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the contract would not measure the full value of its property for purposes of taxation.-WINNEPISEOGEE LAKE COTTON & WOOLEN MANUFG. CO. v. TOWN OF GIL. FORD, N. H., 35 Atl. Rep. 945.

104. TRIAL OF OFFENSES AGAINST ORDINANCES-Dis. qualification of Officers.-On the trial by a city coun. cil of an appeal taken by a defendant from a conviction before a member of such council while acting as mayor' pro tem., such member is disqualified from voting in the capacity of a juror.-CITY COUNCIL OF ANDERSON v. FOWLER, S. Car., 25 S. E. Rep. 900.

105. TRUST-Charitable Trusts-Validity.-A bequest to executors in trust to apply the income to the sup port and education of such indigent orphan children in a county as, in the judgment of the executors, may be the most deserving, and, after a certain time, to divide the principal among them, is not invalid as a charitable trust for uncertainty in the beneficiaries.SAWTELEE V. WITHAM, Wis., 69 N. W. Rep. 72.

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106. TRUST Constructive Trust Corporations.-If one party obtains the legal title to land by fraud, or by violation of a fiduciary relation, or in any other unconscientious manner, so that he may not equitably retain it, equity will impress a constructive trust upon the property in favor of one who is in good conscience entitled to it.-NESTER V. GROSS, Minn., 69 N. W. Rep. 39.

107. TRUST-Enforcement.-Testator gave a plantation with the property thereon, then occupied by J, his son-in-law, to M, his widow, for life, with remainder to his granddaughter S, with provision however, that a reasonable support out of the property was given J, and that the plantation should be J's home for life, and with further provision that, during the life of M, testator's grandchild B should receive from the property her education, maintenance and support: Held that, though J took sole possession of the property, and ap. propriated all the income, B could not maintain a suit to enforce her equitable rights, without proof that M declined to take steps to enforce the trust, and failed to furnish B with her support, etc.-BAILEY V. SELDEN, Ala., 20 South. Rep. 854.

108. VENDOR AND PURCHASER-Rescission of Contract. -Certain heirs agreed on a distribution of the estate, but one of them objected to the price fixed on certain land assigned to him, and refused to assent to the division. One of the other heirs thereupon agreed to take such land from him at the price affixed, giving a note secured by mortgage for the price, and also agreed to pay to certain of the other heirs money which, otherwise, the objecting heir would be compelled to pay: Held, that the purchaser was not entitled to rescind the contract of purchase because the objecting heir refused to convey on tender of the mortgage, where the payments which the purchaser had agreed to make for the benefit of such objecting heir had not been made.-GRIFFIN V. GRIFFIN, Ill., 45 N. E. Rep. 241.

109. WAREHOUSEMEN-Who Are.-On trial of a mill company's manager for shipping wheat stored in the company's warehouse without written assent of the holder of the receipt therefor, it appeared that, according to its usual course of business, known to the person whose wheat was shipped, all wheat received became a part of the consumable stock of the mill, was manufactured into flour and other mill products, and sold; that it satisfied its obligation to the depositors by paying them the market price when demanded, or by returning a like quantity and quality of other wheat; and that, in the former case, no storage was charged, but in the latter a charge of eight cents a bushel was made: Held, that the company was not engaged in the warehouse business, and the wheat was not received on storage, within Laws 1885, p. 61, regu lating warehousemen.-STATE V. STOCKMAN, Oreg., 46 Pac. Rep. 851.

110. WILLS-Contest-Aliens.-A bill by an alien to set aside the probate of a will, merely alleging that his decedent died leaving certain land, excludes any

presumption that personal property was left by him, and therefore he is not entitled to maintain the suit without showing his right, through treaty, to inherit; Laws 1887, p. 5, prohibiting aliens from inheriting land. -JELE V. LEMBERGER, Ill.. 45 N. E. Rep. 279.

111. WILLS-Contest-Execution.-The execution of a [codicil is a publication of the whole will as it then existed, so as to include additions attached to the original will before the execution of the codicil.SHAW V. CAMP, Ill., 45 N. E. Rep. 211.

112. WILLS-Devise in Trust.-Testator bequeathed his property in trust to his executors to pay to his daughter an annuity of $600, and on her death to her children an annuity of $300 each until they arrived at the age of 25 years, at which time there should be paid to each child as he arrived at that age, $10,000. If, at the death of the daughter, any of her children were of the age of 25 years, the said sum should be paid in lieu of the annuity. At the termination of the trust as to all the beneficiaries and remainder-men, the property should be divided among the grandchildren then liv. ing. Held that, as the trust might, in case the children were born to the daughter after testator's death, be extended beyond a life in being and 21 years thereafter, It was void, as contrary to the rule against perpetuities.-LAWRENCE V. SMITH, Ill., 45 N. E. Rep. 259.

113. WILLS-Execution-Attestation.-Under Rev. St. 1894, § 2746 (Rev. St. 1881, § 2576), providing that no will except a nuncupative will, shall be valid unless it be signed by testator, or by some one in his presence and with his consent, and attested by two witnesses, the attestation clause need not recite compliance with such requirement. It is sufficient if the witnesses subscribe their names, as witnesses, opposite the word "witness."-OLERICK V. ROSS, Ind., 45 N. E. Rep. 192.

114. WILLS-Executory Devise - Failure of Issue.-A devise to testator's son D, "and his heirs forever, but, in case he should die without issue of his body, then the same shall go to the heirs of N, to them and their use forever," vests in D a fee, determinable on his dy ing without children surviving him; and hence the limitation over, being upon a definite failure of issue, is valid as an executory devise.-STRAIN V. SWEENEY, Ill., 45 N. E. Rep. 201.

115. WILLS-Intention-Evidence.-A beneficiary was entitled to the usufruct of the trust property so long as she lived, and and at her death it was to descend to her heirs, unless she devised it. Fearing that the property would pass under the provisions of a will which she had made, she procured from the legatees named therein a written acknowledgment that it was not her intention to exercise the power of disposing of the trust property, and that they disclaimed any interest therein under the provisions of the will making them residuary legatees: Held, that the acknowledg ment was not competent evidence of the testatrix's intention, as expressed in a subsequent will.—EMERY V. HAVEN, N. H., 35 Atl. Rep. 940.

116. WILL-Precatory Trust.-A provision in a will which gives the widow of the testator all his property for her use while living, "requesting" her to have cer. tain bequests paid to descendants of the testator named at her death, is sufficiently definite to create a trust in favor of such beneficiaries, which will be enforced by a court of equity on the death of the wife without having executed the power.-COULSON V. ALPAUGH, 111., 45 N. E. Rep. 216.

117. WILL-Testamentary Powers-Execution.-Tes tator devised land to his wife, in trust that, if C mar ried, and had "issue" and the wife thought it advisable to do so, she might convey the land to such "issue or children," and if no such conveyance was made, the land was to go to a township for school purposes: Held, that the interest of the children of C was de pendent upon a conveyance by the wife, and therefore, where the land was conveyed by the wife to one child alone, the other children acquired no interest therein.-CRIST V. SCHANK, Ind., 45 N. E. Rep. 190.

Central Law Journal.

ST. LOUIS, MO., JANUARY 15, 1897.

The lesson taught by American Oak Leather Co. v. Fargo, recently decided by Judge Grosscup, of the United States Circuit Court, Northern District of Illinois, will be a salutary one to officers and directors of corporations. There, a corporation really insolvent, but still a going concern, executed to certain of its leading creditors, judgment notes for debts existing and fresh advances of money, promising to execute no other judgment notes or to give in any form any other preferences, and in order to make them effectual, the president and secretary of the corporation and a majority of its directors, resigned, and their places were filled by an election of representatives of the creditors. The corporation then pursued its original occupation, the business apparently being carried on by the old officers of the company, and meantime the corporation purchased large quantities of goods from miscellaneous creditors. Later, finding the continuance of business impracticable, judgments were entered upon the judgment notes and an assignment of accounts was made to the preferred creditors, and the property sold under the execution. It was held, that although no actual fraud was shown, yet these circumstances constitute a fraud in law, the arrange. ment being equivalent to a secret mortgage, with possession remaining in the mortgagor. These arrangements evinced an intention to erect a secret barrier, generally, against other creditors, during the indefinite period allowed the corporation to tide over its business troubles. Such an arrangement was an attempt to erect an invisible barrier in control of the favored creditors; to make the corporation impregnable, not only to attack, but helpless against appeal to its sense of justice by the other creditors; and would, if valid, accomplish all that a secret chattel mortgage, with possession and power remain ing with the mortgagor, could have accomplished; it must therefore be treated, in equity, as such a mortgage would be treated, and it is within the plain prohibition of the law. The court in this opinion seems to announce the correct doctrine, that what a

person cannot do openly he should not be allowed to do under a secret trust.

A district court of Colorado seems to have had the honor of determining for the first time the rule of law governing the admission in evidence of shadowgraphs or photographs made by what is known as Cathode or X ray process. Smith v. Grant, Chicago Legal News, December 26, 1896. The court held such photographs admissible as secondary evidence upon the same ground as maps or drawings. Objection was made on the ground that, being photographs of an object unseen by the human eye, there is no evidence that the photograph accurately portrays and represents the object so photographed.

The shadowgraphs were offered in evidence as the court said "to show the present condition of the head and neck of the femur bone which is entirely hidden from the eye of the surgeon. Nature has surrounded it with tissues for its protection and there it lies hidden; it cannot, by any possibility, be removed or exposed that it may be compared with its shadow as developed by this now scientific process."

The court concludes as follows: "In addition to these exhibits in evidence, we have nothing to do or say as to what they purport to represent; that will, without doubt, be explained by eminent surgeons. These exhibits are only pictures or maps, to be used in explanation of a present condition, and therefore are secondary evidence and not. primary. They may be shown to the jury as illustrating or making clear the testimony of experts. The law is the acme of learning throughout all ages. It is the essence of reason, wisdom and experience. Learned priests have interpreted the law, have classified reasons for certain opinions which in time have become precedents and these ordinarily guide and control especially trial courts. We must not, however, hedge ourselves round about with rule, precept and precedent until we can advance no further. Our field must ever grow as trade, the arts and science seek to enter in.

During the last decade at least, no science has made such mighty strides forward as surgery. It is eminently a scientific profession, alike interesting to the learned and the

unlearned. It makes use of all science and learning. It has been of inestimable value to mankind. It must not be said of the law that it is wedded to precedent; that it will not lend a helping hand. Rather let the courts throw open the door to all well considered scientific discoveries. Modern science has made it possible to look beneath the tissues of the human body, and has aided surgery in telling of the hidden mysteries. We believe it to be our duty in this case to be the first, if you please, to so consider it, in admitting in evidence a process known and acknowledged as a determinate science."

NOTES OF RECENT DECISIONS.

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RAILROAD COMPANY LIABILITY TO TRESPASSERS ON TRACK.-In connection with the case of Wabash R. Co. v. Jones, reported in 44 Cent. L. J. 10, together with note containing a summary of recent cases on the subject, it will be of interest to read the opinion of the United States Circuit Court of Appeals, Seventh Circuit, in the very recent case of Sheehan v. St. Paul & D. Ry. Co., 76 Fed. Rep. 201, wherein it was held that a railroad company is not bound to any act or service in anticipation of trespassers on its track, nor is the engineer obliged to look out for them; and a trespasser venturing upon the track for purposes of his own assumes all risk of conditions which may be found there, including the operation of engines and cars.

NEGLIGENCE RESTAURANT KEEPER-BURDEN OF PROOF.-The legal proposition indorsed and applied by the Supreme Court of Illinois, in the case of Scheffer v. Willoughby, 45 N. E. Rep. 253, savors nothing of novelty, but this cannot be said as to the facts under which defendant was charged with negligence. There the keepers of a restaurant were sued for damages on the ground that they had negligently furnished plaintiff with unwholesome food, whereby plaintiff became sick. Plaintiff testified that she was served with an oyster stew, and that, after eating a portion thereof, she became ill, and so continued for several weeks. It was held that the evidence was insufficient to make out a prima facie case against the defendants so as to throw on them the burden of relieving themselves from the imputation of negligence.

CRIMINAL LAW-PUBLIC TRIAL-WITNESSES -CONSTITUTIONAL LAW.-The Court of Criminal Appeals of Texas has lately held, in Cline v. State, 36 S. W. Rep. 1099, that the provision of section 10 of the bill of rights (substantially identical with the provisions of other State constitutions), that in all criminal prosecutions the accused shall be confronted with the witnesses against him, refers to the prosecution by "public trial" before the "impartial jury" also guaranteed him by the same section; and in view of that provision, and the declaration of section 29, that "everything in this bill of rights shall forever remain inviolate and all laws contrary thereto

* shall be void," neither court nor legislature can legally authorize the reading in evidence against the accused on his trial of testimony given by witnesses on another hearing, whether at the trial in court or before an examining magistrate, even upon a showing that such witnesses are dead. The opinion of the court reviews at great length the authorities on the subject. One of the members of the court dissented.

INJUNCTION

TEMPTS

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CONTEMPT OF COURT CLASSIFIED. Contempts, broadly considered, are of two kinds-direct and constructive. Contempts committed in the presence of the court, sitting judicially, or so near as to interfere with the orderly course of procedure, are direct contempts. Contempts committed, not in presence of the court, but which tend by their operation to interrupt, obstruct, embarrass, or prevent the due and orderly administration of justice, constructive contempts. Constructive contempts are of two general classes: First, those wherein the contemptuous acts primarily affect public rights or the due administration of public justice; second, those which primarily affect private rights, and only remotely and incidentally affect public rights or public justice. When contempt proceed. ings are prosecuted to vindicate a public right, they are criminal offenses, in which the intent is a material and necessary ingredient. When they are prosecuted, either solely or primarily, to enforce and vindicate private rights, which have been secured from violation by an interlocutory or final decree of the court, they are not criminal, but civil, and remedial in their nature, and are punishable

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without regard to the motive of defendant. These propositions of law were applied by the United States Circuit Court, District of Indiana, in the case of Indianapolis Water Co. v. American Strawboard Co., 75 Fed. Rep. 972. There defendant was enjoined, at the suit of a water company, from allowing any deleterious substances to escape from its factory into the river, and thereupon built a reservoir on the bank of the river, which it negligently and carelessly permitted to break and discharge its contents. It was held that this was a contempt punishable by fine, or by fine and imprisonment, although there was no willful purpose to violate the injunction.

LIABILITY FOR LIMITING

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CARRIERS OF PASSENGERS INJURY TO EXPRESS MESSENGER LIABILITY.-The Supreme Court of Indiana decides, in Louisville, N. A. & C. Ry. Co. v. Keefer, that a railroad company cannot, by special contract with a passenger, exempt it. self from liability for the results of its negligence while performing a duty it owes to the public, as a common carrier; that it is not the duty of a railroad company, as a common carrier, to carry the goods of an express company, and the messengers in charge of them, and that a railroad company which undertakes, as a matter of accommodation, or by special engagement, to carry an express messenger, whom it is not bound to carry, becomes a private carrier, or bailee for hire, as to the thing so carried, and may protect itself by contract from the result of its negligence in respect thereto. It appeared that plaintiff, an express messenger, contracted with the express company to assume all the risks of injury he might sustain in the course of his employment, whether occasioned by the gross or other negligence of any railroad, or other carrier, and authorized the express company to enter into a contract in behalf of plaintiff, with any such carrier, exempting it from liability for injuries which he might receive in course of transportation. It was held that a contract between the express company and a carrier pursuant to the authority so conferred was valid and binding on plaintiff, and that the mere fact that an express messenger had contracted with the express company to assume all risks of injury while in its employment, however occasioned, will not entitle a railroad company by which

such messenger is transported to the benefit of such contract, of which it had no knowledge.

INSULA

NEGLIGENCE ELECTRIC WIRES TION.-In McLaughlin v. Louisville Electric Light Co., 37 S. W. Rep. 851, decided by the Court of Appeals of Kentucky, it was held that an electric light company is required to perfectly insulate its wires at points where persons are apt to come in contact with them, and to use the utmost care to keep them perfectly insulated. It appeared that plaintiff, a painter by trade and not in privity with the defendant, was engaged in painting a house, and while so engaged, was injured by coming in contact with an electric light wire erected and maintained on the side of said house by defendant, the insulation of which at a joint had become defective by reason of the wrapping having become loosened. It was held that conclusive proof of actionable negligence had been made out. The court, after citing many authorities, used the following language: "The evidence in this case conduces to show that appellant was at work at his regular trade, and was where he had a right to be, and the joint of the wire, being apparently insulated, was to some extent, at least, a guaranty that there was no danger; but independent of that fact, the situation of appellant, his work in hand, and the proximity of the wire were such that he might without negligence have thoughtlessly taken hold of the wire, because he seemed to need support; and, besides, it was hardly to be expected that the current was on the wire at about noon, the wire being used wholly to supply incandescent lights or lamps. It seems clear to us that appellee should have been required to have had perfect protection on its wires at the point and place where appellant was injured. The fact that it was very expensive or inconvenient is no excuse for such failure. Very great care might be sufficient as to the wires at points remote from public passways, buildings or places where persons need not go for work or business; but the rule should be different as to points where people have the right to go for work, business or pleasure. At the latter points or places the insulation or protection should be made perfect, and the utmost care used to keep it so.

TELEPHONE COMPANIES-INJURY TO PERSON ON STREET.-In Southwestern Telegraph & Telephone Co. v. Beatty, 37 S. W. Rep. 570, decided by the Supreme Court of Arkansas, which was an action against a telephone company for personal injuries, it appeared that one of defendant's wires was fastened to a pier of a business building in a city; that during a fire in an adjoining building persons were on the roof of the building over which the wire was stretched; that plaintiff was on the street in front of such building, and that a brick fell therefrom on his head and injured him. Plaintiff claimed that the injury was caused by the bricks being loosened by the manner in which the wires were fastened to the building. It was held that instructions which made the dangerous character of the wires and their fastenings the sole test of defendant's liability, and required the jury to find for plaintiff without regard to diligence in fastening the wires and in maintaining the appliances in a safe condition, were erroneous. The court charged that, if the street in front of such building was used by the public as a highway, and was recognized by the city as such, the jury should find that such street was a highway, and that plaintiff was rightfully therein. It was held that such instruction was not proper, though probably not prejudicial. The court says:

Appellee insists that the instructions to which appellant objected were more favorable to it than they should have been, and that therefore it was not preju. diced by them. His contention is that, if the wires and fastenings of appellant were dangerous, or become so, or if they rendered the pier to which they were attached dangerous, and by means thereof appellee received the injury of which he complains, the appellant is liable to him for the damages occasioned thereby, regardless of unskillfulness or negligence in the stretching and fastening of the same, or in the manner in which they were maintained, and without regard to the right to string the wires in the place they were, and without regard to the question as to the person who caused the injury by means of their instrumentality. Is this contention correct?

No one has the free and unlimited right to use his property in any manner he may desire. The exer cise of such right by every one is impossible. The conflicting interests of individuals prevent it. Every one, in becoming a member of society, in order to conserve peace and harmony among its members, concedes to the law-making power the right to regulate the manner and the extent of the exercise of such rights. In the exercise of the right so conceded, the law requires every one to so use his property as not to injure another, and for the enforcement of this requirement in some cases forbids the exercise of certain property rights in a particular manner, and in some permit it on condition that the person exercis

ing the right shall use ordinary care to avoid injury to others. Hence the liability for damages in every case grows out of the violation of a duty of the injur ing to the injured party, and not out of the dangerous character of the act which caused the damages. The law may prohibit the act because it is dangerous, and out of this prohibition the duty is created, upon the violation of which the right of action for damages depends. It would be unjust and oppressive to exact of any one the payment of damages to another when he has violated no duty which he owed to himwhen he has done him no wrong. For this reason a legal duty is an essential element of negligence, and there can be no negligence where there is no duty.

A few examples will serve to explain what we have said. The old common law of England made it the duty of every man to keep his cattle within the limits of his own possessions. If he failed to keep them up, he failed to discharge his duty, and was liable to the owner of the premises upon which they estrayed for damages done; and this liability did not depend upon any neglect of their owner in failing to keep them up. Here he was required to keep them up, because of their propensities to do mischief when running at large, in order to protect others. For the same rea son the owner of any other domestic animal which is known by him to be vicious and accustomed to do hurt is required to keep him secure, and, failing to discharge this duty, is responsible for damages done while he is at large, without regard to the negligence of the owner.

"It is said in an early case," says Judge Cooley, "that where one has filtby deposits on his premises, he whose dirt it is must keep it that it may not trespass. Therefore, if filthy matter from a privy or other place of deposit percolates through the soil of the adjacent premises, or breaks through into the neighbor's cellar, or finds its way into his well, this is a nuisance. Nor where this is the natural result of the deposit is the question of liability one depending on degrees of care to prevent it. Says Foster, J.: 'To suffer filthy water from a vault to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well or cellar, where it is done habitually and within the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances the reasonable precaution which the law requires is effectually to exclude the filth from the neighbor's land, and not to do so is of itself negligence.' Only sudden and unavoidable accident which could not have been foreseen by due care could be an excuse in such a case." Cooley, Torts, p. 673.

But the rule is different as to reservoirs in which water is collected for useful and ornamental pur poses. As to them Judge Cooley says: "It is lawful to gather water on one's premises for useful and ornamental purposes, subject to the obligation to con struct reservoirs with sufficient strength to retain the water under all contingencies which can reasonably be anticipated, and afterwards to preserve and guard it with due care. For any negligence, either in construction or in subsequent attention, from which in jury results, parties maintaining such reservoirs must be responsible. We say nothing now of injuries arising from the flooding of lands by reservoirs, which by raising the water must and do have that effect, but confine our attention to the case of reservoirs which cause injuries to the lower proprietors only as they break away. The American decisions seem to plant he liability on the ground of negligence, and the

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