105. Sales-Implied Warranty.-There is no implied warranty on a sale to a butcher of cows that they are neither diseased nor unfit for food.-Kinch v. Haynes, 111 N. Y. Supp. 618.

106.- -Remedies of Seller.-Noce, by purchasers of securities which were to be delivered at a stated time and place. that they could not the receive and pay for the securities, held to excuse a tender at such time and place by the sellers to entitle them to maintain an action for breach of contract.-Watson, Preston & Co. v. Greenwood & Co.. U. S. C. C., E. D. Pa., 164 Fed. 294.

107. -Time When Title Passes. Where a seller delivers goods sold to a carrier. title passes on delivery; but, where the contract is to deliver the goods to the buyer. title does not ass until they are in his possession -Acme Paper Box Factory v. Atlantic Coast Line R. Co.. N. C., 62 S. E. 557.

108. Sheriffs and Constables-Removal for Neglect of Duty-In summary proceedings to remove a constable for neglect of duty in failing to prevent a disturbance of the peace, evidence held sufficient to support findings against defendant.-Larue v. Davies, Cal.. 97 Pac. 903.

109. Specific Performance-Defenses.-Equity will not refuse to decree enforcement of a contract to convey land for plaintiff's failure of performance on his part within the time specified, where he sought in good faith to do so. but was prevented therefrom by defendant. -Zempel v. Hughes, Ill., 85 N. E. 641.

110. Street Railroads-Negligent Operation. -The operation of a street car, between dusk and dark. and without light or signal past a car that had been discharging passengers, was negligence.-Donelson v. East St. L. & S. Ry. Co.. Ill., 85 N. E. 914.

111. Sunday-Operation of Freight Trains Where a freight train is scheduled to reach its destination before 8 o'clock on Sunday morning and is detained by unavoidable circumstances. it can continue to run until it reaches its destination without violating the law.Westfall v. State, Ga., 62 S. E. 558.

112. Trade-Marks and Trade-Names-BeneAcial Associations.-An unincoroporated beneficial association doing business under the lodge system held not entitled to the exclusive use of certain lodge names, nor were the rights of such association infringed by the use of such names in combination by a new organization.Freundschaft Lodge No. 72 D. O. H. v. Alchenburger, Ill., 85 N. E. 653.

113. Unfair Competition.-The manufacturer of an antiseptic to which he gave the artificial name "Argyrol," held entitled to an injunction restraining defendant. a jobbing druggist, from placing Argyrol on his price list and supplying customers who called for the same with a different and cheaper preparation in its place.--Barnes v. Pierce, U. S. C. C., 164 Fed.

which adopted the word "Ruberoid" as a trademark for a roofing material, which trade-mark was invalid as an attempt to appropriate the descriptive term "rubberoid," is not entitled to an injunction on the ground of unfair competition against another manufacturer because of its use of the name "RubberO" to designate a similar roofing.-Trinidad Asphalt Mfg. Co. V. Standard Paint Co.. U. S. C. C. of App.. Eighth Circuit. 163 Fed. 977.

116

Trial inturine to a

Instructiors — In An action for nasernger while boarding a car. 23 instruction held erroneous because withdrawing from the fury the questions of plairtiff's contibutory negligence and the company's peoligence —Woods T New York & Q. C. Rv. Co. 112 N. Y. Supp. 680.

117. Trusts-Resulting Trusts-Where land conveyed to One person is purchased with the money of another, a trust in favor of the latter results, though the payment was from the proceeds of money borrowed by the latter from the former.-Howe v. Howe. Mass.. 85 N. E. 945.

118 Vendor and Purchaser-Time for Performance.—In equity time is not necessarily deemed of the essence of a contract to convey land: but. if it is made so by the terms of the agreement it will be so treated in equity as in law--Zempel v Hughes, Ill., 85 N. E. 641.

119. Venue Second Application for Change. -Where defendant requested a change of venue, to which plaintiff assented, he was not entitled to a second change, though the change of venue was not made upon affidavit, as provided by statute.-Evansville Mental Bed Co. v. Loge, Ind., 85 N. E. 979.

120. Wills-Action to Set Aside.-In a suit to set aside a will, evidence held to warrant the verdict and decree that testatrix knew and understood the terms and provisions of the will. and that it represented her wishes.-Freund v. Becker, Ill., 85 N. E. 610.

121.- -Exclusion of Son.-Clause of a will. declaring that a son of testator had received his full share of the estate, held to exclude said son from any share under the will.-Harper v. Harper, N. C.. 62 S. E. 553.

122. Interest on Pecuniary Legacles.-Pecuniary legacies held payable at the end of the year from the death of testator, without interest. and thereafter they bear interest.-Kingsbury v. Bazeley, N. H., 70 Atl. 916.

124. Witnesses

Credibility.-In an action against railroad for injuries received on defendant's track. evidence of the intoxication of plaintiff when injured was admissible to affect the weight of his testimony; he having testified concerning the injury.--Pittsburgh, C., C. & St. L. Ry. Co. v. O'Conner, Ind., 85 N. E. 969.

125.- -Impeachment.-An impeaching witness may be asked whether he would believe another witness upon oath from his general knowledge of the latter's reputation for truth. -Peonle v. Corey. Cal., 97 Pac. 907.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 19, 1909.

THE ACTION OF THE GOVERNMENT AGAINST THE NEW YORK WORLD AS A REVIVAL OF THE OFFENSE OF SCANDALUM MAGNATUM.

The proceedings against the New York World by the federal government for criminal libel because of charges made against government officials with respect to the purchase of the French interests in the Panama canal, are so unusual as to demand

was crystallized into statutory form, making it an offense to publish false news whereby discord might grow up between the king and his people. 3 Edw. I, c. 34. See also 2 Rich. II, St. I, c. 5; 12 Rich. II, c. 11.

In strong contrast stands forth the rule of the civil law, that system of law, to which, says Hon. Hannis Taylo: in his Science of Jurisprudence, all the nations of the world are gradually turning, as being based on the most unalterable and most widely applicable principles governing human conduct. Thus in the Theodosian Code it was expressly declared that slanderers of majesty should be unpunished, for, if this proceeded from levity, it was to be despised; if from madness, it was to be pitied; and, if from malice, it was to be forgiven. And in Paterson on Liberty of Press, p. 87, it is related that

which usually withholds comment until the final disposition of a cause. Without, however, touching on the merits of any issues of fact involved, or excusing in the least any moral turpitude which may attach to the action of a newspaper in carelessly charging government officials with criminal motives and conduct, we desire to make use of the occasion to discuss certain interesting questions which arise in connection therewith.

A few observations on the offense of scandalum magnatum. We do not say that this proceeding is based on this theory. But, in much of the discussion of this unusual proceeding the question has been asked: Does the fact that the alleged libelous charges were made against the president of the United States or against the government acting through its various depart

ments, make the offense more heinous than it otherwise would be, or make that an offense which would not be an offense if directed against an ordinary individual? Under the common law offense of scandalum magnatum there would be such a distinction. At common law it was an indictable offense to bring the government into disrepute, or any of its officers, and that was made an offense when spoken against a public officer which would not be an offense if spoken against an ordinary individual. This rule

torian who passed some stinging jests on him and his family, but Maecenas advised him that the best policy was to let such things pass and be forgotten. Caesar also said that to retaliate was only to contend with impudence and put oneself on the same level."

The soundness of the Roman law over the rule at common law is clearly apparent, notwithstanding the able contention to the contrary of Justice W. C. Marshall in the case of State v. Shepherd (Mo.), 76 S. W. 1. c. 83, where the Missouri supreme court attempted to revive this offense as a basis upon which to punish an editor for a general libel upon the court. The contention. in the Shepherd case is clearly error so far as it gives a court any ground for proceeding against a person for constructive contempt where the charge against the court, though malicious and false, is not in relation to any controversy depending before the court. This, we think, we clearly showed in 57 Cent. L. J. 101, 402, and supported by many authorities.

The rule of the civil law is clearly in harmony with the policy of American institutions, while the rule of the common law like so many of the rules of law proceeding from that source has all the crudities of that savage era of monarchical autocracy in

be determined entirely by the person giving the opinion, and this in turn would depend upon the manner of the witness, his credibility and so forth, which are matters exclusively within the province of the jury. We have considered the effect of the decision in the case of People v. Tyler, 35 Cal. 553, that the witness may be said to be impeached by the proof that his general reputation for truth and veracity is bad in the community in which he resides, without the impeaching witness being himself prepared to say he would not believe the witness under oath. But the adoption of one method of impeachment does not exclude the party adopting it from availing himself of any of the other methods provided by law, however conclusive his first effort may have been. A witness may be willing to testify to the bad general reputation of a witness whom he could not conscientiously say he would not believe under oath. If he adds his individual opinion to the general reputation, we cannot say that such opinion will have no weight with the jury."

THE BEREA COLLEGE DECISION AND THE SEGREGATION OF THE

COLORED RACES.

"What American" asks the Philadelphia Inquirer, "would have dreamed forty years ago that the Supreme Court of the United States would make it illegal to teach colored children and white children under the same roof?" "If a citizen can be discriminated against because of color," also asks the New York Evening Post, "why not because of faith? Some of our Northern universities are receiving so many Catholics, Jews and foreign-born students, as to become extremely uneasy over the situation. Will students of this type be excluded some day, in the endeavor to protect the right of a state to control its corporate creatures?

We fail to see why not. It would not be more contrary to the spirit of our institutions than the Berea decision, and would be no more serious blow to our whole demo

.

cratic experiment. Its enemies are to-day rejoicing It might almost be described as a latter-day Dred Scott decision." "Have we become so innoculated with prejudice of race," asks Mr. Justice Har

lan, in a dissenting opinion,1 "that an American government professedly based on the principles of freedom and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their association for innocent purposes, simply because of their respective race? Further, if the lower court be right, then a state may make it a crime for white and colored persons to frequent the same market places, at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature in which all citizens, without regard to race, are equally interested. Many other illustrations might be given to show the mischievous, not to sav cruel, character of the statute in question, and how inconsistent such legislation is with the great principle of the equality of citizens before the law." These and many other similar comments, editorial and otherwise, have recently appeared in the public press. They require notice both on account of the unfair position in which they place the Supreme

Court of the nation and because of the lack of basic knowledge and discrimination. which they display. They are the long range comments of the editorial writer, safe in his easy chair, who has himself never had to grapple with the problem or been on the ground and seen it in its real and almost terrible significance. The problem, indeed, is too momentous for heroics, and for telescopic inspection. It is too tragic, from the standpoint of the negro and the mulatto himself, for anything but a thorough and a conscientious analysis. We are not here discussing and will not attempt to discuss the wisdom or unwisdom, the justice. or the injustice of the statute of Kentucky, to which the comments refer. We will.

merely address ourselves to the question as to whether the Supreme Court of the United States and the courts of the country generally, for they have all sanctioned the policy of segregation, are hostile to the colored man and leagued against his interests and his betterment.

(1) In the case of Berea College v. State of Kentucky.

The real fact of the case is that the Supreme Court of the United States has not "made it illegal" as the Philadelphia Inquirer charges, "to teach colored children and white children under the same roof." It has merely decided not to oppose its judgment to that of the Kentucky courts and of the Kentucky legislature in a social matter and to set aside a statute which has been approved by the state courts and which, for social and moral and not industrial purposes, seeks to regulate the conduct of the people within its borders. The decision is not in any sense "a latter day Dred Scott decision" as was intimated by the New York Evening Post. In the Dred Scott decision the social policies of the South were sought to be forced upon the North and upon the Free States and Territories. In the present case the question is presented as to whether the Federal Court will or should nullify a local policy of segregation which a state has adopted. It is the old question of local home rule and of local sovereignty, which in matters social and moral, the supreme court, has in the past, with but one exception,2 always resolved in favor of the state.

But whatever we may think of the telative spheres of the Supreme Court of the

United States and of the state courts and

legislative assemblies in these particulars, it will be well to consider, from a legal point of view, the fundamental merits or demerits of the Berea controversy, and to determine, from a legal standpoint, whether the act in question has deprived persons of liberty and property without due process of law, has denied to anyone the equal protection of the laws, or has impaired the obligation of any contract. To decide in fact, whether under the law, and the decisions of the past, and the social policy which they have announced, the language which we have quoted from the dissenting opinion of Mr. Justice Harlan is merely im

(2) The New York Eight Hour Case. Lochner v. New York, 198 U. S. 45.

(3) Powell v. Pennsylvania, 127 U. S. 678; State v. Holden v. Hardy, 169 U. S. 366; Knoxville Iron Company v. Harbison, 183 U. S. 13; Mugler v. Kansas, 123 U. S. 623.

passioned rhetoric or expresses the sober judgment of the American courts and of the American law.

The facts of the Berea case are these: . Berea College was established in Kentucky before the war for "the education of all persons of good moral character." After the war colored students applied and were admitted, and the benefits of the institution remained open to both races until 1904, when the Kentucky legislature passed a law forbidding the education in colleges of blacks and whites within twenty-five miles of one another, but providing that as long as the twenty-five mile limit was adhered to any institution could have a colored or white branch if it so desired. This statute. of course, directly affected Berea College. On the matter getting into the state courts, the statute was sustained by the Kentucky tribunals, and an appeal was taken to the Supreme Court of the United States. The latter court also sustained the act by a majority of seven to two.

Strangely enough, and after all not strangely at all, for the negro question was of Northern origin, and was Northern before it became Southern and national, the

leading segregation cases are to be found

in the Northern and not in the Southern

courts, and in the reports of Massachusetts and Pennsylvania, rather than those of South Carolina, Kentucky and Mississippi. The Southern courts, indeed, and the Supreme Court of the United States itself, in sustaining segregation laws, which, when operating on both blacks and whites equally and alike, they have done with a practical unanimity, have always cited and

(4) Not only was the slave trade at first carried on principally from Northern ports and by Northern capital, but it was in the North that the negro was first liberated and enfranchised and that the problems surrounding his new status as a free man were first encountered.

(5) Roberts v. City of Boston, 5 Cush. (Mass.) 198; West Chester R. R. Co. v. Miles, 55 Pa. St. 209; People v. School Board, 161 N. Y. 598.

(6) Martin v. Board of Education (W. Va.), 26 S. E. 648; Berea College v. Commonwealth, 94 S. W. 623; Plessy v. Ferguson, 16 Sup. Ct. 1138; Smith v. State, 100 Tenn., 494, 46 S. W. 566; L. N. O. and T. R. R. Co. v. Mississippi,