excavation

93. Nuisance-Excavations.-An beside a sidewalk held to be a public nuisance.Town of Newcastle v. Grubbs, Ind., 86 N. E. 757

94.-Injunction.-The illegal use of premises as a bawdy-house constitutes a continuing in. jury to a nearby property owner, the right to restrain which is unaffected by lapse of time.Seifert v. Dillon, Neb., 119 N. W. 686.

95. Pollution of Water.-A criminal prosecution held not to lie against one building dams on his land for irrigation purposes, with the result that, when the water which had risen on the land of others receded, an offensive smell arose. Stacy v. State, Tex., 114 S. W. 807. 96. Parties-Unborn Defendants.-Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the. living owners of the estate represent the whole estate for purposes of any litigation in reference thereto.-Doscher v. Wyckoff, 113 N. Y. Supp. 655.

97. Physicians and Surgeons-Licensing Veterinary Surgeons.-Laws 1005, p. 463, c. 97, providing for the examination and licensing of veterinary surgeons, held not unconstitutional. Ex parte Barnes, Neb., 119 N. W. 662.

98. Pleading-Demurrer.-Where defendant, after filing a demurrer to the declaration, files no further pleadings, and goes to trial without calling up the demurrer for disposition, he waives the demurrer, and cannot raise the objection for the first time after verdict.-Devine v. Chicago City Ry. Co., Ill., 86 N. E. 689

99. Rulings on Demurrer.—A defendant who voluntarily amends or substitutes an answer after demurrer sustained waives the right to except to the sustaining of the demurrer.Pettus v. Gault, Conn., 71 Atl. 509.

100. Pledges-Collection of Dividends by Pledgee. The dividend on corporate stock may be collected by the pledgee of the stock.-Union Trust Co. v. Hasseltine, Mass., 86 N. E. 777.

101. Principal and Agent-Fraud of Agent.— An agent for the purchase of land made a secret agreement with the vendor or his attorneys to influence the sale, contrary to his principal's interest, such agreement was unconscionable and unenforceable.-Egan v. De Jonge, 113 N. Y. Supp. 737.

102. Public Lands-Survey.-Where an original survey contained an insufficient acreage, a subsequent entryman could not object that the original entryman might thereafter exercise his right to mandamus to compel the extension of his lines.-Breckenridge Cannel Coal Co. v. Scott, Tenn., 114 S. W. 930.

Possession.

103. Quieting Title-Adverse Where one in possession, without color of title, of a part of a tract, paid taxes on the entire tract, he is entitled to have the taxes prorated and to have a decree for taxes paid on the portion of the tract to which he acquired no title.Langhorst v. Rogers, Ark., 114 S. W. 915.

104. Bill to Remove Cloud on Title.-A bill to remove a cloud on title is limited to instruments or other proceedings in writing which apDear of record and cast a doubt on the validity of the record title.-Allott v. American Strawboard Co., Ill., 86 N. E. 685.

trackage.-Pittsburgh, C., C. & St. L. Ry Co. v. Hunt, Ind., 86 N E 328.

106. Railroads Contributory Negligence.Contributory negligence cannot be imputed to a person for failure to anticipate a railroad company's violation of a speed ordinance.-Dukeman v. Cleveland, C., C. & St. L. Ry. Co., Ill., 86 N. E. 712.

107.-Fires Set by Engines.-In order to create a liability for the destruction of plaintiff's property by fire, there must be a preponderance of proof that the fire was caused from sparks from defendant's engines, and that defendants were negligent.-Sims v. American Ice Co., Md., 71 Atl. 522.

108. Injury to Alighting Passengers.-The care required of a carrier for a passenger's safety while leaving the train is as high as that required during transit, and it must use extraordinary care to put passengers off at a reasonably safe place.-Reardon v. St. Louis & S. F. Ry. Co., Mo., 114 S. W. 961.

109.-Injuries to Persons on Track.-A railroad company is only bound to use ordinary care to prevent injury to persons walking on or about the tracks of a railroad yard, though the company knew of such use of its tracks.-Shra'der v. Nashville, C. & St. L. Ry. Co., Ky., 114 S. W. 788.

110. Obstructing Water Course.-A lessee of the original owner of a railroad is charged in law with notice that its track would obstruct flood waters, thereby causing damage to abutting property and would be liable for the resulting damage.-Smith v. Chicago, B. & Q. R. Co., Neb., 119 N. W. 669.

111. Regulation.-The Legislature may, to a reasonable extent, convert imperfect obligations of railroads to the public into absolute legai duties. Pittsburgh, C. C. & St. L. Ry. Co. v. Hunt, Ind., 86 N. E. 328.

112. Receivers-Appointment.

Independent

of statute, courts of equity, being averse to interference ex parte, will ordinarily entertain an application for the appointment of a receiver only after notice to defendant or a rule to show cause.-Marshall v. Matson Ind., 86 N. E. 339.

113.- -Motion to Set Aside Sale.-Where one did not object to a receiver's sale before its approval and acquiesced therein thereafter by applying for the allowance of his claim out of the proceeds, a subsequent motion to set aside the sale was properly denied.-Dilley v. Jasper Lumber Co., Tex., 114 S. W. 878.

114. Reformation of Instruments-Mistake.Where defendants signed a contract without reading it or having it read to them and they were not misled as to its contents, they could not have it reformed because of an alleged mistake therein.-Weltner v. Thurmond, Wyo., 98 Pac. 590.

115. Specific Performance.-Where a later statute is exclusive, covering the whole subjectmatter to which it relates, it repeals by implication all prior statutes on that matter, whether they are general or special.-Hampton v. Hickey, Ark., 114 S. W. 707.

116. Statutes-Double Taxation.-Double taxation is not favored by the law, and it will not be presumed that the Legislature intended to impose it, in the absence of legislative enactments to the contrary.-State ex rel. Pearson v. Louisiana & M. R. R. Co., Mo., 114 S. W. 956. 117. Street Railroads-Contributory Negligence. A traveler on a street on which street cars are run held not justified in relying on the

expectation that if a car approaches the motorman will exercise reasonable care, but is bound to take proper measure for his own safety.Tognazzi v. Milford & U. St. Ry. Co., Mass., 86 N. E. 799.

118.-Duty as to Person Lying Near Tracks. -A motorman, who mistook one lying near the track for a clump of dirt, was not legally bound to stop the slacken its speed before reaching him.-Trigg v. Water, Light & Transit Co., Mo., 114 S. W. 972.

or car

119. Sunday-Validity of Contracts.-A contract for the letting of premises made on Sunday, being illegal, cannot be ratified so as to be in effect from the beginning, but may be subsequently adopted by the parties without formality. Miles v. Janvrin, Mass., 86 N. E. 785.

120.

Taxation-Description

of Premises.

The correct description of the land assessed is essential to a valid tax.-Griffin v. Denison Land Co., N. D., 119 N. W. 104.

Feb. 14, 1855, 121. Exemptions.-Act amending the charter of Northwestern University (Priv. Laws 1855, p. 483), exempting the property of such university from taxation, applies to real estate acquired after the adoption of such amendment.-Northwestern University v. Hanberg, Ill., 86 N. E. 734.

122. Tax Sales.-Where mortgaged land is sold at tax sale, the mortgagee is entitled to the surplus over the amount of the tax lien.Farmer v. Ward, N. J., 71 Atl. 401.

Business.

123. Torts-Malicious Injury to An injury to the business of another, inflicted intentionally and without legal excuse, is maliclous injury, giving a right of action to the person injured.-Lohse Patent Door Co. v. Fuelle, Mo., 114 S. W. 997.

124. Trade Marks and Trade Names-Unfair Competition.-A defendant manufacturing stop and waste cocks and similar plumbers' supplies which procured such articles of complainant's manufacture and purposely imitated them in size, shape and appearance, thereby causing confusion in the trade and in fact deceiving purchasers, held chargeable with unfair competition which entitled the complainant to an injunction.-H. Mueller Mfg. Co. v. A. Y. McDonald & Morrison Mfg. Co., U. S. C. C., N. D. Iowa, 164 Fed. 1001.

a

firm 125.- -Unfair Competition.-Where used a name similar to its competitor, which was calculated to deceve the public, the competitor could have the use enjoined.-Scanlan & Bartel v. Williams, Tex., 114 S. W. 862.

126. Trial-Discretion of Trial Court.-The trial court did not abuse its discretion by permitting plaintiff to introduce additional testimony after argument and after the case had been taken under advisement, where defendant was given five days in which to meet the new testimony.-Burke v. Burke, Iowa, 119 N. W.

129.

127. -Instructions As to Negligence.-Definitions of negligence and contributory negligence in a charge are to be taken with what the court says on the subject in the rest of the charge.-Smith v. Detroit United Ry., Mich., 119 N. W. 640.

128. Trover and Conversion-Set-Offs.-Defendant innocently converting personalty held entitled to set off any sum expended by him or his predecessor in title, if his possession was also innocent, in enhancing the value of the property.-Milltown Lumber Co. v. Carter, Ga., 63 S. E. 270.

129. Trusts-Appointment.-The selection of a trustee is a matter in the discretion of the court, and, though the better practice requires the court to select a resident as trustee, there may be circumstances justifying a departure therefrom.-Dodge v. Dodge, Md., 71 Atl. 519. 130. Contract Construed.-A contract by whom the property was conmortgagees to veyed to sell the property and account to the mort agor for any surplus held an express trust.-Weltner v. Thurmond, Wyo., 98 Pac. 590,

131.- Establishment.-A bill by an administrator to declare that property received by defendant a trust fund for the estate is not a case which should be tried by jury, but is within the jurisdiction of equity, and the issues of fact may be tried by the chancellor or by sending an issue to a jury.-Chamberlain v. Eddy, Mich., 118 N. W. 499.

132. Usury-Consideration for Note.-A settlement of pending litigation held not a good consideration for a note given thereon so as to on therefor paid the preclude the recovery cause of action on which the suit was based.Osborne v. Fridrich, Mo., 114 S. W. 1045.

133. Vendor and Purchaser-Constructive Notice. Where land in possession of a tenant is conveyed, his continued possession as tenant of grantee held not constructive notice of the unrecorded deed.-Feinberg v. Stearns, Fla., 47 So. 797.

that a

134. Venue-Jurisdiction.-The rule judge of the place of an alleged trespass shall have cognizance yields when the defendant actively accepts jurisdiction at his own domicile by filing an answer.-Bernstein v. Dalton Clark Stave Co., La., 47 So. 753.

135. Waters and Water Courses Village Contracts.-A contract by a village with a water company to purchase its plant after a term of ears held ultra vires.-Phillips Village Corp. v. Phillips Water Co., Me., 71 Atl. 474.

136. Wills-Condition of Forfeiture. Where a will provided that, if any of the devisees atthe property tempted to break the will, all should go to others, if some of the devisees attacked the will, those who did not attack it would also be prevented from taking thereunder. -Perr v. Rogers, Tex., 114 S. W. 897.

a testamen

137. Construction.-Whether tary trust is personal in its character or is annexed to the office of trustee is a matter of intention, to be gathered from a consideration of the whole will and from the nature and objects of the trust created thereby.-Dodge v. Dodge, Md., 71 Atl. 519.

138. -Construction.-Where a bequest is to one and "in case of his death" to another such expression unexplained by the context of the will refers to the happening before the death of the testator.-Fischer v. Fischer, N. J., 71 Atl. 488.

139.- -Partial Intestacy.-In order to avoid partial intestacy, courts will imply cross-remainders, even of accretions of funds set apart for life tenants, though such implication will trusts.-Simpson result in destroying the

Simpson, 118 N. Y. Supp. 370.

V.

Estate.-A 140. Unnatural Disposition of testator of sound and disposing mind, and not governed by undue influence, has a right to leave his property as he pleases. Scott Barker, 113 N. Y. Supp. 695.

V.

141. Witnesses-Competency.-Heirs are comnetent witnesses for themselves in a suit against a co-heir defending as decedent's grantee.-Hudson p. Hudson, Ill., 86 N. E. 661.

a

142. Credibility.-A copy of a newspaper containing an article giving an account of criminal offense held properly excluded, when offered for the purpose of showing bias on the part of a witness and impeaching him.-Vogel v. State, Wis., 119 N. W. 190.

written

statement

143.- -Impeachment.-A previously made by a witness is not admissible in evidence to contradict and impeach his testimony, unless it was called to his attention when on the stand.-Lemon v. United States, U. S. C. C. of App., Eighth Circuit, 164 Fed. 953.

144.- -Privileged Communication. To make a communication to an attorney privileged, the relation of attorney and client must exist, and the communication must be made to enable the attorney to properly conduct the suit, or to better advise his client.-Moyers v. Fogarty, Iowa, 119 N. W. 159. 145.a trial for -Refreshing Memory.-In falsely counting and reporting ballots election officer, it was proper to allow registrars who testified to a recount to refresh their recollection by referring to the tally sheets used by them.-Commonwealth v. Edgarton, Mass., 86 N.

E. 768.

as

an

Within the last two years the Supreme Court has held not a few acts of Congress unconstitutional by the bare majority of five to four. So frequent has this become as very seriously to endanger the strong confidence in which this court is held by the people. It hardly seems possible that on so many questions of importance there of importance there should be such a wide disagreement among the members of such a tribunal and the frequency of such sharp disagreements tends to suggest that something more than the mere colorless questions of legal construction are present, that the judges are swayed to some extent by previous fixed opinions on certain questions of legislative policy from which they cannot entirely divorce themselves and which lead them, unconsciously to conclusions with which they are strongly in sympathy.

That such preconceived views especially on questions of a political nature or of administrative policy may not endanger national legislation of a kind strongly favored by the people, it is well to keep constantly before us the admirable suggestions contained in Judge Hanford's paper, read before the American Bar Association on the "Increased Responsibilities of Our National Judiciary" in which he called attention to the number of constitutional questions decided by a majority of onę. He suggested as a remedy for this condition, and to counteract the lack of confidence which such decisions necessarily entail, that the number of judges be increased to fifteen and that nine justices be required to concur in holding any legislation, national or state, to be unconstitutional.

Judge Hanford's scheme has been criticised on the ground that such questions not arising abstractly but as necessary incidents in trials inter partes, such judgments might be reversed or affirmed by a minority of the court which would not at all be satisfactory. However, whatever may be the views of the bar in regard to Judge Hanford's suggestions, it seems to us that at

least the number of judges of the Supreme Court should be increased and some the appointqualifications imposed on ing power so that men shall not be selected from executive government employment or while in active participation in political affairs for appointment to the Supreme Bench. To our mind, while there are many good lawyers in the executive and legislative branches of government, such lawyers do not make the best candidates for the judiciary. This is due mainly to the preconceived notions they entertain toward certain political policies and their strongly partisan attitude which they have been accustomed to take to every question of law submitted for their consideration. Surely, the best training for a judge of the Supreme Court is a long previous experience on the bench and therefore, it seems to us selections for this bench should be limited to this class of men, who as a general rule will regard questions of law more evenly and with less pernicious partizanship and reach more unanimous agreement on the important questions which come before the Supreme Court for decision.

BASEBALL, NOT A "GAME" BUT A NATIONAL RECREATION.

The great national game of baseball, which makes the small boy forget his devilment and the dignified jurist his problems, has now been judicially recognized as one of the essentials of our civilization and not as a game of chance.

This epoch-making decision is by the Supreme Court of Kansas in the recent case of State v. Prather, 100 Pac. 57. In that case a statute of Kansas provided punishment for "horse racing, cockfighting, or playing at cards or game of any kind on the first day of the week, commonly called Sunday." Prather was charged with playing baseball on Sunday, and convicted of an offense under this statute. The court held that the word "game" as used in the statute, should be construed only to include sports of a similar character to those specifically enumerated, and should therefore be held to exclude baseball.

Then, the court gives to the game this remarkable judicial endorsement. "Until very recently," the court said, "there has

lions of dollars and disturb to a most appreciable degree the entire social and financial life of the commonwealth of Montana,

Here were two rights involved, both of them important, one, the right to farm and to be free from interference from one's neighbor of a character which destroys or tends to destroy one's use of his own property; the other er, the right to mine or dig on one's own property in order to secure valuable ores from the bowels of the earth. No doubt if a nuisance were created by one the value of whose business was insignificant compared to the destruction it occasioned, the law would promptly enjoin its continuance. But on thẹ other hand, applying this rule of comparative value to the two rights involved, where the damage occasioned by the nuisance is insignifi cant compared to the value of the business creating the nuisance then the nuisance will not be enjoined provided that to do so would destroy the great value of defendant's business. Of course, we are not discussing the question of "suitability of neighborhood." But admitting the neighborhood to be the proper one, as far as neighborhoods go, then it becomes a question of comparison between the rights of litigants, before the court can enjoin the continuance of the nuisance. And this was the principle applied by the court in the principal case refusing to grant the injunction as prayed.

The language of the court is instructive. The court said: "Fundamental and inexorable in its equality is the law that no person can have more rights than his neighbor, because fortune has so shaped conditions that the one owns more money or land or chattels than the other; but when there are two citizens, each of whom is engaged in a lawful business, one in mining, the other in farming, and there comes a conflict where neither can enjoy his own property without interfering to some extent with his neighbor in the enjoyment of his, then it is that the problem is presented how to fix the rights of each so as to secure to each the largest measure of liberty possible under all the circumstances of the particular case. Then it is that the court should so frame its decree as to avoid the destruction of the rights of either. In the western states questions of such a nature often arise with respect to the uses of the waters of the streams where placer and quartz miners have to pollute the water to some extent before it flows down to the ranchmen to be used by them in irrigation of the valley below; but the courts have solved them without compelling either to suffer irreparable damage, although in the solution each has to suffer a certain amount of inconvenience and perhaps recurring damage. Equitable arrangements may often be made when we recognize the principle that as a philosophic condition of the complexities of society to some extent men must yield the full enjoyment of certain individual rights."

LEGAL METHODS FOR THE DETECTION OF FORGERIES AND PROOF OF HANDWRITING BY EXPERT TESTIMONY OR OTHER OPINION EVIDENCE.

The commercial relations of men for centuries have been increasing and constantly growing more complex. The application of writing to the relations and business of mankind is multiform, and the detection of forgeries and proof of handwriting are factors of prime importance, both in the domain of general business and in court proceedings. This article is intended to deal with some of the phases of the matter presented by cases in court. The questions upon the subject have presented themselves in the courts at periods so greatly separated and under such varying circumstances that both statute law and court decisions, whether made under statutes or in cases not covered by statutory enactments, have often. quite widely departed from the original common-law upon the subject. Uniform rules for dealing with forgeries and proof of handwriting by comparison can now hardly be deduced from the decisions. An intelligent handling of a given case usually calls for thorough knowledge on the part of court and counsel not only of the law governing the reception of evidence to prove the forgery or the genuine writing, but also a considerable knowledge on their part of the scientific means and methods of distinguishing the genuine from the spurious. Ample as the authorities dealing with these questions are, experience has shown that lawyers, and judges as well, are almost universally uninformed in both respects. Court and counsel should be advised:

(1) Of the ordinary rules of evidence(a) As to relevancy;

(b) As to limitations upon compe

tency of opinions;

(c) As to extent of admissibility of admissions;

(d) Qualifications of witness, proper foundations, and preliminary matters;

(e) Standards of comparison, and