were to be stored until needed.-Hudson & M. R. Co. v. Iorio, U. S. C. C. A., 239 Fed. 855.

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35. Employers' Liability Act.-Where engine of an intrastate railroad, after moving freight and milk trains, was ordered to a certain point and then to another point, and in the last trip an employe was killed, the employe was not engaged in interstate commerce within the federal Employers' Liability Act of April 22, 1908, as amenued by Act April 5, 1910, although the freight and milk trains may have contained interstate shipments, since the engine's connection with such trains had ceased.-Hoag v. Ulster & D. R. Co., N. Y., 164 N. Y. S. 529.

36. Excise Tax.-A state statute, imposing a special excise tax on corporations for the privilege or doing business, held not unconstitutional as an interference with commerce, as applied to corporations doing an interstate commerce, as applied to corporations doing an interstate business.-Baldwin Tool Works V.

Blue, U, S. D. C., 240 Fed. 202.

37. Foreign Corporation.-A foreign corporation giving instruction by mail to an applicant in New York, heid engaged in interstate commerce, and entitled to sue applicant in New York for his contract to pay a monthly premium for instruction, although it had not complied with General Corporauon Law, § 15, nor Tax Law, 9 181.-international Text-book Co. V. Tone, N. Y., 115 N. E. 914, 220 N. Y. 313.

୪୪. Conspiracy-Boycott.-Those acting in concert to bring about a secondary boycott and interference umawful with trade are engaged in a conspiracy.-Justin Seubert, Inc. v. Rear, N. Y., 104 N. Y. S. 522.

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39. Constitutional Law-Due Process of Law. -Ordinance of city of Winston-Salem, declaring the construction, operation and maintenance of pay hospital within 100 feet of residence to be a nulsancе, was not violative of Fourteenth Amenument of federal Constitution, as being unduly discriminaitve, in that it applied only to hospitais established for pront and not for charity. Lawrence v. Nissen, N. C., 91 S. E. 1036,

40. Forfeiture. A municipal ordinance providing that an applicant for liquor license shall agree to abide by all regulations, and that the mayor snall be authorized to forfeit his license for failure, is valid, and the mayor may declare sucn 1orieiture without working a deprivation of property without due process of law. Boerner v. Thompson, ill., 115 N. E. 866. 41. Covenants-Building Restrictions.-Covenant of deed that first building on the lot shall be a private awelling for use of one family, held restrictive of construction only, so that such a dwelling, being constructed, may be altered for apartment purposes.-Reed v. Sobel, N. Y., 164 N. Y. S. 397.

addition, "according to the recorded plat thereof," the grantor, by such reference, did not represent or guarantee the courses, distances, measurements, or quantity of lots to be as set forth in plat.-Fitzpatrick v, Crowther, Kan., 164 Pac. 300.

44. Damages-Measure of.-Where a railroad admitted liability for the killing of plaintiff's hog, and there was evidence to support jury's finding that alive it was worth $9, the railroad had no right to pay for the hog on the basis of market value of pork.-Atlantic Coast Line R. Co. v. Jenkins, Ga., 91 S. E. 1006.

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45. Death-Joint Tenancy.-Under deed grantor's son for life and to his wife jointly while his wife or widow, and on his death without issue and her remarriage title to go to the son's legal heirs, the wife was a joint tenant for life during wifehood or widowhood.-Brown v. Paul, Kan., 164 Pac. 288.

46. Deeds-Quitclaim.-Under will granting lands to the widow during her life, and then to children in succession, providing for reverter to other children should any child die without issue, a quitclaim deed of certain children conveying "all right, title and interest, estate, claim and demand, both in law and equity, as well in possession as in expectancy," granted all the estate of the children joining in it.-Bowden v. Lynch, N. C., 91 S. E. 957.

47.

Divorce False Accusation.-A husband's false charge that his wife was unfaithful, together with his applying profanity to her, is ground for divorce.-Jones v. Jones, N. C., 91 S. E. 960.

48. Dower-Estoppel.-Plaintiff, who, in the honest, but mistaken, belief that she had been divorced, remarried and lived with her so-called second husband for 20 years, was equitably estopped from asserting claim of dower in real estale purchased by former husband after separation and conveyed to defendants by deed of himself and the woman he had thereafter married.-Kantor v. Cohn, N. Y., 164 N. Y. S. 383. Fixtures-Lease.-Where lease provided that improvements by lessee should become property of lessor, rights of parties are governed by that provision regardless of whetner improvements are trade fixtures within Civ. Code, § 1019.-Realty & Improvement Corp. v. Anderson, Cal., 164 Pac. 4.

49.

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50. Fraudulent Conveyances-Consideration. -Mother's conveyance of all her property at fair price to cashier of bank to which mother and son were indebted, with order to pay proceeds to son, and accepted and paid by bank in good faith, held valid.--Benton County Savings Bank v. First Nat, Bank, la., 162 N. W. 204.

51. Evidence.-Where grantor gave general warranty of land and subsequently deeded his property to his wife and children, and on his death the wife established dower in the land granted to the purchaser, the fact that the purchaser had no notice of the dower claim until it was demanded and established was irrelevant in the purchaser's action against the widow and children to set aside the deeds to them as in fraud of creditors.-De Witt v. Dowling, S. C., 91 S. E. 1040.

52. Gaming-Action.-A bank has no statutory right to recover from the cashier's broker losses sustained by its cashier in gambling on futures with embezzled funds.-Thorn & Maginnis v. Wallace, Miss., 74 So. 610. 53. Illegality.-Proprietors of a gambling house, who turn money over to employes to be used for gambling, may repudiate contract and maintain an action against employes for money had and received, at any time before the money has been used for the illegal purpose.-Kearney v. Webb, Ill., 115 N. E. 844.

54. Good Will-Sale of Business.-Contract whereby owners of a business agreed to lease their premises to another firm and to sell to it all personalty used in business, held to cover good will of business, though not expressly mentioned.-Bennett v. Carmichael Produce Co., Ind., 115 N, E. 793.

55. Highways-Assessment for Taxes. A highway tax judgment against a railroad's property in the entire county is insufficient since the judgment should be against the separate portions in each taxing district so as to show what tract is to be sold for the delinquent taxes of each township.-People v. St. Louis, I. M. & S. Ry. Co., Ill., 115 N. E. 854.

56. Evidence.-Where a city discharged surface water collecting upon a highway onto adjoining land through a culvert, the property owner's remedy was to erect a barrier against such water instead of damming up the culvert.McMahon v. City of Holyoke, Mass., 115 N. E. 920.

57. Statutory Power. In action for injuries to passenger in automobile caused by driving over an embankment on highway in attempting to pass another automobile, Laws 1915, p. 394, § 26, providing that vehicles at intersection of highway should keep to right of intersections when turning to right, held intended to prevent collisions and not applicable.—Bogdan v. Pappas, Wash., 164 Pac. 208.

58. Husband and Wife-Community Property. -Where a son on mother's death took a half interest in community property, his interest is chargeable with money advanced to liquidate debts owing at mother's death, if claim is made within period of statute of limitation (Rem. Code 1915, § 1368).—In re Mason's Estate, Wash., 164 Pac. 205.

59. -Constitutional Law.-Revisal 1905, § 1041, providing that chattel mortgage by husband on household and kitchen furniture shall be void unless wife join therein and her privy examination be taken in manner prescribed by law as on conveyances of real estate, is not unconstitutional as interference with husband's jus disponendi, but is valid exercise of police power. Thomas v. Sandlin, N. C., 91 S. E. 1028. 60. Mingling Funds.-Where wife loaned her husband money and allowed such funds to be mingled with his in erecting residence, she is not entitled, after his death, to lien on the house for such loan in preference to his other creditors. In re Gorham, N. C., 91 S. E. 950.

61. Ratification.-Where note was given for guano purchased, defendant wife, who knowingly received it and accepted the benefits thereof, ratified the purchase and raised an obligation to pay therefor, whether she signed the note or authorized its execution or not.-Swearingen v. Virginia-Carolina Chemical Co., Ga., 91 S. E. 1050.

62.

-Separate Property.-Mortgage executed by debtor and wife upon her separate property, in absence of fraud and injury to subsequent grantee is valid obligation which will not be avoided at instance of subsequent purchaser with constructive notice. Ocklawaha River Farms Co. v. Young, Fla., 74 So. 644.

63. Insurance Incumbrance.-Action on fire policy, providing that unless otherwise provided by indorsement it should be void if property

became incumbered by chattel mortgage,

wherein petition showed such incumbrance when policy issued, and did not allege insurer's knowledge thereof, or any indorsement or waiver, was properly dismissed.-Johnson v. Pacific Fire Ins. Co., Ga., 91 S. E. 1067.

64. Mistake.-Insurer's honest mistake of judgment in refusing to compromise claim against insured employer held not to render insurer liable to insured for amount over and above face of policy, paid by insured in satisfying injured servant's judgment.-Wynnewood Lumber Co. v. Travelers' Ins. Co., N. C.. 91 S. E. 946

or any showing that any effort had been made to ascertain his whereabouts, was not sufficient to prove his death.-Mackie v. Grand Lodge A. O. U. W. of Kansas, Kan., 164 Pac. 263.

66.- -Waiver.-Burglary insurer's refusal to recognize liability for loss after proofs have been furnished, without specific objection on ground of insufficiency of proofs, is waiver of any informality or defects in them.-Horwitz v. United States Fidelity & Guaranty Co., Wash., 164 Pac. 77.

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67. Intoxicating Liquors-Evidence. dence showing that witness laid a dollar on defendant's leg, and defendant gave him a pint bottle, shown to contain whisky, held to justify a conviction for engaging in business of selling intoxicating liquors.-State v. Hays, S. D., 162 N. W. 311.

68. Libel and Slander-Privileged Communication. Where a former employer at plaintiff's request for a recommendation wrote to employment agency that plaintiff had been discharged "for an act of insubordination," the com...unication was privileged, and, although untrue, was not libelous, unless actual malice or abuse of privilege was shown.-Childs v. Erhard, Mass., 115 N. E. 924.

70. Statutory Power.-Cities and Villages Act, art. 5, § 1, par. 41, authorizing the council to license keepers of ordinaries, theatricals and other exhibitions, shows and amusements, does not authorize a village to require a license for conducting a golf course.-Condon v. Village of Forest Park, Ill., 115 N. E. 825. 71. Mandamus-Reasonable Time. Lessee under oil lease drilling an unprofitable well may abandon the land, and within a reasonable time thereafter may exercise right given by lease to remove all machinery, etc., at any time by removing pipe left in the ground, and eight months after abandonment was a reasonable time within which to remove it.-Standard Oil Co. of Louisiana v. Barlow, La., 74 So. 627.

72. Master and Servant-Continuance of Relation. The relation of master and servant continues while employes of a coal company are riding to and from their place of work in the mine.-Simpson v. Carter Coal Co., W. Va., 91 S. E. 1085.

73. -Contributory Negligence.-When an experienced miner tested a fuse near a can of powder and threw a lighted fuse in its direction, a fellow employe's failure to remonstrate with him or leave the place was not contributory negligence.-Rapson Coal Mining Co. v. Micneli, Colo., 164 Pac. 311.

74. -Dependency.-Claim for compensation under Workmen's Compensation Act for the death of plaintiff's alleged husband while in the employ of a city was properly refused, where it was found that the marriage was void under the laws of the state.-Hall v. Industrial Commission, Wis., 162 N. W. 312.

75.- -Res Ipsa Loquitur.-Rule that doctrine of res ipsa loquitur does not apply to actions by servants has no application to action under federal Employers' Liability Act, which abolished fellow servant rule.-Southern Ry. Co. v. Derr, U. S. C. C. A., 240 Fed. 73.

76.- -Workmen's Compensation Act.-In proceeding under Workmen's Compensation Act, it was error to admit in evidence verdict of coroner's jury, it not being within the province of such jury to fix civil liability growing out of the death of an injured person except as finding required by statute may have such effect.-Albaugh-Dover Co. v. Industrial Board of Illinois, Ill., 115 N. E. 834.

Central Law Journal.

ST. LOUIS, MO., JULY 13, 1917.

A SCHEME IN THE ORGANIZATION OF A BANK BRINGING LOSS WITHOUT HOPE OF PROFIT TO AN INNOCENT PARTICIPANT.

The record in the case of Golden v. Cervenka, 116 N. E. 273, decided by Supreme Court of Illinois, concerns the evolution and consummation of a scheme in high finance, as to the consequences of which the court was gravely divided, there being two very elaborate dissenting opin

ions.

The burden of these dissents proceeds mainly upon the ground that a bank and state banking officers viewed the plan of organizing a new bank as doing nothing more than avoiding an office rule in at legitimate way and, therefore, no serious. consequences should be attached to it. The majority, on the contrary, held, that when the scheme was carried through, the law laid its hands upon the transaction and determined the consequences however innocently it was entered into.

It appears that a national bank in Chicago desired to become a state bank and trust company. There was no way to do this as by statute provided. It was resolved, therefore, to organize the state bank and trust company and turn over to it the assets of the national bank.

But to organize the state bank it was necessary for it to have a cash capital in hand. The stockholders of the old, were to be stockholders of the new, bank, and they did not have the cash required for organization purposes.

To bridge this chasm without the stockholders putting up the required cash, the president of the old, and the prospective president of the new, bank, called on another bank and arranged, in friendly accommodation, for the new bank to give to the old bank a check and the lat

ter to issue to it a cashier's check for $1,250,000. Upon this latter check the accommodating bank would hand to the president of the old bank the above sum for organization purposes only, and then to be returned to it. All of this was done.

In the course of two years or more the new bank passed into the hands of a receiver and actions at law were begun against stockholders and the accommodating bank, the latter for receiving from the new bank the million and a quarter. As said, the majority attached serious consequences to the transaction. It held the accommodating bank was liable to the creditors of the bank thus organized for the money of which it had repossessed itself.

It seems to us this view is altogether correct and that the argument made by the dissentients of good faith in the bank which actually parted with the possession, though but for a moment, of this money, amounts only to a plea that it did not appreciate the law governing its act. And further, even if it be true, that the state officers who were to count the money regarded the transaction as all others did, this was their mistake, or rather it was the bank's mistake to regard their view as controlling.

Let us scan this transaction closely. The bank to be organized gave its check to procure a cashier's check from a bank then organized. This, of itself, is immaterial, except that if the bank agreeing to advance the money to it, knew this was but a means to procure the cashier's check. It knew also it had no lawful power to issue such a check, and that the cashier's check was to be issued upon no consideration whatever.

But even suppose it did not know by what arrangement this cashier's check was to be issued and it was produced to the advancing bank in exchange for the money. Certainly, we will say the issuing bank would be responsible to the

bank advancing money on it and so also would the indorser of the check. But who indorsed it? A corporation which at the moment had no earthly or other existence. But could the corporation springing into existence by the money being used for organizing purposes ratify what had been done? We think not, because, while courts have held, some of them, at least, that promoters' contracts may be ratified, yet they certainly cannot be ratified to the extent that this involves, viz., the very taking away of all support to the claim of existence.

. There was discussed by us in 84 Cent. L. J. 135, the question of contract to pay promoters out of corporate funds for solicitation of stock subscriptions and therein we commended the view taken by St. Louis Court of Appeals, that contracts of this kind were not sustainable as creating obligations in a corporation then to be created. See Van Zandt v. Wholesale Grocer Co., 190 S. W. 1050.

This case is plainer than that. It does. not pretend to be a promotion contract. It was a mere attempt at evasion of a plain statutory requirement. It contemplated the presence of money placed in the hands, not of a corporation, for that could have no existence when the money was placed. The alembic of conversion into a corporation is in an instant of time. The advancing bank authorized individuals to put the money within its influence. If it had any claim against any person, it had it against a natural person, for there was no other with whom it could contract, and it so knew at the time, except the old bank giving the cashier's check.

But does not all of this round-about business merely emphasize deliberation of attempt at evasion? If there had been no sort of doubt about the right to pass this money over as from one to the other hand, this would be more manifest by merely accepting money. Instead, however, there is an obligation received signed by a maker and an indorser. To

say one should not be responsible for a mistake of law in this kind of transaction seems an assault on common sense. It appears to us that the advancing of this money in this way was in this way so as to protect the bank advancing it as being within its chartered powers-investment in bank paper, to-wit: a cashier's check. It had no right to part with money except in a presumably business way. It chose that and definitely losing title to what it parted with, it got it back just as if it was other money entirely.

NOTES OF IMPORTANT DECISIONS.

DIVORCE-DISTRIBUTION OF PROPERTY ON REFUSAL OF.-Why any statute should attempt to divide property between husband and wife, when they still sustain such relationship, is somewhat beyond our comprehension. And yet there are at least two states having statutes, which provide that where a divorce is sued for and refused, the court may make equitable division of the property between husband and wife.

In Kansas, one of these states, the Supreme Court of that state holds, that defendant in a divorce action need not even be advised in the action, that a division is asked for. McCormick v. McCormick, 165 Pac. 285.

In this case a divorce was refused and the court said: "It is contended that the court was not warranted in ordering a division of the property between the parties, as no demand was made in the pleadings for such division. The Code does not require an allegation as to property rights, nor that a demand for a division of the property shall be included in the pleading before an order of that kind may be made. In an action to obtain a divorce where the parties are in equal wrong the court may refuse a divorce, or in any other case where a divorce is refused the court may make an equitable division of the property. The matter of a division is not an essential part of the application for a divorce, but it is a mere incident of it. The right to make a division does not arise until a divorce has been refused, and it is then a matter within the discretion of the court. Parties contending as to the