nated the lease ipso facto.-Walther v. Anderson, Tex., 114 S. W. 414.

104. Larceny-Instructions.-A purse accidentally left in a certain place held not lost so as to require a charge, on a trial for its theft, on the finding of lost property.-Moxie v. State, Tex.. 114 S. W. 375.

105.- -Possession of Recently Stolen Property. On a trial for larceny, when the only evidence relied on was possession of recently stolen property, the court should, without request, submit the question whether the explanation was satisfactory.-Morris v. State, Ga., 63 S. E. 26.

106. Libel and

Slander-Evidence.-Evidence that a prosecuting attorney neglected to investigate the character of prosecuting witness is inadmissible on cross-examination of that officer under a plea of the general issue, as tending to rebut the allegation and declaration in an action for libel charging him with using his office to procure an indictment as part of a conspiracy to blackmail.-Pickford v. Talbott, U. S. S. C., 29 Sup. Ct. 75.

107. Life Insurance-Deduction from Face of Policy.-Beneficial society held to have the right in settling with a beneficiary to deduct the difference between the monthly assessments in force when the certificate was issued and an increased rate from the time it went into effect until the member's death, but not for the balance of his life expectancy.-Johnson v. Bankers' Union of the World, Neb., 118 N. W. 1104.

108. Mandamus-To Control Executive Action.-Mandamus is the proper remedy where the Secretary of the Interior without authority has erased from the rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate.-Garfield v. United States, U. S. S. C., 29 Sup. Ct. 62. 109. Master and Servant-Dangerous Machinery. An assurance by a master to a servant that a machine is not dangerous does not render the master liable for injuries to the servant, where the servant did not in fact rely on such assurance.-Nelson-Bethel Clothing Co. v. Pitts, Ky., 114 S. W. 331.

110. Injuries to Servant.-A manufacturing company operating sewing machines held not bound to anticipate that an operator would get her hair caught in the revolving shaft.-Nelson-Bethel Clothing Co. v. Pitts, Ky., 114 S. W.

331.

111. Injury to Servant.-Rule of railway company construed, and engineer of switch engine held not required to stop his engine in the clear of a main track until the switch light has been turned.-Dwyer v. Northern Pac. Ry. Co., Minn., 118 N. W. 1020.

112. Motions-Orders Nunc Pro Tunc.-A nunc pro tunc order held not to validate an order appointing a receiver for a corporation.— Davis Colliery Co. v. Charlevoix Sugar Mich., 118 N. W. 929.

Co.,

113. Municipal Corporations-Criminal Prosecutions. Where the mayor of a city obtained jurisdiction over an offense, the court on appeal was required to try the cause de novo, and should not dismiss for mere error of law.-City of Searcy v. Turner, Ark., 114 S. W. 472.

114. Presumptions as to Corporate Beginning. A town will be presumed to have had its beginning about the time the plat was recorded, though not incorporated until many years later. -Town of Exira v. Whitted, Iowa, 118 N. W. 917.

115.- -Segregation of Territory.-Where certain territory was excluded from corporate limits of city in 1890, and from that date until 1907 the city had acquiesced in such exclusion, it is estopped by long acquiescence from questioning the validity of the method adopted by the council in attempting to segregate it.-State V. Willis, N. D., 118 N. W. 820.

Negligence.

116. Negligence-Concurrent One whose negligence directly contributes to an injury cannot recover of another whose negligence concurred to cause it.-Chicago, R. I. & P. Ry. Co. v. Baldwin, U. S. C. C. of App., 164 Fed. 826.

117. Failure to Act.-Lack of vigilance or a negligent failure to act may constitute contributory negligence as well as negligent action. -Douglass v. Southern Ry. Co, S. C., 63 S. E. 5. 118. Nuisance-Creamery.-An agreement between a creamery company and an owner of land for the discharge on the land of creamery sewage held a defense to an action by the owner for a private nuisance created by the sewage.-Ruthven v. Farmers' Co-Op. Creamery

Co., Iowa, 118 N. W. 915.

maintain

119.- -Maintaining of Dam.-One ing a dam constituting a nuisance in a navigable stream held not liable to a mill owner for the detention of his logs by the dam before the mill owner notified him to remove' it.-Ireland v. Bowman & Cockrell, Ky., 114 S. W. 338.

120. Parent and Child-Duty to Support Child. Parents held legally bound to provide for the support of their children during their infancy, though the children have estates of their own, unless the parents have no means, or their estate is limited.--First Nat. Bank of Owenton v. Green, Ky., 114 S. W. 322.

121. Partnership - Liability of Continuing Partner. A continuing partner, who has assumed the firm liabilities, cannot avoid liability on the ground of rescission, where he fails to show an offer to rescind or to restore the consideration received.-Mueller Lumber Co. v. McCaffrey, Iowa, 118 N. W. 903.

122. Perpetuities-Corporation as "Life in Being."-A corporation or joint-stock company to which an annuity is bequeathed held not a life in being, where to so regard it would cause a testamentary trust to violate the rule against perpetuities.-Fitchie v. Brown, U. S. S. C., 29. Sup. Ct. 106.

123. Physicians and Surgeons-License.-A person licensed to practice medicine and surgery cannot practice dentistry without securing license as a dentist, required by Gen. Laws 1907, p. 127, c. 117.-State v. Taylor, Minn., 118. N. W. 1012.

124. Pleading-Variance.-A variance between the cause of action stated in the complaint and in the summons held not to entitle defendant to a dismissal of the complaint or a setting aside of the summons.-Bradley v. Mueller, S. D., 118 N. W. 1035.

125. Private Roads Establishment.-In proceedings against several defendants to establish a private way, that a part of defendants did not appeal from the judgment of the county court would not prevent the circuit court from having jurisdiction of the appeal.-Fitzmaurice v. Turney, Mo., 114 S. W. 504.

defendant for a nartiton is pending.-Dunbar v. Bourland, Ark., 114 S. W. 467.

127. Railroads Killing Animals on Track.The mere killing of an animal upon a railroad track held insufficient to establish negligence.Starke v. Chicago, B. & Q. Ry. Co., Neb., 118 N. W. 1066

128. -Contributory Negligence. Plaintiff held not chargeable with contributory negligence in the handling of his team, where defendant railroad's negligence put him or the team In a position of peril, and he acted as seemed prudent to him under the circumstances.-Ft. Worth & R. G. Ry. Co. v. Eddleman, Tex., 114 S. W. 425.

129. Fires.-A railway company held without right to destroy one's chance of saving property from a fire.-Valentine v. Minneapolis, St. P. & S. S. M. Ry. Co., Mich., 118 N. W. 970.

130. Injury to Person at Station. Whether the running of a railroad train through station grounds at a certain rate of speed constituted negligence on the part of the company depends upon the surrounding circumstances, and, when in issue in an action for the kiling of a person on the track, is a question for the jury.--Chicago, R. I. & P. Ry. Co., U. S. C. C. of App., Eighth Circuit, 164 Fed. 785.

121. Reference-Trial in Lower Court.-In an equity case, the court. on passing on exceptions to the referee's report, may in its discretion refer the case back with instructions to receive additional evidence.-Kossuth County, State Bank v. Richardson, Iowa, 118 N. W. 906.

132. Reformation of Instruments-Estoppel.Acts of a married woman claiming a remainder interest in land sold in fee by her parent, the alleged life tenant, held not to estop her from asserting her claim.-Teague v. Sowder, Tenn., 114 S. W. 484.

133. Remainders-Laches.--A remainderman held not guilty of laches in failing to assert title as against purchasers from the owner of the life estate until after the determination of the life estate. Teague v. Sowder, Tenn., 114 S. W.

484.

134.

Replevin-Money Judgment.-Where defendant chooses a money judgment, he can take either the highest proved value of the property between the date the plaintiff received it and the time of trial, or the market value with interest or hire, as he may prove.-Bank of Blakely v. Cobb, Ga., 63 S. E. 24.

135. Sales-Offer and Acceptance.-An offer and acceptance both by letter to furnish cut stone for the erection of buildings held to show a meeting of minds and a resulting contract.Bollenbacher v. Reid, Mich., 118 N. W. 933.

136. Seamen-Contract of Service.-A British seaman serving on an English vessel who voluntarily left such vessel in New York held to have no right of action against the ship for wages which would be enforced by a court of admiralty of the United States.-The Ucayali, U. S. D. C., E. D. N. Y., 164 Fed. 897.

137. Specific Performance-Contracts Enforceable. The principle of compensation for deficiency or abatement of price, unless specific performance is compellable in part, is without application. Knudtson v. Robinson, N. D., 118 N. W. 1051.

138. Contract for Support.-In a suit for performance of a provision of a contract for support, one of defendants' daughters, who was entitled to receive a certain sum under the con

tract, held a necessary party.-Mootz v. Petraschefski, Wis., 118 N. W. 865.

139. States-Establishment of Railroad Rates. A bill filed in a federal court against a state commission to restrain it from enforcing railway passenger rates on the ground that they are confiscatory is not bad as an attempt to enjoin legislation or as a suit against the state.— Prentis v. Atlantic Coast Line Co., U. S. S. C., 29 Sup. Ct. 67.

140. Street Railroads-Care Required of Pedestrian.-A pedestrian about to cross street railway tracks at a public crossing held not required to observe the same degree of care as if crossing steam railroad tracks.-Stewart v. Omaha & C. B. St. Ry. Co., Neb., 118 N. W. 1106.

141.- -Collision With Vehicles.-Where a motorman negligently collided with plaintiff's rig after he saw it on the track in a dangerous position, the company will be liable, though plaintiff was negligent in driving into the dangerous position.-Bladecka v. Bay City Traction & Electric Co.. Mich., 118 N. W. 963.

142.- -Regulation.-Enforcement of the continuance by a Hawaiian street railway company of a ten-minute schedule held not within the limits of the judicial power and inconsistent with the power to regulate the management of the street railway, ultimately vested by Haw. Rev. Laws, sec. 843 (Sess. Laws 1905, Act No. 78). in the executive authorities.-Honolulu Rapid Transit & Land Co. v. Territory of Hawaii, U. S. S. C., 29 Sup. Ct. 55.

143. Taxation-Tax Deeds.-Defendant holders of a tax deed cannot claim relief thereunder in a suit to quiet plaintiff's title where the issuance of a deed was enjoined, and where they did not make plaintiffs parties to the proceeding.Carney v. Twitchell, S. D., 118 N. W. 1030.

144. Telegraphs and Telephones-Rates.-Municipal authority to enter into a contract fixing unalterably during a franchise charges for telephone service must necessarily be implied from the statute.-Home Telephone & Telegraph Co. v. City of Los Angeles, U. S. S. C., 29 Sup. Ct. 50. 145. Rent Payable in Advance. A rule of a rural telephone company that rent must be paid six months in advance held reasonable.Buffalo County Telephone Co. v. Turner, Neb., 118 N. W. 1064.

146. Towns-Maintenance of Ditch.-The supervisors are not necessary parties defendant in an action to enjoin the township from maintaining a ditch to the damage of the property owners.-Koeper v. Town of Louisville, Minn., 118 N. W. 1025. 147. held Trusts-Deeds. A trustee's deed valid and to convey to the cestuis que trust a fee-simple estate.-Maxwell's Committee v. Centennial Perpetual Building & Loan Ass'n, Ky., 114 S. W. 324.

148. Distribution.-The surplus income after paying annuities must accumulate as part of the trust estate until time for distribution, where the trust provides that trustee shall devote income towards annuities, and, on termination of the trust, distribute the trust fund to the annuitants.-Fitchie v. Brown, U. S. S. C., 29 Sup. Ct. 106.

149. Vendor and Purchaser-Fraudulent Representations. In an action to rescind a sale of land on account of fraudulent representations as to title, an instruction that plaintiffs must have relied "solely" on defendant's representations held properly refused.-Buchanan v. Burnett, Tex., 114 S. W. 406.

150. Oral Contract to Convey.-In an action to establish title to land, under an oral contract to convey, effect of a showing of possession and improvements by defendant stated. -Boeck v. Milke, Iowa, 118 N. W. 874.

Central Law Journal.

ST. LOUIS, MO., APRIL 16, 1909.

CAN A CORPORATION WHOSE ORGANIZATION VIOLATES THE INHIBITIONS OF THE SHERMAN ACT ENFORCE ITS CONTRACTS?

Just now the law on this question is passing through a great period of transition and the provisions of the Sherman Act

in the meanwhile have become somewhat uncertain as to the full extent of their operation and the exact limit of their effectiveness. We welcome, therefore, each decision of the supreme court which effectually determines any of the perplexing situations so often met with in applying the

terms of this statute.

Section seven of the Sherman Act provides that any person injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful may sue therefor in the Circuit Court of the United States and recover threefold the damages sustained by him. The question arises under this section and the two preceding sections, making illegal monopolies and combinations in restraint of trade,-Shall a corporation whose scheme of organization comes within the meaning of these inhibitions, enforce whatever contracts it may make either in pursuance of or as an aid to the unlawful combination or not?

The case of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, held that the sections of the Sherman Act to which we have just referred, while they rendered void any contract or combination which was in restraint of trade, did not invalidate any incidental contract for the sale of goods which did not in any manner involve as a necessary incident in proving the contract or explaining its terms, the illegal combination or contract itself. In this case the purchaser resisted the attempt to recover for a shipment of sewer pipe which he had ordered, received and agreed to pay for. The court said: "The buyer could not refuse to comply with his contract

of purchase upon the ground that the seller. was an illegal combination which might be restrained or suppressed in the mode prescribed by the act of congress; for congress did not declare that a combination illegally formed under the act of 1890 should not, in the conduct of its business, become the owner of property which it might sell to whomsoever wished to buy it. So that there is no necessary legal connection here between the sale of pipe to the defendants by the plaintiff corporation and the alleged arrangement made by it with other corporations, companies, and firms. The contracts under which the pipe in question was sold were, as already said, collateral to the arrangement for the combination referred to, and this is not an action to enforce the terms of such arrangement."

Now comes the important recent case of Continental Wall Paper Co. v. Voight, 29 Sup. Ct. 280, which holds to an apparently contrary doctrine, but where the distinction is sought to be made between simple transactions in the ordinary course of business. and accounts which are made up, within the knowledge of both buyer and seller, with direct reference to, and in execution of, the agreements which constitute the illegal combination. The answer in this case in re

sisting a recovery on an account for goods sold and delivered set up not only that the plaintiff was an illegal combination of the wall paper manufacturers of the United States, but also that, in carrying out such combination, defendants were virtually compelled to sign a jobber's agreement which, in effect, bound them to buy from the plaintiff all the wall paper needed in their business at certain fixed prices, and not to sell at lower prices or upon better terms than those at which plaintiff itself sells to dealers other than jobbers, that the goods in question were ordered pursuant to such agreement and at the prices fixed, that such prices were unreasonable, and that all the transactions between the parties were in furtherance of the illegal combination.

The distinction which Justice Harlan, speaking for a bare majority of the court, makes between the two cases is simply this: In the Connolly case there was a simple

contract of sale untainted by any other considerations, and having no relation to the illegal combination which the vendor had made with other vendors. In the Continental Wall Paper Case, on the other hand, the defendant was a jobber who, in order to make this particular purchase, had been compelled to enter into an agreement to purchase exclusively of plaintiff and to sell at a certain price and to do other things which were in furtherance of the execution of the illegal combination or contract between plaintiff and subsidiary companies. Justice Harlan says: "The plaintiff comes into court admitting that it is an illegal combination whose operations restrain and monopolize commerce and trade among the states, and asks a judgment that will give effect, as far as it goes, to agreements that constituted that combination, and by means of which the combination proposes to accomplish forbidden ends. We hold that such a judgment cannot be granted without departing from the statutory rule, long established in the jurisprudence of both this country and England, that a court will not lend its aid, in any way, to a party seeking to realize the fruits of an agreement that appear to be tainted with illegality, although the result of applying that rule may sometimes be to shield one who has got something for which, as between man and man, he ought, perhaps, to pay, but for which he is unwilling to pay. In such cases the aid of the court is denied, not for the benefit of the defendant, but because public policy demands that it should be denied without regard to the interests of individual parties."

It must be admitted that the argument of Justice Harlan hews very close to the line. At first glance it is difficult to perceive the necessary connection between the defendant's several purchases of wall paper and the agreement to keep up prices and to trade with plaintiff to the exclusion of plaintiff's competitors. These transactions look to be quite separate and distinct and the situation therefore would appear to justify the position of the four dissenting judges, speaking through Mr. Justice Holmes, in declaring that "if knowledge that the plaintiff was attempting to monopolize, and that

it sold at prices fixed in aid of the intent, would not exonerate the defendant when it yielded to its necessities and bought, the same knowledge would have no greater effect if the same necessities led it to agree beforehand to do what it did."

We are not prepared, however, to assent to the contention of Justice Holmes that "the policy of not furthering the purposes of the trust is less important than the policy of preventing people from getting other people's property for nothing when they purport to be buying it." This is the attitude which has hitherto prevented the effective enforcement of the Sherman Act and we are inclined to commend the attitude of the majority of the court in firmly discountenancing such a policy and in its stead to declare that it is better to let an illegal trust lose its goods without redress than for the court to aid it in enforcing its program of combination in any of its various aspects.

We commend the opinion of the court in the case of McMullen v. Hoffmann, 174 U. S. 639, where the court declared, speaking of the policy which refuses to enforce contracts in any way tainted with illegality: "The more plainly parties understand that when they enter into contracts of this nature, they place themselves outside the protection of the law, so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law."

NOTES OF IMPORTANT DECISIONS.

LIBEL AND SLANDER-PUBLISHING ONE'S PICTURE AS THE PICTURE OF ONE WHO WAS A CRIMINAL.-The enterprise, if it may be so called, of the newspaper press in so industriously stirring up the filth dumps of society in order to discover, if possible, something that will pander to the morbid curiosity of the people, often exposes them to serious liability by reason of their quick conclusions and careless investigation.

The good name and character of a man cannot be recklessly squandered away by a newspaper even indirectly and without intention to offend.

Who steals my purse, steals trash; 'tis something, nothing;

'Twas mine, 'tis his, and has been slave to thousands:

But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed.

The occasion for these serious reflections is the recent decision of the Supreme Court of New York in the case of Burkhardt v. Press Publishing Co., 114 N. Y. Supp. 451. In this case appellant saw visions of a sensational article involving a woman of evil reputation. It sent a reporter to the woman's family to secure her photograph and received two pictures, one on a tin type and the other on a button. The latter picture, however, was not the picture of the evil woman but of respondent. The button picture, however, was published in connection with the sensational story as the picture of the "woman in the case." Respondent recovered punitive damages in the lower court and the judgment was upheld in the appellate tribunal on the ground that the dissimilarity was so great that a person of ordinary intelligence, before using the button picture, in connection with the article, would have made further investigation. And, in order to prove how careless and reckless the action of the publishers had been in the matter and thus to impose upon them in the jury's discretion, punitive damages, the court permitted the respondent to introduce in evidence the two photographs.

SEVERANCE OF ESTATES

IN

This right is now recognized by statute in England, but it is limited to lands anciently bounded, or lands condemned as wastrel.

Of course it goes without saying that every reservation of minerals in a patent from the government of the United States, and every assertion of regalian right in the old countries, and in the new ones wherein similar or identical statutory, or other binding laws are in force, operates to sever the mineral estate from the surface estate. In this country the courts have apparently encountered some difficulty in enforcing this statutory severance, which will presently be noticed.

Severance, similar in effect, so far as most of the resultant rights and duties are concerned, is quite frequently created by contract in this country. In Illinois and Missouri it has been asserted by custom, to the extent that lead lands have been operated under a customary right upon payment of a customary royalty.

There is still another species of severance in the precious metal states of this country, arising from the assertion or exercise of the apex rule, and the resulting

Severance of estates in lands containing minerals is of very ancient origin. It doubtless arose from the assertion of the regalian right to mines of or containing precious metals.

It is very certain that the Romans asserted this right, as did the Athenians, and it has dominated the policy of Continental Europe, including Great Britain and excluding Russia, with various and occasional ebbs and flows as to the extent of the claim, ever since.

Severance was also accomplished by custom in Cornwall and Devon, where the right anciently existed and has always been asserted to take possession by "bounding," as it is called, the waste lands (wastrel) of the thirteen ancient manors of Cornwall and similar lands in the county of Devon, which were known to contain tin or copper.

It is not the purpose of this article to examine the relative rights and duties of the respective tenants of the mineral and surface estates, respecting surface, subsurface or lateral support. In general, it

may be said that the right to surface and lateral support, in the form the land was in when the estates were severed, is absolute.

The two main purposes of this article, outside of historical reproduction, are (1) to demonstrate the inherent right of the mineral proprietor, as against the servient, or surface proprietor, to enter and enjoy by himself, his tenant or grantee, the mineral estate where the right of entry and removal are not in terms reserved, and (2) to examine especially the town-site law, and to point out some inaccuracies in at