2.

Crossings.-Ordinance specifying the manner in which a vehicle shall cross from one side of the street to the other held not applicable to an automobile backing out of a garage to the other side of the street. Kramer v. Chicago & M. Electric Ry. Co., Wis., 190 N. W. 907.

3. Fast-In an action for death of plaintiff's son, evidence that defendant's truck was going "fast," and "a great deal faster" than the ordinary rate of travel, held not to mean that the truck was going as fast as 10 miles an hourWilson v. Washington Flour Mill Co., Mo., 245 S. W. 205.

4.- -Liability.-The liability of an individual defendant for running over bicycle rider with an automobile was properly submitted to the jury, though it was undisputed that his co-defendant was at the wheel when the injury occurred, where in testifying he freely used the term "we" in describing the driving, management and control of the car on the occasion of the trip in question.Crescent Motor Co. v. Stone, Ala., 94 So. 78.

5. Negligence.-The president and general manager of a corporation, without right, appropriating to his own use for his private business, an automobile furnished a salesman for use in the corporation's business was liable to the same extent for negligence in the operation of the automobile as if he owned the car.-Stegman v. Sturtevant & Haley Beef & Supply Co., Mass., 137 N. E. 363.

6. -Right of Way. In action for damages to automobile sustained in collision with defendant's automobile, instruction that vehicles coming in certain directions "shall have the right of way over" vehicles traveling in other direction, held objectionable, in that it could be inferred therefrom that it was the absolute duty of the driver of defendant's car to yield the right of way.-Howard & Brown Realty Co. v. Berman, Mo., 245 S. W. 606.

7. Bankruptcy-Pledged Stocks.-Claimant, owner of certain shares of stock, delivered it to bankrupts, as brokers, to be sent to their New York Correspondent and there held subject to his orders. He also gave bankrupts written authority to pledge or sell any stocks deposited by him to secure his

account, if at any time the account should become impaired, so as, in their judgment, to be unsafe; but he had no account or other transactions with them. Bankrupts pledged claimant's stock with others to secure their own indebtedness to their New York correspondent, but the indebtedness, was paid from sale of other stocks, leaving claimant's free and with no other claimant. Held, that the authority to pledge given was not unlimited and did not authorize the pledge made and that claimant was entitled to reclaim his stock.-In Re Mason & Owen, U. S. C. A. A., 284 Fed. 714.

8. -Preferred Payment.-Under Bankruptcy Act, § 67e (Comp. St. § 9651), to render a payment by a corporation voidable, because preferential, under the state law, the corporation must at the time have been insolvent, as insolvency is defined in the Bankruptcy Act.-In Re Elliott-O'Brien Co., U. S. C. C. A., 284 Fed. 507.

9.- -Sale.-A contract by which the goods and fixtures in a store were transferred to bankrupt held one of absolute sale, and reservation of title therein held by way of security and invalid, under the laws of Michigan, for want of record.-Vander Lei v. Blakely, U. S. C. C. A., 284 Fed. 516.

10. Banks and Banking-Agency.-Notice of an alleged fraudulent act on the part of the cashier of a bank, done in his own interest and in which he does not represent the bank nor profess to do so, cannot be imputed to it, even though such transaction was collateral to, and contemporaneous with, another in which he did represent the bank and act for it.-First Nat. Bank v. Aler, W. Va., 114 S. E. 745.

11. -Fraud.-If certification of a check was procured by fraud of holder, and it remained his property and did not pass to an innocent holder, certification was not binding on the bank, and could rightfully be disregarded and payment refused.-National Bank of Baltimore v. Rockhold, Md., 119 Atl. 263.

12. Liability of Indorser. -That officers of bank desiring note represented to indorser that maker was good, and he would be safe in indorsing, held not to relieve the indorser from liability.Haymans v. Bennett, Ga., 114 S. E. 923.

13. Owner of Draft. When a bank credited the depositor's account with the amount of a draft which, with bill of lading attached, was taken by the bank for collection and permitted the drawing of checks against it before collection was made, but reserved the right to charge the amount back if collection was not made, the relation of debtor and creditor was not created, and the bank did not become the owner of the draft and bill of lading.-Midwest Nat. Bank & Trust Co. v. Parker Corn Co., Mo., 245 S. W. 217.

14. -Partnership Accounts.-A bank could not set off, against amount deposited to the individual credit of a partner, a note executed by the partnership to the bank, the partnership indebtedness being a joint obligation and not a joint and several obligation, notwithstanding Code 1907, § 2506, authorizing a creditor to sue one partner for the obligation of all, and section 2503, providing that when two or more persons are jointly bound by a promise in writing, the obligation is several as well as joint.-First Nat. Bank v. Capps, Ala., 94 So. 109.

15. Saving Accounts.-Under Or. L. § 6220, providing that all of the assets of the savings department shall be held solely for the repayment of the savings depositors, and shall not be used to pay any other obligation or liability of the bank until after such depositors are paid, a commercial depositor cannot set off his deposit against his debt to the savings department, but a savings deposit may be offset by debt to the savings department or to the commercial department, and a commercial deposit may be offset by a debt to the commercial department.-Upham v. Bramwell, Ore., 210 Pac. 706.

17. Indorsements.-By certification by bank of a trade acceptance, unless the bank had a right to cancel the certification and properly exercised it, the maker and indorsers of the trade acceptance were released from liability thereon, under Code, art. 13, § 207.-Baltimore Commercial Bank V. Shapiro, Md., 118 Atl. 858.

18. -Notice.-Nonreceipt of notice of protest by party to be charged does not affect his liability to holder when notices are forwarded in due course to his address.--Byron v. Byron, Heffernan & Co., N. J., 119 Atl. 12.

19. Carriers Agency.-A station agent has authority generally to consent to any special arrangement in regard to the mode of delivery, and such agreement will be binding on the carrier.American Fruit Grower v. King, S. C., 114 S. E. 861.

20. Carriers of Goods-Bill of Lading.-A bill of lading made out to a consignee "or assigns" is equivalent to one to the consignee or order, and is negotiable.-New York & P. R. S. S. Co. V. M'Gowan Lumber & E. Co., U. S. C. C. A., 284 Fed. 513

21.- -Delivery.-Where baled cotton is placed on a compress platform, the customary place for loading and unloading, and nothing further remains to be done by the shipper to place it in position for loading into the cars, it constitutes a delivery to the carrier issuing bills of lading therefor.-Texarkana & F. S. Ry. Co. v. Brass, Tex., 245 S. W. 457.

22. Carriers of Passengers-Dominion over Right of Way. Where a railroad company granted a right of way to a public service railway company to operate street cars across a plaza giving access to the railroad company's ferries, the public service company could not fence its right of way as a regulation of the plaza in the right of the railroad company, which, while having a right to reasonably regulate the plaza, could not exclude local carriers awaiting passengers from the ferry, it appearing that the fence would have such effect.-Public Service Ry. Co. v. Weehawken Tp., N. J., 119 Atl. 90.

23.- Jurisdiction.-The Hepburn Act, amending the Interstate Commerce Act, and prohibiting a common carrier subject to its provisions from issuing free passes, except to its employees and their families, takes charge, not only of the permission and use of such passes, but of the limitations and conditions on their use, so that the right to limit liability for a passenger traveling on such pass is to be determined by the federal laws, and not by the state statutes.-Kansas City Southern Ry. Co. v. Van Zant, Sup. Ct., 43 Sup. Ct. 176.

24. -Notice to Passengers.-Where plaintiff boarded defendant's interurban electric car erroneously, supposing that it would take her to her destination but was allowed to alight at the next station and proceeded to walk back to the station at which she boarded the car, spraining her ankle on the way, negligence of defendant could not be predicated on its failure to notify plaintiff of the car's destination before allowing her to enter it, notwithstanding that it is the universal custom of steam railroads to give such notice to passengers.Hundley v. Louisville & I. R. Co., Ky., 245 S. W. 149.

25. -Parties.-Where an automobile livery company and a cab company are made up of the same stockholders and officers, and occupy the same offices, with joint office employes and use a common telephone, held that, where a telephone call for a cab was received from an unknown party, who did not ask which company he was talking to, but merely ordered a cab, which was furnished by the cab company. the auto livery company could not be held liable for injuries resulting from the negligence of the cab driver, though if such automobile livery company, not engaged in the cab business, had itself undertaken to provide a taxicab, it was its duty to provide a safe taxicab and safe driver.-Bergenthal v. State Garage & Trucking Co., Wis., 190 N. W. 901.

26. Commerce Interstate. -An engine being prepared to take out a train of cars some of which were loaded with interstate freight was devoted to interstate commerce, and one engaged in the work of preparing it was engaged in interstate commerce, and had a cause of action for injury under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).-Brimer v. Davis, Mo., 245 S. W. 404.

27.

-Interstate.-A switchman injured while helping to break up a cut of cars, containing both interstate and intrastate cars, held to have been "employed in interstate commerce," within Employers' Liability Act, April 22, 1908, § 1 (Comp. St. § 8657), though the particular car he was riding when injured was in intrastate use.-Davis v. Dowling, U. S. C. C. A., 284 Fed. 670.

28. Intrastate.-Where a corporation establishes a branch office in a state to sell its products or purchase products for its use, it is doing business within the state which does not relate to interstate commerce, and it is subject to the laws of the state imposing conditions on the right of foreign corporations to do business therein.-State v. Pioneer Creamery Co., Mo., 245 S. W. 361.

29. Taxation.-The taxation by a state of the property belonging to an interstate railroad within its borders was not a taxation of interstate commerce, where there was no showing that any property without the state was taxed.-Southern Ry. Co. v. Watts, Sup. Ct., 43 Sup. Ct. 192.

30. Constitutional Law-Assignment of Wages. -Acts 1903, c. 21, as amended by Acts 1903, c. 453, carried into Shannon's Code, § 4341a1. providing that no action shall be brought to charge any employer upon any assignment by any clerk, servant, or employee of wages or salaries unearned at the time of the assignment unless the assignment is assented to in writing by the employer, does not violate Const. art. 1, § 8, providing for due process of law. West v. Jefferson Woolen Mills, Tenn., 245 S. W. 542.

31. Criticism.-A criticism, made in good faith. of the alleged practice of a judge in presiding over cases in which his sons were counsel, without imputing to him conscious and intentional bias and improper judgments in specific cases, is within the right of free speech guaranteed by Const. 1902, § 12.-Boorde v. Commonwealth, Va., 114 S. E. 731.

32. Estoppel.-A decision that a property owner was estopped by connecting his property with a sewer to attack the tax bill issued against his property for the construction of the sewer on the ground that it violated the Fourteenth Amendment to the United States Constitution is not the enforcement of a law as of validity by estoppel to particular persons, though it is invalid under the Constitution to all of the world besides.-St. Louis Malleable Casting Co. v. George C. Prendergast Construction Co.-Sup. Ct., 43 Sup. Ct. 178.

33.

Contracts-Unilateral-Contracts for sale of sugar by bankrupt to claimants for future delivery fixed a minimum price at which claimants were bound to accept the sugar and a maximum price, which was not to be exceeded. If the price fixed by bankrupt at time for delivery exceeded the minimum, acceptance by claimants was op tional. Each claimant made an advance payment to be returned if delivery was not made in accordance with the contract. Delivery was tendered at the minimum price and refused by claimants. Held, that the contracts were enforceable against bankrupt at the maximum price and that claimants could not recover the advances on the ground that they were void as unilateral.-Wood County Grocer Co. v. Frazer, U. S. C. C. A., 284 Fed. 691.

34.

Corporations-Liability.-If one corporation is wholly under control of another, the fact that it is a separate entity does not relieve the latter from liability for its acts.-Fourth Nat. Bank v. Portsmouth Cotton Oil Refin. Corp., U. S. C. C. A., 284 Fed. 719.

35.-Service of Process.-The fact that an officer of a foreign corporation not authorized to do business within the state was in the state to purchase goods for resale by the corporation at its place of business in its home state does not establish that the corporation was present within the state, so as to enable the court to obtain jurisdiction over it by service of process on its president.-Rosenberg Bros. Co. v. Curtis Brown Co., Sup. Ct., 43 Sup. Ct. 170.

36. Druggists-Poison.-If the contents of a box sold by a druggist was a substance usually denominated a poison, the druggist's failure to label the box "Poison," as required by Rev. St. 1919. § 3625, constituted negligence per se, and rendered the druggist liable to the purchaser for injuries resulting therefrom.-Hendry v. Judge & Dolph Drug Co., Mo., 245 S. W. 358.

53. -Res Ipsa Loquitur.-A petition alleging that plaintiff's duties required him to go inside the fire box of an engine to assist in repair, that the employer had installed an electric light in the fire box to enable the plaintiff and others to see, and that while plaintiff was engaged in his work the electric light bulb exploded and burst into fragments, some parts of which were driven into plaintiff's eye, etc. held not to charge employer with negligence under the doctrine of res ipsa loquitur, in absence of allegations that employer manufactured and supplied its own electric light bulbs and the electricity to produce the light, or that an explosion would not have occurred without some negligence in the use of the bulb and electricity, or in the faulty construction of the bulb, since the court cannot take judicial notice as a matter of common knowledge that an electric light bulb will not explode except as the result of some negligence. -Russell v. St. Louis & S. F. Ry. Co., Mo., 245 S. W., 590.

54. Mechanic's Lien-Time of Filing.-The cement work on the walks and driveways had been completed so late in the fall of 1919 that the cement became frozen. The person who had the contract for that particular work refused to make repairs, and early in the spring of 1920 an arrangement was made between the owner and the plaintiff by which the latter agreed to purchase the material and have the work of the walks and driveways repaired for a stated consideration which was paid to him. He performed some services in the matter by the purchase of material but failed to have the work done. He filed his lien statement August 12, 1920. Held, none of the services rendered by plaintiff under this arrangement in regard to the repair work was contemplated in the original contract, and could not have the effect of extending the time in which to file a lien under the original contract. Baxter v. Cherryvale Oil Co., 111 Kan. 621, 208 Pac. 568.-Sonner v. Mollohan, Kan., 210 Pac. 649.

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55. Monopolies-Publishers.-Contracts between a publisher and a large number of distributors, some of whom had been wholesale dealers in magazines and others not, whereby the distributors agreed to requisition from the publisher the number of magazines required for their territory, title to remain in the publisher until sold, and to train and supervise boys who were to sell the magazines, are contracts of agency and not of sale on dition, so that they do not violate Clayton Act, § 3 (Comp. St. § 8835c), prohibiting lease or sale contracts which prohibit the lessee or buyer from handling the product of competitors, even though the contracts contained clauses prohibiting the distributors from handling other magazines, unless with the consent of the publisher.-Federal Trade Commission v. Curtis Pub. Co., Sup. Ct., 43 Sup. Ct. 210.

56. Municipal Corporations-Governmental Function.-Negligence of city employes at free public bathing beach, in placing box used as a locker in the open space in the rear of the bath-house, frequented by children for playing purposes, causing death of small child who climbed on top of box and fell therefrom, held not actionable, the negligent act having been performed by employes in the performance of governmental function.Gensch v. City of Milwaukee., Wis. 190 N. W. 843.

a

57. Principal and Agent-Accounting.-An agent through which a coke company's output was sold held bound to account to its principal for freight rebates received by it from a buyer by reason of a change in the point of loading consequent on assignment of the latter's order to such principal, though retained in good faith, where not disclosed to, or approved by, the principal.-Allegheny ByProduct Coke Co. v. J. H. Hillman & Sons Co., Pa., 118 Atl. 900.

58. Railroads-Dedicated Streets.-Under Rev. St. Neb. 1913. § 5141, providing that no street dedicated by the owner to public use in a city or village shall be deemed a public street, or be under control of the city council or board of trustees, "unless the dedication shall be accepted and confirmed by an ordinance especially passed for such purpose, a village ordinance requiring flagmen or automatic signals at railroad crossings of streets held applicable only to streets which have been duly accepted by ordinance.-Stewart v. Chicago, B. & Q. R. Co., U. S. C. C. A., 284 Fed. 716.

59.-Trespasser.-Where a boy was killed by the starting of a freight train while crawling under the bumper between cars a few feet from a crossing blocked by a freight train, the railroad com

pany could not defend an action for his death on the ground that he was a trespasser.-Baltimore & O. R. Co. v. State, Md., 119 Atl. 244.

60. Sales-Conditional.-One buying an automobile truck, against which there was no incumbrance recorded in the county wherein the sale was made. from a dealer who had possession and an apparent right to sell, without notice of an outstanding_bill of sale filed, in conformity with Uniform Conditional Sales Act, § 6, in the county in which the truck was to be kept by such buyer, held an innocent purchaser for value without notice.-Halliwell v. Trans-States Finance Corporation, N. J., 118 Atl. 837.

61.. -Delivery.-A contract for the sale of 20 pieces of lining, delivery to be made August, September, October, cannot be construed as requiring delivery of part of the goods in each of the months specified, but permits the seller to make delivery at any time during the three months.-C. Bahnsen & Co. v. Leaf, N. Y., 197 N. Y. S. 160. 62.- -Warranty. Manufacturers' warranty, stamped on the engine of motor truck, that with proper handling it would draw a 5-ton load on the level at the rate of 10 miles an hour, held not to inure to the benefit of a purchaser from an intermediate dealer.-Lee v. Pauly Motor Truck Co., Wis., 190 N. W., 819.

63. Specific Performance-Contract.-A decree in equity, dismissing a petition for the specific performance of a contract, which provided, "This decree shall not in any way be operative or used as a bar to any suit at law that in the future may be brought by the complainant," held valid under the authority of such court to dismiss a petition for specific performance without prejudice to the petitioner's right to sue at law on the contract.Knickerbocker Hotel & Realty Co. v. Clabby, N. J.. 118 Atl. 833.

64. Street Railroads-Instructions.-In an action for injuries received in a collision between plaintiff's wagon and defendant's street car, an instruc tion authorizing a verdict for plaintiff on a finding that defendant's motorman "failed to stop the street car in the shortest time and space possible," held not erroneous, the vigilant watch ordinance not requiring, as a condition to recovery, a finding that the motorman did not, "by the exer cise of ordinary care,' stop the car with safety, etc.-Dickens v. Wells, Mo., 245 S. W. 563.

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65. Warehousemen-Safety Deposit Boxes.-Evi dence that bank cashier failed to lock the outside door to safety deposit boxes rented for hire, that burglars opened the inner door, and stole the con tents, held to show liability on the part of the bank. Harland v. Pe Ell State Bank, Wash., 210 Pac. 681.

66. Wills- Construed. - Instrument, whereby maker certified "that I * invest my hus band with full power of attorney for the purpose of acting for me in all business matters. This also constitutes my last will," held not to constitute a will; there being no disposition of property. In re Seymour's Will, N. C., 114 S. E.

626.

67. Trust Estate.-Where the terms of a will create a trust estate to be administered in behalf of a beneficiary during her lifetime, and that it should devolve on her heirs at her death, the term "heirs" is to be construed by the law of the domicile, and one who merely claims an interest by virtue of a quitclaim deed from the husband of the dead beneficiary, in a state where the husband is not the heir of the wife, has no title to any por tion of the trust estate.-Gibson v. Boynton, Kan., 210 Pac. 648.

68. Validity. The size, texture and quality of paper used in preparing a will is no evidence of the lack of testator's sincerity in its execution, and does not affect its validity. In re Brackenridge's Estate, Tex., 245 S. W. 786.

69.-Vested Remainder.-Under a will bequeathing the residue of testator's personal estate to his wife for her life or while she remained his widow, and, "after her death or marriage, to such person or persons as would by law inherit the same," the remainder vested in testator's children, as his next of kin, immediately on his death, in the absence of any language indicating that it should not vest until after the widow's remarriage or death; the persons who "would by law inherit" being those who would take the estate under the statute of descents or the statute of distributions if testator had died intestate. In re Buzby's Estate, N. J 118 Atl. 835.

Central Law Journal

St. Louis, April 20, 1923

HOBBLED JUSTICE

Is it the function of the courts to administer justice, or to fill prescriptions prepared by Legislators in the form of statutes or by the rules of courts? Where no principle is involved should a court feel obliged to obey the demands of justice, or the rules of procedure? Even a law editor may be allowed to lecture once in a while and answer some questions that demand thoughtful consideration.

The answer is that rules of procedure are merely for the limitation and guidance of the court in its diligent consecrated search for justice and as such, perform an office of first importance. When they exceed that function, they at once. become obstructions and not aids to. justice. Manifestly, as a general principle, no second thought is necessary in order to reach the solemn conviction that no possible excuse exists to justify the defeat. of justice through upholding a simple courtmade rule of procedure, however binding one may believe a statutory rule of procedure to be.

In a recent Arkansas case (Holmes v. State, 240 S. W. 425) the trial judge apparently coerced a jury into reaching a verdict by threatening to hold them the balance of the week and then put them on bread and water until they agreed. Unfortunately counsel failed to object to the conduct of the judge. That it was prejudicial and reversible error, the Supreme Court concedes by saying, "We are all of the opinion that the remark was highly improper and should not have been made." But, apart from the support thus given by the learned Court there will be a paucity of division of opinion that a verdict obtained by such methods does not recommend itself to the thoughtful.

These circumstances it strongly appeals, confronted the Court with a rare oppor

tunity to brush aside the evil effect of the failure of counsel to observe an immaterial procedural rule and itself permit justice to be dispensed. But it seems to have laid a greater importance upon one of its own rules of procedure than upon the real-the one object of the Court. But it is the reason given that almost shocks the sensibilities. The majority was of opinion that the error was waived when appellant failed to object and thereby the unfortunate litigant must suffer. It is to be assumed that misconduct would likewise be considered as waived.

Let us suppose that the appellant did waive for whatever reason, and that is a far fetched conclusion, the prejudice was not thereby cured. The State is a third party to all civil actions and was the complainant in this criminal prosecution. It is as much the duty of the state to protect as to punish. And that is the point. It is the duty of some agency of Government, and it ought to be the first and only duty of an appellate court, to supervise trials and see to the proper functioning of the courts-that justice be administered and not hobbled with technical rules of procedure. It ought to ignore technical errors when no injustice has been done, although earnestly pressed by vigilant counsel as cause for reversal and, by the same token, it ought to ignore. the oversight of counsel and not permit advantage to be taken of it. It is to be regretted that a permanent record and the frailties of human nature require the limitations and restrictions of some rules of procedure and practice. Trials ought not, and must not be, contests of wits between lawyers on mere matters of procedure and practice. It is the crying shame of America to have to admit the indictment. It is idle to say this is impossible of correction. It is pardonable to point out that Virginia, a few years ago, presented a spectacle of technical procedure that well nigh shocked the conscious. Judgments were entered on the sharpest technicalities. Today it presents an example of genuine administration of justice well