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39.- Special.--Special damage is that which the law does not necessarily imply from the acts complained of.-Ralph N. Blakeslee Co. v. Rigo, Conn., 109 Atl. 173.
40. Death-Damages. There is no exact standard by which damages for a child's death can be measured, and much is left to the fair and intelligent judgment of the jury. -Hughey V. Lennox, Ark., 219 S. W. 323.
41. Deeds---Condition Subsequent.-A reservation in a father's voluntary conveyance to his son of a right to revoke the deed if his son should become a drunkard, or cruel or abusive to parents, or hopelessly involved in debt, violates no principle of public policy and is valid; and on a breach of any of the conditions the grantor may terminate the estate.-Stewart v. Workman, W. Va., 102 S. E. 474.
42.- Delivery - It is a legal prerequisite that the delivery of a deed must be accompanied with the intent that it shall become operative as such.-Shannon v. Aagaard, Cal., 188 Pac. 317.
43.— Merger.-Insofar as a deed varies from a prior executory contract pursuant to which it is executed, such departure is presumed to represent a change mutually agreed upon, and merges all antecedent agreements, negotiations, and conversations, and is conclusive, in the absence of a showing that the variance is due to fraud or mutual mistake.--Watson-Loy Coal Co. v. Monroe Coal Mining Co., W. Va., 102 S. E. 485.
44. Ejectment-Possession as Notice-Where from long possession the presumption of a grant to complainants in ejectment arises, it is not necessary that they show title by paper writings.Keel v. Sutton, Tenn.. 219 S. W. 351.
45. Eminent Domain - Special Benefits. While Legislature, in providing ior the assessment of damages in eminent domain cases, may authorize the deduction of general as well as special benefits, yet, unless the statute so provides. only special benefits will be deducted.Elks v. Board of Com’rs of Pitt County, N. C., 102 S. E. 414.
46. Evidence-Expert Testimony.-Cattlemen of many years' experience in buying and selling grass and grass land were qualified to testify as to the damage done to a pasture and grass by a fire.-Wichita Valley Ry, Co. v. Martin & Walker, Texas, 219 S. W. 559.
47.- Receipt.-An acknowledgment in a deed of the receipt of the consideration is only prima facie evidence of payment which may be rebutted by proof aliunde.- Saylor's Adm'r v. Brock, Ky., 219 S. W. 441.
48. Executors and Administrators-Discretion.-An executor may, in the exercise of a reasonable discretion, the creditor consenting, postpone payment of testator's negotiable note and renew such note to afford opportunity to pay it out of the assets of the estate. First Nat. Bank of Salem v. Jacobs, W. Va., 102 S. E. 491.
49.- Dormant Judgment.-Where an administrator in his representative capacity obtained a judgment against several defendants, the to revive judgment after it became dormant was in the administrator, and not in the heirs at law. -Armstrong V. Harper, Ga., 102 S. E. 463.
50. Frauds, Statute of_Oral Promise.--If an oral promise to pay for goods furnished another creates an original liability on the part of the promisor, and credit is extended solely to him. it does not fall within the statute of frauds.Byrd v. Woods, Okla., 188 Pac. 337.
51. Fraudulent Conveyances-Good Faith.A valuable consideration paid by a child for a transfer of land from a parent, who was in debt, is not sufficient, as in addition thereto it must appear that the purchase was in good faith and without any intent on the part of the purchaser to hinder, delay or defraud the parents' creditors.-Chapman v. Critzer, Wash., 188 Pac. 412.
52- Husband and Wife. -Transactions between husband and wife to the prejudice of · creditors are to be closely scanned by a jury on the trial of an issue between creditors in whose favor an execution has been levied upon property, as the property of the husband and
the wife, who claims the property.--Garner v. State Banking Co., Ga., 102 S. E. 442.
53. Gifts-Intention.-Intention of donor is important in determining whether a delivery is irrevocable. -Hayes V. Mckinney, Ind., 126 N. E. 497.
54. Homicide-Deadly Weapon.- Where the killing by accused with a deadly weapon is proved or admitted, the burden shifts to defendant to show mitigation to the satisfaction of the jury.-State V. Bailey, N. C., 102 S. E. 406.
55.— Immediate Punishment.--Under the statute authorizing a school teacher to punish his pupils moderately, if the punishment passes beyond that point. and is immoderate, or for the purpose of revenge, or maliciously done, the right does not exist, and the right of self-defense in the pupil obtains.-Dill v. State, Texas, 219 S. W. 481.
56.- Insults.-It is not every act or insulting word of a defendant that makes him an aggressor; the question depending on the charac
r of the act and intentions of the defendant. State v. Coll, La., 83 So. 844.
57. Husband and Wife-Coverture-A husband may transfer his personal property in payment of his debts regardless of coverture. -Duncan v. Duncan, Pa., 109 Atl. 222.
58. Separate Property.--Where a husband conveyed an interest in a mining claim to his wife, but the consideration was not paid out of her separate property, the conveyance was not intended as a gift, and she never listed the property as her separate property, it was community property.-Cole v. Ralph, U. S. S. C., 40 Sup. Ct. 321.
59. Indemnity-Liability.-Agreement by a corporation, which acquired the business of an individual, to assume and pay all obligations of the seller "contracted in said business, now due or to become due," held a contract to pay the debts, and not one to indemnify the seller. -In re H. L. Herbert & Co., U. S. C. C. A., 262 Fed. 682.
60. Insurance Application for.-In the absence of statute to the contrary, false representations in an application for insurance which the applicant warrants to be true will avoid the policy without reference to the materiality of such statements.--Modern Woodmen of America V. Atcheson, Texas, 219 S. W. 537.
61.--Oral Contract.-An oral contract of insurance, which contains all the elements essential to a contract, is valid in Kentucky; such contracts being valid in the absence of a statute to the contrary.-Georgia Casualty Co. v. Bond-Foley Lumber Co., Ky., 219 S. W. 442.
62.- Subrogation.-Where a third person causes a loss, a fire insurance company is, under the principles of equity, entitled to subrogation to the rights of the insured against such third person to the extent that it has paid the loss. -Lumbermen's Mut. Ins. Co. v. Southern Ry. Co., N. C., 102 S. E. 417.
63. Joint Adventures-Fiduciary Relation Where one buys a piece of property on his own account and thereafter sells an interest in it to different persons pursuant to a plan to form an association to handle it, he occupies no fiduciary relation to prospective purchasers, and need not inform them what property cost him, or refrain from charging them more than a proportionate part of what he had paid for it. Withroder v. Elmore. Kan., 188 Pac. 428.
64. Landlord and Tenant-Eviction. In suit for damages from an unlawful and forcible eviction of plaintiff tenants from defendant lessor's land, proof of the expense incurred by plaintiffs was admissible on the issue of malice and consequent exemplary damages: proof of expense always being admitted on such grounds. --Evans v. Caldwell, Texas. 219 S. W. 512.
65. Larceny - Presumption. -- If automobile stolen was in the possession of defendant defendant is presumed to be the thief. and the burden is on him to rebut or overcome such presumption.-State v. Weiss, Mo., 219 S. W. 368.
66. Recent Possession.-To constitute legal possession of stolen property, so as to give rise o an inference of guilt, the property need not be in the hands, house or premises of the alleged possessor, who may have the same secreted on another person's premises, or out on the commons, and nevertheless be in actual care, control and management, in which case he is legal possessor.-Marable v. State, Tex., 219 S. W. 455. 67. Master and Servant-Assumption of Risk.
Under the federal Employers' Liability Act, it is not true, without qualification, that a servant does not assume a risk created by the master's negligence.- Chicago, R. I. & P. Ry, Co. v. Ward, U. S. S. C., 40 Sup. Ct. 275.
68.- Inexperience.-The obligation to instruct an employe before putting him to work as to any of his duties which are dangerous does not necessarily follow as a matter of law from his minority when employed, his inexperience, or the fact that the service is dangerous, and that his inexperience is known to the employer. -Bibb Mfg. Co. v. Thornton, Ga., 102 S. E. 465.
69,- Master's Direction. If an employe doing work in a safe way is ordered to do it in an unsafe way with a threat of discharge if he refuses, and by reason of the order he enters upon the work and is injured without his fault, he can recover damages.-Jones V. D. L. Taylor & Co., N, C., 102 S. E. 397.
70.- -Specific Negligence.-A servant suing for injuries must show not only that he has sustained injury, but also some specific act of negligence on the part of the master; the burden to prove the connection between the injury and the negligence being on the servant.--Staley v. Wehmeier, Ky., 219 S. W. 408.
71.- Wrongful Discharge.--Where defend. ants employed plaintiff for a year and he rendered services until the business was sold to a corporation, which defendants organized. the mere fact that he worked for the corporation when defendants ceased to have work for him to do did not terminate the contract as a matter of Taw so as to defeat recovery for discharge; and, there being evidence that he had an understanding with defendants that work for the corporation should not affect his rights under the contract, it was error to direct a verdict for defendants.—Bennett v. Brown, N. H. 109 Atl. 201.
72. Mines and Minerals-Abandonment.-A lessee's unexplained cessation of operation under an oil and gas lease may give rise to fair presumption of abandonment, and it may be that. standing alone, a court as a matter of law may declare the lease abandoned. Strange V. Hicks, Okla., 188 Pac. 347.
73._Location.--"Location" is the act or series of acts whereby the boundaries of a claim are marked, etc.-Cole v. Ralph, L. S. S. C., 40 Sup. Ct. 321.
74.- Rescission.- Where plaintiff did not read an oil lease, but was not prevented from so doing by any trick or device on the part of the defendant, plaintiff cannot obtain rescission of the lease on the ground that it was not as advantageous as he expected it to be.- Texas Co. v. Keeter, Tex., 219 S. W. 521.
75. Negligence — Attractive Nuisance. - An owner of premises who maintains thereon objects calculated to attract children onto the premises for play must exercise due care to protect the children from injury therefrom. Morrison v. Phelps Stone Co., Mo., 219 S. W. 393.
76. Partnership Action Against.—Where a creditor obtained a judgment against a partnership and against each partner individually, and another creditor obtained judgment against one of such partners, the holder of the senior judgment could not be required to proceed against that partner against whom he alone had a judgment where the fund in court would thereby be awarded to the junior judgment.-Love v. Goodson, Ga., 102 S. E. 429.
77.--Termination-Where a special partnership has terminated, and one of the partners sues another concerning a matter independent of the partnership, the defendant may counterclaim for items due him out of the partnership transactions where they are few and simple, and there is no occasion for an equitable ac. counting.--Zimmerman v. Lehr, N. D., 176 N. W. 837.
78. Patents-New Use.--Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect. without the production of something novel, is not invention. -In re Smith, D. C., 262 Fed. 717. 79. Pdincipal and Agent-Accepting Benefits,
A principal cannot accept the benefits of his agent's acts and escape liability thereon.-Gardner v. City of Glendale, Cal., 188 Pac. 307.
80.- Exclusive Agency.-For breach of exclusive agency contract, measure of damages is not gross profits of dealer.-Orester V. Dayton Rubber Mfg. Co., N. Y., 126 N. E. 510.
81. Sales-Conditional Sale.-A seller of a sprinkler system to the owner of a building on conditional sale was not estopped to replevin the system from a lessee by reason of the fact that the tenant had bought and paid for an air compressor and other things which were attached to the system-Automatic Sprinkler Co. of Amer. ica v. Central Amusement Co., Iowa, 176 N. W. 786.
82.- Implied Warranty.-In the sale of manufactured goods, where there is no opportunity for inspection by the purchaser, there is an implied warranty that the articles are merchantable.-Neal v. West Winfree Tobacco Co., Ark., 219 S. W. 326.
83. Inspection.-Where a written contract for the sale of lumber provides for "final inspection to be made at the seller's mill," such inspection is not necessarily precedent to the existence of a binding contract, but is a condition precedent merely to the passing of title to the subject matter.-G, Elias & Bro. V. Boone Timber Co., W. Va., 102 S. E. 488.
84.- Remedies of Seller.--The buyer has various remedies for relief from contracts induced by fraud, among which is the right to confirm the contract after knowledge of the fraud, and reconvene for damages when sued upon the contract.-Alba-Malakoff Lignite Co. v. Hercules Powder Co., Texas, 219 S. W. 554.
85.-_-Reserving Title.-A sale contract, reserving title in the seller until all payments have been made, irrespective of an express provision to that effect, authorizes the seller to retake possession of the property on breach of the conditions without returning the payments already made.-Los Angeles Furniture Co. v. Hansen, Cal., 188 Pac. 292.
86. Tnxation-Double Taxation.-Const, U. S. Amend. 14, does not forbid double taxation short of confiscation or proceedings unconstitutional on other grounds.-Ft. Smith Lumber Co. v. State of Arkansas ex rel Arbuckle, U. S. S. C.. 40 Sup. Ct. 304.
87. Vendor and Purchaser-Vendor's Lien.The vendor's lien securing a negotiable purchase-money note, like a mortgage, is incidental to the note and accompanies it in all transfers ---Pope v. Beauchamp, Texas, 219 S. W. 447.
88. Willy-Contingent Interest. Where land was conveyed in trust for the exclusive benefit of a married woman for life, with directions that the land should go to the husband in event she died without issue, the husband took a contingent interest which would pass by devise. Hollowell v. Manley, N. C., 102 S. E. 386.
89.----Construction.--The language of a will subjected to construction must reasonably be capable of more than one interpretation.-Mosle V. Goodrich, Conn., 109 Atl. 166.
90.- Construction.-The word "end" used in a will passes the property to which it applies in the same manner as if the word "give" or "devise" had been used in the absence of anything in the will having a tendency to show that it was not used in that sense.Jarman v. Day, N. C., 102 S. E. 402.
91,--Mental Capacity -The making of a will does not require so high a degree of mental capacity as the making of deeds or contracts.Huff nagle v. Pauley, Mo., 219 S. W. 373.
92.- Undue Influence.-Threats of testator's daughter to have him prosecuted and her misconduct coming to his knowledge from third persons, by reason of which he gave his proper. tv to others. when otherwise he would have given it to her, is not undue influence.Stutiville's Ex'rs V. Wheeler. Ky.. 219 S. W. 411.
l aintiff cannot op it was not as
injure que care to
v. Phelps stotrom
Central Law Journal.
sions to embrace the important subject of uniformity of decision as well as uniformity
of statute? We shall not be guilty of the ST. LOUIS, MO., MAY 28, 1920.
temerity oi suggesting the manner in which WORK FOR THE JUDICIAL SECTION
this shall be done. TO DO.
There will be made the argument that the
respective State Courts are best situated The United States Circuit Court of Ap- to know the law most suitable to their own peals for the Fourth Circuit in the recent jurisdictions for which reason the Federal case of Waldron v. The Director General, Courts should feel constrained to follow April 6th, 1920, issued its declaration of them in questions of common law and genfreedom from the influence of State Courts ! eral jurisprudence as well as where exin these words:
pressly required by statute. But, this is "Rique's Ad'r v. C. & O. B. R. Co., 104
argument based upon expediency or courVa. 476, 51 S. E. 730, and Anderson v. tesy and may be put to one side. UniB. & O. R. Co., 74 W. Va. 17, 81 S. E. formity of decision is based upon the es579, are relied on as holding that the duty sential element of the contentment of the is on the shipper who receives cars from
people, founded upon their faith in law a carrier to be loaded to inspect them for the protection of his employes to the
as a fixed science and in Courts as its exemption of the carrier. The first case
sacred exponents. The lay mind cannot cited does not expressly so hold. The comprehend government enforcing confact that the injury was to the property flicting laws in the same jurisdiction. The of third persons not employes of the ship
trained lawyer understands how it happer may distinguish the second case. But if it be conceded that both cases hold the
pens, but not why it happens. But it is the doctrine contended for, we think it is
laymen who must be satisfied. opposed to reason and the great weight of authority. The question being one of
Men who go about amongst the people common law and general jurisprudence, and obtain first impressions of their a Federal Court must determine it for thoughts will testify that there never was a itself."
time when the faith of the people needed Conceding the Federal Court to be reviving so badly, not excepting the days right and, if permitted to express an opin
immediately following the adoption of the ion we think it is, what about the state of
American Constitution as it is pictured by the law? What about the mental attitude
the letters of Adams, Jefferson, Madison, of the litigant when told that he would win Hamilton, James Wilson and Iredell! And in the Federal Court and lose in the State it is the faithful that need encouragement. Court, or vice versa. What about a dual
The encouragement required is a certainty form of government admitting of such an of law to all men, by all State and Federal anomalous condition? To inspire thought
Courts by statute. It will eventually be along that particular line is the object of | made between State and State by patriotthis editorial. It is an effort through a ism and self-preservation. In such a case concrete example to direct attention to the somebody will have to surrender personal practical need of the Annual Conference views in the interest of the general welfare. of Appellate Judges, officially known as The high intelligence of the personnel gives the “Judicial Section" of the American assurance to the life of the most meritoriBar Association. Ought not this great or
ous. That is the office of the Annual Conganization to meet oftener and continue ference of Judges. longer in session ? Ought not their discus
THOMAS W. SHELTON.
THE USE OF PRECEDENT AND THE NEED | conflicting precedents, and that is the codiFOR CODIFICATION.
fication of important branches of the law
and starting all over again with the exact The great mass of case law that is
and carefully stated provisions of a code accumulating is causing the lawyers of
to guide the lawyer in advising clients and England and America to revise their esti
| to furnish him his all-sufficient ground for mates of the value of many so-called pre
offense or defense in the trial of causes, so cedents. Continental lawyers are not trou
far as the law is concerned. bled by a mass of precedents or by conAlicting authorities. They have their rules We already have had experience with and principles and each case is decided by commercial codes and this experience has these rules without reference to the deci been in the main satisfactory. The Nesion in some other case. This practice, gotiable Instruments law has been the eiwhich it was the custom of English and | ficient means of wiping out a great mass American lawyers to condemn as being un- of conflicting precedents, and if it were not just, is now to some extent being looked for the ignorant obstinancy of some adupon with favor, both in England and pellate judges in resurrecting the old cases America.
to change and twist out of shape the clear
meaning of the code provisions the situaProbably the most significant evidence
tion would be ideal. The same thing is true of this change of opinion is a statement by
with the Uniform Sales Act. Here was a Lord Dunedin in delivering the opinion in
mountain of precedent and the facts in all the case of McCarton v. Belfast Harbour
the cases were so closely analyzed in the Commissioners (1911), 2 Irish Rep. 1133,
text books that to one who could grasp the a case involving the question of the liabil
| distinctions sought to be drawn from them, ity of a master, who lends his servant to
the so-called task of dividing a hair between another, for the negligence of such servant
its north and northwest side was child's while in the employ of the hirer. On this
play. The Uniform Sales Act has put into point the authorities in England are not
the discard all this learning of the law only voluminous but very confusing. In
of sales, and the lawyer finds in the Act refusing to follow the lead of diligent coun clearly stated principles that govern his sel in making fine distinctions based on
case, which the court is able to decide withthe facts of all the previous cases which
out the necessity of analyzing the mental appeared to be in point, he said:
difficulties of all the judges, good, bad and “Decisions are valuable for the pur
indifferent, who have wrestled with the pose of ascertaining a rule of law. No same problem. doubt they are also useful in enabling us
Lawyers have not given as much credit to see how eminent judges regard facts and deal with them, and great numbers of re
as they should to the self-sacrificing labors corded precedents are useful in no other of the lawyers who constitute the Conferway. But it is an endless and unprofitable ence of Commissioners on Uniform State task to compare the details of one case with Laws. This great body, for nearly half the details of another in order to establish
a century, has labored slowly, carefully and that the conclusion from the evidence in the one case must be adopted in the other
successfully in codifying those branches of case. Given the rule of law, the facts in
the law in respect of which uniformity and each case must be independently considered certainty were most desirable. in order to see whether they bring it within
Precedents have important uses and the the rule or not.”
propagandists of the common law will There seems to be only one way out of never consent to give up the principle, or the labyrinthine maze of confusing and ! fiction if you wish, that the law is a living
science, capable of growth without the aid , loss of such finger. In the case of Massachuof statute, and that justice, like truth, is
setts Employes' Ins. Ass'n, 219 Mass. 136, 106
N. E. 559, it was held that a hand “is incapable a natural heritage of man, the domain of
of use when the injuries are such that the hand which is always open to exploration and
cannot be used in the ordinary manner, and is discovery. But there can be no objection capable of use only as a hook; it not being neceven from the most devoted admirers of essary that the incapacity be tantamount to an the common law to have these explorations
actual severance." and discoveries charted, classified and in
SUITS AGAINST EXECUTORS FOR dexed for the convenience of future trav
| THEIR NEGLIGENCE IN HANDLING DECEelers. It ought not to be necessary for the DENT'S PROPERTY.-As a usual rule claims lawyer of today to undertake all the labors founded on the handling of the decedent's esof previous explorers in the domain of the
tate by the executor are not claims and law in order to appropriate the definite re
should not be presented to the executor nor al
lowed by the Probate Court unless the statutes sults of their researches.
of the particular state specifically provides. Such claims are against the executor himself for which he will in proper cases be allowed to
take credit on final settlement. This rule apNOTES OF IMPORTANT DECISIONS. plies especially to tort claims for which, except
under special circumstances, the executor alone DOES LOSS OF HAND RESULT FROM
is liable and will not necessarily be allowed
credit for the damages he has suffered because LOSS OF FINGERS UNDER WORKMEN'S
of his own negligence. At any rate the execCOMPENSATION LAW?-The Workmen's Com
utor cannot object to a suit and judgment in pensation Law provides damages in different
personam based on his negligence in transactamounts for different degrees of injury. It be.
ing the business of the estate and the fact that comes a question not always easy to answer
he is described as holding the property with exactly to what category a particular injury
respect to which he is charged with negligence belongs. This question was before the Supreme
as executor does not make the petition deCourt of Oklahoma in the recent case of Bris
murrable. tow Cotton Oil Co. v. State Industrial Commission, 188 Pac. 658. In this case the ques
This view is emphasized by the decision of tion was whether the loss of four fingers would
the Supreme Court of Washington in the reunder the circumstances of that case be re
cent case of Fisher v. McNeely, 180 Pac. Rep.
478. In this case plaintiffs recovered a judg. garded as the loss of a hand and compensation
ment for damages against defendant for her allowed on that basis. In amputating the fingers a part of the palm had been removed,
negligence in operating a logging railroad bewhich the Court held amounted to the loss of
| longing to the estate of her deceased husband, the hand even though the claimant admitted
of which she was the executrix. The defendthat he had "some use" of the hand and could
ant alleged as a ground for a new trial the over"move his thumb a little bit."
ruling of her demurrer to the petition on the The decision of the Court is in line with the
ground that the claim should have been preauthorities. In Rockwell v. Lewis, 154 N. Y.
sented in the usual way and allowed against Supp. 893, where the servant lost three fingers
the estate. The Supreme Court denied and the fourth finger was rendered stiff and
the contention on the theory that this practically useless, the award for permanent
was not a claim against the estate but against loss of the use of the hand was sustained. In
the executrix personally even though defendFeinman v. Albert Mfg. Co., 155 N. Y. Supp, 909,
ant was alleged in the petition to be operating where the accident necessitated amputation of
the road as executrix, this latter allegation bethe finger at the first phalange, which resulted
ing mere descriptio personae. in stiffness, so that the remainder of the finger The case of Belvins' Executors v. French, 84 became practically useless, it was held that the | Va. 81, 3 S. E. Rep. 891, is a case almost "on finger must be deemed to have been lost, al- | all fours" with the facts in the principal case. though not actually amputated, and an | In sustaining a recovery against the adminisaward was sustained for the entire amount trator the Supreme Court of Appeals of Virthat could have been recovered for the l ginia said: