the other.-Weber v. Swallow, Wis., 116 N. W. Rep. 844.

101. New Trial-Extent.—A second trial in ejectment extends to all questions presented pertinent to the title and right of possession, including damages for use and occupation.-Sammons v. Pike, Minn., 117 N. W. Rep. 244.

102. Negligence-Res Ipsa Loquitur.-Where plaintiff's case shows the conditions under which an accident happened and the question is raised whether under the circumstances specified the conduct of defendant was negligent, the rule res ipsa loquitur does not apply.-Dentz v. Pennsylvania R. Co., N. J., 70 Atl. Rep. 164.

103. Nuisance-Pleading and Proof. The operation of a factory so as to constitute a nuisance may be given in evidence under an allegation that it was negligently operated, if the other allegations of fact make out a case of nuisance.-Hinmon v. Sommers Brick Co., N. J., 70 Atl. Rep. 166.

104. Partnership-Liabilities to Creditors.Partnership property is liable to attachment for the debts of a partner in his business, with which the co-partner has no concern, and the rights of the partners may be settled on the copartner filing an interplea claiming ownership of the goods.-Swofford Bros. Dry Goods Co. v. Diment, Mo., 111 S. W. Rep. 1196.

105. Partition-Property Subject.-Where wife occupies a homestead set apart for her use, and that of the family of her deceased husband, it is not liable to partition at the suit of the assignee of some of the adult heirs.Funk v. Baker, Okl., 96 Pac. Rep. 608.

106. Pledges Substitution of Collateral.-Where notes pledged as collateral security for another note were surrendered from time to time, on the statement that the makers desired to pay. and new notes were substituted as collateral security, there was no authority to collect the collateral for the creditor.-Powers v. Woolfolk, Mo., 111 S. W. Rep. 1187.

107. Principal and Agent-Authority Agent. A manufacturer who employs sales agents impliedly authorizes the agents to make representations concerning the quality and fitness of goods which are of such character that the proposed buyer cannot have knowledge of their properties.-Conkling v. Standard Oil Co., Iowa, 116 N. W. Rep. 822.

108. Railroads Frightening Animals.-A railthe road company held liable for injuries to driver of a team resulting from the frightening of the team by steam emitted from an engine at a railroad crossing.-St. Louis Southwestern Ry. Co. of Texas v. Nelson, Tex., 111 S. W. Rep. 1062.

109. Sales Defenses.-Where a merchant directed another to have shipped to him corn of a certain grade over a certain railroad, that the corn while in transit became heated will not excuse the vendee from payment.-Champlin v. Church, N. J., 70 Atl. Rep. 138.

110. Set-Off and Counter Claims-When Maintainable.-Plaintiff agreed with defendant not to sue on a note within a certain time, but brought an action before the expiration of the time. Held, that the breach of contract and resulting damages might be interposed as counterclaim. Hall v. Parsons, Minn., 117 N. W. Rep. 240.

111.

Specific Performance-Defenses.-Protest by vendors against retention of a disputed strip of land by vendee not made until two months after the vendee had entered into possession thereof held no defense to a suit for specific performance.-Starrett v. Boynton, N. J., 70 Atl.

Rep. 183.

112. Street Railroads-Care of Passengers.Where a street railway loads its cars SO as to fill the standing room inside and the footboards outside, care of the passengers' safety must be proportionate to the dangers to which they are exposed.-La Barge v. Union Electric Co., Iowa, 116 N. W. Rep. 816.

113. Injuries to Property.-Where a street railway company ran its feed wire through the trees of an abutting land owner without permission, if the company was acting under rights

granted to it by the public, the grant must be introduced in evidence by the defendant.-Bathgate v. North Jersey St. Ry. Co., N. J., 70 Atl. Rep. 132.

114.- -Negligence of Motorneer.-The motorneer of an electric car passing immediately in front of a fire engine house is guilty of doublenegligence when he drives at full speed in approaching such house, and fails to see in time to avoid collision with an outcoming hose cart a signal given while the car is 144 feet distant from the engine house.--Dole v. New Orleans Ry. & Light Co., La., 46 So. Rep. 929.

116.- -Soldier's Exemptions.-A soldier's life estate in land should be considered in determining whether he has $5,000 worth of property,. and is therefore not entitled to a soldier's exemption from taxation under Code Supp. 1902, sec. 1304.-White v. City of Marion, Iowa, 117 N. W. Rep. 234.

117.- -Tax Sale. The original owners of land sold for taxes held not entitled to quiet title to it as against a purchaser from the state, in the absence of an offer to pay the amount for which the land was sold.-Flannigan v. Towle, Cal., 96 Pac. Rep. 507.

118. Telegraphs and Telephones-Failure to Deliver Long Distance Call.-Essential to a telephone company's liability for consequential damages caused by its negligent failure to notify one for whom a call is placed that another desires to talk to him, stated.-Southwestern Telegraph & Telephone Co. v. Flood, Tex., 111 S. W. Rep. 1064.

119. Trial-Instructions.-Failure in an action for negligence to instruct the jury to find for defendant, if not found guilty of negligence, held not reversible error, in the absence of a special request therefor.--St. Louis Southwestern Ry. Co. of Texas v. Nelson, Tex., 111 S. W. Rep. 1062.

120. Venue Petition. Where plaintiff brought suit in a county other than that of defendant's residence, and the petition alleged defendant's correct residence and did not show any legal right to sue outside thereof, defendant could have taken advantage of the defect by exception. Lumpkin v. Blewitt, Tex., 111 S. W. Rep. 1072.

121. Wills-Construction.-Where a particular estate is created, with remainder to the children of a designated person, the gift by way of remainder will go, not only to the objects live ing at the death of testator, but to all who may subsequently come into existence before the period of distribution.-Clark v. Morehous, N. J., 70 Atl. Ren. 307.

122.- -Construction as to "Children."--Where testator made a devise over to his "children who shall then be living." the term "children" could not be enlarged to include grandchildren where there was nothing in the context to authorize such enlargement.-Frank v. Frank, Tenn., 111 S. W. Rep. 1119.

123.- Revocation. That testator after mak-ing a will in favor of his wife was divorced held insufficient to constitute an implied revocation of the will at common law. In re Brown's Estate, Iowa, 117 N. W. Rep. 260.

124.- Undue Influence.-Where a will is made by a patient in favor of his physician to the exclusion of relatives to whom ordinarily his property would go, with no reason appearing why such exclusion should occur, it is presumed the on grounds of public policy that will is void.-Hitt v. Terry, Miss., 46 So. Rep. 829.

125. Witnesses--Bias.-In a prosecution for forgery of an order for witness' fees, evidence that the prosecuting witness was an intimate friend of a person whom accused had unsuccessfully defended for a crime was inadmissible to show the witness' animosity towards accused. -State v. Gilluly, Wash., 96 Pac. Rep. 512.

Central Law Journal,

ST. LOUIS, MO., DECEMBER 4, 1908

IS THE FEDERAL GOVERNMENT CAPABLE OF TAKING OWNERLESS PROPERTY BY ESCHEAT?

Ten years ago Congress enacted a law (29 Stat. 578) which provided that "it shall be the duty of the judge or judges of said courts (federal) to cause any moneys deposited as aforesaid, which have mained in the registry of the court unclaimed for ten years, or longer, to be deposited in a designated depository of the United States, to the credit of the United States." This statute was intended to apply to all moneys deposited in federal courts and which up to the time of the passage of the act had been held either in the court or with the treasurer of the United States subject to the court's order.

The operation of this statute it will be. observed is in the nature of an escheatage of the moneys on deposit in federal courts to the federal government. The statute until recently seems never to have been construed by the federal courts, although from the apparently wide range of its operation it would seem likely to have provoked some litigation within the ten years since its enactment.

The recent case which now for the first -time construes this statute is that of American Loan & Trust Co. v. Grand Rivers Co., 159 Fed. 775. In this case it appeared that the sum of $1,140, the balance of a larger sum deposited in court representing the net balance resulting on a foreclosure and sale, in 1894, of certain bonds and on the basis of which a certain dividend had been declared in favor of all the holders of said bonds on proper application and surrender of their securities, was still on deposit with the clerk of the district court for the western district of Kentucky, unclaimed. For fourteen years this money

had remained in the care of the court waiting for the appearance of those who were entitled to claim it. Finally, the district attorney filed a motion requesting an order upon the depository of such funds to transfer the amount so unclaimed to the treasurer of the United States, under the provisions of the act just refered to.

The court in refusing to grant the motion of the district attorney alleged two grounds for its refusal. First, because such statute provides for a proceeding in the nature of an escheat which is a power not granted to the federal government; second, that even if the federal government did have such power this statute was not a proper exercise of such power in that it did not provide for notice to the parties to whom the money was owing and therefore deprived such persons of their property without due process of law. We have no doubt that on the second ground given this statute is clearly unconstitutional as indicated by the court. But on this occasion we are more interested in the first ground given by the court and shall consider it a little more at length.

Is the federal government capable of taking ownerless property by escheat? The most exhaustive authoritative judicial discussion of the subject of escheat in this country is by the United States Supreme Court in the case of Hamilton v. Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. Ed. 691. In this case the court shows that at common law the right of escheat rested exclusively in the king or the ultimate sovereignty, that this ultimate sovereignty in this country is in the states and concludes as follows: "In this country, when the title to land fails for want of heirs or devisees, it escheats to the state as part of its common ownership, either by mere operation of law, or upon an inquest of office, according to the law of the particular state."

Relying on this decision and a few others which he cites, Judge Evans in the principal cases makes the following argument: "These authorities inevitably lead to the conclusion that the national government is not in any case the parens patriae to which

ownerless property of any sort in any state of the Union reverts. We think that within the states respectively it is the state. which exclusively is parens patriae, and this result cannot be affected by the fact that the property might happen to be in the registry of a federal court. Though in the registry, it is nevertheless, a part of the general property in the states. The state, under the authorities cited, might with more plausibility be held to succeed to the title of such property, and might have the right through its escheator to apply to the court for it if any government be entitled to do so. In saying this we by no means intend to intimate that the state would, in fact, have the slightest right to an escheat of the money in court in this case. We only conclude, under the authorities cited, that if any government can claim to be parens patriae it is that of the states, and not that of the nation."

It would seem that the conclusion of the court in the principal case is the proper one with this limitation that so far as the territories are concerned, Congress, as the ultimate sovereignty may provide for escheating ownerless property located in such territories. Mormon Church V. United States, 136 U. S. 1, 57 Sup. Ct. 792, 34 L. Ed. 481. But even in such cases, if the personal property is afterwards removed from the territory to a state or if when the escheat occurs the territory has become a state, the national government loses all power to escheat the property even where such property is held by direct patent from the federal government. Etheridge v. Doe, 18 Ala. 565.

NOTES OF IMPORTANT DECISIONS.

MARRIAGE RIGHT TO ALIMONY ON ANNULMENT OF MARRIAGE.-Strictly speaking, there can be no allowance of alimony on a decree annuling a marriage for the reason that the decree in such a case in effect declares the marriage void ab initio; that is, there never was a marriage, and therefore no such rela

tion has existed which will justify a decree of alimony. Practically speaking, however, courts are accustomed to make such disposition of the supposed husband's property which in effect has much in common with a decree of alimony.

This practice is well illustrated by the recent case of Buckley v. Buckley, 96 Pac. 1079, where the supreme court of Washington held that where a woman, who in good faith entered into a marriage contract, with a man having a former wife living, materially helped to acquire and save property held by him, the court, on annulling the marriage at the suit of the woman, has jurisdiction, as between the parties, to dispose of the property as it has in case of granting a divorce. The court said: "It is the contention of Andrew Buckley that Mary Buckley never became his wife, and that the court was without authority to award her any portion of the property standing in his name or which he had acquired. Whatever may be said of the right of Mary Buckley to recover in the form of action instituted here, it cannot be doubted that she is entitled to some redress or compensation in some form of action against Andrew Buckley. Under the law of this state, the courts are called upon to regard substance rather than form, and it is not the policy of our law to turn a suitor out of one door of the court to come in at another in order to secure justice. Where a woman in good faith enters into a marriage contract. with a man, and they assume and enter intc the marriage state pursuant to any ceremony or agreement recognized by the law of the place, which marriage would be legal except for the incompetency of the man which he con ceals from the woman, a status is created which will justify a court in rendering a decree of annulment of the attempted and sumed marriage contract upon complaint of the innocent party; and where in such a case the facts are as they have been found here, where the woman helped to acquire and very mate rially to save the property, the court has jurisdiction, as between the parties, to dispose of their property as it would do, in a case of granting a divorce, awarding to the innocent, injured woman such proportion of the proper ty as, under all the circumstances, would be just and equitable."

Another interesting and comparatively recent case on this same question is that of Werner v. Werner, 59 Kans. 399, 53 Pac. 127, 41 L. R. A. 349, 68 Am. St. Rep. 372. In that case the court said: "Strictly speaking, this action as it was tried was not a divorce proceeding, but it was rather one to annul a void marriage. Although instituted under the statutes to obtain a divorce, the pleadings were so drawn,. and the issues so shaped, that it was within

the power of the court to grant relief indepen dently of the statutes relating to divorce, and it rendered a decree of nullity, rather than a decree of divorce. The plaintiff below set forth at length the description and nature of the property which had been acquired by the parties, the manner in which it had been ac quired, and her interest in the same, and in the prayer of her reply she asked to be allowed a just and equitable division of the same in case the marriage was held to be null and void. The court, in its decree, did not treat the award as alimony, but rather adjudged her a share of the property jointly accumulated by the parties during the time they lived together as husband and wife. Fuller v. Fuller, 33 Kans. 582 greatly relied on by the plaintiff in error, holds, it is true, that in an action of this character the defendant is not entitled to recover permanent alimony; but at the same time it is expressly stated: "That in all judicial separations of persons who have lived together as husband and wife a fair and equitable division of their property should be had; and the court, in making such division, should inquire into the amount that each originally owned, the amount that each party received while they were living together, and the amount of their joint accumulation.' Even in cases where the marriage is valid, and a divorce is refused for any cause, the court may adjudge an equitable division and disposition of the property of the parties. Code Civ. Proc. § 643 (Gen. St. 1901, § 5136). But indipendently of the statute of divorce, we think the court had authority to decree not only an annulment of the marriage, but also the division of the property which had been jointly accumulated by the parties. It was an equitable proceeding, and within its equity power the district court had full jurisdiction to give adequate relief to the parties. vision that was made was eminently equitable and just."

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The Central Law Journal, Volume 67