36. Deeds-Condition Subsequent. Where a deed was subject to a condition subsequent, requiring the grantee to make payments to a third party, the grantor is estopped from insisting on a forfeiture, where she notified the grantee that payments need be continued no longer, regardless of the fact that the waiver of the condition was without consideration.Smith v. Hoffman, Mont., 184 Pac. 842.

37. Delivery.-Delivery of a deed is complete when the grantor has parted with his dominion over it with intent that it shall pass to the grantee, provided the latter assents.McKinney v. Hawkins, Mo., 215 S. W. 250.

38. Words of Limitation.-Words in a father's deed to two sons purporting to create remainders in fee in their heirs after life estates vested in sons, with a provision that on death of either son the other shall have a life estate in the whole land, are words of limitation, vesting fee-simple estates in the sons.-Carter v. Reserve Gas Co., W. Va., 100 S. E. 738.

39. Divorce-Statutory Jurisdiction.-Courts, either of law or equity, possess no powers in divorce suits except such as are conferred by statute, and authority for any act or proceeding must be found in the statute.-In re Grbic, Wis., 174 N. W. 546.

40. Evidence-Judicial Notice.-It is a matter of common knowledge that alcohol is an intoxicant.-State v. Klein, Ia., 174 N. W. 481.

41. Res Gestae.-Expression of assured, now deceased, "I fell," and "I hurt myself," made upon entering his home in the evening on the day of the accident, held not expression of pain or part of res gestae, but merely narrative of past facts and inadmissible.-Abenroth Fidelity & Deposit Co. of Maryland, Ind., 124 N. E. 714.

v.

42. Exchanges-Rules and Customs. - Sales made on the Minneapolis Chamber of Commerce are governed by the rules and customs of the chamber. -Dalrymple v. Randall, Gee & Mitchell Co., Minn., 174 N. W. 520.

43. Executors and Administrators-Domicile. -Where deceased lived in the city of New Orleans for several years prior to her death, and her home and domicile were there, and she went to another parish temporarily to visit friends and receive their ministrations during her illness and there died, held, that she had no intention to abandon her residence and domicile, and the civil district court of New Orleans had jurisdiction to appoint an administrator and later an executor under a will.-Flanagan v. Land Development Co. of Louisiana, La., 83 So. 39.

44. Employment of Counsel.-Where a father fixed the terms of the retainer of attorneys to sue for the death of his child before his appointment as administrator, by prosecuting the action after appointment he approved and continued the arrangement. In re Reisfeld, N. Y., 124 N. E. 725, 227 N. Y. 137.

45. Forgery-Intent to Defraud.-In a prosecution for forgery, the intent to defraud is an essential element of the crime.-Carl v. McDougall, Cal., 184 Pac. 885.

46. Fraud-Reliance on Representations. Purchasers, after ascertaining the actual condition of land, cannot rely upon representations of vendor as to condition thereof.-Christensen v. Jauron, Ia., 174 N. W. 499.

47. Fraudulent Conveyances - Bulk Sales Law. A sale by one partner to another of his half interest in a stock of merchandise is a sale otherwise than in the ordinary course of trade and is fraudulent and void, unless the Bulk Sales Law is complied with.-Howell v. Howell, Tenn., 215 S. W. 278.

48. Habeas Corpus-Custody of Child.-In habeas corpus by a father to obtain custody of his infant daughter from her maternal grandparents, a judgment which for sound reasons gave the custody to a third person was not outside the issues, the welfare of the child being always within the issues.-Ex parte Guber, Kan., 184 Pac. 850.

49. Husband and Wife-Living Apart.-Misconduct of a husband, not amounting to cruel and abusive treatment which would entitle the wife to divorce, might justify her in living apart from him and require him to contribute to her support.-Turner v. Turner, Mass., 124 N. E. 721.

50. Infants-Irrevocable Contract.-A minor cannot convey an indefeasible title, and cannot bind himself irrevocably by a contract to convey.-Smith v. Moore, N. C., 100 S. E. 702.

51. Insane Persons-Attorney and Client.One who had been legal counsel and adviser to one subsequently declared an incompetent was not justified, on learning that another person had obtained from his client a power of attorney to act for him with reference to his property, to take the matter up with the authorities, believing there was a conspiracy to obtain control of the person and property of the client, and neither the client nor his committee should be required to repay to the attorney money expended by him in actions against him for malicious prosecution; there bing nothing which would justify the court in reaching the conclusion that the incompetent, if restored to health, would pay the claim.-In re Lord, N. Y., 124 N. E. 727, 227 N. Y. 145.

52. Insurance-Accident.-In an action on an accident policy, the allegation that insured while at work was poisoned by the accidental, involuntary, and unconscious inhalation of sewer gas, which poisoned his system so that he died, was sufficient to withstand demurrer on the ground that it did not show that death resulted solely from such cause.-Massachusetts Bonding & Ins. Co. v. Free, Ind., 124 N. E. 716.

53.- -By-Law.-A by-law of a mutual insurrance company, requiring the application to reach the secretary before liability should attach, prevented any liability on the soliciting agent's oral contract of insurance, made with an applicant, who was already a member by reason of other insurance.-Goldberg v. Sigel, Wis., 174 N. W. 558.

54. Waiver.-Mere indulgence in the payment of premiums allowed by a fire insurer does not constitute a waiver of the policy provision for forfeiture in the event of failure to pay a premium note; to bring about such result, the course of dealing must amount to a custom.Cheatham v. Home Ins. Co. of New York, Ky., 215 S. W. 281.

55.

Intoxicating Liquors Unlawful Possession. If defendant received from another, though only for temporary keeping, a grip containing whisky, with knowledge that it contained more than a quart, he violated Act. Feb. 27, 1917 (29 Del. Laws, c. 10, par. 2), prohibiting the having in possession at one time of more than one quart of spirituous liquor.-State v. Willey, Del., 108 Atl. 79.

56. Judgment Estoppel. Wife held not estopped, in her action for alienation of her husband's affections, from denying certain facts alleged by her in her complaint in suit for divorce against the husband, defendants' attempt being to invoke an estoppel by judgment in effect, while such an estoppel can only arise and be invoked where the subject-matter of the litigation and the parties are the same.-De Bock v. De Bock, Cal., 184 Pac. 890.

57. Publication Service.-A judgment in an attachment suit, where no personal service is had upon defendant, only reaches property which nonresident defendant may have in the state, and after its exhaustion, such judgment is of no force or effect.-Edward F. Gerber Co. v. Thompson, W. Va., 100 S. E. 733.

58. Larceny-Compound Larceny. - Larceny from the house is a larceny of a compound nature and in indictments for compound larceny the allegations as to the aggraavting facts serve to individualize the transaction, and a more general description of the property is permissible than in indictments for simply larceny.-Blackmon v. State, Ga., 100 S. E. 730.

59.-Defined.-Larceny or stealing is the feloniously taking and carrying away by one person of the personal property of another, with the intention on the part of the taker of appro

priating the property to his own use without the owner's consent.-State v. Collins, Del., 108 Atl. 78.

60. Limitation of Actions-Tolling Statute. -Where statute of limitations began to run in favor of son in possession of farm of deceased father as against another heir, it also began to run as to an infant child of such heir.-Hahn v. Keith, Wis., 174 N. W. 551.

61. Master and Servant-Independent Contractor. One owning or controlling a place of public entertainment is not relieved from liability for an injury by the fact that an independent contractor intervened in the preparation for, or conduct of, the entertainment.Adams v. Schneider, Ind., 124 N. E. 718.

62. Minimizing Damages. A teamster, kicked by a horse, who applied a salve used by him for slight injuries, and continued at work until infection resulted, without consulting a doctor, though advised to do so, did not as a matter of law refuse to adopt such means for recovery as an ordinarily prudent person would use, so as to defeat his widow's right to compensation.-Banner Coffee Co. v. Industrial Commission, Wis., 174 N. W. 544.

63. Minor Employe.-The legislature, in prohibiting employment of minors or females in dangerous and unhealthy occupations, had the power to determine which occupations and places of employment were dangerous or unhealthy.-Squires v. Brown, Wis., 174 N. W. 548.

Mortgages-Counterclaim.

64. Mechanics' Liens Materialmen. The statute giving materialmen and laborers liens on improved property is remedial in character and is to be liberally construed.-Rogers-Templeton Lumber Co. v. Welch, Mont., 184 Pac. 838. 65. Where parties contracted that in consideration for defendant's purchase plaintiff would guarantee that a road was to be along lines of the quartersection, plaintiffs gave warranty deed to land crossed diagonally by road his grantee in suit to foreclose purchase money mortgage could set up breach as counterclaim.-Rollins v. Hopkins, Neb., 174 N. W. 506.

A

66. Municipal Corporations-Nuisance. municipal corporation has the right, independent of statute, to summarily remove any nuisance obstructing a street.-Murden v. Commissioners of Lewes, Del., 108 Atl. 74.

67. Negligence-Concurring Causes. Where two concurrent causes operate directly in bringing about an injury, a recovery may be had against either or both of the responsible parties. -Georgia Ry. & Power Co. v. Ryan, Ga., 100 S. E. 713.

68.- -Emergency. In balancing ways to make a choice between them, one is not required to choose unerringly in the light of after events, but only to make such a choice as under all obvious circumstances a reasonably prudent man might have made.-Daniels v. Granite Bi-Metallic Consolidated Mining Co., Mont., 184 Pac. 836. 69. Payment-Presumption of.-As a general rule, the receipt of a negotiable promissory note creates a presumption of payment of the indebtedness for which it was taken, but the presumption is always rebuttable by competent evidence.-Roy v. Bellevieu, Me., 108 Atl. 70.

70.- -Satisfaction.-If money has been placed in the hands of a third person to satisfy plaintiff's claim for damages, etc., that plaintiff relied on such deposit will not amount to a satisfaction, unless it appears that he agreed to accept such arrangement and released defendant.O'Brien v. Coon, Neb., 174 N. W. 513.

71. Principal and Agent-Fidelity to Principal. An agent representing his principal in the sale of property is not permitted to purchase it for his own benefit, directly or indirectly, without his principal's consent; and a purchaser from him, with notice of his illegal purchase, stands in no better position, and the principal may recover, at his option, the profits made by such purchaser as a trust fund.-Hanson v. Sjostrom, U. S. C. C. A., 260 Fed. 460.

74.

Robbery-Principal.-In a prosecution for robbery, where defendant was charged as a principal on the theory that, although not present at the time of the robbery, he aided and abetted in its commission, under Pen. Code, § 971, it was not necessary that a detailed plan of the robbery had been arranged among the different parties charged with the crime.-People v. Sartorie, Cal., 184 Pac. 879.

75. Sales-Embargo.-A railroad embargo on shipments of lumber is no protection to sellers thereof who failed to deliver, where they did not tender the lumber to the railroad for shipment, while the buyers proposed to get for them the neecssary permits to avoid the embargo.Storey v. Stokes, N. C., 100 S. E. 689.

76. Nominal Damages. A buyer is in any event entitled to nominal damages for the seller's refusal to deliver.-New Richmond Roller Mills Co. v. Arnquist, Wis., 174 N. W. 557.

77. Seduction-Infancy.-That defendant was a minor, under age and incapable of contracting marriage, did not render him immune from the law for seduction under promise of marriage.— Stracner v. State, Tex., 215 S. W. 305.

78.

Shipping-Unloading.-The consignee of a grain cargo, required to unload the vessel, is bound to exercise due diligence under the circumstances and the custom of the port to discharge the vessel as speedily as possible and is liable for her unreasonable detention.-Ottawa Transit Co. v. 261,000 Bushels of Wheat, U. S. D. C., 260 Fed. 493.

79. Specific Performance-Judicial Discretion. -Specific performance is not of absolute right, but rests in judicial discretion, to be exercised according to settled principles of equity.-Baker v. Polydisky, Minn., 174 N. W. 526.

80. Vendor and Purchaser-Open Possession. -One purchasing title to realty which is not attacked or apparently open to attack by anyone except the former owner, and who goes into possession and treats it as his own, after former owner's ratification of the sale, cannot set up a defect so ratified out of existence as an excuse for not paying balance of purchase price.-Roe v. Caldwell, La., 83 So. 43.

81.- -Option.-An option to purchase property can be "exercised," unless otherwise provided in option contract, by giving within life of option an unconditional notice by holder to owner that holder has elected to purchase property at price and terms stated in option contract.-Snead v. Woods, Ga., 100 S. E. 714.

82. Wills Attestation. - An instrument not written by deceased, and to which his signature was not attested by two witnesses, although attempting to make testamentary disposition of property, cannot be treated as a will. Stamper v. Lunsford, Ky., 215 S. W. 297.

83. Contract to Will-Improvements made upon land, tending towards the amelioration and betterment of the owner's condition, is a sufficient consideration for a contract to will such property to the persons making_the improvements.-Osborn v. Hoyt, Cal., 184 Pac. 854.

84. Invalid Parts.-Where invalid provisions of a will are not an essential portion of the scheme of the testator, they may be disregarded and the valid provisions put in effect.Radford v. Fidelity & Columbia Trust Co., Ky., 215 S. W. 285.

Central Law Journal.

ST. LOUIS, MO., JANUARY 9, 1919.

THE SOCIALIZATION OF THE LAW.

The lawyer cannot but be struck by the vast amount of legislation and still greater influx of proposed reforms which seek to "socialize" the law and to change its fundamental and traditional regard for the rights and responsibilities of the individual.

The concept of justice is no longer individual but social. Society today is no longer so much concerned about the rights of each as about the rights of all of us and individual rights are being greatly restricted by the recognition of so-called social rights.

A lawyer writing to a contemporary, cries out piteously: "Where are we at? Where are we going to? May a man no longer do what he will with his own?" This is the cry of the individualist who is lost amid the strange sounds and unfamiliar voices of a new era. And many lawyers who fail to recognize in the researches of the social scientist the source of future changes in the traditional or common law, marvel at the apparent ease which new conceptions of legal right gradually creep into the law even without the aid of statute. This phenomenon, however, ought not to be a matter of surprise to lawyers acquainted with the history of the law who should readily recall to mind the gradual infusion of morals into the law through equity and the gradual acceptance of the usages of merchants which even today is still called the law merchant.

Prof. Roscoe Pound of Harvard University, a few years ago, called attention to the present changes taking place in the law when he declared that "there are many signs that fundamental changes are taking place in our legal system and that a shifting is in progress from the individualist justice of the nineteenth century, which

has passed so significantly by the name of legal justice, to the social justice of today."

Attorneys who complain of the instability of legal principles today should recognize that what they properly regard as a most desirable characteristic of law-its certainty-is impossible in a period like this, when principles of justice are in a state of flux due to changed conditions in the organization of society and of industry. When these new principles shall have been molded into definite shape the law will then enter another period of certainty and repose. The feudal lawyers of the eighteenth century passed through the same experience which the lawyers of today regard with so much impatience. That was the time when the merchants were striving to gain the recognition of the law for their customs and usages which were in many respects out of harmony with the accepted concepts of justice of that age.

The fact that there is a strong demand for the socialization of the law was made especially clear in the discussion that took place the last week in December before the Economic Section of the American Association for the Advancement of Science, which held its 1919 meeting in the City of St. Louis. The interesting discussions of the railway problem, the labor situation, the social aspects of the concept of property, etc., not by superficial reformers but by scientific seekers after the truth-based on present conditions-served to call attention to the fact that the old forms of social and industrial organization have so changed that the legal principles of the last generation will not suffice to solve the practical problems likely to arise in the immediate future.

By reason of the expression of certain opinions on the problem of the present social unrest in editorials which recently appeared in the Central Law Journal, the editor was invited to lead the discussion on the legal rights of the owner, the workers and the people in industry.

We have no intention to review the discussion of this subject at this conference but simply to call attention to the fact that there is a considerable difference in the point of view taken by lawyers and social economists, especially in regard to the property rights of persons interested or involved in industry. The old theory that the owner of a thing is practically an absolute monarch, while perfectly accurate in a state of society where each individual in respect of his own property is, in a sense, independent of the action of others in respect of their property, has no possible application in a state of society where each. individual and even society itself is absolutely dependent on the proper use on the part of every other person of the property or industry which such person calls. "his own." In other words, the worker, in industry, has some rights, not yet accurately defined, which considerably restrict the absolute rights of the owner; and the people themselves, the ultimate beneficiaries of industry, have rights, also awaiting clear definition, which restrict the rights of both the owner and the worker and justify the interference of the law on their behalf.

This threefold character of rights in property and industry is one of the most important tenets of modern social science. Without doubt this new conception of the social character of industry is the justification for the multiplication of Boards and Commissions vested with authority and powers to define and determine the conflicting rights or interests of owners, workers and consumers in property engaged in industry. The new Railway Act which recently passed the Senate and is now in conference, is a clear recognition of this new idea, the provision for Regional Boards of Administration evidencing the tendency to create new tribunals to enforce the new rights that now for the first time receive the explicit recognition of the law.

Whether the courts will ever ultimately absorb the jurisdiction and powers of these quasi judicial tribunals is a matter on which

we would not care to risk a prediction, but we are certain that the regulation and administration of industry in the interest of all parties concerned in it will be one of the most outstanding achievements in the science of sociological jurisprudence and one of the most important mileposts that mark the advance of legal principles.

NOTES OF IMPORTANT DECISIONS.

DAMAGES FOR BREACH OF COVENANT AGAINST INCUMBRANCES BY REASON OF OUTSTANDING LEASE.-The general rule is, in the absence of special circumstances, that the measure of damages for breach of a covenant against incumbrances by reason of an outstanding lease is the value of the use of the premises during the remainder of the life of the lease. An instance of "special circumstances" where such a measure of damages is insufficient is to be found in the recent case of Estep v. Bailey, 185 Pac. Rep. 227, in which the Supreme Court of Oregon holds that where lessee of grantor has sowed a crop of wheat which the vendee of the grantor harvested and was compelled to pay for by judgment in favor of the tenant, the grantor is liable not only for the full amount of the judgment but for reasonable attorneys' fees (in this case $50) incurred in defending the tenant's suit.

In this case the grantor insisted that he should not be liable for the full value of the crop but only for the rental value. On this point the court said:

"The crop of wheat and vetch was a part of the real estate sold and conveyed by defendants to plaintiff, and the title to the grain should have passed by the deed to the plaintiff. The defendants covenanted that they were the owners of the property, including the crop. On account of the outstanding lease at the time of the conveyance, and in order for plaintiff to obtain the benefit of the fruit of the land which she had purchased, and to which she was entitled, and to remove the effect of the incumbrance, she was compelled to pay $208.15. Therefore the plaintiff was actually damaged by reason of the breach of the covenant in that sum. The rental value of the three acres for the unexpired term of the lease from January, 1917, until the crop was removed, would not be a fair compensation for plaintiff's damages, as nearly one-half of the time between the planting and harvesting of the crop had elapsed at the time of the purchase and conveyance. Plaintiff, by reason of her purchase and deed, was entitled to the benefit of the time that had elapsed, as well as to the result of the labor in preparing the land and planting the crop and the seed

therefor. Therefore, under the peculiar circumstances of this case, the rental value rule could not well be applied. She was entitled to recover compensation for the injury resulting to her by reason of the breach of the warranty. The case comes within the exception to the rule where "special circumstances" exist. The underlying principle in cases of this character is that the damages should be estimated according to the real injury caused by the existence of the incumbrance. This would include compensation for trouble and expense caused plaintiff on account of such incumbrance. Fritz v. Pusey, 31 Minn. 368, 18 N. W. 95; Musial v. Kudlik, 87 Conn. 164, 87 Atl. 551, Ann. Cas. 1914D 1172; Sarlls v. Beckman, 55 Ind. App. 638, 104 N. E. 598."

In the case of Clark v. Fisher, 54 Kan. 403, 38 Pac. 493, the court said:

"When the premises conveyed by a deed from a grantee to a grantor with a covenant against incumbrances have a growing crop thereon at the delivery of the deed, belonging to a tenant of the grantor, and the grantee is deprived of the possession on account of the unexpired term of the lease of the tenant, the value of the crop less the cost and expense of taking care of and harvesting the same may be considered in estimating the real injury to the grantee arising from being deprived of the possession of the premises until after the crop is harvested and

AWARDS IN WORKMEN'S COMPENSATION CASES OF SUMS PAYABLE IN MONTHLY INSTALLMENTS.—An interesting problem of construction of the Workmen's Compensation Act confronted the Supreme Court of Kansas in the recent case of Boyd v. Crowe Coal and Mining Co., 185 Pac. Rep. 9.

The Kansas Act provides that no award "shall be or provide for payment of compensation in a lump sum." Subsequent provisions provide for certain contingencies under which claimant may procure a judgment on the "award" for a lump sum not exceeding 80 per cent of the award. Another provision permits the defendant to discount the future payments at 20 per cent of their face value.

In the case before us an award of $3,800 was found for the widow of a workman killed in defendant's mine. This sum, except for a small amount that had accumulated since the filing of the claim, was ordered "to be paid at the rate of $15 per week until the whole sum shall have been paid." In seeking to modify this award and to secure a judgment for the full amount of $3,800 the plaintiff alleged that "if said award is permitted to stand, the rights of this plaintiff will be greatly prejudiced, for the reason that the defendant, if said award is permitted to stand, may, under the provisions of § 5927 of the General Statutes of 1915, as amended by the Session Laws of 1917, relating to workmen's compensation, after the lapse of six months from the date of the death of said G. A.

Boyd, redeem the payments prospectively due under the award, by paying a lump sum and receiving a discount of 20 per cent on the sum of $3,410, which discount amounts to the sum of $682."

The Supreme Court of Kansas found the problem by no means easy of solution, but referred the parties to the legislators who were respon sible for the confusion. The judgment of the lower court was sustained.

TRANSFER TAX NOT A TAX WHICH MAY BE DEDUCTED IN COMPUTING FEDERAL INCOME TAX.-Lawyers are again face to face with income tax problems. Not the least difficult of these problems is that of determining what State taxes may be deducted from income. For instance, may a tax on inheritance be deducted? The Income Tax Law (Par. B, Sec. 2, Oct. 3, 1913) provides for deducting from income "all national, State, county, school and municipal taxes paid within the year, not including those assessed against local benefits." On the other hand, the Income Tax Law does not treat property inherited or transmitted by will as income, but specifically exempts such property from being reported as income.

The problem here involved was recently passed upon by the U. S. District Court (S. D. N. Y.) in the case of Prentiss v. Eisner, 260 Fed. 589. In this case the Treasury ruling that "a collateral inheritance tax levied as a charge against the corpus of the estate does not constitute such an item as can be allowed as a deduction in computing income tax liability to either the estate or the beneficiary" was sustained.

The interesting question here involved is whether an inheritance tax is a tax on the right of inheritance or whether it is a prior appropriation by the State of part of the corpus of the property which is allowed to pass by inheritance or devise. In the Eisner case the court adopts the latter theory and says:

"I do not think it follows, because the right to transmit or the right to receive the property of a decedent is a privilege granted by the State, and not a common right, that the tax is imposed upon either right. Judge Gray's statement in Matter of Swift, 137 N. Y. 77, is an accurate description of what occurs:

"What has the State done, in effect, by the enactment of this tax law? It reaches out and appropriates for its use a portion of the property at the moment of its owner's decease, allowing only the balance to pass in the way directed by the testator or permitted by its intestate law.'

"To say that the legatee, devisee, heir or distributee receives the property without any deduction and then pays the tax is really a most artificial way of viewing the transaction. In the