64. Landlord and Tenant-Licensee.--Tenant of office building, who secured the janitor's permission to use the back stairs to reach a river in the rear for bathing purposes, and was injured by falling down the stairs when returning after his bath, could not recover from the building owner, being a licensee.-Book v. Heath, Tex. Civ. App., 181 S. W. 491.

65.- Privity.-The assignment of a lease of realty, to hold the assignee under the covenant to pay rent, must arise from privity of estate.Erving v. Jas. H. Goodman & Co. Bank, Cal., 153 Pac. 945.

66. Putting in Possession.-It is the duty of a landlord, when leased premises are wrongfully held by another, to take necessary steps to put the lessee in possession, and in case he is not put in possession the lessee may recover damages.-Dilly v. Paynsville Land Co., Iowa, 155 N. W. 971.

67. Larceny-Indictment.-Where an indictment alleged the larceny of a cow belonging to A. B., and the proof showed it to belong to A. B., Jr., there was no fatal variance; the addition of "Jr." to a name being a mere matter of description. Harris v. State, Wyo., 153 Pac. 881.

68. Libel and Slander-Publication.-Publication in newspaper that defendant confessed to complicity in homicide which was generally considered to have been a murder held libelous per se.-Ft. Worth Pub. Co. v. Armstrong, Tex. Civ. App., 181 S. W. 554.

Laws

69. Licenses Constitutional Law. 1913, c. 71, providing the requirements and qualifications for engaging in business as an undertaker, is unconstitutional and void for requiring that the degree of skill required shall be acquired in a certain way, during a certain period; the power of the Legislature extending only to a regulation of the skill, and not to the method of attaining it.-People v. Harrison, N. Y., 156 N. Y. S. 679.

70. Regulation.-That the enforcement of an ordinance, requiring licenses from persons operating motor vehicles for hire on paved portions of certain streets, will benefit the street railway company held not to make it invalid.Dresser v. City of Wichita, Kan., 153 Pac. 1194. 71. Limitation of Actions-Tolling.-Where the owner of land who gave a mortgage to secure a note gave a second mortgage which was foreclosed and the land sold, the owner's subsequent payments on the note and acknowledgments of the debt did not, as against the purchaser, toll limitations against enforcement of the original mortgage.-Duvall V. Parepoint, Ky., 181 S. W. 653.

72. Master and Servant-Accident in Employment. Being pitched from hack seat while driving and helpless from attack of dizziness produced by disease, held "an accident arising out of his employment" within the meaning of article 1, § 1, of Workmen's Compensation Act of 1912, entitling hack driver to compensation against employer.-Carroll v. What Cheer Stables Co., R. I., 96 Atl. 208.

73. Accident in Employment.-Employe's straining of muscles in lifting heavy cement block while in a sitting position, without external evidence of injury but causing pain and temporary disability, held an "accident" within Workmen's Compensation Law, § 2394-3 (3).Bystorm Bros. v. Jacobson, Wis., 155 N. W. 919.

74.- Constitutional Law.-Act No. 25 of 1914, requiring manufactories employing ten or more persons to pay them in full every 2 weeks, held valid-State v. Cullom, La., 70 So. 338.

75. Employers' Liability Act.-In a servant's action under the Federal Employers' Liability Act, for injuries in switching cars, evidence that defendant sometimes engaged in interstate comerce, without showing the starting point and destination of the car on which he was injured, was sufficient to support a verdict for the plaintiff.-Cantin v. Glen Junction Transfer Co., N. H., 96 Atl. 303.

76. Employing Minors.-Laws 1911, c. 479, subd. 2, prohibiting employment of minors under 16 years at carding machines, is valid; the extent to which a minor may bind himself by contract

being peculiarly within the field of legislative discretion, so that any contract might be abrogated by the Legislature under its police power. -Green v. Appleton Woolen Mills, Wis., 155 N. W. 958.

77. -Simple Tools.-Railroad section hand, whose eye was injured by splinter from head of claw bar when struck by a spike maul in removing spikes from ties, was using simple tools, and, where he knew of the battered and spread edges of the claw bar, he could not recover.Hoskins v. Louisville & N. R. Co., Ky., 181 S. W. 352.

78. Warning.-Where a boy, employed as a sweeper in a mill, was injured when he put his forefinger into the headgear of a spinning frame, the master was not liable for his failure to warn of the dangerous character of the machine. -Porter v. F. W. Poe Mfg. Co., S. C., 87 S. E. 418.

79.

Mortgages-Liens.-Where the mortgagee is compelled to redeem from assessment liens to protect its rights, the sum expended therefor should be included in the amount which the mortgagor must pay to redeem from a foreclosure of the mortgage.-Carstens & Earles v. City of Seattle, Wash., 153 Pac. 1080.

80. Municipal Corporations-Charter.-A city having a freeholders' charter is subject to general laws, even in municipal affairs, when the subject-matter is not covered by the charter.City of Sacramento v. Adams, Cal., 153 Pac. 908.

81.- -Constitutional Law.-Ordinance of the board of commissioners of Jersey City that no building shall be constructed on residence streets, etc., so as to be in front of any private dwelling house or so as to cut off its frontage, held unconstitutional as transcending the city's police power.-Lavery Board of Com'rs of Jersey City, N. J. Sup., 96 Atl. 292.

V.

84.

the

Ordinance.-That the minutes of city council, setting forth an ordinance imposing a business tax, were not signed by the mayor or other officer, held not to invalidate the ordinance.-Jones v. City of Carrollton, Ga. App., 87 S. E. 605.

85. Navigable Waters Accretions. Where land is added by river accretion to other land, the owner of the land to which it attaches becomes its owner, and his title is not divested by subsequent change in the river's course which again separates the land from his.-Grady v. Royar, Mo., 181 S. W. 428.

86.Low Tide.-The term "mean low tide," as applied to Puget Sound, signifies the mean or average level of low tides. "Mean lower low tide" signifies the mean level of the daily extreme low tides. "Harmonic plane" is the zero adopted by the United States Coast and Geodetic Survey of the Department of Commerce upon which its tidal tables, charts and maps are based. -State v. Scott, Wash., 154 Pac. 165.

87.

Negligence-Pleading and Practice.-In actions for damages for personal injury, where the negligence complained of is stated in general terms, specific acts of negligence may be proven, but, where the specific acts constituting the negligence complained of are alleged, acts not alleged cannot be proven.-Nelson v. Black Diamond Mining Co., Ky., 181 S. W. 341.

88. Nuisance-Special Damage.-A suit to enjoin the keeping of vehicles in front of a livery stable adjoining plaintiff's residence SO as to obstruct the view from his front porch held

not maintainable where plaintiff failed to show that he suffered special damage or inconvenience different from the public in general.-Dryden v. Purdy, Kan., 154 Pac. 221.

89. Oath-Definition.-An "oath" is a solemn appeal to the Supreme Being in attestation of the truth of some statement, and an outward pledge that one's testimony is given under an immediate sense of responsibility to God.-State v. Jones, Idaho, 154 Pac. 378.

90. Partnership-Contract.-Agreement of defendant's testator with a third person to advance money for the purchase of horses which should be shipped by the third person to testator for sale, who was to repay himself from the proceeds for his advances and to receive a commission, the profits to be divided, held not to form a partnership.-Flathead County State Bank v. Ingham, Mont., 153 Pac. 1005.

91. Physicians and Surgeons-Confidential Relation. Where plaintiff's employer engaged the defendant physicians to treat injured employes for compensation to be deducted from wages of the employes, held, that the relation of patient and physician existed between an injured employe and the physicians, and that the latter owed plaintiff the duty to exercise ordinary care and skill in treating him.-Viita v. Dolan, Minn., 155 N. W. 1077.

92.- -Incurable Disease.-The words "incurable disease," within Rev. Laws 1910, § 6905, defining "unprofessional conduct" of a physician as obtaining a fee on assurance that an incurable disease can be cured, mean, when construed in the light of sections 2914, 4642, any disease which has reached an incurable stage according to the general knowledge of the medical profession.-Freeman v. State Board of Medical Examiners, Okla., 154 Pac. 56.

93. Reasonable Care.-A physician or surgeon must exercise such reasonable care and skill as is usually possessed or exercised by physicians or surgeons in good standing, of the same school of practice in the vicinity, having regard for the advanced state of science.-Van Boskirk v. Pinto, Neb., 155 N. W. 889.

94. Quo Warranto-Remedy.-Quo warranto at the instance of the attorney general of the state is the exclusive proceeding to determine the legal existence of a public corporation. Evens v. Anderson, Minn., 155 N. W. 1040.

95. Railroads Anticipating Injury. Though employes in charge of a train knew that the tracks were in the daytime used by the public, they are not bound, when in charge of a train running at night or in the early morning, to anticipate persons on the tracks.-Gulf, C. & S. F. Ry. Co. v. Prazak, Tex. Civ. App., 181 S. W. 711.

96.- Look and Listen.-That plaintiff, after noticing that the crossing gates were open and looking when within six or seven feet of the gates, and seeing no train, failed to look thereafter, did not charge her with contributory negligence as a matter of law-Haugen v. Northern Pac. Ry. Co., Minn., 155 N. W. 1058.

97. Reformation of Instruments Pleading and Practice.-A petition alleging merely that plaintiff was uneducated and had little experience in business, and therefore did not know the meaning of the words "without recourse," and that defendant had represented that he would be bound on the note given plaintiff as part consideration for land, held demurrable; the allegation that he was "an uneducated man" not being an allegation that he was illiterate or entitling him to a reformation of the instrument. -Baker v. Patton, Ga., 87 S. E. 659.

98. Removal of Causes-Civil Action.-An original proceeding in mandamus is not removable from a state to a federal court; it not being a "civil action" within the Removal Acts of Congress.-State v. Flannelly, Kan., 154 Pac.

235.

99. Sales--Acceptance.-Where the buyer of wine bottles refused to accept them. and title thereto had not passed from the sellers, who thereupon resold the bottles at private sale. their only remedy was to sue for damages for breach of the contract of sale.-Lund v. Lachman, Cal. App., 154 Pac. 295.

waived all failure of consideration, no defects in the horse for which the note sued on was given could be pleaded in defense.-Mock v. Kemp & Lewis, Ga. App., 87 S. E. 608.

101. Inspection.-Upon the sale of goods by contract giving buyer right to an inspection, but containing no warranty, the buyer's right to recover damages for defects did not survive his acceptance after opportunity to discover defects, unless he notified the seller or returned or offered to return the goods.-Peterson v. Denny-Renton Clay & Coal Co., Wash., 154 Pac.

123.

102. -Rescission.-In a buyer's action to rescind for fraud, the question is whether the representations were such and made under such circumstances that they were reasonably calculated to deceive plaintiff, and not whether they would deceive an average man.-Kempf v. Ranger, Minn., 155 N. W. 1059.

104.

103. Warranty.-Where the seller of a stallion represented that it was a sure foal-getter such representation, being made to induce the purchaser and intended to be relied on by the purchaser, and relied on by him, if false and known to be so when made, was a fraudulent warranty.-Barnard v. Napier, Ky., 181 S. W. 624. Specific Performance — Estoppel. - Specific performance of an oral contract to convey land is enforced, if at all, on the theory that one party has estopped himself from invoking the statute of frauds by permitting the other to change his position in reliance on the contract so that to enforce the statute would be a fraud upon him.-Chapel v. Chapel, Minn., 155 N. W. 1054.

105. Street Railroads-Anticipation of Injury. -Where a motorman saw the plaintiff and that the forward part of the car had passed him, he was justified in assuming that plaintiff was in no danger of injury, and was not bound to anticipate that he might afterwards come into collision with the car.-Osborne v. Bay State Ry. Co., Mass., 111 N. E. 43.

106. Telegraphs and Telephones-Proximate Cause. Where a team of horses were killed by lightning while standing at the roadside under a telephone wire which sagged within 4 feet of the ground, the lightning having first struck a pole 150 feet distant, held, that the negligence, if any, in maintaining the wire so close to the ground, was not the proximate cause of the injury. Simon v. Missouri & Kansas Telephone Co., Kan., 154 Pac. 242.

107. Time-Computation.-In view of Gen. St. 1909, §§ 5251, 5338, 6343, under a life insurance policy giving one month- -not less than 30 daysgrace in the payment of premiums, where the last day of grace falls on Sunday, the insured has the following day in which to make payment.-Lightner v. Prudential Ins. Co. of America. Kan., 154 Pac. 227.

108. Towage-Implied Warranty.-In a contract of towage there is an implied obligation that the tug shall be efficient and properly equipped for the service, from which the owner is relieved only when a breakdown is from causes which could not have been discovered and prevented.-The Enterprise, U. S. D. C., 228 Fed. 131.

109. Trover and Conversion-Duplicity.-As the statute contemplates only a single notice of defenses in an action of trespass and trover, a notice is not bad because containing two defenses not separately stated, either of which would defeat the action; duplicity being a defect only in form.-Bocash v. Martin, Vt., 96 Atl. 332.

110.- -Retention of Checks.-Where defendant, husband and agent of the owner, at request of the plaintiff contractor, drew checks payable to plaintiff in amounts owing by plaintiff to ma-. terialmen, which checks plaintiff indorsed over to the proper creditors and handed to defendant, with a request that he mail same to the indorsees. to which defendant agreed without qualification, held, that defendant's retention of the checks constituted a conversion thereof.Behrens v. Kruse, Minn., 155 N. W. 1065.

offenses and the degree of certainty required seem not clearly defined.

This thought is suggested by the opinion in People v. Hudson Valley Const. Co., 111 N. E. 472, decided by New York Court of Appeals.

The charge being tried was that defendant corporation obtained money by false pretenses in a contract with the State to furnish labor and materials in certain construction work, it being charged with willfully and falsely exaggerating the actual cost. There was evidence offered of its doing the like things in other

cases.

It was said: "The learned district attorney contends that the evidence of other larcenies which he gave was confined to larcenies committed by trick and device. While conceding that some of the acts proved might be deemed simple thefts in one aspect, he insists that all ultimately resulted in obtaining money from the State by false pretenses and therefore were properly provable as being on the question of intent. I cannot see how this was the case in every instance, yet it is true that throughout the series existed the element of misrepresentation as to the transactions under the contract resulting in secret acquisition and gain by the defendant. These acts generally were sufficiently akin to the offense charged to render proof of them admissible."

It seems quite evident that this principle may be used in a very latitudinarian way to build up quite a wall of prejudice around a defendant. His life may be searched into in a way he may not be prepared for, and by piling up proof upon proof of other things a strong presumption may go against him, though proof as to other offenses may be of an exceedingly weak character. This question also suggests the variance in view in the courts on the question of alibi, some contending that the burden of proof is on accused and others that it may be a circumstance to weaken the proof of guilt beyond a reasonable doubt.

engaged in ordinary duties, by the negligence of a railroad company. He sued the latter company and there was demurrer upon the ground that the State (Washington) Workmen's Compensation Act provided that the sole remedy for this death was against decedent's employer. To support this contention State decision squarely in point was cited and relied upon, (Peet v. Mills, 76 Wash., 437, 136 Pac. 685, L. R. A. 1915, and 154, 4 N. C. C. A. 819).

The district court followed State ruling. Ninth Circuit Court of Appeals reversed this ruling and the U. S. Supreme Court re-established the judgment of the district court. There is dissent by Justice McKenna upon the view that the Appeals Court ruling does not conflict with the opinion of the State Supreme Court, saying also that it "properly construed" the statute.

All of these courts profess to regard the State case as controlling, but the language quoted therefrom by U. S. Supreme Court appears to us to leave no room for construction. It says that by the compensation act "the industry itself was the primal course of the injury, and as such should be made to bear all its burdens."

But does this mean only in so far as employe and employer were concerned? And could the employer as primarily liable have a right of action against a third person whose negligence causes it to respond in damages?

The objection that the State Statute, as construed by the State Court "would cause it to conflict with the equal protection clause of the 14th Amendment," is disposed of by saying it "is without merit." This seems very plain, so far at least, as an action for death is concerned. It might be thought different if there were suit for injury not amounting to death.

RECENT DECISIONS IN THE BRITISH COURTS.

who

It is a general rule that one has sustained damage ought not to assume a passive attitude and allow his claim to amount up, but should do all in his power to minimize his loss. A familiar illustration is that of a servant wrongously dismissed. He is not justified in remaining out of a situation on the chance of recovering bigger damages for breach of contract. He must show diligence in endeavoring to obtain another place, and the amount of damages to be ultimately awarded will simply represent his loss for the interval during which he was out of a situation.