company with first privilege of renewal for additional term, held that lessee had absolute right to renew lease for another term.-Stetler v. North Branch Transit Co., Pa., 101 Atl. 980. 76. Master and Servant-Non-Suit.-Where arose under federal cause of action, if any, Act, and petition was Employers' Liability drawn under state act, the case pleaded was not proven, and the case proven was not pleaded, non-suit.-Wiland court properly granted a liams v. Western & A. R. Co., Ga., 93 S. E. 555. 77. Common Carrier.-Where electric railway operated several construction trains daily over track where its employe riding on flat car was injured, it was as important for railway to exercise reasonable care to protect employes from injury as though it had been common carrier.-Adamski V. Michigan Ry. Engineering Co., Mich., 164 N. W. 402.

78. Mortgages-Priority. Indebtedness incurred by receivers of merged street railway company had no priority over bonds secured by mortgages of subsidiary company, if such indebtedness could be paid out of funds arising from receivers' operation of road.-Philadelphia Trust Co. v. Northumberland County Traction Co., Pa., 101 Atl. 970.

79. Municipal Corporation Delegation of Power. Where city council ordered the city engineer to submit plans for two kinds of paving, thereafter and he complied, and the council called for bids, accepted the lowest bid, and by ordinance determined the character, kind and extent of the improvements, the council did not delegate its functions to the city engineer.— Lanice v. City of Portland, Ore., 167 Pac. 587. 80.- -Special Assessment.-Where city orders a local improvement to be paid for by special assessment, duty to put necessary machinery in motion to raise funds devolves upon city, and failure to perform duty creates a general liability, giving rise to action ex delicto against city for damages.-Morris v. City of Sheridan, Ore., 167 Pac. 593.

on

81.

a

Negligence-Trespasser.-A boy skating a navigable stream and breaking through where the ice was weakened by the discharge of warm water into the stream, held not a trespasser.-Parsons v. E. I. Du Pont De Nemours Powder Co., Mich., 164 N. W. 413.

82.

Partnership-Agreement.-An agreement between owner of timber and right-of-way, person constructing lumber road thereon, and person who was to cut the timber and operate the road, held to create a partnership.-Mitchel v. Elizabeth River Lumber Co., N. C., 93 S. E. 464. 83. Perpetuities-Suspending Alienation. Will giving income of residuary estate to children for 25 years and giving the property to grandchildren, and providing that it should be kept intact for 25 years, held to violate Comp. Laws 1897, §§ 8796, 8797, as to suspending the power of alienation.-Otis v. Arntz, Mich., 164 N. W. 498.

84. Railroads-Look and Listen. Decedent, who stopped his team and looked and listened about 90 feet from grade crossing, but who did not stop before reaching track, where he could have seen approaching train for three-quarters of a mile, was guilty of contributory negligence. Reigner v. Pennsylvania R. Co., Pa., 101 Atl. 995.

85. Receivers-Executory Contract.-Receiver for corporation was not bound to adopt company's executory contract to furnish electric current.-Maxwell v. Missouri Valley Ice & Cold Storage Co., Ia., 164 N. W. 329.

86. Interest of.-Receiver of insolvent corporation takes only its interest in the property, subject to all valid liens against it, and can set up no rights against the claims which the corporation, could not have set up.-Philadelphia Trust Co. v. Northumberland County Traction Co., Pa., 101 Atl. 970.

Evi

87. Rewards-Fraud and Collusion. dence held insufficient to show fraud and collusion by the contestants submitting the best solutions in a puzzle contest, though they were related, their methods of procedure were the same, and their results only slightly variant.Statesman Pub. Co. v. Foltin, Ore., 167 Pac. 782. 88. Sales-Contract.-In action for goods sold under sales agency contract requiring purchase

of $40,000 worth of goods, defendant could not contend that sales be computed on prices received by it on its sales, where parties had construed contract to mean that amount was to be computed on amount of sales by plaintiff to defendant.-Scandinavia Belting Co. v. Macan, Jr., Co., Pa., 101 Atl. 997.

89.- -Fraud.-Where purchaser of automobile contracted for new car in good condition, and car delivered was not such, and seller knew it was materially damaged when he received purchaser's note and checks in payment, there was a fraud entitling purchaser to rescind. Taylor v. First Nat. Bank, Wyo., 167 Pac. 707.

90.- -Warranty.-Contract to "furnish properly all castings needed by" a manufacturer of a patented hay press "whether of the exact patent now used or not" held not a warranty as to kind and quality of particular goods to be furnished.-Williams Mfg. Co. v. J. S. Schofield's Sons Co., Ga., 93 S. E. 527.

91. Specific Performance-Substantial Compliance. In contractor's suit for specific performance by sale of lands by land commissioner, where it appeared that plaintiff's object was substantially accomplished by the judgment, it could not complain of court's failure to award more land to him.-Rio Mimbres Irr. Co. v. Ervein, N. M., 167 Pac. 723.

92. Statutes-Saving Clause.-In amending a statute the legislature may save the old statute for specified purposes, by an appropriate saving clause in the amending act.-Board of Education of City of Roswell v. Citizens' Nat. Bank of Roswell, N. M., 167 Pac. 715.

93. Street Railroads-Negligence per seAutomobile driver approaching street railway track where vision is obstructed, at such speed as to make it impossible to stop before track is reached without taking any precautions to ascertain whether car is coming, is negligent as matter of law.-Donlin v. Detroit United Ry, Mich., 164 N. W. 447.

94. Trover and Conversion-Evidence.-Purchaser of automobile, who contracted for new car in good condition, and person associated with plaintiff in selling car, held not liable to plaintiff for conversion of note and checks given in payment, because, when purchaser intimated to plaintiff's associate damaged condition of car, latter returned note and checks.-Taylor v. First Nat. Bank, Wyo., 167 Pac. 707.

95. Trusts- Instrument Creating. Letter subscribed by trustee, whether addressed to or deposited with cestui, will be sufficient to establish trust when subject, object and nature of trust and parties and their relations to it and each other appear with reasonable certainty.-Viele v. Curtis, Me., 101 Atl. 966.

96. Usury-Condition Precedent.-Under Rev. Laws 1910, § 1005, one seeking to recover usurious interest paid must make written demand for its return, and on failure to return must bring action within two years after maturity of usurious contract.-First State Bank v. Pool, Okla., 167 Pac. 760.

97. Vendor and Purchaser-Meeting of Minds. -Where vendor and purchaser under contract of sale of "J. T. A. place," disagreed as to whether a small tract was included, held, that the minds of the parties never met with any definite understanding.-West v. Cave, Wash.,

167 Pac. 747.

98. Waters and Water Courses-Public Service Company.-Plaintiff had no right to be supplied with water through joint service pipe, when other users were in arrears with their water rent and on demand had refused to pay. -Birmingham Water Co. v. Brooks, Ala., 76 So. 515.

99. Wills-Appeal and Error.-On appeal to superior court from decree of the probate court admitting a will to probate, the special statutory issue as to whether the will was a valid will was the sole issue.-South Norwalk Trust Co. v. St. John, Conn., 101 Atl. 961.

-Undue 100.Influence. Mere fact that testator left more to his son who lived near him and with whom he had been in closer relation for many years, or that he left more to his four grandsons than to both his son and daughter, is no evidence of undue influence.-In re Fay's Estate, Mich., 164 N. W. 523.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 30, 1917.

CHATTEL MORTGAGE EXECUTED IN MIS SOURI AS AN IOWA CONTRACT ON PROPERTY IN BOTH STATES, BUT TO BE REMOVED TO THE LATTER STATE.

In Dickson et ux. v. Cooper, 164 N. W. 734, decided by Iowa Supreme Court, it appears that plaintiffs clandestinely left Iowa and "went to Andrew County, Mo., probably to reside." They took with them a small part of personal property of the husband's goods and chattels. Defendant sued out attachment in Missouri and the personal property he took with him was seized under the writ. He gave a mortgage in Missouri over all his personal property in both states and dated it in Iowa, and made it payable at a bank there. Defendant and the husband stipulated for his return to Iowa and the mortgage was recorded in a county in Iowa to which he returned and resided.

When defendant sought foreclosure in Iowa, the wife claimed exemption and this claim was allowed by the trial court. This ruling the Supreme Court reversed, one judge dissenting. Appellee contended that "the contracts were to be performed in lowa, were executed in contemplation of the immediate return of the plaintiff and the property in question to the state of Iowa, and that, therefore, the contract is, in its inception, an Iowa contract, and must be construed according to the laws of this state, and that as a mortgage upon exempt property is not valid in Iowa unless signed by the wife, the mortgage, insofar as the property in controversy in question is concerned, is void, as it is conceded that the same would be exempt to plaintiff from sale. under a general execution. Appellant contends that at the time of the execution of the contract, plaintiffs were resident of Missouri, and that, under the laws of that state. it was not necessary to the validity of the

mortgage that same be signed by the wife, even though covering property exempt in that state from execution."

The majority thought that the mortgage was valid as of the time it was executed in Missouri, where it was executed.

The dissenting judge said: "I am of opinion that the mortgage should, under the record, be held to be an Iowa contract. True, it was signed in Missouri and Dickson had absconded, but some of the property covered by the mortgage had not been taken from Iowa; some of it was in Missouri, but held by the sheriff under attachment until it was returned to Iowa. *** I think it was contemplated that the mortgage should not be effective until the things enumerated should be done as they were. The contract must be enforced here if at all. Dickson himself may not be entitled to much consideration, but the exemption laws are for the benefit of the family, and should be liberally construed in favor of the debtor."

This case presents a question in conflict. of law quite interesting. While, if the mortgage is invalid if not an Iowa contract, there would seem to be no consideration for mortgagee agreeing to call it an Iowa contract. He got nothing whatever for his release of the attachment in Missouri. But, if possession is necessary to sustain the mortgage against a fraudulent transfer or against the presumption of fraud, it would seem to mean, that its signing in Missouri was merely anticipatory of what personal property he carried from Iowa and that he left there afterward coming into his actual possession in Iowa. Whatever might be thought of mortgagor having actual possession of any of the property in Missouri, he certainly did not there have possession of what remained in Iowa. But the mortgage was to be eo instanti as to the property in both states. That must have been when he returned to Iowa.

If the mortgage was executed before a Missouri officer that would have little effect. Here the question was between mortgagor

and original holder, but even had this been between mortgagor and a subsequent holder, the recitals of residence would bind him. Why is not the plain recital of residence binding on the parties? If the contract qual contract is a Missouri contract, yet the enforcement provisions thereof contemplate plainly submission to the laws of another state. Suppose mortgagor, in violation of his stipulation, had carried the property to another state than that of Iowa, could it have been followed under the mortgage? We think not. And had he have remained in Missouri, could it have been used as a mortgage of that state, despite the fact of its falsity as to actual possession of some of the property? It seems it could not, because it contemplated that before it could take effect as to any of the property, all of it should first become Iowa property.

It seems to us, that if one gives a mortgage by virtue of a contract made in one state, that is to have enforceable potency in another, this is a lawful agreement, and that it invokes the application of the statute law of another. Chattel mortgages are governed by local law.

NOTES OF IMPORTANT DECISIONS.

STATUTORY

CONSTRUCTION — REPUGNANCY BETWEEN EARLIER AND LATER STATUTE.-The rule may be thought fairly well established, that repeals by implication are not favored and courts will endeavor to reconcile an earlier and a later statute if it is fairly possible so to do. But this rule is more of a common sense, than a technical, rule and construction will not be strained to sustain both statutes, but the surroundings and the purpose of the iater enactment will be inquired into. The question of implied repeal lately came before Missouri Supreme Court, Division No. 2, in the case of Nichols v. Hobbs, 197 S. W. 258.

It appears that in 1855 a statute was passed for the recording of conveyances affecting real estate, provided they are acknowledged and proved in a certain way. This way of acknowledging and proving, it may be said,

did not apply to wills and to make it certain that wills were not embraced, a section of the act specifically so provided. Such instruments as were embraced were when recorded to carry constructive notice.

Fifteen years later, that is to say, in 1870, an act was passed for the recording of wills in counties where land devised is situated, but nothing is stated as to the effect of such recording as or not carrying constructive notice. This act appears in Missouri Revised Statutes as § 566. It is mandatory on its face as to recording and fixes six months after probate as covering period for compliance.

The case shows that there was an attempt at compliance, but an important clause was omitted. Land was devised by the will to E. A., "and to the heirs of her body," but in the recording the words italicized were omitted altogether. E. A. and her husband conveyed the land, and after her death in 1912, her grandchildren sued to recover the land. It does not appear when the land was conveyed to defendants, but testator died in 1875. Plaintiffs had judgment, according to the true record of the will in the probate court, and defendants claimed under the will as recorded in the office of the recorder of deeds, the same office in which deeds having constructive notice were to be recorded. In this case defendants relied on 10 and 30 year statutes of limitations. It is apparent, however, this could not be urged if right of action did not accrue until death of plaintiffs' ancestor.

The court after urging lack of necessary inconsistency between these two statutes, says: "If the purpose of enacting § 566 (the later statute) had been to place wills, when recorded in the recorder's office, in the same condition and subject to the same provisions as instruments mentioned in (the earlier statute) and repeal § 2823, such intention would have been manifest in the terms of the act. The legislative intention and the legislative understanding evidently always has been that both sections shall stand together, because both have been carried along from revision to revi sion, from 1870 down to date."

We are not greatly impressed with the weight of the fact of a mere carrying on as stated. Revision or codification is, according to a rule of erring, if any way, along the side, of preserving in codes whatever may be law. It takes no chance in excluding anything.

But what could have been the intention to have an additional record in the recorder's office, when a record is preserved in the probate court? In the former office a record, of a conveyance duly acknowledged and proved,

is constructive notice. It is only when a conveyance gets on record not duly acknowledged or proved that this notice does not result. Why add another qualification to the statute?

It may be said that express terms in § 1023 cut no figure. That is purely negative and in the way of construing the act of which it is a part. There is no doubt, that, if the legislature intended that the ordinary rule of conveyances properly recorded in the recorder's office, should apply to wills, it does amend the former act.

LARCENY ABSTRACTING WATER OF PUBLIC SERVICE CORPORATION BY TRICK.-In Clark v. State, 167 Pac. 1156, decided by Oklahoma Criminal Court of Appeals, it is held that one who takes water from a public service water company by diverting same through a pipe passing around a water meter, so that it cannot be registered and appropriating same to his own uses, is guilty of larceny.

The court refers to rulings at common law, to the effect that water is of the nature of birds and animals, ferae naturae, and as to which there can be no larceny, except it be taken from one lawfully reducing the same to private possession.

1 Wiel on Water Rights, § 31, says, in quoting from Pothier, that: "This is why, in the case on returning from the river, I have for some purpose, left my pitcher standing on the road, with the intention of returning later to fetch it where I left it; if in the meantime a passerby, having found my pitcher, proceeds (to save himself the trouble of going to the river) to pour into his pitcher the water that was in mine, he has committed against me an actual theft of that water, which water was a thing of which I was actually proprietor."

But is water taken into a reservoir or in the pipes of a public service company, taken there by a captor, or is it merely held in place as still belonging to the public? It has permission or right only to deliver what is public property by means the public approves. It never comes into legal possession of the water to do with it as it pleases. And when it delivers it to users it does not charge for the water as water, but for the use to which it puts its facilities in delivering. It delivers nothing to which it has title. Water in its reservoir cannot be wasted, but must be devoted to beneficial purposes, or the company unlawfully diverts it.

The court in answer to the contention that the company has only the right to charge for service and not for water, says: "That water confined in the company's mains is personal

property, capable of ownership, cannot be disputed. The courts have so held practically without dissent," but it cites no case one way or the other. It seems to us that this is not capture by a private person, but it is only preparation for segregation from the public supply. It not yet has been actually segregated. The public trust is still in the water. If it cannot be delivered for a beneficial purpose, it ought to be returned from whence it was taken. But may it not be that the company, as bailee of the water, has a special interest therein which would sustain larceny from it as owner? This only applies, however, to ordinary bailments between individuals.

LIBEL AND SLANDER-QUALIFIED PRIVILEGE AS BASED ON PUBLIC INTEREST OR DUTY TO ANOTHER.-There seems much elasticity in the phrase, duty to another, in a ruling by Supreme Court of Washington, as creating qualified privilege rendering a libel or slander privileged and preventing liability for its publication or utterance, except maliciously. Fahey v. Shafer, 167 Pac. 1118.

It appears that plaintiff conducted an upstairs clothing business and advertised in the newspapers that: "other merchants in the city occupied expensive ground floor rooms, with luxurious and extravagant fixtures, involving large rentals, and that plaintiffs were thus able to undersell and did undersell such ground floor merchants, who were imposing on the public by charging in the cost of their goods their extravagant rents, so that plaintiffs were able to sell and were selling $25 suits for $15." Defendants were charged with inducing the newspaper receiving plaintiffs' advertisements to refuse to take them further.

Defendants, it seems, belonged to an ad club which was greatly agitated on the subject of the upstairs dealers' advertisement. Defendants slammed on the table in a meeting and asserted in effect that their business could not succeed and sooner or later there would be a crash.

The court as to privilege said: "That defendants had a personal interest in the subjectmatter of the communications there can be no question. Appellants' advertisements were a direct attack upon them and their business methods. They were charged with business extravagance, exorbitant prices and advertising fake sales." All of defendants being members of the ad club, it was held that defendants owed a duty to other members and this made their communications privileged.

Why this membership relation can build a duty by one to the other to the extent, that

so far as one member does not act maliciously in publishing a libel or uttering a slander against another, it is difficult to spell out. It is purely conventional that they thus asso

In the case of ex parte Freiberger, the man in question had attained twenty-one in January, 1917, and made a declaration

der has nothing to do with that relation.

If this principle were true, combination for an ulterior purpose, though lawful, in itself, hedges an outsider's rights. If one says some. thing to a man's agent, or about his family, the case may be different. But you cannot import a mere conventional relation into a duty to protect all of another's associates therein, and thus disarrange or seriously impair a third person's otherwise clear protection against injury by libel or slander, or interrupt the performance of one's legitimate contracts with another.

EXEMPTION FROM MILITARY SERVICE UNDER BRITISH LAW.

In characteristic British fashion it was only after a year and a half of war that Conscription was introduced at all and when resolved on it was introduced only gradually, three successive Acts being passed at intervals of about six months for the purpose of bringing in the various classes of men whom the state desired to enrol as soldiers. From these statutes certain well defined exceptions were made and these having now all had occasion to be considered by the Courts, we propose to give here a brief account of the result of these decisions in the hope that they may be of service in similar problems which may perchance arise under the American Conscription Law.

The Military Service Acts expressly apply to British subjects. Under the British nationality and Status of Aliens Act, 1914, however, any person who is, by birth, at British subject, but by foreign law still a foreign subject can, on attaining twentyone, elect to adopt the foreign nationality.

that, however, he had been called to the Colors and in a series of appeals contended that he was outside the statutes. The Court of Appeal found that as he was a British subject when called up, he was in law a reservist and his subsequent acquisition of alien nationality could not operate a discharge from the army. But, the Court went much further than this and laid down the principle that a British-born subject of alien parentage cannot make a declaration of alienage at all, in time of war. To do so would be to commit an act of treason and therefore, an illegal act not recognizable by law.

The Statutes are declared not to be applicable to men in Holy Orders or regular ministers of any religious denomination. In Kipps v. Lane,1 the man in question was

an "elder" of a Church of the International Bible Students' Association, elected to the office annually, but receiving no pay as an "elder" and earning his living as an employe in a firm of drapers and outfitters. He was held not to come within the exception. Similar cases with regard to the same

religious body have also been decided, and

in all of them their "elders" were held to be not regular ministers.