expense of doing the work, but not for personal injury sustained by the defective conditions of the premises.-Nagle v. Davies, 113 N. Y. Supp. 834.

90. Option to Purchase.-A lease with option to purchase mining property construed in connection with instructions to a bank with which a deed and lease were deposited in escrow held to give plaintiff an option to purchase during the third year of the contract for $17,500.Pollard v. Sayre, Colo., 98 Pac. 816.

91. Lmitation of Actions-Discovery of Fraud. -The nature of the allegations necessary to take an action, based on fraud, out of the statute of limitations because of nondiscovery of the fraud, stated.-Denike v. Santa Clara Valley Agr. Society, Cal., 98 Pac. 687.

92. Master and Servant-Care Required in Selecting Employee.-A personal examination of one about to be employed as a conductor of a train held not always essential to the exercise of reasonable care on the part of the railway company. Still v. San Francisco & N. W. Ry. Co., Cal., 98 Pac. 672.

93.

-Defective Appliances.-Use of an elevator by a servant, in order to charge him with notice of defects in the appliances, must have been since the existence of the alleged defects. -Roth v. Buettel Bros. Co., Iowa, 119 N. W. 166.

94. Incompetency of Fellow Servant.-The incompetency of an employee at the time of his employment may be such that the evidence showing it rebuts the presumption that the emplover used the requisite care in his selection.Still v. San Francisco & N. W. Ry. Co., Cal., 98 Pac. 672.

95. Injury to Servant.—A master who makes the work more hazardous without notice to the servant is guilty of negligence.-Ferringer v. Crowley Oil & Mineral Co.. La., 47 So. 763. 96. Injury to Servant.- Whether the negligence of a mining company's superintendent in charge of its mine was the proximate cause of injuries to a workman furnished by another company held under the evidence to be a question for the jury.-Hagerty V. Montana Ore Purchasing Co., Mont., 98 Pac. 643.

97. Liability of Superintendent.-A mining company's superintendent in charge of its mine is not liable for injuries to a workman furnished by another company if the negligence or incompetency of a servant of the mining company was the sole cause of the injury.-Hagerty v. Montana Ore Purchasing Co., Mont., 98 Pac. 643.

98. Militia-Actions Against Officers.-Acts 1904, p. 408, No. 181, Sec. 101, does not authorize the suppression of a lawful business carried on by a citizen outside militia encampment when the same business is permitted within the camp grounds. O'Shee v. Stafford, La., 47 So. 764.

99. Mines and Minerals-Development Work. -Work may be done outside the limits of claims and be credited, if beneficial thereto, even if there are several for which the credit is asked, provided the claims are held in common.-Hawgood v. Emery, S. D., 119 N. W. 177.

100. Mortgages-Deed Absolute.-A transaction between a trustee and the cestui que trust, arising out of a deed absolute on its face though only a mortgage in fact, held presumptively fraudulent, requiring the trustee to show that the transaction was fair.-Gassert V. Strong, Mont., 98 Pac. 497.

101. Foreclosure.-Where mortgaged premises were subject to a lease for a term of years, an advertisement of foreclosure sale should state that the premises were to be sold subject to the lease, and describe the same.-Carter v. Builders' Const. Co., 113 N. Y. Supp. 316.

102.- Fraud.-In an action by a mortgagor to set aside all transfer of his interest in the mortgaged premises to the mortgagee, evidence held to show fraud on the part of the mortgagee, justifying the setting aside of the transaction. -Gassert v. Strong, Mont., 98 Pac. 497.

103. Right of Purchaser to Contest.Where the purchaser of mortgaged property at a sale was allowed to show on foreclosure the amount due on the mortgage debt at that time, he cannot complain that he was not allowed to contest the amount due.-Greist v. Gowdy, Conn., 71 Atl. 555.

104.

Municipal Corporations-Contract for Street Improvements.-A provision, in a contract for the construction of a street, that the contractor might appropriate the surplus dirt from the street did not render the proceeding or the contract void on collateral attack.-Martindale v. Incorporated Town of Rochester, Ind., 86 N. E. 321.

105. Encroachments on Alleys.-Where encroachments are erected on an alley in pursuance of lawful permits from the city, any damage or inconvenience resulting to the other property owner therefrom is damnum absque injuria, and affords no ground for injunction.-Fralinger v. Cooke, Md., 71 Atl. 529.

106.- -Nature.-Cities and towns are in a sense different from counties, having powers, functions, duties. and liabilities conferred by charter, though they are in a restricted sense governmental agencies.-Wittkowsky v. Board of Com'rs of Jackson County, N. C., 63 S. E. 275. 107.- -Prescription.-Where a building has openly and obviously encroached on a public street for over 20 years, the right by prescription may be obtained to maintain the building in that condition as against adjoining owners by limitation.-556 & 558 Fifth Ave. Co. v. Lotus Club, 113 N. Y. Supp. 886.

the

108. Public Improvements.-While board of trustees of a town cannot delegate its power to authorize public improvements, it may delegate the performance of ministerial duties connected with the making of such improvements.-Martindale v. Incorporated Town of Rochester. Ind., 86 N. E. 321.

109. Shed Over Sidewalk-Under a permit from a city to build a shed over a sidewalk, billboards, which were no part of the shed, but intended only for advertising purposes, could not be attached to the shed.-C. J. Sullivan Advertising Co. v. City of New York, 113 N. Y. Supp. 893.

110. Names Idem Sonans. Names "Minnie E Tilter" and "Minnie E. Tiller" held idem sonans. Kelly v. Kuhnhausen, Wash., 98 Pac. 603. 111. Navigable Waters-Conveyance of Littoral Rights.-An equitable owner or claimant of government lands in Alaska on the sea shore may convey his littoral rights to an individual or corporation to enable such grantee to erect or maintain a wharf for the benefit of commerce and navigation.-Decker v. Pacific Coast S. S. Co.. U. S. C. C. of App., Ninth Circuit, 164 Fed. 974.

112.Obstructions.--One constructing and maintaining a boom in a navigable river held required in order to escape responsiblity for the destruction of the property of another to move it to a place of safety at his own expense.-Kuhnis v. Lewis River Boom & Logging Co., Wash.,

98 Pac. 655.

113. Negligence-Places Attractive to Children. A railroad track in the open country is not attractive or alluring to children within the exception to the rule that a railroad company owes a trespassing child no greater duty to discover its peril than it owes to an adult trespasser.-Palmer v. Oregon Short Line R. Co., Utah, 98 Pac. 689.

114. Partition-Res Judicata.-Where, pending suit to quiet title, one of two tenants in common sold a part of the common property to B and appropriated the entire price, the amount so sold was properly deducted from his share in partition.-Snowdon v. Anderson, Wash., 98 Pac. 610.

115. Patents-Change of Form.-The making in one piece of that which was formerly made in two, or in two pieces what was made in one when the function of the device is not changed is not invention but the work of the mechanic only.-H. Mueller Mfg. Co. v. A. Y. McDonald & Morrison Mfg. Co., U. S. C. C., N. D. Ia., 164 Fed. 991.

116. Pleading-Exhibits and Complaints.--A variance between exhibits and the allegations of the complaint is waived by failure to demur or to move for judgment on the pleading and by trying the case on the merits.-Clark v. Cross, Wash.. 98 Pac. 607.

117. Post Office-Offenses Against Postal Laws. -A letter mailed in furtherance of a scheme to defraud, in order to support an indictment under

Rev. St. Sec. 5480. need not in itself be effective to execute such scheme, but it is sufficient if it was designed for that purpose or to assist in it.-Lemon v. United States, U. S. C. C. of App., Eighth Circuit, 164 Fed. 953.

118. Principal and Agent-Presumed Authority. A landlord's agent, having authority to rent property, is presumed to have like authority to give to the tenant notice to quit.-Benton v. Stokes, Md., 71 Atl. 532.

119.- -Proximate Cause of Injury. The negligence of a mining company's superintendent in maintaining a shaft in a dangerous condition, and permitting its use by a workman furnished by another company, held "misfeasance," for which the superintendent was liable.-Hagerty v. Montana Ore Purchasing Co., Mont., 98 Pac. 643.

120. Ratification.-It is not necessary for the application of the rule that a party by accepting the benefits of an unauthorized contract, ratifies the entire transaction that he should have had knowledge of all the terms and conditions of the transaction when he took advantage of the_contract.-Moyers v. Fogarty, Iowa, 119 N. W. 159.

121. Process-Amended Complaint.-Where respondents have been brought under the jurisdiction of the court by proper service, the jurisdiction is not lost by an amendment of the complaint whereby a necessary jurisdictional allegation is inserted.-Goodman v. City of Ft. Collins, U. S. C. C. of App., Eighth Circuit, 164 Fed. 970.

122.- -Defects.-Where a summons and complaint were issued against R. L., R. W. L., and others, and the return showed service upon R. L., W. R. L., and others, but was amended to correspond with the summons, the amendment cured the defects, and a motion to quash the service was properly overruled.-Lewis v. Collier, Ala., 47 So. 790.

123. Public Lands-Right of Homestead Settler. The fact that a settler who is actually residing on public land with the bona fide intention of acquiring title thereto under the homestead law purchased his improvements from a prior settler does not affect his right to so acquire the land.-Trodick v. Northern Pac. Ry. Co., U. S. C. C. of App., Ninth Circuit, 164 Fed. 913.

124. Quieting Title-Sale of Real Estate.The lien of a judgment creditor of an heir as to real estate sold by the administrator without notice to the creditor could be determined in an action by the purchaser to remove a cloud or quiet title.-Yoder v. Kalona Sav. Bank, Iowa, 119 N. W. 147.

125. Railroads-Duty Toward Trespassers.A railway company owes a trespasser no greater duty than any other owner of property would owe in the same circumstances.-Palmer v. Oregon Short Line R. Co., Utah, 98 Pac. 689.

126. Negligence.-The presumption of negligence arising from proof of communication of fire from locomotive having been rebutted, held, that plaintiff cannot recover without showing actual negligence. Osborn v. Oregon R. & Navigation Co., Idaho, 98 Pac. 627.

127. Removal of Causes-Suits Arising Under Federal Laws.-An action against a corporation created by an act of congress and two of its employees for negligence is, as to defendant, a suit arising under the federal constitution or laws within the removal provisions of Act Aug. 13, 1888. c. 866, 25 Stat. 433 (U. S. Comp. St. 1901. p. 508). In re Dunn, U. S. S. C., 29 Sup. Ct. 299. 128. Schools and School Districts-School Buildings. The proper procedure for the erection of a new school building upon an existing site is by petition to the township trustee and an appeal from him to the county superintendent.Brandt v. State, Ind., 86 N. E. 337.

129. Specific Performance-Evidence Contract.-Specific performance of a contract between aged devisee and her children, under which the most of the property left to the widow is to be surrendered, will not be enforced unless evidence is clear.-In re Panko's Estate, Neb., 119 N. W. 224.

130. Mutuality of Remedy.-A contract to render personal services, not being enforceable against the promisor, will not be enforced

135.

-Negligence.-Even if a four-year-old child could not be guilty of contributory negligence, in an action against a street railroad for her death by being struck by a car, plaintiff was not excused from showing her conduct and situation when she was injured as bearing upon the company's negligence.-Morse v. Consolidated Ry. Co., Conn., 71 Atl. 553.

136. Taxation- -Exemptions.-An exemption from taxation or the right to a particular form or method of taxation is a personal privilege and inalienable by the grantee.--State Great Northern Ry. Co., Minn., 119 N. W. 202.

V.

137. Recovery of Excessive Payments.Taxpayer held not entitled to a reaudit of its claim for a refund, where it had accepted the refund allowed, and acquiesced therein for three years. People v. Board of Sup'rs of Erie County, N. Y., 86 N. E. 348.

138. Towns-Power to Issue Bonds.-Bonds issued by a township to aid the construction of a railroad cannot be sustained under Code Sec. 1996, authorizing county commissioners to subscribe for railroad stock to aid in the completion of railroads.-Wittkowsky V. Board of Com'rs of Jackson County, N. C., 63 S. E. 275. 139.

Trial-Non-Suit.-The failure of defendant to introduce evidence after the denial of his motion for non-suit, and a motion by plaintiff for a directed verdict, held to submit the case to the court.-Patty v. Salem Flouring Mills Co., Ore., 98 Pac. 521.

140. Trusts-Resulting Trusts.-A resulting trust, being one which results by implication or construction of law, does not fall within the statute of frauds, and may be established by parol evidence.-Pittock v. Pittock, Idaho, 98 Pac. 719.

141. Vendor and Purchaser-Action for Rescission. In equity, if the purchaser has been wronged by a mistake as to the interest of his grantor, relief will be granted, and the deed will be treated as an executory contract to convey, and rescission thereof may be decreed.Lewis v. Mote, Iowa, 119 N. W. 152.

142. -Construction of Contract.-A contract to sell city lots subject to an encroachment, if any, not to exceed one inch, on a street, held to relate to an unlawful encroachment, which the public authorities could remove.-556 & 558 Fifth Ave. Co. v. Lotus Club, 113 N. Y. Supp. 886.

143. Executory Contract.-That a vendor in an executory contract has no title to convey affords no ground for rescission before the purchaser has performed and is entitled to demand a deed. Hanson v. Fox, Cal., 99 Pac. 489.

144. Wills Construction.-Where the words of a will in the first instance indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provisions which are of indefinite or doubtful expression.-In re Richards' Estate, Cal., 98 Pac. 52.

145. Work and Labor-Farm Leases. If farm tenants under an agreement for a crop rental abandon the premises, they cannot recover for plowing the land.-Smart v. Burquoin, Wash., 98 Pac. 666.

Central Law Journal.

ST. LOUIS, MO., APRIL 30, 1909.

THE UNWRITTEN LAW-A WITCHCRAFT HERESY OF THE NINETEENTH CENTURY.

The unwritten law is as great a fallacy, to our mind as was the witchcraft heresy in the seventeenth century. Surely, subsequent centuries, as they look back upon us, will be inclined to tap their heads and deplore the practical ignorance of a people who encourage a man to kill his fellow man over a woman's faithlessness, and let the woman go forth from court with a feeling of contempt for the law?

It is the purpose of the Central Law Journal to combat this heresy and offer from time to time practical objection to its effectiveness as an argument-objections that will appeal, of course, to a jury, rather than to a court. For, assuredly, any court or judge thereof, who would give this pernicious and lawless doctrine even the faintest recognition is false to his oath of office which compels him to enforce the law and to set his face like a flint against any principle which encourages lawlessness.

We will, in the beginning, except from our attack those instances where a man kills another man in protecting the virtue and innocence of a woman, especially of any female member of his family from attempted insult or assault. This is not the unwritten law, it is law sanctioned by every consideration of public policy and private right. Possibly, also, where the despoiler has already robbed a woman of her virtue and where immediate pursuit is begun and the despoiler killed in the heat of passion, by the man to whom she stood related by any of the sacred social ties of this life, the law should reduce this crime to a low degree of manslaughter or the jury be willing to stretch their consciences by showing ex

treme leniency in dealing with the offender. But, outside of these exceptions, which really are not exceptions at all, there is no place for the unwritten law.

Chivalry and gallantry are usually given as the high ground upon which this rule rests. Absolutely impossible! No man, really brave or chivalrous, who had killed a man to avenge a girl's honor, would, if he ever loved that girl for whom he thus endangered his life, call upon her to lay bare to the gaze of a scornful public the secret sins in her life and to offer on the altar of her devotion for him, that which is dearer to her than her life, in order to save his miserable head. Rather would he desire her mistakes to remain covered and to go to his doom conscious of the sacrifice which he has made for her.

Nor do the women whose "honor" is thus thought to be so chivalrously protected always relish a sort of gallantry which so cowardly shows the white feather when it appears in a court of justice. Not long ago a man killed a man somewhere on the north Pacific coast and escaped the gallows by saying he did it to protect the honor of his daughter. Not long afterward that daughter killed her father, saying that her honor was safe in her own keeping until he chose to besmirch it with unfounded calumny. "Some of the men," says the Knoxville (Tenn.) Sentinel, "who murder for chivalrous reasons are as brave as the average but few or none of them are brave enough to carry their chivalry into the court room by sealing their lips. Some of them act deliberately and not in passion. It is strange that these do not reflect that love of one's own life is an even stronger motive than honor and do not search for other ways of protecting the fair name of their friend."

Another strong argument that should appeal to a jury of laymen is the fact that in a great many of the cases where the unwritten low is pleaded, the "woman in the case," whose honor is sought to be protected, often deserves a worse fate than the companion of her laisons. When a man's

wife goes wrong it is not usually the despoiler of her virtue that is responsible. Most often is it the case, that the woman, weary of her husband's attentions, seeks and encourages the caresses of strange men who cannot always be too severely blamed for yielding where there not only is not only no opposition but where there is often the most tempting encouragement.

A woman correspondent in the New York American, of April 11th, 1909, presents some unusual views from the standpoint of her knowledge of the weaknesses of her own sex, that should be widely circulated. "It is the custom," says the writer, "to assume that the woman is innocent and unsophisticated as Eve before the fall, and that when the serpent enters into the domestic Eden he wriggles in uninvited by her, and proceeds to use all the arts and blandishments of the worldling to tempt her into straying down the primrose path with him. It is always Marguerite and Faust, as the story is told on the witness stand in the murder case. If this were true, indeed might the unwritten law become the written law, and the blood of the home wrecker be upon his own head. But the name of the married woman who goes wrong is not Marguerite. It is Sappho. It is Faustine, it is Lais, it is Magdalen. It is absurd, on the very face of it, to claim that a woman like Claudia Hains, for instance and she is just a type of the kind of women men kill for-was enticed by Annis into being false to her husband, and that he was responsible wholly for the breaking up of Captain Hains's home. She was a married woman with three children. She lived in the midst of a gay and sophisticated society, and she was perfectly aware of the significance of everything that she did. As a matter of cold, hard fact, in ninety-nine cases out of a hundred, when an outraged husband cries out that some villain has robbed him of his wife she hasn't been stolen at all. She has given herself away and if the husband is determined to kill the real offender against his honor and his home he must slay the

woman. It may be taken as an axiom that the only wives who are ever led astray are those who are perpetually on the lookout for a tempter. Only those married ladies are made love to who give men a tip that they are not averse to listening, and only those are involved in dubious situations who sidestep from the straight and narrow path. Married women are perfectly aware of the danger of playing with fire, and if they start the conflagration that burns up their honor and good repute no one can excuse them by saying that they did not know what they were about. In this country, at least, every honest wife is safe and every faithless wife meets her lover half way. Hence, the absurdity of a custom that takes the man's life and lets his aider and abettor go free."

NOTES OF IMPORTANT DECISIONS.

NEGLIGENCE-OBSTRUCTION OF FIRE ENGINE AS PROXIMATE CAUSE OF INJURY. It is frequently difficult to determine whether the violation of a statutory regulation is the proximate cause of the injury but the apparent tendency of recent decisions is to resolve all doubts on such questions against the one who has violated such regulations. His adoption of such a rule serves to more effectually enforce the provisions of such statutory provisions.

The recent case of Houren v. Railway Co., 86 N. E. 611, is an illustration of this rule. In this case the fire department, while on the way to put out the fire in plaintiff's house, was interrupted by a blockade of street cars and delayed ten minutes in reaching the scene of the fire, whereby plaintiff's house was destroyed. The ordinances prohibited such blockades and for that reason it was alleged that their violation was negligence as a matter of law and the proximate cause of the injury and one which the defendant should have reasonably anticipated.

On this latter point the court said: "If a prudent man of experience had reflected upon the probable consequences of entirely closing up this street in a great city he would have foreseen, first, that to so close the street would obstruct and delay public travel thereon; second, that among the travel liable to be so obstructed and delayed would be the passage of

teams, engines and other appliances of the fire department; third, that if the travel of the fire department was so obstructed and delayed any fire which the men of that department were seeking to reach would be more extensive and do greater damage than if the obstruction and delay had not taken place."

It is no defense to such actions for the defendant to argue that it is not alleged or proven that the damage would have been prevented if there had been no violation of the statutory regulation. This is specifically held in the principal case which cited also the case of Kiernan v. M. C. Co., 170 Mass. 378, where, as in the principal case, says the court, "it could not be said with absolute certainty that they would have been able to prevent the destruction of the plaintiff's property had no interference occurred."

The doctrine in the case of interference with the fire department is being carried to its utmost limits and the rule has been applied to a case where a street railway company negli gently injures one of three hoses playing upon a burning building. Little Rock Traction & Electric Co. v. McCaskill, 86 S. W. 997.

THE LIABILITY OF A COMMON CARRIER OF PASSENGERS FOR THE WRONGFUL ACTS OF A FELLOW PASSENGER.

Common carriers of passengers are defined to be "such as undertake to carry all persons indifferently who may apply for passage so long as there is room, and no legal excuse for refusing." Railway companies, steamship companies, street car companies, and the owners of ferries, omnibusses and stage coaches are the ones usually included in this definition. Like common carriers of goods, common carriers of passengers are engaged in a public calling, and are regarded as undertaking a public duty. The public character of their business imposes upon them the duty of serving all without discrimination; and while they are not responsible, as insurers, for the safety of their passengers, yet they owe to them a degree of care and protection different from that which may be exacted of persons or corporations not charged with a public duty.

(1) Bouvier's Law Dictionary.

The General Rule.-Although it is a well established doctrine that a passenger is entitled to protection from any injury occasioned by a fellow passenger, the difficulty lies in determining when a carrier has been guilty of such a failure to perform its duty as will entitle the passenger to recover for said injury. Negligence being the gist of the action, the liability or non-liability depends upon a careful examination of the facts and circumstances of each case. For this reason it is extremely hard to state a rule which will cover every case. The general rule which seems to be the settled doctrine is well and succinctly stated in the American and English Encyclopaedia of Law to be, "Whenever a carrier, through its agents or servants, knows or has opportunity to know, of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper percautions, or to use proper means to prevent or mitigate such injury, the carrier is liable." The duty of the carrier therefore is not absolute, but contingent, and arises from a condition, not of the carrier's, but of a third party's creation, coupled with a knowledge by the carrier's servants that the condition exists, and with time enough intervening between the acquisition of the knowledge and the infliction of the injury, to enable the servants of the carrier to protect the passenger from the actions of the fellow passenger. The carrier in such instances is not liable for the tort of the fellow passenger, but it is the negligence of the carrier in failing, after having knowledge, to prevent the injury to the passenger.

The Early Cases. In the early cases in which mention is made of this doctrine the

(2) American and English Encyclopedia of Law, Volume 5, Page 553; Fetter's Carriers of Passengers, Volume 1, Section 96; Pittsburg & Fort Wayne, etc., Co. v. Hinds, 91 Am. Dec. 224 (Pa.); New Orleans, etc., Co. v. Burke, 24 Am, Rep. 689 (Miss.); Putnam v. Broadway & Seventh Co., 55 N. Y. 108; Brown v. Chicago, Rock Island & Pac. Co., 139 Fed. 972; Spangler v. St. Joseph & Grand Island Co., 63 L. R. A. 634 (Kan.)

(3) Tall v. Baltimore Steam Packet Co., 47