1. Animals-Dipping Cattle.-Where a county was operating under the laws for tick eradication and fixed particular days for owners of cattle to dip them in vats constructed by the county, at which an inspector in the employment of the county was present to supervise the dipping, and a cattle owner failed to carry his cattle on said day, but at the direction of the inspector carried them to the vat on the following Monday and dipped them himself, the inspector not being present, he cannot recover for damage or injury to cattle resulting from the dipping under his own supervision, under chapter 38, Laws Extra Session of Mississippi of 1917.-Pippin v. Clarke County, Miss., 87 So. 283. 2. Bankruptcy-Appearance. Under Bankruptcy, § 18 b (Comp. St. § 9602), fixing the time for the bankrupt to appear and plead to the petition, and section 18e, requiring the judge to make adjudication or dismiss the petition if no pleadings are filed the last day allowed, there can be no "appearance," which is defined as coming into court as a party to a suit, without "pleading," which is a written allegation of what is affirmed on one side and denied on the other. -In re Puget Sound Engineering Co., U. S. D. C. 270 Fed. 353.

3. -Equitable Lien.-Where a trustee in bankruptcy, knowing the facts creating an equitable lien on property, sold the property and used the proceeds in paying costs of administration primarily chargeable against the general assets, a court of equity, following the maxim that equity will look upon that as done which ought to have been done, will follow the proceeds into the entire mass of the estate, giving the party injured by the unlawful diversion a priority of right over the other creditors.

In re Plantations Co., U. S. D. C. 270 Fed. 273.

4. Homestead Exemption.-Bankrupts held not entitled to a homestead exemption which had not been claimed on the record of title, as required by the laws of the state, because the failure to enter such claim was due to the negligence of the attorney employed by them in the bankruptcy proceedings.-Edgington v. Taylor, U. S. C. C. A. 270 Fed. 48.

5. Brokers-Broker as Principal and Agent.— Though a broker acts as principal under rules of the Cotton Exchange, that fact does not preclude a contract whereby the broker with respect to his customer acts merely as agent.Scandinavian Import-Export Co. V. Bachman, N. Y. 186 N. Y. S. 860.

an

6. -Listing Property for Sale. When owner of land enters into a written contract, whereby he lists his land with a broker "for sale," though the description of the land and the terms of sale are 'set out therein, the broker's authority to enter into a contract of sale for his principal will not be inferred from the words "for sale," used in the contract, and, in order that such authority exists, it must affirmatively and unequivocally appear from the writing, or, at least, must be so indicated from other terms used, that the contract, in the light of surrounding circumstances or the construction placed upon it by the parties, or other proper evidence to explain ambiguity, will clearly show that such authority was intended.-Gould Rockwell, Neb. 181 N. W. 655.

V.

7. Constitutional Law.-Dance Ordinance Unconstitutional.-An ordinance prohibiting after 10 p. m. dancing or dance music in a room or hall within 25 feet of a residence held violative of the Fourteenth Amendment and Const. art. 1, § 1, being unreasonable and oppressive, and unduly and unwarrantably interfering with personal rights.-Ex Parte Hall, Cal. 195 Pac. 975. 8. Delegation of Legislative Power.-Federal Control Act March 21, 1918, § 9 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115i), construed as authorizing the President through the Director General of Railroads, to require suits against the Director General to be brought in the district of plaintiff's residence or the district in which the cause of action arose, was not an unconstitutional delegation of legislative power.-Ellis v. Atlanta, B. & A.. Ry. Co., U. S. D. C. 270 Fed. 279.

9. Due Process of Law.-Rev. St. 1911, art. 5475, as amended in 1915 (Acts 34th Leg. c. 38 [Vernon's Ann. Civ. St. Supp. 1918, art. 5475]), providing that a letting of farm lands giving to the landlord more than one-third of crops shall be void, violates the due process clauses of the state and federal Constitutions (Const. Tex. art. 1, § 19; Const. U. S. Amend. 14, § 1).-Rumbo v. Winterrowd, Tex. 228 S. W. 258.

10. Contracts-Fiduciary Relation. Where plaintiff, shareholder in a partnership, with title to its property vested in managing trustees, arranged with defendant to vote his shares in favor of sale and transfer of the firm property to defendant, and to participate equally with defendant in profits derived from such purchase and sale of the property of the firm and also of the shares, such deliberate violation by plaintiff of the fiduciary relation in which he stood to his fellow shareholders, to their loss and his individual gain, will not be sanctioned in suit

by plaintiff, praying that a partnership be decreed to exist between him and defendant in accordance with their corrupt agreement.-Howe v. Chmielinski, Mass. 130 N. E. 56.

11. Corporations-Overvaluation of Property. -Directors of a corporation may be honestly mistaken as to the value of property taken in exchange for corporate stock, and, in the absence of proof that their overvaluation was not the result of innocent mistake, the stockholders cannot be held liable to corporate creditors for any difference between the true worth of the property and the par value of the stock; it not being sufficient to prove merely that the property was overvalued in the exchange, and the fraudulent intent must be clearly shown.Andrews v. Panama Oil Co., Cal. 195 Pac. 963.

12. Customs Duties-Collector Cannot be Sued in Official Capacity.-A collector of customs cannot be sued in his official capacity; the remedy ing by suit against him individually to recover money wrongfully exacted under color of his office, or by suit against the United States, under Judicial Code, § 24, subd. 20 (Comp. St. § 991 [20]).-Rankin Gilmour & Co., v. Newton, U. S. D. C. 270 Fed. 332.

Where defendant

13. Deeds. Remainders. conveyed lands to his stepmother for life with remainder to the heirs of his father then living, the conveyance of the remainder 'should not be set aside on the ground that there are no heirs of a person living, but the word "heirs" should be construed as "children" giving a vested remainder to the children living subject to being opened in case of afterborn children.-Miller v. Harland, Ind. 129 N. E. 134.

14. Depositaries.-Liability on New Bond.Where bond of bank as depository was surren dered by the state insurance commissioner in consideration of the bank's agreement to procure new bond, the bank, on receiving the new bond from the surety for its signature, was under the legal obligation to sign the bond and deliver it to the insurance commissioner, and was liable on bond even if it refused to so do, having received full consideration by the surrender of the old bond.-Donaldson v. Hartford Accident & Indemnity Co., Pa. 112 Atl. 563.

15. Descent and Distribution Receipt for "Partial Share.-A written receipt, given by a daughter to her father, acknowledging payment of a sum of money which she accepts as her partial share of all real estate left by him at his death, does not bar her right to any participation in such real estate, which would have been its effect if the word "partial" had been omitted, since her share in his estate would be the portion she was entitled to, but the word "partial," when given its ordinary meaning as affecting a part only, not total, indicates that the money received was only an advancement made to the daughter.-Swigert v. Miles, Ind. 130 N. E. 130.

16. Electricity-Ordinary Care. That electricity is a dangerous element does not require that a master use more than ordinary care for the protection of his servants from dangers arising therefrom; but the quantum of such care, made necessary by reason of the presence of such dangerous element, is a fact to be considered in determining whether a master has discharged his duty toward his servant in a particular instance.-Hines v. Nichols, Ind. 129 N. E. 140.

17. Executors and Administrators-Claim of Partnership.-All members of a copartnership or association of persons filing a claim against an estate of a deceased person need not make the affidavit required by Code Civ. Proc. § 1494. since under Civ. Code, § 2429, a partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, including the power to collect for the partnership interest a partnership debt, and one or more partners may make the affidavit in behalf of all of them.-Sime v. Hunter, Cal. 195 Pac. 935.

18. False Imprisonment-"Escape."-A deputy sheriff who arrested plaintiff, placed her in the county jail, and made no effort to bring her before the proper tribunal as required by the war

rant, or before a magistrate as required by Rev. St. c. 135, § 9, and did not deliver the warrant with a proper return to the magistrate, was not relieved of liability for assault and false imprisonment by the fact that sheriff released the prisoner, where for two weeks he made no effort to rearrest her, though there would have been no difficulty in finding or arresting her.Helfer v. Hunt, Me. 112 Atl. 675.

19.

Gaming-Averments.-An indictment for keeping a gaming house need not allege the name of any person who played there.-James v. State, Ind. 130 N. E. 115.

20. Highways-Prescriptive Use. As a genrule, highways may be established by prescriptive use over or along the right of way of a railway company.-City of Raton v. Pollard, U. S. C. C. A. 270 Fed. 5.

21. Homestead-Cancellation of Mortgage.— Where a wife joins in a mortgage upon a homestead with the understanding that it is to be used for a specific purpose, and where the purpose fails and the rights of innocent third parties have not attached or been prejudiced, the wife has an equitable right to have the mortgage canceled as a lien upon the homestead.Kittel v. Straus, N. D. 181 N. W. 628.

Hus

22. Husband and Wife-Authority of band to Contract.-Where a husband had no express authority from his wife, his assent to an arrangement whereby a broker obtained as purchaser a proposed corporation to take over property belonging to wife was not binding on wife, who did not assent thereto.-Rusher v. Watt, N. Y. 186 N. Y. S. 858.

23. Innkeepers-Bailee for Hire. Where plaintiff, who had been a guest in defendant's hotel, left a trunk temporarily in the hotel's keeping, the manager assuring her that the trunk would be taken care of, and it appeared that on plaintiff's return a diamond pendant worth more than $1,000 was missing from the trunk, in an action to recover the value, held, that a motion to dismiss the complaint was properly allowed, where there was no evidence that defendant had actual notice that the pendant was in the trunk.-Waters v. Beau Site Co., N. Y.. 186 N. Y. S. 731.

24.

Insurance Knowledge of Illness.-An insurance company is bound by a life policy delivered by an authorized agent to insured, when the agent had knowledge the insured was then sick, notwithstanding a provision requiring good health of insured when the policy was delivered to make it effectual.-Kansas City Life Ins. Co. v. Ridout, Ark. 228 S. W. 55.

25. -Military Service. The provision of a life insurance policy reducing the amount of recovery in case of insured's death outside the United States while in military service as an enlisted man, unless insurer was notified of such enlistment and an additional premium paid, means, by the word "enlisted," one enrolling in the service, whether he volunteered or was drafted, and where such a one failed to comply and died in service his beneficiary cannot recover the full amount of the policy.-McQueen v. Sovereign Camp, W. O. W., S. C. 106 S. E. 32.

26. Intoxicating Liquors—Locked Safe.-Prohibition agents, holding a warrant to search for intoxicating liquors, were entitled to take a locked safe into their possession for a reasonable time until it could be opened, where defendant locked the safe and refused to open it. -United States v. Metzger, U. S. D. C. 270 Fed. 291.

27. Offense Complete on Purchase for Transportation.-Under Act March 3, 1917 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 8739a), making it an offense to order or purchase intoxicating liquors for the purpose of being transported in interstate commerce, as well as for transporting such liquors into state commerce, the offense of purchasing is complete on purchase for the purpose of transportation, and an indictment therefor need not allege the liquors were actually transported.Tacon v. United States, U. S. C. C. A. 270 Fed. 82. 28. Police Power.-Const. U. S. Amend. 18, and the National Prohibition Act confer no rights to sell Jamaica ginger in quantities not prohibited by the act, but were intended as limitation upon privilege, and therefore a state,

under its police power, can prohibit the sale of such quantities.-Woods v. City of Seattle, U. S. D. Č. 270 Fed. 315.

29.- -State Law.-Under Const. U. S. Amend. 18, the Act 36th Leg. (1919, 2d Called Sess.) c. 78, prohibiting the transportation of intoxicating liquor containing more than 1 per cent of alcohol, is valid though a federal law prohibits the transportation, etc., of liquor containing more than one-half of 1 per cent of alcohol.Ex Parte Gilmore, Tex. 228 S. W. 199.

30. Unlawful Search.-An order requiring the return of intoxicating liquor taken from the home of one of the defendants in a criminal case during an unlawful search of his home was not appealable, where the court did not assume jurisdiction for the purpose of trying the title or right of possession, but merely to prevent the use of evidence of property wrongfully seized. -United States v. Marquette, U. S. C. C. A. 270 Fed. 214.

31. "Violation of Law."-Such act, So declared by the Constitution to be unlawful, or prohibited, is included within the language::in violation of law," as found in section 13195, General Code.-Hoffrichter v. State, Ohio 130 N. E. 157.

32. Landlord and Tenant-Forcible Entry.An action of forcible entry and detainer is purely a possessory action, and the question of title, or right to title, cannot be determined in such actions. If title is involved, it is only as an incident, and can only be inquired into for the purpose of determining who has the right to possession. Montgomery v. Hill, Okla. 195 Pac. 897.

33. Lease for Saloon Purposes.-Lease requiring premises to be used for saloon purposes for specified period was terminated by enactment of the state-wide prohibition law. since such law made performance by lessee impossible.-Schaub v. Wright, Ind. 130 N. E. 143.

34. Lease Upon Condition.-The commonlaw rule that an estate upon condition does not ipso facto terminate upon its breach, but can be determined only by entry by one authorized to take advantage of the condition, applies to a lease with a condition subsequent, giving the landlord a right to enter and terminate the estate on breach of covenant against assignment without previous written permission; and is not abrogated by Rev. St. c. 109, § 4, which applies to cases in which the common law required a formal entry to restore the seizing to one who had been dis-seized or otherwise deprived of it. -Clifford v. Androscoggin & K. R. Co., Me. 112 Atl. 669.

35. Licenses-Blue Sky Law.-A corporation organized under the Laws of Delaware which undertook to establish a wholesale drug business in the state held one which the Blue Sky Law was designed to regulate.-Goodyear v. Meux, Tenn. 228 S. W. 57.

36. Life Estates-Waste by Life Tenant.Where a life tenant, holding five separate properties, on four of which were mortgages, assigned three of the mortgages to third persons, who foreclosed two of them and commenced an action for foreclosure of a third, and it appeared that at the time of the assignment there was interest due and unpaid, and there were taxes on the properties covered, and that interest and accruing interest, together with the taxes, were paid out of the proceeds on foreclosure, held, that waste on the life tenant's part was shown, impairing the remainders and partially destroying them.-Sweeney v. Schoneberger, N. Y. 186 N. Y. S. 707.

37. Master and Servant-Arbitrary Award.The commissioners, in exercising the powers given to them under Workmen's Compensation Law, §§ 20, 65, 68, cannot make an award under section 15 for an injury in excess of the proportionate loss of hand fixed by the testimony of the physicians, on a personal examination by one of the commissioners, since to permit such an award would be arbitrary, and violate the due process of law provisions of the Constitution. Schermerhorn v. General Electric Co., N. Y. 186 N. Y. S. 835.

38.-Defective Insulation.-Where a trolley line repair man working on an insulated platform was killed by an electric shock from a

defectively insulated feed wire, the master's liability for the defective insulation is not defeated by the fact that the accident could not have occurred unless the man was in contact with some grounded wire, and the master was not in control of such wire, since the defective insulation and the grounded wire were concurring causes.-Sudmeyer v. United Rys. Co. of St. Louis, Mo. 228 S. W. 64.

39. Recovery on Federal Act.-Where, in a suit against a common carrier for personal injuries to an employe, the petition contains two counts, one based on the state law and the other on the federal Employers' Liability Act, and a verdict in favor of the plaintiff is based expressly on the latter count, the evidence must show that at the time of the injury the carrier was engaged in interstate commerce, and that the injured employe was also then employed in interstate commerce. In the instant case the evidence negatives these two essential facts.Payne v. Demott, Ga. 106 S. E. 9.

40. Reservation to Supervise Work of Contractor. Reservation by a sugar company having coal conveyors to boilers installed under contract of a right to supervise the work by furnishing a superintendent did not make the sugar company the employer of men who did the work, and it was not liable for injuries to such a servant of the contractor under the Employers' Liability Act of 1911 (Laws 1911, c. 88), which applies only to cases where the relation of employer and employe exists.-Naylor V. Hollant-St. Louis Sugar Co., Ind. 130 N. E. 152.

41. Res Ipsa Ioquitur.-The doctrine of res ipsa loquitur does not apply to the case of injuries to a drug clerk temporarily in defendant's employ caused by the explosion of a soda tank lent to defendant for use while he was using the gas therein.-Russell v. Spaulding, Mass. 130 N. E. 195.

42.

-Sleeping Sickness.-An employe, whose head was bumped, was not entitled to compensation for sleeping sickness of which he became a victim subsequent to accident, in absence of evidence that the disease was caused by the accident; such disease not being an "injury," within Const. art. 1, § 19, and Workmen's Compensation Law, § 3. subd. 7, defining compensable injuries as accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.-Donovan v. Alliance Electric Co., N. Y. 186 N. Y. S.. 813.

43. Ulcer is a "Disease" or "Infection."An ulcer is a "disease" or "infection," within Workmen's Compensation Law, § 3, subd. 7, declaring that "injury," or "personal injury," as used in the act, means only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.-Pinto Chelsea Fibre Mills, N. Y. 186 N. Y. S. 749.

V.

44. Mines and Minerals-"Producing Well." -A "producing well" in an oil lease providing that no rental should be paid lessor after producing well had been brought in is one the product of which yields a royalty to the landowner, and not one in which the oil is allowed to stand without being taken and prepared for market.-Kies v. Williams, Ky. 228 S. W. 41. 45.

Monopolies-Restraint of Trade.-A contract, whereby plaintiff oil company lent defendant garage partnership a gasoline pump to be used in the sale of the oil company's gasoline, in consideration of which the partnership agreed to purchase for cash all the oil company's gasoline, accepting conditions requiring them not to use the equipment for any other purpose than that specified, with provision that immediately upon infringement of the contract the oil company might remove the equipment or bill it to the partnership at its initial value, held, not void as against public policy, not constituting a restraint on trade greater than necessary for the oil company's protection.Quincy Oil Co. v. Sylvester, Mass. 130 N. E. 217. 46. Mortgages-Foreclosure.-Laws 1917, C. 192, amending Rev. St. 1916, c. 95 § 4, requiring in case of foreclosure of mortgage by possession, the recording of affidavit in the registry of deeds within three months after the expiration of one year from the taking of possession,

held applicable to foreclosures begun after its passage, including foreclosures of prior existing mortgages.-Barton v. Conley, Me. 112 Atl. 670.

47. Municipal Corporations-Building Sidewalks.-Owner may enjoin building new sidewalk, where permanent walk already built.Sleeth v. City of Elkins, W. Va. 106 S. E. 73.

48.- -Ice on Sidewalk. The act of the lessee of premises in which a fire occurred, causing an accumulation of ice and broken glass on the sidewalk in sweeping up the glass and ice after a pedestrian fell thereon and was injured, did not prove or tend to prove any wrongful act or omission by the lessee or amount to an admission of liability to the pedestrian. -Tiffany v. F. Vorenberg Co., Mass. 130 N. E. 193.

49. Navigable Waters-Depends on Consent of Riparian Owner.-The title to the bed of a navigable stream being in the state, the water flowing over that bed is held by the state for the use of the people as a whole, equally, with the exception that none can land on the land of riparian owner without his consent.-Thompson v. Ft. Miller Pulp & Paper Co., N. Y. 186 N. Y. S. 817.

50. Negligence Artificial Pool.-The degree of care required of one maintaining on his land an artificial pool of water for a useful purpose is no greater than that required of one through whose land flows a natural stream, and he is bound to no special care or precaution for the protection of children in the habit of swimming therein, unless there is in the pool some peculiar danger in the nature of a hidden peril or trap for the unwary, of which he has or ought to have knowledge.-Troglia v. Butte Superior Mining Co., U. S. C. C. A. 270 Fed. 75.

51. Parent and Child-Father's Duty to Support Child.-A mother has no power to make a binding agreement releasing the father from the support and maintenance of the child after the death of the mother; such responsibility being cast upon the father until the child's majority.-Michaels v. Flach, N. Y., 186 N. Y.

S. 899.

52. Principal and Agent-Payment of Note to Third Party.-Where the holder of a pastdue note is insisting upon the payment in full and procures a third party to bring pressure upon the debtor to persuade him to pay, the circumstances attributable to the holder's acts being such as to give the debtor reasonable ground to infer that such party, although not in possession of the note, is authorized to receive payment as agent for the holder, the debtor, in the absence of notice to the contrary, is entitled to assume that such authority exists, and payment to such third party will be binding upon the holder.-Krause v. Cox, Neb. 181 N. W. 611.

53. Sales-Completion.-Where a seller in accepting a buyer's offer asked the buyer to send a check for $1,000 to bind the trade, and the buyer in reply promised to mail a check in a few days, but never did, if the acceptance was qualified the buyer might have treated it as a rejection, but, having assented to the qualification, the sale was complete notwithstanding the failure to send the check.-University Maine v. Pratt, Me. 112 Atl. 673.

of

on a

54.- -Implied Warranty.-Under Sales Act, § 15, cl. 4, there is no implied warranty as to the fitness for any particular purpose sale of a specified article under its patent or other trade name.-Boston Consol. Gas Co. v. Folsom, Mass. 130 N. E. 197.

55. Measure of Damages.-Buyer on seller's failure to deliver could not recover for loss of profits under his contract to sell to third parties at a higher price unless seller in making contracts with buyer had special notice that buyer had contracted to sell to third parties, in which case the measure of damages would be the difference between the price expressed in the original contract and the price buyer was to receive.-Barnes v. Early-Foster Co., Tex.

228 S. W. 248.

face it indicates the execution of an agreement setting forth the necessary terms, so that such contract cannot be specifically enforced under the statute of frauds after the execution of the proposed agreement was refused.— Manufacturers' Light & Heat Co. v. Lamp, Pa. 112 Atl. 679.

defendants

57. Return of Money.-Where agreed only to convey lot if they could, and expressly stipulated that, if they could not convey what they had agreed to sell, they should be called on for nothing except the return of the hand money, a bill in equity by plaintiff praying specific performance of the contract was properly dismissed on demurrer, where petition showed defendants could not convey title as agreed.-Safron v. David McBurney & Son, Pa. 112 Atl. 677.

58. Statutes Punctuation Marks.-Punctuation marks in the statute may be disregarded, when they lead to results inconsistent with the apparent intention of the General Assembly, as expressed in the statute itself.-Kubis v. Town of Cornwall, Conn. 112 Atl. 663.

59. Vendor and Purchaser-Option.-A privilege or option of buying after the death of the vendor, or whenever she was ready to sell the property, entitled the purchaser to a reasonable time in which to exercise his right, and he was not bound to determine whether he would take the property or not until such time after the vendor's death as the will had been probated and the executor duly qualified, for until such time no one could have performed the contract.-In re Miller's Will, N. Y. 186 N. Y. S. 661.

60. Wills-Codicil. The language of item 3 of the codicil of will here in question did not create a condition precedent to the vesting of the estate, and did not prevent the devise from becoming effective, but it created a charge against the land for the difference between the value of all the property bequeathed and devised to the testator's daughter and her children, and the amount of their distributive share in testator's estate.-Maynard v. Zellner, Ga. 105 S. E. 837.

61. Accumulations.-A provision in a will, providing for a hundred years, with the expenditure of money for tombstones, held not to provide for the maintenance or care of a cemetery or other place for the burial of dead within the meaning of Act May 26, 1891 (P. L. 119) § 1, providing that disposition of property for maintenance of cemetery, churchyard or other place for the burial of the dead shall not fail by reason of having been made in perpetuity.— Wise v. Rupp, Pa. 112 Atl. 548.

62. Capacity to Make.-Occasional and isolated facts concerning the actions and conduct of the testator which prove no more than to show him an eccentric individual, or curious and queer in his disposition and conduct, and acts which are somewhat out of line with the course of conduct usually pursued by the generality of mankind, will not of themselves be sufficient to establish mental incapacity.-Wood establish mental incapacity.-Wood v. Corcoran, Ky. 228 S. W. 32.

63. -Capacity to Make.-Less mental capacity is required to enable a man to make a valid will than to enter into valid contracts.-In re Bossom's Will, N. Y. 186 N. Y. S. 782.

64. -Mutual Wills.-If husband and wife made a compact to dispose of their combined estates, the terms of which found expression in their mutual wills, the contract will be enforced in equity according to established praetice, equity not interfering with probate of the wife's later will, made in violation of the contract, but enforcing the contract against her estate, she being the survivor, by impressing a trust on the assets. Tooker v. Vreeland, N. J. 112 Atl. 665.

65. Witnesses-Mayor as Witness.-A party cannot call a judge as a witness, or the judge himself cannot testify in a cause, where the court is held by a single judge, and thus destroy the court. This principle is applicable to the mayor and director of public safety of a city, sitting to hear charges preferred against the acting chief of police.-Crawford v. Hendee, N. J. 112 Atl. 668.

Central Law Journal.

St. Louis, Mo., June 3, 1921.

NOTICE.

There has been difficulty in getting the Journal out on time the last two weeks, due to the general strike in the printing trade. We are doing our best to have the Journal mailed out on Wednesday, as usual, and ask our subscribers to be patient.

JUDICIAL PREJUDICE AND BIAS.

In our issue of April 15th (92 Cent. L. J. 261) we discussed the Berger decision relating to the effect to be given to "affidavits of prejudice" in federal courts. We there criticised the law which as construed by the Court permitted a litigant to allege “facts” in an affidavit of prejudice and gave no opportunity to the judge to controvert the facts so set forth. In that editorial we had in mind solely the interests of the judge who is subjected, as we believe, to unnecessary embarrassment, by the require

ment that the affidavit shall set forth the "facts." This portion of the law should be repealed or modified. On the other hand, we believe, that looking at this decision from the standpoint of the interests of the public, it could not, and should not, have been otherwise than it was. We wish to offer a few reasons for this belief.

It is very seldom that a judge will want to sit in a case in which he knowingly does not possess the confidence of Counsel trying it, not to speak of the litigants, whatever may be the reason. Yet there should be ample protection against the rare exceptions to the rule. The recent interpretation of Section 23 of the Judicial Code would appear to go along way towards that end. Bias and prejudice are obviously secret and often inarticulate and sometimes unconscious in their deadly work, hence "it cannot be the assumption of Section 23 that the bias or prejudice of a judge in a particular case would be known by everybody.

*

*"" Therefore "the tribunals of the country, shall not only be impartial in the controversies submitted to them, but shall give assurance that they are impartial -free * * * from any bias or prejudice that might disturb the normal course of impartial judgment."

It will be observed that the above quotations were taken from the "Berger Case" (Berger v. U. S. 8 U. S. Sup. Ct. Ad. Op., p. 277, 1920-21) in which Section 23 of the Judicial Code was interpreted and applied. Said the Court: "To commit to the judge a decision upon the truth of the facts (set forth in the affidavit required by Section 23) gives chance for the evil against which the section is directed." This sentiment gives firm support to the views just ventured that a biased or prejudiced person is often unconscious of the fact, wherein no dishonesty of purpose is present. It is a mental condition of personal hostility or dislike on one hand or a favoritism inspired by sentiment or gratitude or other passion, on the other hand. These tendencies enter too

deeply into human nature to permit of analysis and application.

Sometimes it is a mere opinion or belief of the party or counsel but, said the Supreme Court, "both are of influence and universally regarded as of influence in the affairs of men and determination of their conduct and it is not strange that Section 23 so regards them." And, said the Court, "to refuse their application to Section 23 would be arbitrary and make its remedy unavailable in many, if not in most cases." The lawyer ascends the bench with the full and honest intention of putting behind him the passions of politics, social bitterness and professional enmities incurred in hard fought legal battles but his humanity is like the leopard's spots, its coloring cannot be changed. Or like Æsop's fable of the nails driven into the post to mark bad conduct, their removal for good conduct still left the holes. A judge, for the sake of his own reputation and the repute of the Courts should hesitate long in trying the case of