L. R. A. (N. S.) 382, 19 Am. Cas. 1227, where proof was let in to show whether a chauffeur was under his contract of employment acting within the scope thereof, but this statement implies that had he here been given by contract the right to use the automobile in and about his own affairs, the master would be held liable. See also Colwell v. Activa Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388.

In Glassrnan v. Harry, 182 Mo. App. 304, 170 S. W. 403, the taking out of an automobile by a chauffeur at night contrary to positive orders brings no liability on the owner for injury to a third person. This decision seems to us wrong as a limitation by private instructions on the right of an agent. But the majority of cases seem along this line.

It seems to me, that apart from any question of an automobile being in itself a dangerous thing, that the master cannot put his servant in an apparent exercise of authority and then by private directions put a limitation thereon. It

is a general principle of law that an agent to bind his principal need not be acting in strict prosecution of his master's business, but only in the apparent prosecution thereof.

ITEMS OF PROFESSIONAL

INTEREST.

YOU NEVER CAN TELL.

C.

In Vol. 61, p. 151, we published a poem by William Rogers Clay of Frankfort, Ky. We have been requested to republish this poem. We gladly comply with this request, especially in view of the fact that our supply of the particular number containing this poem has been depleted. Here is the poem:

If you have a subtle feeling for a maiden rich and sweet,

And lay your heart and fortune in a bundle at her feet,

And tell her that you love her in a way that doth amaze,

And think that you will win her with your fascinating ways,

You are sure to read some morning in a paper at the door

The news of her engagement to a man you think a bore;

So you never can tell; you never can tell.

When practice is a trifle dull, and purse not fat within,

And you hear a man aproaching with those whiskers on his chin,

Who at once uncorks his charming mouth, and gently turns it loose,

And spoils your rug of velvet with a squirt of "backer" juice,

You feel your blood a-boilin', for you think of murder then,

And tell him you will win his case, for fear he'll squirt again;

But you never can tell; you never can tell.

When you contemplate the picture of your client on the stand.

A-fumbling at those whiskers with his big old horny hand,

And though he's cross-examined by a lawyer just immense,

Arouses all the jury with a feeling quite intense, You are certain of a judgment for at least ten thousand beans,

The half of which you'll seize upon before it strikes his jeans;

But you never can tell; you never can tell.

When you close your peroration and the jury leaves in tears,

You feel as sure as ever you will have enough for years,

And with rare and fertile fancy build your castles in the air,

And dream of private "yach-its" and a horse or two to spare,

When lo! the door is opened and the jury marches in,

And the clerk he reads the verdict and the other fellows "win;"

So you never can tell; you never can tell.

Cheer up, you say, for we will go and try the court (of) appeals,

Where the judges all are honest and their heads not full of wheels;

So down you go to Frankfort as you do most every time,

With many "cases on-all-fours" and confidence sublime;

But when the news from Frankfort comes that you're no longer it,

You feel like falling on all fours, and braying just a bit,

So you never can tell; you never can tell.

But you console yourself that when this weary life is o'er,

You will gladly be an angel on that bright and shining shore,

A-playin' on a golden harp, with Satan's imps defied,

And eatin' sweet ambrosia with some nectar on the side,

But the keeper at the gate may say, although it hurts him to,

"No bum attorneys enter here," and then-it's hell with you;

So you never can tell; you never can tell.

RESULT OF RECENT REFERENDUM IN THE AMERICAN BAR ASSOCIATION.

A few weeks ago there was submitted to the members of the American Bar Association for their approval or disapproval the following resolutions:

"Whereas, the Constitution of the United States and the Constitutions of the several states contemplate government by and for all the people and not by or for any particular class, group or interest;

"Now Be It Therefore Resolved, That the liberties of the people and the preservation of their institutions depend upon the control and exercise by the federal, state and municipal governments of whatever force is necessary to maintain at all hazards the supremacy of the law and to suppress disorder and punish crime."

We have just been informed by Mr. Charles A. Boston, chairman of the Committee on Publicity, that the result on this referendum so far was as follows:

For the resolution submitted, 6,875.
Against the resolution submitted, 85.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 184.

Compensation; Collections-Division of fees for collections between forwarding and receiving lawyers; disclosure of methods of division to client; disclosure to receiving lawyer of forwarding lawyer's additional charge to client.

A, an attorney in New York, forwards a commercial case to B, an attorney in Detroit. Nothing is said as to the method for fixing the charges of the respective attorneys, but at the close of the case B makes a charge of $250, and, following the usual custom in commercial cases, remits one-third of the $250 to A as the latter's share of the fee. A thereupon charges the client separately $500 for his own services, without disclosing to B that he is making a separate charge and without disclosing to the client that he has received one-third of the $250 from B. Is there any impropriety in A's conduct, either in the dealings with B or in the dealings with his client?

ANSWER No. 184.

(1) In the opinion of the Committee the confidential relation between attorney and client requires that every fact known to the attorney which might affect the judgment of the client as to the reasonableness of A's "separate charge" of $500 should be disclosed by A to the

client. It is, therefore, improper for A to conceal from the client that the former has received from B one-third of $250.

(2) In the opinion of a majority of the Committee the implication of the remittance by B is that he assumes that it is A's entire compensation. If A retains the remittance he should disclose to B the fact of his separate fee. But in so answering, the Committee does not recede from its reiterated opinion that the sharing of fees is only justified by sharing either professional services or professional responsibility.

WEEKLY DIGEST.

Weekly Digest of Important Opinions of the State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

Arkansas.

California.

Colorado

Georgia.

Illinois.

Indiana.

Iowa.

Kentucky.

Louisiana
Maryland

Massachusetts.

Minnesota
Mississippi

Missouri.

Nebraska.
New Jersey

New York.

North Carolina.

North Dakota

Ohio......

Oklahoma.

Tennessee

Texas...

U. S. C. C. App.

United States S. C.

Vermont

Virginia.

West Virginia.

Wisconsin..

1. Adverse

a

Possession-Color of Title.-A commissioner's deed to a purchaser under decree of the chancery court was such an appearance of title as to constitute color of title in the grantee.-Miller v. Chicago Mill & Lumber Co., Ark., 215 S. W. 900.

2. Wild Lands.-Wild and uncultivated lands cannot be made the subject of adversary possession while they remain completely in a state of nature, but a change in their condition to some extent is essential.-Craig-Giles Iron Co. v. Wickline, Va., 101 S. E. 225.

3. Bankruptcy-Bulk Sales Act.-Sales by bankrupt, a merchant, to defendant at different time of goods held in job lots held not so out of his usual course of business as to constitute sales in bulk, within Oregon Sales in Bulk Act, as amended by Laws Ore. 1913, p. 538, or as to render such sales void for fraud; it appearing that bankrupt had made similar sales to others at various times during two or three years, and there being no sufficient proof that defendant knew of any fraudulent intent.-Sabin v. Horenstein, U. S. C. C. A., 260 Fed. 754.

and directors may agree to a settlement of claims and distribution of assets in the nature of a composition.-In re O'Gara Coal Co., U. S. C. C. A., 260 Fed. 742.

5. Banks and Banking-Certificate of Stock. -The owner and holder of a certificate of bank stock has the right to have it transferred in his name on books of the corporation, and the illegal refusal to do so (being treated as a conversion of the stock) makes the corporation liable for resulting damages.-Citizens' Bank of Maxeys v. Bank of Penfield, Ga., 101 S. E. 203. 6. Estoppel. - A national bank is not estopped by its purchase and temporary operation of a street or interurban railroad from pleading its want of power to operate such road. -Gress v. Village of Ft. Loramie, O., 125 N. E. 112.

7. -Forgery.-Where name of plaintiff firm on check forged by its confidential bookkeeper, drawn upon defendant bank to order of another bank and deposited in such other bank to credit of plaintiff and paid by defendant, was a clumsy forgery, which could have been discovered by defendant in exercise of ordinary care, the deposit could not be deemed a payment to plaintiff, where payment of the forged check enabled the bookkeeper to cover up his defalcations.Stumpp v. Farmers' Loan & Trust Co., N. Y., 178 N. Y. S. 811.

8. Bills and Notes-Acceleration of Maturity. -Agreement extending time for payment of notes, providing in part that maker shall "pay off and discharge said indebtedness as evidenced by said notes according to their face, tenor and effect" on a date mentioned, held not to affect acceleration of maturity clause in notes. -Earhart v. Robinson, Tex., 215 S. W. 973.

9. Lex Loci Contractus.-Where a note was executed in Indiana and payable at a bank in Indiana, the rights and liabilities of the parties thereto are governed by Indiana laws, although the note was given for part of the purchase price of Arkansas land and was secured by mortgage on that land.-Magenheimer v. Councilman, Ind., 125 N. E. 77.

10.

-Negotiability.-A provision in a note for one year for compounding interest after maturity does not impair the negotiability by introducing an element of uncertainty as to amount. -Fox v. Crane, Cal., 185 Pac. 415.

11. Boundaries-Public or Private Way.Where a deed describes the land conveyed as bounded by or on a public or private way, the line of the granted premises extends to the center of the way, if owned by the grantor, and there is nothing in the deed to show a contrary intention. McCarthy v. City of Everett, Mass., 125 N. E. 168.

of Goods-Owner's Risk. A bill of lading providing that, when goods are received on private or other sidings, they shall be at the owner's risk until the car is attached to a train, does not limit the carrier's liability as a common carrier, but merely defines the time of delivery to the carrier and is valid.Chickasaw Cooperage Co. v. Yazoo & M. V. R. Co., Ark., 215 S. W. 897.

14. Penalties.-A state statute subjecting a common carrier, for every offense of demanding or collecting a greater rate than prescribed, to a penalty of not less than $50 nor more than $300 and costs, is essentially penal in such provision, though the penalty goes to the aggrieved passenger, and is to be enforced by private suit, being intended primarily to punish the carrier for taking more than the prescribed rate.-St. Louis, I. M. & S. Ry. Co. v. Williams, U. S. S. C., 40 Sup. Ct. 71.

15. Charities Gift Defined.—A "charity" is a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion, by relieving their bodies from disease, suffering or restraint, by assisting them to establish themselves in life, by creating or maintaining public buildings, or by otherwires lessening the burdens of government, and a charitable trust would be one created for purpose of carrying out one or more of these objects.-Northwestern University v. Wesley Memorial Hospital, Ill., 125 N. E. 13.

Counterclaim.

16. Chattel Mortgages Where chattel mortgagee proceeds in claim and delivery and sells the property without having the same at the place of sale, the right of the mortgagor to hold the mortgagee to an accounting for the market value of the property may be made available as a counterclaim in the action for claim and delivery.-Nance v. King, N. C., 101 S. E. 212.

17. Description of Property.-It is not necessary that property should be so described in a chattel mortgage as to render it capable of identification by the written recitals alone, but a description enabling third persons, aided by inquiries which the instrument suggests, identify the property, is sufficient.-First Nat. Bank of Washington, Okla. v. Haines, Okla., 185 Pac. 441.

to

18. Retention of Possession.-A chattel mortgage not acknowledged in substantial compliance with the statute, where the mortgagor retains possession, is invalid as against the right of third parties or attaching creditors, even though recorded.-J. D. Best & Co. v. Wolf Co., Colo., 185 Pac. 371.

19. Commerce Occasional Transactions. With respect to goods occasionally carried on a wagon from proprietors of a bottling works in Ohio, into Kentucky in response to orders previously received at the works in Ohio, the proprietors of the works are engaged in "interstate commerce," and not subject to the licensing power of any Kentucky municipality.-Wagner v. City of Covington, U. S. S. C., 40 Sup. Ct. 93. 20. Constitutional Law-Due Process of Law. -Where adequate provision is made for the certain payment of compensation without unreasonable delay for property taken, the taking does not contravene due process of law in the sense of the Fourteenth Amendment to the federal Constitution merely because it precedes the ascertainment of what compensation is just.Bragg v. Weaver, U. S. S. C., 40 Sup. Ct. 62.

there

22. Contracts-Express Contract. If was an express contract to pay for the extra work, but the amount was not fixed, plaintiff contractor was entitled to a reasonable sum.Fortunato v. Cicalese, N. Y., 108 Atl. 183.

23. Lex Loci Contractus.-Every contract as to its validity and nature-the right, in contradistinction to the remedy-is governed by the law of the place where made, unless to be performed in another place, when it is governed by the law of the place of performance.-Poole v. Perkins, Va., 101 S. E. 240.

24. Merger. The law, in the absence of showing of fraud or mistake, conclusively presumes that prior verbal engagements or con

versations were merged in a subsequent written agreement.-Ewing v. Bond, Ky., 215 S. W. 924.

25. Separability.-Where valid and invalid stipulations appear in the same contract, and such stipulations are susceptible of division or separation, the valid stipulations will be enforced. Smith v. Yost, Ind., 125 N. E. 73.

26. Corporations Foreign Corporation. Where foreign corporation fails to comply with statute giving it right to transact business within the state, a receiver or a trustee appointed to administer its affairs cannot maintain an action on a claim arising therein.-Lowenmeyer v. National Lumber Co., Ind., 125 N. E. 67.

27. Individual.-The law is not scrupulously particular in discriminating between the contracts of one who owns practically all the stock of a corporation and controls its affairs, as to whether he executes a contract relating to the corporate business in his individual or in the corporate capacity.-Swartz v. Burr, Cal., 185 Pac. 411.

28. Misrepresentation.-Where the seller of corporate stock made a misrepresentation of fact as part of the contract of sale, he must be held liable to the buyer, induced to purchase thereby, although he made his representation in good faith, believing it to be true.-Loomis v. Pease, Mass., 125 N. E. 177.

29. Criminal Law-Accomplice.-To be an "accomplice" one must be so connected with a crime that at common law he might have been convicted, either as a principal or as an accessory before the fact.-People v. Vollero, N. Y., 178 N. Y. 787.

30.- Evidence.-In a prosecution for aggravated assault on a female child by fondling her person, evidence that defendant had exhibited obscene pictures to prosecutrix at the time of the offense held admissible, as showing intent and as a part of the res gestae.-Sine v. State, Tex., 215 S. W. 967.

31.- -Preliminary Examination. The consensus of the criminal jurisprudence in this country is to the effect that the presence of the convict at the hearing of a motion for new trial is not required, and that, whether testimony be heard or not.-State v. Sharp, La., 83 So. 181. 32. Damages Natural Consequence. -A wrongdoer is responsible for the natural and probable consequences of his wrongful act or omission, whether in contract or in tort.-Williams v. Gardner, Tex., 215 S. W. 981.

33. Death-Absence. Six months' absence does not raise a presumption of death, justifying temporary administration.-In re Chancellor's Estate, N. Y., 178 N. Y. S. 832.

34.- -Conflict of Laws.-Statutes of Ohio, giving a cause of action for death, are not regarded in Illinois as against morals or natural justice, or hostile to the general interests of the citizens, and will be enforced, unless enforcement is prohibited by law.-Wall v. Chesapeake & O. Ry. Co., Ill., 125 N. E. 20.

35. -Presumption of.-Unless the facts and circumstances shown are such as warrant a reasonable inference that death took place at some particular time within the seven-year period limited by the presumption of death from absence, death is not presumed before the end of the period.-Dobelin v. Ladies of the Maccabees of the World, Wis., 174 N. W. 897.

36. Survivorship.-The issue whether a wife survived her husband and their child, who perished with her in a common disaster, must be decided without aid of any legal presumptions; it being a settled principle of the common law that, when several lives are lost in the same disaster, there is no presumption of survivorship by reason of age or sex, or that all died at the same moment.-McComas v. Wiley, Md., 108 Atl. 196.

a

37. Divorce Cruel Treatment of.-That husband, considerably older than the wife, was attentive to another woman, wife, and called her opprobrious names, and distressing his said he and his children were very much dissatisfied with the marriage, making plaintiff unwelcome in his home, causing mental suffer

ing, and requested her to return to her home, was not cruel treatment authorizing a divorce. -Black v. Black, Ga., 101 S. E. 182.

38. Custody of Child.-In determining custody of an infant child, its interest is the controlling consideration.-Hammond v. Hammond, Neb., 174 N. W. 865.

39. Desertion.-The period of time preceding the resumption of marital relations by husband and wife living apart cannot be considered to be a part of the two years of willful, continued, and obstinate desertion of one spouse by another required by the statute for divorce. -Hyer v. Hyer, N. Y., 108 Atl. 180.

40. Eminent Domain-Private Use. Condemnation cannot be had for a use which is not public. State v. Houghton, Minn., 174 N. W. 885. 41. Equity-Cancellation. Having acquired jurisdiction of a suit to cancel a deed, the equity court should administer such relief as appears to be proper in the particular case.-Echard v. Waggoner, Va., 101 S. E. 245.

42. Complete Relief.-The aim of a court of equity is to administer complete relief in one suit and investigate and determine all matters which form the basis for the complainant's right to relief, and as a general rule the court will, in a single suit, investigate and determine all questions incidental to the main controversy and grant all relief incidental to the accomplishment of the main object of the bill.-Northwestern University v. Wesley Memorial Hospital, Ill., 125 N. E. 13.

43. Escrows-Delivery.-A delivery of a deed in escrow cannot be made to the grantee himself, and if so made it at once becomes absolute and divested of the supposed condition.-Chaudoir v. Witt, Wis., 174 N. W. 925.

44.

Executors and Administrators-Malfeasance. An administrator's malfeasance in misapplying the proceeds of a sale of realty to pay debts cannot be charged against the purchaser. -Globe Mercantile Co. v. Perkeypile, Ind., 125 N. E. 29.

45. Fixtures - Eviction. One wrongfully evicted is not entitled to recover damages by reason of improvements, which were fixtures of permanent character, and not shown to have been made with the consent of the landlord, or with the understanding that they might be removed from the premises at the expiration of the tenancy.-Williams v. Gardner, Tex., 215 S. W. 981.

46. Fraud-Expression of Opinion.-Mere expression of opinion, honestly entertained, do not amount to fraud, but the statement of a fact must be construed as such, even though it partakes in some degree in the nature of an opinion. Owens v. Norwood-White Coal Co., Ia., 174 N. W. 851.

Where

47. Fraudulent Representations. one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based thereon by a plea that the party defrauded might have discovered the truth by the exercise of proper care.-Moore v. Beakley, Tex., 215 S. W. 957.

48.-Fraudulent Representations.-The buyer of realty can recover for the seller's false and fraudulent representation of a material fact, relied on by the buyer, that one of the tenants of the realty involved was paying a rental of $25 a month, when in fact he was paying only $18.-Mignault v. Goldman, Mass., 125 N. E. 189. 49. Frauds, Statute of-Promise to Pay Debt of Another.-A writing relied on to satisfy the statute of frauds, requiring a promise to pay debt of another to be in writing, must either itself, or in connection with other writings, identify debt which is subject of promise without aid of parol evidence.-Gibson & De Journette v. Graham, Ga., 101 S. E. 194.

50. Gifts-Promissory Note.-A promissory note, eexcuted and given to a nephwe as a gift, is unenforceable.-Dougherty v. Salt, N. Y., 125 N. E. 94, 227 N. Y. 200.

51.

Habeas Corpus-Damages.-Damages are not recoverable in habeas corpus proceedings.Ex parte St. Onge, Vt., 108 Atl. 203.

52. Homicide Apparent Danger. Defendant's belief that he was in a place where he had a right to be, does not make his right of selfdefense in itself, but goes to rebut his bad faith in bringing on the coniflct, and, coupled with the fact that he was so suddenly attacked with a deadly weapon there was no opportunity to escape, perfects his right of self-defense.Colondro v. State, Ind., 125 N. E. 27.

53. Intent to Kill.-While to constitute an assault with intent to kill it is necessary for the assault to have been inspired by malice, the malice need not be expressed, but may be implied, and may arise out of the circumstances of the assault. Slayter v. State, Ark., 215 S. W. 886.

55.

Husband and Wife-Confidential Relation. -In transactions between husband and wife, both are subject to the equitable rules controlling persons occupying confidential relations. -Du Bois v. Coen, O., 125 N. E. 121.

56. Gift Inter Vivos.-In surviving husband's action to recover bank deposits standing in wife's name at time of her death, that husband transferred his checking account to wife's name, and that wife was thereafter in possession of the bank deposit books, held sufficient to establish a completed gift inter vivos by husband to wife.-Wallace v. Watson, Ark., 215 S. W. 892.

Coinsurance

57. Insurance Co-Insurance. clauses may be lawfully inserted in fire insurance policies, and will be enforced by the courts in the absence of any statutory regulations of the subject.-Thompson v. Concordia Fire Ins. Co., Tenn., 215 S. W. 932.

58. Estoppel.-Employer's liability insurer, which, after an accident to an employe, claimed by insured to be covered by the policy, permitted its physician to take part in treating the employe, undertook to defend action, etc., held estopped to deny liability on any ground that the particular employe was not covered by the policy.-Rieger v. London Guarantee & Accident Co., of London, England, Mo., 215 S. W. 920.

59. Subrogation.-An insured who pays a judgment for the full amount limited in a liability policy indemnifying against actual loss, or a judgment for a smaller amount than such limited sum, can recover the sum with interest only from the time of such payment, but interest accruing on the judgment pending an appeal therefrom is not an expense or cost of defending the action.-Tulare County Power Co. v. Pacific Surety Co., Cal., 185 Pac. 399.

60. Vacancy.-Stipulation in policy that it shall be void, if premises become vacant and so remain for more than a certain time, is reasonable and valid, and where premises were destroyed by fire while vacant for a longer time than thereby allowed, the insured, in the absence of a waiver, cannot recover indemnity provided by policy.-Bias v. Globe & Rutgers Fire Ins. Co., W. Va., 101 S. E. 247.

61.Valid Contract. If insured accepted policy and executed note for premium merely for purpose of enabling insurer's agent to recover fee paid the doctor for medical examination, and upon agent's promise to return note and take assignment of policy, the policy, not having been delivered for the purpose of making a valid and binding contract of insurance was never in force as a contract of insurance.-McElrath v. Gomer, Ark., 215 S. W. 881.

62. Landlord and Tenant Assignment.Where a tenant holds under a mere naked assignment of a lease, his liability is limited to Occupancy of premises, and terminates with abandonment of possession; the sole basis of his obligation being the privity of estate under Civ., Code, § 22.-Chase v. Oehlke, Cal., 185 Pac. 425.

63. Lease. In every lease there must be a lessor, a lessee, and a thing demised, and the existence of the lessee is as essential to the validity of a lease as the existence of a grantee