Automobiles-Agency.-To

.26 .36

..1, 45

..2 ..17

.10, 18, 37, 40, 53 .7, 8, 9, 20, 24, 39 ..14, 61 .23

1. fix liability on automobile dealers for injuries in a collision occurring after working hours, while their car was being driven by an employee designated to demonstrate it to a co-employee, a prospective purchaser, It is not sufficient to show that their license plate required by the Motor Vehicle Act, §§ 7, 30 (Pa. St. §§ 970, 995) was on the car with their consent, but the injured party must show that the car was operated on business of the owners at the time of the accident; the presence of the license plate being merely prima facie evidence of ownership of the car.-Reed v. Bennett, Pa., 119 Atl. 827.

2.-Drivers.-Where a motorist is running in excess of the speed limit, without knowledge that he is endangering or probably endangering the lives of others, if he runs down and kills a person, he is guilty only of manslaughter, in view of Thomp. Shan. Code, § 6444, defining manslaughter.Shorter v. State, Tenn., 247 S. W. 985.

3. -Warrant.-Defendant's driving his car at an excessive speed and in a reckless manner when a deputy sheriff attempted to intercept his car for purpose of apprehending him was not excused by the fact that he did not personally have a warrant; the warrant in the hands of the sheriff whom he accompanied, when called on to assist in making the arrest, being equivalent to one in his hands.-State v. Freeman, Me., 119 Atl. 668.

4. Banks and Banking-Amount of Damages.— Where a bank in Austria refused on demand to pay an American resident 60,000 kronen on deposit to the latter's credit, bank is liable for the value of the deposit on the date demand was made.Orlik v. Wiener Bank Verein, N. Y., 198 N. Y. S., 413.

5. Deposits.-If check exceeds amount of drawer's deposit, bank may decline to pay it, and is not required to apply the deposit in partial payment.-Castaline v. National City Bank of Chelsea, Mass., 138 N. E. 398.

6. Lien on Funds-That one for whom a bank collected money may acquire and enforce a lien on the funds in the hands of its receiver, it having become insolvent without paying him, he must trace and identify the money collected for him by the bank, as being on hand when the receiver took over its affairs; and it is not enough to show that the receiver took over a fund into which such money had been placed or with which it had been commingled.-J. Allen Smith & Co. v. Montgomery, Ala., 95 So. 290.

7.

Bankruptcy-Assets.-While a bankrupt, during the pendency of bankrupt proceedings against him, may settle a suit brought by him, he holds any proceeds so received as trustee for his creditors, and, if the settlement is made with the present intent to misapply the proceeds, for any such misapplication the parties making payment must make reparation, if at the time of the settlement they had reasonable grounds for believing that bankrupt intended such a conversion, in view of Rev. Codes Mont. 1921, §§ 7887, 7900, 7901.Gunther v. Home Ins. Co., U. S. D. C., 286 Fed. 396. 8. Bonds -Where mortgage bonds issued by bankrupt corporation are payable to the mortgage trustees, or to bearer, or to the registered holder, the provable debt is represented by the bonds, and not by the mortgage, and is not provable by the trustees, unless they are also holders of the bonds. In Re United States Leatheroid & Rubber Co., U. S. D. C., 285 Fed. 884.

9. -Fraudulent Purchase.-An intention not to pay for goods purchased may be inferred, when the purchaser was so hopelessly insolvent at the time of the purchase that he could not reasonably have expected to pay for them without giving a preference voidable under the Bankruptcy Law, and such purchases are therefore fraudulent.-In Re Morrill-Mascott Co., U. S. D. C., 286 Fed. 449. 10. Representations.-A statement by a member of bankrupt firm, at the time of purchase of goods on credit, that two months before they took in a new partner with fresh capital and that an Inventory then made showed net assets above liabilities of over $50,000, held not such a false representation of present worth as to entitle the seller to reclaim the goods sold.-In Re Garfinkel, U. S. C. C. A., 286 Fed. 374.

11. Brokers-Negligence.-In action by seller against merchandise broker, for failure to advise seller of buyer's cancellation of order for car of beans, resulting in damage to the seller from having shipped the beans without knowing of cancellation, and having to sell them at a loss when refused by the buyer, the question whether the seller was precluded from recovering such damages by its negligence in shipping, before return of contract signed by the buyer, held for the trial court.-Mason Produce Co. v. Harry C. Gilbert Co.. Ind., 138 N. E. 100.

12. Bills and Notes-Consideration.-The issue of corporate stock, without consideration at the time, may be a sufficient consideration for the giving of a promissory note. of the face value of the stock, at a later date.-Peerless Battery Mfg. Co. v. Hand, Neb., 192 N. W. 228.

13. Carriers-Dead Body.-Where an express company ordered an undertaker to prepare and ship a body, stating that the money for the undertaker's expenses was at the point of destination, and to ship it C. O. D.. and in reliance on that order the body was shipped, the undertaker was not liable for express charges on either the original shipment or for the body's return after identification proved it not to be the one for which a deposit guaranty was made by supposed relatives. -Frank Livery & Undertaking Co. v. American Ry. Exp. Co., Mo., 247 S. W. 1031.

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14. Carriers of Passengers-Fare.-Where street railroad company accepted a franchise which amounted to a contract binding the company to accept the fare stated therein as a maximum for the whole franchise term, the company cannot thereafter complain that the rates só contracted are too low to give a reasonable return.-City of Paducah v. Paducah Ry. Co., U. S. S. C., 43 Sup. Ct 335.

15. Negligence.-Proof that plaintiff's foot, as he was alighting from defendant's car to the railway platform, came in contact with a small electrical fuse which rolled under his foot and threw him to the platform, resulting in an injury, without proof that defendant or its servants were responsible for its presence, or that it had been there long enough to charge defendant with notice of it, coupled with the fact that such fuses were purchasable by any one where electrical supplies are sold, does not permit the inference that its presence on the platform was due to the negligence of the defendant for which an action will lie.Maphet v. Hudson & M. Ry. Co., N. J., 119 Atl. 777.

16. Commerce-Switching Crew.-Where the foreman of a switching crew was taking cars to a factory to be loaded with goods to be shipped to other states, and was going to get cars at the factory loaded with shipments to points outside the state, he was engaged in "interstate commerce,' SO as to bring him within the federal Employers' Liability Act (U. S. Comp. St. §§ 86578665), and he was not within the Workmen's Compensation Act.-Jeneary v. Chicago & I. Traction Co., Ill., 138 N. E. 203.

17.-Taxation.-The occupation tax of 2 per cent of the gross receipts of a pipe line company whose line is entirely within the state, or 2 per cent of the proportion of its gross receipts which its lines within the state bear to its total lines, levied by Rev. St. art. 7374, is levied against interstate as well as intrastate business, and provides 'no way to separate them, since the proportion of lines within the state does not control the proportion of intrastate business.-State v. Humble Pipe Line Co., Tex., 247 S. W. 1082.

18. Trade-Mark.-Evidence that trade-marked goods were bought and delivered to buyer in Maryland, and buyer then shipped them to himself in Virginia, held to have no tendency to estabish interstate use of the trade-mark.-Worden v. Cannaliato, U. S. C. C. A., 285 Fed. 988.

Ordi

19. Constitutional Law-Discriminating nance. An ordinance prohibiting the operation of a structure or machine for breaking up scrap iron at any place south of a designated street within the city, if within 300 feet of a dwelling, is arbitrary and discriminatory, where the operation of such business under similar conditions was permitted north of that street, and violates Const. art. 1. § 6. providing that a person shall not be deprived of his property without due process of law. People v. Levine N. Y., 198 N. Y. S. 328.

20. Railroad Commission.-Sp. Acts Fla. 1921, c. 8974, providing for the fixing of gas rates by the city commission of Jacksonville, and for appeal to the Railroad Commission, or the action of the commission thereunder. in fixing gas rates, without giving a gas company any hearing, did not deny it due process of law, or the equal protection of the laws, in violation of Const. Amend. 14, where it was given the prescribed notice, and had opportunity to appeal to the Railroad Commission, where it could have had a hearing.-Jacksonville Gas Co. v. City of Jacksonville, U. S. D. C., 286 Fed. 404.

21.

Contracts-Time Limits.-Where defendant sold plaintiff the good will and stock in trade of a shoe repair and hat cleaning business. and covenanted not to engage in the same business within five blocks of plaintiff's business, this covenant was valid and enforceable, though no time limit was stated.-Lappono v. Marmone, N. Y.. 198 N. Y. S. 433.

22. Corporations-Attachments.-Under General Corporation Act, § 84. providing that a foreign corporation admitted to do business within the state shall enjoy the same, but no greater, rights and privileges, and be subject to all the liabilities imposed upon domestic corporations of like character. a corporation, organized under the laws of another state. but having a permit to do business within the state. and actually doing business therein, is not subject to attachment as a nonresident.-Charles Friend & Co. v. Goldsmith & Seidel Co., Iil., 138 N. E. 185.

23. -Estoppel.-In an action by stockholders in behalf of the corporation to recover for the wrongful issue of stock to promoters in exchange for property at an excessive value, where the stockholders acquired their stock with full opportunity for investigation into the conditions and assets of the corporation, they were estopped from repudiating the transaction by which stock was issued to the promoters.-Colville Valley Coal Co. v. Rogers, Wash., 212 Pac. 732

24. Jurisdiction.-That a foreign corporation, which has no office or agent in a state to conduct its business, occasionally sends an officer or agent into the state to purchase goods for delivery in its home state, does not constitute doing business in the foreign state for the purposes of jurisdic

tion.-Rosenberg Bros. & Co. v. Curtis Brown Co., U. S. D. C., 285 Fed. 879.

25. -Location of Transaction.-That orders for goods were given in this state to a representative of a foreign corporation. and were transmitted by him to the home office for acceptance, after which goods were shipped from home office to the buyer in this state, there being no proof that any of these contracts of sale were completed in this state, was not "transacting business in this state" under Revised Corporation Act April 21, 1896 (P. L. p. 307) § 97, though payment was made by buyer upon delivery in this state.-Dickerson, Inc. v. Levine, N. J., 119 Atl. 783.

preferred

26. Preferred Stock.-Priority of stock, which extends to dividends and sometimes to distribution of assets in case of insolvency, is only over common stock, in the absence of clear and definite legislative authority for giving priority over creditors.-Kinston Cotton Mills v. Wachovia Bank & Trust Co., N. C., 115 S. E. 883.

27. Purpose.-Where the purpose of a laundry corporation was to lease and otherwise deal in real estate and personal property, and to do anything to enhance the value of the company's property or rights, the power to conduct lumber operations was thereby conferred.-People's Wet Wash Laundry Co. v. Dubeau, N. H., 119 Atl. 706.

28.- -Service. The statute relating to substituted service of process on a foreign corporation doing business in this state which provides that such corporation shall designate an agent upon whom process may be served, or if he die, resign, or cannot with due diligence be found, then upon the Secretary of State, is only applicable to suits relating to business transactions carried on in this state, and not to causes of action arising in other states.-Kane v. Essanay Film Mfg. Co., N. J. 119 Atl. 779.

29. Covenants-Private Dwelling. Within a covenant restricting the use of the premises to the purpose of a private dwelling, a "private dwelling" is a place or house in which a person or family lives in an individual or private state, and the covenant is violated by the conversion of a house theretofore used as a residence for a single family into a residence for two families, even though the outward appearance of the house was not materially affected.-Paine V. Bergrose Development Corporation, N. Y., 198 N. Y. S. 311.

30. Garage Keepers-Limit Liability.-A garage keeper, by posting a sign in his place of business that he was not liable for theft, cannot so limit his liability.-Cascade Auto Co. v. Petter, Colo., 212 Pac. 823.

31.

Insurance-Accident.-Where a dentist, at insured's request to extract a tooth, administered nitrous oxide gas, which, because of insured's abnormal condition, resulted in death. the death was not accidental, and hence not covered by a policy insuring against a bodily injury, which is the direct and proximate result of and caused exclusively by external, violent and accidental means.Barnstead V. Com'l Travelers' Mut. Acc. Ass'n, N. Y., 198 N. Y. S. 418.

32.- -Date of Accident.-A railway fireman, injured on the night of September 15th. but who continued to work until his usual quitting time and also worked one or two nights thereafter, but ceased to work not later than the morning of the 18th and possibly the morning of the 17th, and died thereafter without being able to resume work, held continuously disabled from the date of the accident within the meaning of an accident policy. Martin v. Travelers' Ins. Co., Mo., 247 S. W. 1024. 33.-Family Physician.-Where on making ap plication for membership in a fraternal beneficial association insured was asked to give the name of his family physician, and answered that he had had none for 12 years, evidence that a physician had waited on his wife at childbirth in less than 12 years did not render the answer false so as to on the certificate, since such physician could hardly years afterward be dea "family physician."-Cromeens V Sovereign Camp, W. O. W., Mo., 247 S. W. 1033. 34.- -Fraud.-Where an applicant for life insarance who knew she had a retroflexed uterus ac

defeat a recovery

nominated

companied by painful symptoms stated that she had no uterine or ovarian disease proof that according to correct medical usage these conditions amount to a disease does not necessarily establish fraudulent misrepresentation on her part.-Galloway v. Prudential Ins. Co., Kan., 212 Paa 887.

35. Restrictions.-There can be no recovery for the destruction of "patterns," where one part of the policy insured "machines and machinery of every description and all tools, utensils, articles, implements and appurtenances used in the business not herein specifically mentioned," and another part of the policy provides that the company "shall not be liable for loss to patterns unless liability is specifically assumed hereon," and nowhere in the policy was liability specifically assumed for loss to patterns.-Excello Clothing Co. v. Marquette Nat. Fire Ins. Co. of Chicago, Ill., N. J., 119 Atl. 794.

36.- -Transfer of Policy.-A clause in a policy of insurance, which in general terms prohibits its assignment before loss, should be construed as only intending to prohibit a complete and absolute divestiture of title by the insured, and not a mere conditional transfer to a creditor, which in effect would only give the creditor a lien on the proceeds of the policy in the event of loss, to secure his unpaid indebtedness.-Sheridan v. Pacific States Fire Ins. Co., Ore., 212 Pac. 783.

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37. Transporting Passengers.-Testimony the owner of the insured automobile that he had abandoned his purpose of engaging in the hacking business, after securing his license and identification card, and that the only money he had received for carrying persons in his automobile was in the case of relatives or friends, who voluntarily paid him after the transportation, held sufficient to warrant the jury in finding he did not transport passengers in the automobile, so that it was error to instruct a verdict for the insurance company.Marks v. Home Fire & Marine Ins. Co., U. S. C. O. A.. 285 Fed. 959.

38. -Warranty.-A warranty in an automobile insurance policy that the car was fully paid for by the assured and was not mortgaged or otherwise incumbered is of no effect under Pub. St. 1901, c. 170. §§ 2. 18. unless assured intentionally and fraudulently either represented and stated to the insurer that his (assured's) automobile was not mortgaged, or concealed the fact of the mortgage from the insurer.-Davidson V. American Cent.

Ins. Co., N. H., 119 Atl. 707

39. Internal Revenue-Income Tax-Under Revenue Act, 1921, § 213, a citizen of the United States is subject to income tax though residing in a foreign country and though his income is derived solely from tangible property permanently located in that country, and the imposition of such tax is within the power of Congress and is not unconstitutional as a taking of property without due process of law.-Cook v. Tait, U. S. D. C., 286 Fed. 409.

40.Manufacturer.-One who purchased automobile trucks without bodies from one seller and bodies from another, and sold the completed trucks at retail, was a "manufacturer" or "producer" of the trucks, within Act Feb. 24, 1919, § 900 (Comp. St. Ann. Supp. 1919, § 6309 4/5a), imposing a tax manufacturers or producers of automobile trucks.-Klepper v. Carter, U. S. C. C. A., 286 Fed. 370

on

41.

of Intoxicating Liquors Intent.-The law conspiracy can apply only to subjects capable of entertaining a criminal intent, and where, in a condemnation suit by the state against an automobile, under the Act Gen. Assem. March 28, 1917 (Acts Ex. Sess. 1917, p. 7), it indisputably appears that the particular vehicle against which the proceeding was brought was not being used for the purpose of conveying any liquors therein, the action is not maintainable on the theory that at the time of the seizure the owner was using the automobile as a pilot for other cars which were carrying liquor, and that the defendant vehicle is thus to be held responsible for "assisting, aiding, and abetting the other cars in the transportation of intoxicating liquors."-Underwood v. State, Ga., 115 S. E. 919.

42.

Joint-Stock Companies and Business Trusts -Act by Adoption.-One of the trustees of an unincorporated association, who did not sign a lease, naming the trustees as lessors, could adopt the action of the other trustees in signing it, and, having adopted their act, could join in an action to enforce the agreement to pay rent.-Hull v. Newhall, Mass., 138 N. E. 249.

43. Landlord and Tenant-Dwelling.-Where an apartment designed for dwelling purposes and having a bedroom was used by the tenant in his professional work, and he occupied another apartment. containing a dining room, bedroom and kitchen, for dwelling purposes, even though he occasionally slept in the first apartment, and had meals served when busy, such user was merely incidental to the professional work, and did not constitute "occupation as a dwelling," within hous11 East ing laws.-No. Sixty-Eighth Street V. Hirsch, N. Y., 198 N. Y. S. 600.

44.

Livery Stable & Garage Keepers-Conversion. Where, in a suit in trover, there was evidence to the effect that the property sought to be recovered-towit, an automobile-belonged to the plaintiff and had been left by him with the defendant for the purpose of being repaired, and that the defendant, who denied receiving the property from the plaintiff, but who claimed title to the property from a third person, had sold the property before suit was brought, even though the plaintiff had made no demand on the defendant for a return of the property, a verdict for the plaintiff was authorized.-Evans v. Grier, Ga., 115 S. E. 921.

45. Master and Servant-Intent.-Where a child 2 years and 11 months old climbed into defendant's truck, and fell out without the driver's knowledge after the truck was started, the act of the driver in failing to remove the child was not willful or wanton, so as to impose liability on defendant; the tender age of the child injured though relieving it from any charge of contributory negligence, not status altering its as a trespasser.-Perrin V. Glassport Lumber Co., Pa., 119 Atl. 719.

46. Ratified Acts. The defendant furnished his minor sons an automobile in which to drive to and from school, and one of the sons, while using the car for such purpose, negligently injured plaintiff. The father had directed the sons to drive from home directly to a certain garage, leave the car there till close of school, then drive directly home; the father knew that his orders had been violated, but permitted the sons to continue using the car thereafter. The sons drove the car, on the day in question, to a garage, then took the car out a few minutes before school opened, and with some companions drove near the school building for a pleasure ride, during which plaintiff was injured. Held under the rule announced in Ryne V Liebers Farm Equipment Co., 107 Neb. 454, 186 N. W.. 358, the issue was properly submitted to the jury.-Galpin v. Fisher, Neb., 192 N. W. 205.

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47. Municipal Corporations-Agency.-That city operated its waterworks by a board of waterworks trustees, created by Acts 38th Gen. Assemb. c. 288, making the board responsible to the city council, held not to relieve the city from liability for negligence construction of the waterworks in its proprietary capacity, the board being merely the agent of the city.-Miller Grocery Co. v. City of Des Moines, Iowa, 192 N. W. 306.

48. Description of Sewer.-Under Rev. St. 1919, § 8132, relating to construction of sewers for cities of the second class, and providing that the city council shall pass an ordinance prescribing the dimensions and materials to be used in the proposed sewer, an ordinance describing such dimensions and materials by reference to the plans and specifications of the city engineer on file in his office is a sufficient description to comply with the statute.-Lee v. Rogers, Mo., 247 S. W. 1021.

49. Police Power-Where the purpose of an ordinance of Baltimore, exempting certain motor vehicles from the application of the rule of Code, art. 56, § 163, re-enacted by Laws 1920, c. 506, § 1, requiring them to yield right of way to other vehicles on a street or road approaching from the right, was only to grant certain priorities when

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52. Sales-Acceptance.-If, as claimed, an agent of the seller of a tractor, when requested by the buyer to read the contract to him because he did not have his glasses with him. fraudulently omitted a part of the contract requiring notice of any breach of warranty to be given within six days after delivery, he was guilty of such wrong as, on seasonable application, would have warranted court of equity in setting the contract aside, but where the buyer was furnished a copy of the contract and had full opportunity to examine it in his own home before delivery of the tractor, he had no right to rely upon the reading of the contract by the agent, and was bound by such provision.Jewell v. Massillon Engine & Thresher Co., Ky., 247 S. W. 1117.

53. Conditional.-A contract which on its face purported to be a lease of an automobile with option to purchase at the end of the term, but which recited a payment of nearly one-half the total consideration as alleged rental in advance, and required the payment, if the option was exercised, of only $1 in addition to the prescribed rental, was manifestly intended as a conditional sale, and not as a lease, so that the failure to record it under Code D. C. § 547, defeated the right of the seller to recover the automobile from a subsequent bona fide purchaser.-Stern v. Drew, U. S. C. C. A., 285 Fed 925.

54. Searches and Seizures-Forgeries.-Const. U. S. Amends. arts. 4 and 5, and Const. N. Y. art. 1, § 6, relating to unreasonable searches and seizures, do not entitle a defendant indicted for forgery to have instrumentalities for the commission of that crime returned to him, though they were secured by an unauthorized search of defendant's residence by a state officer.-People Bowen, N. Y., 198 N. Y. S. 306.

V.

55. Taxation-Banks.-Section 5887, Comp. St. 1922, relating to the duty of the assessor in taxing shares of stock in banks, banking associations and trust companies, in so far only as it declares "such capital stock shall thereupon be listed and assessed by him at the same rate as tangible property is assessed in the taxing district where the principle place of business of such association, bank or company is located," is invalid as to national banks, because it conflicts with the act of Congress forbidding states to tax shares of a national bank at a greater rate than is assessed upon other moneyed capital, and, with national banks excluded from its operation, it is also invalid as to state banks, because the latter would then be taxed at a higher rate than national banks, and therefore the taxation would conflict with that part of the state Constitution requiring taxes to be uniform as to class. Rev. St. U. S. § 5219 (U. S. Comp. St. § 9784); Const. Neb. art. 8. § 1.-State Bank of Omaha v. Endres, Neb., 192 N. W. 322.

56. Contemplation.-Under the Transfer Inheritance Tax Act a transfer, if made in contemplation of death, is taxable notwithstanding it be by way of bargain or sale, with consideration passing to the transferor.-In Re Hall's Estate, N. J., 119 Atl. 669.

12,

57. Effective at Death.-On December 1917, settlor created a separate trust of stock for the benefit of others, reserving the power to vote the stock, and to revoke or modify the trust, and forbidding the sale of the stock until his death. Later an extraordinary dividend in cash was distributed, and on March 9, 1918, settlor modified the trust by withdrawing the stock, but leaving the cash in trust. Settlor died shortly thereafter. Held, that the transfers were not taxable under Tax Law, § 220, subd. 4, on the theory that they took effect in enjoyment at grantor's death.-In Re Kountze's Estate, N. Y., 198 N. Y. S. 442.

58. Equality.-Where owners of certain lots admitted that the assessment of their lots was less than their market value, but claimed it was inequitable because at a different rate from assessments of other lots in the neighborhood, proof that one lot in the vicinity was assessed at a lower ratio to its value than complainants' lots, thereby showing only that the lot was assessed too low, does not entitle owners to a reduction of their assessment, which would introduce more inequality, but the proper remedy was by an increase of the assessment of the lot assessed too low.-Davis v. Angerman, Iowa, 192 N. W. 129.

59.- -Machinery.-Machinery used for the manufacture of ice and beer, part of which machinery rested on the floor by its own weight and part of which was fastened to the floor or walls, all of which machinery could be dismantled and removed with relatively small injury to the building, though removing would destroy some of the compresses and freezing tanks, held "personal property" within Tax Law, § 219-1, providing that "personal property" for the purpose of exemption from taxation shall include any movable machinery used for trade or manufacture, not essential to the support of the building and removable without material injury thereto.-Leonhard Michel Brewing Co. v. Cantor, N. Y., 198 N. Y. S. 284.

60. Remedy at Law.-Held, following Wall v Borgen, 188 N. W. 159, that, where a tax can be enforced only in the manner and by the procedure provided by the general tax laws, those laws afford an adequate remedy if the tax is illegal. and a suit to enjoin the county officers from distributing the money collected by the alleged illegal tax cannot be maintained.-Braddock Iron Mining Co. v. Erskine, Minn., 192 N. W. 193.

61. United States-Interest.-In the absence of a stipulation to pay interest, or a statute allowing it, interest cannot be recovered against the United States on unpaid accounts or claims.-Seaboard Air Line Ry. Co. v. United States, U. S. S. C., 43 Sup. Ct. 354.

62. Vendor and Purchaser-Restricted Title.Vendor's title by deed providing that the property shall not be used for a blast furnace or a foundry. and that no factory shall be erected within 40 feet of the street line, was unmarketable, and a purchaser for manufacturing purposes was entitled to recover his deposit.-Vibroplex Co. v. Jacob May Realty Co., N. Y., 198 N. Y. S. 327.

63. Witnesses-Life Insurance.-Burns' Ann. St. 1914. § 523, providing that no agent negotiating or continuing a contract with one since deceased may testify for his principal in any suit on or involving such contract as to matters occurring before decedent's death against the latter's legal representatives or heirs, unless called by them, is inapplicabe to an action on a life insurance policy by the beneficiary thereunder.-Gary Nat. Life Ins. Co. v. McQuaid, Ind., 138 N. E. 353.

64. Workmen's Compensation Act-Extrahazardous Business.-Where a Nebraska corporation. engaged in taking contracts for equipping boarding outfits and furnishing board to railroad laborers. built no houses for its business, but rented a storeroom in Illinois and a similar one in Nebraska, for storing kitchen and camp supplies, it was not engaged in an extrahazardous occupation of erection. maintaining, removing, remodeling or demolishing of structures, within Workmen's Compensatiin Act, § 3. par. 1, so as to bring it automatically under the act.-Omaha Boarding & Supply Co. v. Industrial Commission, Ill., 138 N. E. 106.

Central Law Journal

St. Louis, July 5, 1923

PERJURY AS CONTEMPT OF COURT

In 13 C. J. 25 is this statement: "Ordinarily, false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court." The Kentucky Court of Appeals, in Riley v. Wallace (188 Ky. 471, 222 S. W. 1085, 11 A. L. R. 337), says that this "is a fair statement of the rule." It is supported by It is supported by the great weight of authority (see note in 11 A. L. R. 342).

In the case of In Re Rosenberg (90 Wis. 581), it was held that a judgment debtor who made untruthful, evasive, or prevaricating answers in an action against him to compel discovery of his property, was properly punished for contempt of court. "Prevarication by a witness," the Court said, "has the same effect upon the administration of justice as a refusal to answer. To the same effect it puts the witness in the position of standing out against the authority of the Court, and thwarts the Court in its effort and purpose of doing justice between the parties. It is contumacy. It is direct contempt of the authority of the Court."

Witnesses in bankruptcy proceedings. have been held in contempt for false or evasive testimony, under sections 41 and 41b of the Bankruptcy Act of 1898 (11 A. L. R. 344).

Perjury, therefore, constitutes two of fenses. One against the state, the other against the court. The former being punishable as a crime, and the latter as contempt (Edwards v. Edwards, 87 N. J. Eq. 546, 100 Atl. 608). "If a person should commit an assault in the court room upon the marshall with a deadly weapon, in order to effect the release of a prisoner while his trial was going on, he would be summarily committed for contempt; but such commitment would be no defense to a

prosecution for assault with intent to kill" (Re Steiner, 195 Fed. 299).

In State ex rel. v. Lazarus (37 La. Ann. 314), the Court held that, while refusing to answer a question which the witness is bound to answer is punishable as a contempt, answering the question untruthfully is perjury, punishment for which is through the regular criminal law tribunals. And in Lerch's Contested Election (21 Pa. Dist. 1113), false testimony given by a witness before the examiner in a contested election, does not amount to an obstruction of justice within the meaning of the statute providing for summary punishment for contempt of court in cases of "the misbehavior of any person in the presence of the Court, thereby obstructing the administration of justice." There was no distinction made between the examiner and a Court; the ruling being made on the construction given the statute.

The New York courts have held that where a witness answers questions put to him he is not subject to punishment for contempt of court because he commits deliberate perjury (Fromme v. Gray, 148 N. Y. 695; Silberman Dairy Co. v. Econopouly, 177 App. Div. 97, 163 N. Y. Supp. 824; Matter of Ryan, 73 App. Div. 137, 77 N. Y. Supp. 132). It is reasoned that, since the witness has answered the questions put to him, although falsely, he has not unlawfully interfered with any proceeding, and that if the witness has been guilty of perjury he should be indicted and punished in a criminal procedure.

In the recent case of Matter of Miele, (decided by Justice Cropsey at Special Term, Part I, Kings County, reported in New York Law Journal, March 6, 1923) the learned Justice ably points out this anomalous situation and says that for a witness deliberately to swear falsely with a view to defeating justice is a more serious insult and affront to the Court and to the majesty of the law than mere passive silence.