it was after hearing and considering plaintiff's proofs and allegations under oath, at the day to which adjournment had been had by mutual consent.-Gears v. Ryan, Del. Sup. Ct., 96 Atl.

756.

99. Landlord and

Tenant-Contract.-Where land was rented verbally, and, after entry by the tenant, the landlord stated that as long as the tenant paid her rent she could have the place, the contract was not unilateral.-Hamlett v. Coates, Tex. Civ. App., 182 S. W. 1144.

100. Marriage Annulment.-Entering into marriage with the intention to abandon the wife is a fraudulent misrepresentation, which entitles her to an annulment.-Moore v. Moore, N. Y. Sup. Ct., 157 N. Y. Sup. 819.

101. Master and Servant-Course of Employment. When an accident to an eye, which at rst appears not serious, results shortly after in a diseased condition which destroys the sight, the "injury occurred" within the Employers' Liability Act, in view of Rev. St. 1913, $3693b, when the diseased condition culminated.-Johansen v. Union Stockyards Co. of Omaha, Neb., 156 N. W. 511.

102.- -Malpractice.-Under Workmen's Compensation Law (St. 1915, § 2394-25, subds. 1, 2), held that an employe who had made a claim against his employer and received compensation, including medical expenses, on his physician's discovery of defendant's malpractice might elect to hold defendant and to release his employer.-Pawlak v. Hayes, Wis., 156 N. W.

464.

103. Respondeat Superior.-Where a chauffeur made a side trip of several blocks from a main trip of one block, on an errand of his own, and at a point twice as far from, and beyond, the place to which he was directed to go, as the garage, an accident occurred, he was not in his master's employ, as his acts constituted an abandonment of his service.-Eakin's Adm'r v. Anderson, Ky., 183 S. W. 217.

104.- -Statutory Construction.-Liability and compensation statutes cannot be grouped together, since they are the antipodes of labor legislation, having their foundation in essentially different social and economic ideas.--Lewis and Clark County v. Industrial Acc. Board of Montana, Mont., 155 Pac. 268.

105.- Want of Care. Want of care on part of deceased servant could not be excused on ground of youth, when it appeared that he was an intelligent young man of normal physical and mental development, capable of properly operating his machine, and fully instructed as to its operation.-Jarboe's Adm'r v. Coleman, Ky., 182 S. W. 922.

106. Municipal Corporations-Ordinance.The occupation of soliciting contributions for charitable purposes may be regulated by laws or ordinances providing for reasonable supervision over the persons engaged therein and for the application and use of the contributions to and in purposes intended.-Ex parte Dart, Cal., 155 Pac. 63.

107.

-Ordinance.-An ordinance of a township, prohibiting the building of any privy, stables, or stalls nearer a neighbor's residence than the owner's, and providing that no privy shall be constructed within 25 feet of any public street, held unconstitutional as not uniform.-State v. Bass, N. C., 87 S. E. 972.

108.- Quantum Meruit.-Where a city's contract is set aside for irregularity, there may be recovery as on quantum meruit for reasonable cost and expense incurred in prosecuting the contract before legal attack, irrespective of any benefit therefrom.-Armitage v. Essex Const. Co., N. J., 96 Atl. 889.

109. Negligence

Imputability.-Negligence of a husband in driving will not be imputed to his wife riding with him, she having no control, and no relation of principal and agent existing.-Fisher v. Ellston, Iowa, 156 N. W. 422. 110. Last Clear Chance.-The last clear chance doctrine does not apply where both parties are equally negligent at the very time when the injury occurs.-Stephenson v. Parton, Wash., 155 Pac. 147.

111.- -Licensee.-Plaintiff, a tailor, going aboard defendant's ship to deliver a uniform to

one of its officers, as he had been permitted to do, held a "licensee," to whom defendant owed no duty except to refrain from wanton and willful injury.-Freeman V. United Fruit Co., Mass., 111 N. E. 789.

112. -Proximate Cause.-The act of a child, injured from its clothes catching on fire when it put additional leaves on a fire negligently left in a street by defendant, held not to destroy the casual connection between defendant's acts and the injury.-Davenport v. McClellan, N. J., 96 Atl. 921.

113.. -Res Ipsa Loquitur.-That an automobile skids is not of itself evidence of negligence. -Loftus v. Pelletier, Mass., 111 N. E. 712.

114. New Trial-Jury.-Where defendant claimed new trial because one of the jurors was defective in hearing, refusal of the court to examine juror, who was not present, where there was a showing by affidavits that his hearing was not such as to warrant the vacation of the verdict, was not an abuse of discretion.Safran v. Meyer, S. C., 88 S. E. 3.

115. Nuisance-Pleasure Resort. A public pleasure resort and picnic ground is not necessarily a common-law nuisance.-Rockville Water & Aqueduct Co. v. Koelsch, Conn., 96 Atl. 947.

of

116. Removal of Causes Limitation Amount. A suit by a state, for the use of depositors in a state bank, citizens of such state, against a former bank commissioner, now a non-resident, and the non-resident surety on his bond, to recover the several losses of such depositors from the neglect of the commissioner, may not be removed to the federal court for diverse citizenship; none of the individual claims amounting to $3.000.-Title Guaranty & Surety Co. of Scranton, Pa., v. State of Idaho, U. S. Sup. Ct., 36 Sup. Ct. 345.

117. Robbery-Evidence.-In a prosecution for robbery, where money was taken from a ticket office, it was done "in the presence of" the station agent, who had been shot, and was lying on the floor of the waiting room, and could hear the noise through the open ticket window, which connected the two rooms.State v. Williams, Mo., 183 S. W. 308.

118. Sales Evidence.-Where a tenant, an ignorant negro, who was authorized by the landlord to sell cotton to one who had made him advances on condition that the landlord's lien was satisfied, objected to the purchaser's retention of the cotton without satisfying the lien, there was no sale.-Caswell v. Lensing & Bennett, Tex. Civ. App., 183 S. W. 75.

to

120. Rescission.-Where, in an action rescind for fraud an executed sale of a half interest in a mercantile corporation for which plaintiff had deeded land, and to cancel the deed and compel reconveyance, it appeared that plaintiff had managed the business for 11⁄2 years, that the store and contents were destroyed by fire, and that the parties could not be placed in statu quo, held that the action should be dismissed and plaintiffs left to an action for damages.-Rosenwater v. Selleseth, N. D., 156 N. W.

540.

a

121. Street Railroads-Pedestrian.-After motorman has passed a pedestrian on a street crossing in safety with the front end of his car, he cannot be held to have knowledge of any danger she assumed by changing her position.-Wood v. Los Angeles Ry. Corp., Cal., 155 Pac. 68.

122. Wills-Advancement.-Where a parent or one standing in loco parentis, having made advancements to a child, afterwards makes a will disposing of his whole estate without provision for reduction of the advancements, such advancements will not be deducted from the child's share under the will.-Hayes v. Welling, R. L., 96 Atl. 843.

considerable effort. Besides, the willful act of a grown man is not so much to be anticipated as a prank by boys.

The third case concerns a car placed in a hall for exhibition. It was open and accessible to any visitor at the exhibition and so charged with electrical power that it could be started by the pressing of a button or shifting of a lever. It was left open and was started by some visitor entering the car and pushing the button or shifting the lever. It started and injured plaintiff, a visitor to the exhibition.

The majority in a per curiam opinion said the owner was not in possession and the proximate cause of the injury was the negligent act of a third person, for which defendant was not responsible.

A dissent said: "What did happen in this case was precisely what might have been and should have been anticipated, if the car I was left in such condition that it could be started. It surely would have been easy to lock the car, or to take out the storage batteries or in some way to assure that the car could not be inadvertently started."

It seems to us that the dissent is sound, especially as it should have been presumed rather that there was inadvertence by the stranger, than that there was a willful or intentional starting. If by inadvertence the injury could have been caused, this was something that should have been guarded against.

The English case appears to distinguish the facts as they should have been distinguished. The first mentioned New York case does not seem to take into sufficient account the principle in the turntable cases and the second New York case fails to take into account an inadvertent act by a third person as to a machine of potential danger. The third of these cases, it seems quite evident, was decided without sufficient regard to the careless act of defendant owner in leaving his machine as he did, when he could so easily have avoided consequences he should have anticipated as likely to en

sue.

NOTES OF IMPORTANT DECISIONS.

HIGHWAYS-USE OF SAME BY SPECIAL BUSINESS.--In 82 Cent. L. J. 313, there appeared a comment in an editorial way upon the position of one of the judges of the Supreme Court of Louisiana, to the effect that the streets of a city could no more be denied to jitney busses than to any other users.

In Kurtz v. Southern Pac. Co., 155 Pac. 367, the Supreme Court of Oregon distinguishes absolute rights from special rights to use of traveled streets as follows: "The right of a person to drive a team hitched to a carriage, or to control a vehicle upon a traveled street, or to haul by ordinary means his own goods thereon without let or hindrance, is common to all citizens who have occasion to use the highways for pleasure, profit or advantage. When, however, a person engages in the transportation of passengers or freight, or both, for hire, he is pursuing a special business, and in order legally to exercise that privilege the municipality may require of him the payment of a license fee. So, too, a city might by ordinance grant to one person, firm or corporation the right to transact any business which without such permission might be regarded in the nature of a nuisance."

All of this is incidental to the proposition that the grant of the franchise to use the public highway does not place the donee on the same footing as is the ordinary user of a highway, but renders him liable for any special injury his use may cause to one distinct from that suffered by the public at large. What we seek, however, is to present some support for our views in criticising the judge of the Louisiana Supreme Court.

FEDERAL EMPLOYERS' LIABILITY ACT— MEANING OF PHRASE, "NEXT OF KIN."— In Seaboard Air Line Railway v. Kenney, 36 Sup. Ct. 458, the question was whether the words "next of kin" in the Federal Employers' Liability Act, as designating parties entitled to maintain an action for the death of an employe in interstate commerce were to be construed by the common law or by the law of the State where the death occurred.

The Chief Justice said: "There can be no question that the act of Congress, in so far as it deals with the subjects to which it relates is paramount and exclusive. *** But this is ir relevant, since the controversy concerns only the meaning of the act."

"Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various States to whose authority that subject is nominally committed, · it would seem to be clear that the absence of a definition in the act of Congress plainly indicates the purpose of Congress to leave the determination of that question to the State

law."

There is then replied to the contention that use by Congress of common law terms is with their "common law significance." It is stated this rule will not ascribe intent by Congress in defining a class to overthrow the local law of the States, and if the contention were good as to one part of the act being considered it would be good as to another and thus set aside legislation of States "on subjects of the most intimate domestic character and substituting for it the common law as stereotyped at the time of the separation" of this country from England. The claim for uniformity does not meet such a need, for to apply such a rule would amount to "producing discord and want of uniformity."

There are cited Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, and Blagge v. Blach, 162 U. S. 439, where local State statutes were applied to define terms used in Federal statutes.

While the rule as to common law terms used in Federal law being taken in their common law sense is, generally speaking, a wise rule of construction, yet it is plainly subject to intent in the Federal law in their use, and in such a statute as the Federal Employers' Liability law, which State courts are to enforce, it is hardly to be supposed that Congress intended to enforce a rule where States would and do have different dates of separation from the mother country, as shown by statutes adopting the common law as the rule of decision.

RECENT DECISIONS IN THE BRITISH

COURTS.

Two cases lately decided here as to solicitors and bank transactions with clients' money may interest American practitioners. Our law as to money deposited in bank is that the bank receipt constitutes a contract, in terms of which repayment to the depositor must be made. Should the bank make payment to a wrongful holder of the receipt, they must pay over again to the true owner, unless on proof that they

have been misled in some way by the original depositor, as for example, by negligence on his part facilitating or inducing the fraud.

In the first of the cases referred to, National Bank of Scotland Ld. v. Dickson & ors., 1916, I S. L. T. 307, the facts were these: In 1890 a sum of £155 belonging to an executory estate was deposited in the plaintiff bank, the receipt bearing that the money had been received from the executors and that it should be payable on the signature of Messrs. Wylie Robertson and Rankin, solicitors for the executors. In 1896, Mr. Rankin retired from the firm, and the business was carried on by the other partners under the name of Wylie & Robertson. In 1898, Mr. Wylie died, and Mr. Robertson assumed another partner, the business being still carried on under the name of Wylie & Robertson. In 1904, Mr. Robertson applied to the bank for payment of the money deposited and upon his indorsing the receipt with the signature of Wylie, Robertson & Rankin, and also with the signature of Wylie & Robertson, he received payment of the money, and subsequently misappropriated it. In 1914, the representatives of the executors claimed the money from the bank on the ground that they had paid it neither to the depositors or persons in their right, nor to the persons authorized on the face of the receipt to receive payment. The bank maintained that they had made payment in terms of their contract, Robertson, as sole surviving partner of the firm of Wylie, Robertson & Rankin, being entitled to sign the firm's name and to receive payment of the money. Lord Anderson held that the bank was liable, for in the circumstances after the lapse of fourteen years they should have been put on their inquiry as to whether the executory still existed, as to who were the actual owners of the money and as to whether the authority to pay on the signature of the agents still existed. On appeal, however, that judgment has been reversed, the court finding that the effect of the receipt granted by the bank was plainly to acknowledge the deposit of money to be repaid on the terms and conditions set forth on the face of it. These terms and conditions had, in their opinion, been satisfied for Mr. Robertson had been within his legal rights in adhibiting the signature of Wylie, Robertson & Rankin, either on the ground that it was a necessary act in order to wind up the affairs of the partnership, or on the ground that it was necessary to complete a transaction begun but unfinished at the date of dissolution of the firm. It was not said that the signature was a forged signature, and the bank was entitled to say that if the receipt bore the signature of the

firm to whom, by its terms, they were bound to pay the money, they were both entitled and bound to pay to the person who presented the receipt. It was no concern of theirs what became of the money after it was so paid.

The other case, Thompson v. London City & Midland Bank Ld., has not yet appeared in the official law reports, having just been tried at the recent Birmingham Assizes. The plaintiff was a lady of independent means, who had as her advisor one Balden, a solicitor for whom she became guarantor and deposited shares in security with the defendant bank to the value of £3,000, covering Balden's indebtedness to the bank. Subsequently Balden was convicted

of fraud and embezzlement, and now plaintiff claimed to have her guarantee canceled and the shares returned to her, the basis of her claim being that she was entirely in the hands of Balden and had not been independently advised. The defense was that the plaintiff fully understood what she was doing, and in support of this one of the bank's branch managers gave evidence as to the interview in Balden's office when the transaction took place. He narrated that Miss Thompson asked if she was running any risk, and witness replied that that was more a matter between herself and Balden; if Balden paid back the money advanced to him on the security she would run no risk, but if he did not she would lose the money. Balden then interposed, "What he means is, if I become bankrupt, you will lose the money." Miss Thompson, however, witness continued, agreed to take the risk because she expressly wished Balden to have the money. She said she quite understood the nature of the documents she signed. They were handed to her one by one and explained to her. The court accepted that testimony at its full value, agreeing that there had been no trickery or concealment on the part of the bank, yet for the simple reason that the old lady had not had the benefit of separate advice, it was held that the bank failed in its defense, and order was made for cancellation of plaintiff's bond and delivery of the shares back to her.

The ground of decision was the fact that there had been non-observance of the profes

sional rule well enough known to professional men, and which cannot be better stated than in the words of Mr. Justice Rowlatt, who, in his judgment in the case, referred to, said: was a very well known principle of equity that a solicitor, and especially a confidential family

"It

ciple was a reasonable one and its necessity must be obvious to anyone who knew anything about life. If a solicitor wanted to change his position from that of an adviser he must put himself at arm's length and see that his client is separately advised." That principle has long been applicable in the fullest and strictest sense to transactions between a solicitor and his client. There have been cases, too, and Thompson's case is of the number, where it has operated to render void transactions between the solicitor and third parties; and rightly so, the rule is widely known to business men, and ignorance of it cannot be pleaded. Thus in the case mentioned, the fact that the plaintiff, a lady, was benefiting her own solicitor should have at once suggested to the banker that inquiry ought to be made. His defense was that he did make inquiry by putting some questions to the lady herself, but that perfunctory observance of the rule was not enough; genuine inquiry would have forced the bank to realize that an independent agent should be called in. That, however, was not done, and a security granted in such circumstances was accordingly held bad.

Glasgow, Scotland.

DONALD MACKAY.

RELEASES OF RIGHTS OF ACTION ACCRUING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.

Many interesting and important questions may arise in connection with releases of claims for personal injury. For example, if a release is to be attacked, is the return of the consideration a condition precedent? Must it be returned before suit, or may it be credited on the judgment? Must the attack be made in a special proceeding brought for the purpose, or may it be made collaterally in an action for the injury? Does a solution of the last question, in cases for fraud, depend on whether the fraud is in the procurement or in the representations made, or on whether the release be, or be not, under seal? On all these questions the courts have reached

from his own client unless the client had been separately advised in the matter. The prin

course is specially to examine the law of the proper jurisdiction.