46. Residence Property Purchased by College. -Under Const. art 9, § 3, and Hurd's Rev. St. 1921, c. 120, § 2, cl. 2, exempting from taxation property used exclusively for "school purposes," residence property purchased by a college as a site for a fraternity house or dormitory, which has never been used for school purposes, but is rented to a tenant, is subject to taxation.--Knox College v. Board of Review, Ill., 139 N. E. 56.

47. Wills-Rent by Beneficiary.-Where all debts were paid or provided for, and the estate was ready for distribution, testatrix's daughter, who was allowed to occupy the home place free of rent for 18 months after the executor's qualification, under a provision of the will that it should be her home until a smaller place could be provided, was properly charged with rent thereafter, though the new home had not been provided, and the two years after expiration of which the executors must account and settle (C. S. § 150), had not expired; testatrix's intent being that such daughter SO cccupy the home for a reasonable time after testatrix's death, considering the condition of the estate and the time required for its proper settlement.-Snow v. Boylston, N. C., 117 S. E. 14.

48. Witnesses-Exclusion of Time Book.-In an action by a carpenter against his employer to recover for work, the exclusion of a time book and refusal to permit plaintiff to refresh his memory with the time book in which he had made entries showing the amount of work from time slips which had been destroyed, in view of the fact that plaintiff was the only witness and did not remember the amount of work, was error, and such error could only be regarded as prejudicial, as it deprived plaintiff of his cause of action.-Mueller v. Rock, Mo., 249 S. W. 435.

49. Workmen's Compensation Act-Burden of Proof With the Party Asserting.-The burden of showing that the wife was voluntarily living apart from her husband rests with the party asserting it as a defense to the wife's right to compensation under the Workmen's Compensation Act.-Kolundjija v. Hanna Ore Mining Co., Minn., 193 N. W. 163. 50. Drinking Water Furnished by Hotel Cause of Accident.-The contraction of typhoid fever by a hotel waitress from drinking water furnished by the hotel held an "accident" within the Workmen's Compensation Act, and not an occupational disease, the word "accident" meaning an unforeseen event occurring without the will or design of the person whose mere act causes it.-Frankamp v. Fordney Hotel, Mich., 193 N. W. 204.

51. Heart Disease by Overexertion.-If death from heart disease in the course of employment was caused by overexertion due to the employment, it "arose out of the employment,' so as to be an "accident," within the Workmen's Compensation Act.-Ellerman v. Industrial Commission, Colo., 213 Pac. 120.

52. Independent Act Not Compensable.-Where an employee is engaged in driving a team in constructing street paving, and drives the team onto the parking under the direction of the foreman, and then leaves his team and goes diagonally across the street to a bread wagon to get something for his lunch, and, while returning from the bread wagon to the place where he had left his team, is struck by an automobile driven by a person not employed by the construction company, the accident does not arise out of the employment, and is not compensable under the Workmen's Compensation Act (Comp. St. 1921, §§ 7282-7340). -Southern Surety Co. V. Galloway, Okla., 213 Pac. 850.

53. Injured Waiting for Time to Go to Work. -Where one employed as a fireman in a building went to employer's loading platform, some distance from the entrance, to wait until it was time to report for work, and while sitting on the platform was struck by a box, the injury was not caused by an accident "arising out of and in the course of his employment," within the Workmen's Compensation Law, and the statutory action for his death was properly brought; the claim for compensation having been withdrawn with the consent of the commission.-Hannigan v. Technola Piano Co., N. Y., 198 N. Y. S. 823.

54. Intention of Compensation Act.-Where a 15-year-old girl, while on her way from her place of work to the dressing room preparatory to going to lunch, went 21 feet out of her way to ascertain whether any air was coming into the room from an exhaust fan, whereby her hand was drawn into the fan and injured, no part of her work requiring her to be near the fan, whether she was doing what she did through indiscretion of youth was immaterial, the Workmen's Compensation Act being intended to compensate for negligence not willful, regardless of age, sex, ignorance or intelligence.-Saucier's Case, Me., 119 Atl. 860.

55. -Necessary Findings Before Recovery.Act May 20, 1921 (P. L. 967), amending Workmen's Compensation Act 1915, § 306, cl. (c), by providing compensation for permanent disfigurement of the head or face, requires affirmative findings before claimant may recover thereunder: First, that disfigurement is serious and permanent; second, that it produces an unsightly appearance; and, third, an injury not usually incident to the employment. -Simon v. Maryland Battery Service Co., Pa., 120 Atl. 469.

56. Painting Bridge.-Where deceased, a painter who did other jobs, but always did the work himself, agreed with a village to clean and paint a bridge for a specified price, under a contract permitting him to do the work in his own way at his own convenience, he furnishing his own brushes and the village furnishing the paint, but reserving no control over the details of the work, held that he was an independent contractor and not an employe within the Workmen's Compensation Act.-Village of Weyauwega v. Kramer, Wis., 192 N. W. 452.

57. -Spur Track As Plant.-Where a railroad company delivered empty cars and transported loaded cars over a spur track constructed to a point near a coal mine, and the portion of the track where the mine operator placed loaded cars was indispensable to the conduct of its business, in which its employee was injured while attempting to set a defective brake on a loaded car which he was moving in the course of his employment, the injury occurred at the "plant" of his employer within Compensation Act, § 6jj (Rev. Codes 1921, § 2889), entitling him to compensation under the act (Rev. Codes 1921, § 2911); both employer and employee having elected to operate under the act. -Black V. Northern Pac. Ry. Co., Mont., 214 Pac. 82.

58. Traveling in His Own Automobile.-Where traveling between three cities was a substantial part of a contract of employment, employer allowed employe $30 a month for rail transportation, and employe with employer's knowledge and without objection frequently used his own automobile to make these business trips, held that an injury to employe while so using his automobile occurred in the course and arose out of his employment.— Bendett v. Mohican Co., Conn., 120 Atl. 148.

59. Who Should Work and the Manner of Working. Where a member of a co-partnership was engaged in repairing boilers for a logging company and was killed while riding on one of the logging trains, and it appeared that decedent was employed and paid by the hour, the contract being between the co-partnership and the logging company, that the logging company furnished the materials for the work and some of the tools, that the timekeeper of the logging company kept decedent's time, that he worked the same hours as the other employees and was subject to the orders of the superintendent as to when and upon what boilers he should work, but that the pay checks were made out to the co-partnership which designated who should do the work, the manner of doing which was entirely intrusted to the person sent, held that decedent was one of a firm of independent contractors and not an "employee" of the logging company within the Workmen's Compensation Act (Rem. Code 1915, §§ 6604-3, 6604-5).-Machenheimer v. Department of Labor, etc., Wash., 214 Pac. 17.

Central Law Journal

St. Louis, September 5, 1923

RIGHT OF BANK TO REPUDIATE PAYMENT TO FOREIGN CORRESPONDENT

In Gurdus to use of Solnicki v. Philadelphia National Bank (273 Pa. 110, 116 Atl. 672, 23 A. L. R. 1227), the Court held that a bank which neglects to terminate the authority of its correspondent in a foreign country when the government changes and takes possession of the banking cannot avoid liability to one who takes up a draft against a warehouse receipt, and thus becomes entitled to possession of the property covered by the receipt, although its correspondent does not account for the funds received by it. In this case it appeared that Evans & Co. sold to the legal plaintiff, Gurdus, sixty-two cases of glazed kid, the former agreeing to deliver it to the latter in Philadelphia, upon payment being made therefor. For the purpose of obtaining the purchase price Evans & Co. drew its draft upon Gurdus, at Moscow, Russia, and defendant purchased it and the warehouse receipt for the kid, and forwarded the draft to its correspondent, the Moscow Industrial Bank of Moscow, Russia, accompanied by its (defendant's) nonnegotiable certificate to the effect that against the said draft it held the warehouse receipt, which it would deliver to the purchaser of the kid upon payment of the draft, and authorized its said agent to collect the amount of the draft from Gurdus, for the account of defendant, and upon its payment to deliver the draft and certificate to him. Gurdus sold his interest in the agreement of sale and kid to Solnicki, the use-plaintiff. Upon the receipt of the draft by the Moscow Industrial Bank it demanded payment thereof from Gurdus,

and the use-plaintiff paid to it the full amount due. This the bank accepted as agent for defendant, and delivered to the use-plaintiff the draft and a receipt in full for the payment, as it had been directed by defendant to do. Thereafter the useplaintiff settled in full with Gurdus, who from that time had no interest in the agreement of sale or the kid. The use-plaintiff demanded and defendant refused to deliver the warehouse receipt.

The kid was sold while the Kerensky government was in existence, but in the meantime Kerensky was overthrown by the Soviet Republic, which was not recognized by this country. This, the defendant contended, the Court should judicially notice, and also that the Court should judically know that the change resulted in so paralyzing the judiciary of Russia as to hinder defendant from forcing its correspondent to account for the money paid. It was held that no Court could judicially notice this alleged situation, but assuming that the Court could take judicial notice of conditions in Russia, and that by reason of such conditions the Moscow Industrial Bank would not be able to honor defendant's checks drawn against its account, it must necessarily follow that defendant was bound to take notice of these facts and act accordingly. "A Court does not. take judicial notice of such matters because it has some superior knowledge in regard thereto, but only because they are so certainly true and so well known that everybody is supposed to take notice thereof. This being so, defendant knew of the facts in relation to the fall of the one government and the control by the other, as early as November 7, 1917, and it could and should have attempted to recall the agency of the Moscow Industrial Bank, or notify it not to accept and plaintiff not to pay the draft. It did none of these things; on the contrary, by drawing checks on the account after that date, it affirmed plaintiff's right to pay the draft and re

ceive it and the certificate, unless, indeed, defendant so acted in ignorance of the situation in Russia, and, if it was ignorant, then the facts were not so certain and well known as to cause either the Court or plaintiff to take notice thereof; hence, the latter would not be bound unless shown to have otherwise acquired knowledge on the subject, and of this no proof was attempted."

Further, the defendant contended: The payment to the Moscow Industrial Bank, if made, did not have the legal effect of a payment to the defendant bank, because there can be no agency to receive without a liability to account, and there can be no liability to account when no government exists which will or can, enforce such liability.

In answering this contention, the Court said:

"Aside from that which has already been said, this novel and remarkable contention, if otherwise sustainable, would still have to be overruled, because it overlooks the difference between a liability to account and an opportunity to compel accounting. It would be a strange conclusion, involving little less than a travesty of justice, if it were held, where an agent authorized to receive payment of an account in fact receives it by virtue of the authority thus given, that subsequent difficulties, which operated to prevent the principal from collecting from its agent the money thus. paid, but for which the innocent payer is not responsible and of which he had no knowledge, should result in his bearing the loss, rather than the principal who clothed the agent with authority."

In this connection the following, clipped from the Solicitors' Journal, an English law publication, for June 16, 1923, is of interest:

"The decisions of the Court of Appeal in the two cases of Russian Com

mercial & Industrial Bank v. Le Comptoir d' Escompte de Mulhouse and Banque Internationale de Commerce de Petrograd v. Goukassow, Times, 13th inst., depend on interesting questions arising out of the Russian Revolution. One point in both cases was the recognition of the Soviet Government as the de facto Government of Russia. For this country the matter is settled by the decision of the Court of Appeal in a case which can be conveniently abbreviated as Luther v. Sagor, 1921, 3 K. B. 532. Evidence was produced that the English Foreign Office had written to the appel lants' solicitor a letter of 20th April, 1921, stating that the British Government recognized the Soviet Government as the de facto Government of Russia. and in consequence it was held that 'the acts of that Government must be treated by the Courts of this country with all the respect due to the acts of a duly recognized foreign sovereign State.' In France, on the other hand, there has been no such recognition. But the Soviet Government in December, 1917, issued a Decree nationalizing banking, so that there should be established 'a single People's Bank of the Russian Republic -a bank genuinely serving the interests of the people and the poorest classes,' and the Court of Appeal held that the result was not to amalgamate the existing banks and so perpetuate them, but to destroy them. Hence, in the first of the above two cases, the plaintiff bank. which had been a Russian bank, had ceased to exist and could not sue. This was a somewhat facile way of getting rid of the questions of substance which arose in the action. Further, since the bank had ceased to exist, it could not be ordered to pay costs. A non-existent person, said Bankes, L. J., can neither receive nor be ordered to pay costs."

NOTES OF IMPORTANT DECISIONS.

CONGRESS MAY REGULATE FUTURE SALES OF GRAIN ON BOARDS OF TRADE. -The Chicago Board of Trade sought to enjoin various federal officials from enforcing the provisions of a Congressional statute, which regulates dealing in grain for future delivery, on the ground that the act was unconstitutional. The petition was denied. On appeal, held that the dealings in "futures" result in the constant manipulation of the market and adversely affect the free flow of interstate commerce. The transactions on the Chicago Board of Trade, being indispensable to the continuity of the flow of grain from the West to the East, constitute a part of the interstate commerce in that commodity and are therefore subject to regulation by Congress. Board of Trade v. Olsen et al., U. S. Supreme Court, April 16, 1923.

Mr. Chief Justice Taft delivered the opinion of the Court, in which he in part said:

"Appellants contend that the decisions of this Court in Hill v. Wallace (259 U. S. 44) is conclusive against the constitutionality of the Grain Futures Act. Indeed in their bill they pleaded the judgment in that case as res adjudicata in this, as to its invalidity. The act whose constitutionality was in question in Hill v. Wallace was the Future Trading Act (ch. 86, 42 Stat., 187). It was an effort by Congress, through taxing at a prohibitive rate sales of grain for future delivery, to regulate such sales on boards of trade by exempting them from the tax if they would comply with the congressional regulations. It was held that sales for future delivery where the parties were present in Chicago, to be settled by offsetting purchases or by delivery, to take place there, were not interstate commerce and that Con gress could not use its taxing power in this indirect way to regulate business not within federal control. We said (p. 68): 'Looked at in this aspect and without any limitation of the application of the tax to interstate commerce, or to that which the Congress may deem from evidence before it to be an obstruction to interstate commerce we do not find it possible to sustain the validity of the regulations as they are set forth in this act. A reading of the act makes it quite clear that Congress sought to use the taxing power to give validity to the act. It did not have the exercise of its power under the commerce clause in mind and so did not intro

duce into the act the limitations which certainly would accompany and mark an exercise of the power under the latter clause.'

"Again, on page 69, we said: 'It follows that sales for future delivery on the board of trade are not in and of themselves interstate commerce. They cannot come within the regulatory power of Congress as such, unless they are regarded by Congress, from the evidence before it, as directly interfering with interstate commerce so as to be an obstruction or a burden thereon.'

As

"The Grain Futures Act which is now before us differs from the Future Trading Act in having the very features the absence of which we held in the somewhat carefully framed language of the foregoing prevented our sustaining the Future Trading Act. we have seen in the statement of the case, the act only purports to regulate interstate commerce and sales of grain for future delivery on boards of trade because it finds that by manipulation they have become a constantly recurring burden and obstruction to that commerce. Instead, therefore, of being an authority against the validity of the Grain Future Act, it is an authority in its favor.

"The Chicago Board of Trade is the greatest grain market in the world (Chicago Board of Trade v. United States, 246 U. S. 231, 235). Its report for 1922 shows that on that market in that year were made cash sales for some 350,000,000 bushels of grain, most of which was shipped from states west and north of Illinois into Chicago, and was either stored temporarily in Chicago or was retained in cars and after sale was shipped in large part to eastern states and foreign countries. This great annual flow is made up of the cash grain sold on the exchange, the cash sales to arrive (Chicago Board of Trade v. United States, 246 U. S. 231), and the comparatively small percentage of grain contracted to be sold in the futures market not settled by offsetting (Chicago Board of Trade v. Christie Grain Co., 198 U. S. 236, 248). The railroads of the country accommodate themselves to the interestate function of the Chicago market by giving shippers from western states bills of lading through Chicago to points in eastern states with the right to remove the grain at Chicago for temporary purposes of storing, inspecting, weighing, grading, or mixing, and changing the ownership, consignee or desti. nation and then to continue the shipment under the same contract and at a through

rate (Bacon v. Illinois, 227 U. S. 504). Such a contract does not prevent the local taxing of the grain while in Chicago; but it does not take it out of interstate commerce in such a way as to deprive Congress of the power to regulate it, as is plainly intimated in the authority cited (p. 516) and expressly recognized in Stafford v. Wallace (258 U S. 495, 525, 526). The fact that the grain shipped from the West and taken from cars may have been stored in warehouses and mixed with other grain, so that the owner receives other grain when presenting his receipt for continuing the shipment, does not take away from the interstate character of the through shipment any more than a mixture of the oil or gas in the pipe lines of the oil and gas companies in West Virginia, with the right in the owners to withdraw their shares before crossing state lines, prevented the great bulk of the oil and gas which did thereafter cross state lines from being a stream or current of interstate commerce (Eureka Pipe Line v. Hallanan, 257 U. S. 265, 272; United Fuel Gas Co. v. Hallanan, 257 U. S. 277, 281).

"It is impossible to distinguish the case at bar, so far as it concerns the cash grain, the sales to arrive, and the grain actually delivered in fulfillment of future contracts, from the current of stock shipments declared to be interstate commerce in Stafford v. Wallace (258 U. S. 495). That case pre sented the question whether sales and purchases of cattle made in Chicago at the stock yards by commission men and dealers and traders under the rules of the stock yards corporation could be brought by Congress under the supervision of the Secretary of Agriculture to prevent abuses of the commission men and dealers in exorbitant charges and other ways, and in their relations with packers prone to monopolize trade and depress and increase prices thereby. It was held that this could be done even though the sales and purchases by commission men and by dealers were in and of themselves intrastate commerce, the parties to sales and purchases and the cattle all being at the time within the City of Chicago.

"But it is contended that it is too remote in its effect on interstate commerce and that it is not like the direct additions to the cost to the producer of marketing cattle by exorbitant charges and discrimination of commission men and dealers, as in Stafford v. Wallace. It is said there is no relation between prices on the futures market and in

the cash sales. This is hardly consistent with the affidavits the plaintiffs present from the leading economists, already referred to, who say that dealing in futures stabilizes cash prices. It is true that the curves of prices in the futures and in the cash sales are not parallel and that sometimes one is higher and sometimes the other. This is to be expected because futures prices are dependent normally on judgment of the parties as to the future, and the cash prices depend on present conditions, but it is very reasonable to suppose that the one influences the other as the time of actual delivery of the futures approaches, when the prospect of heavy actual transactions at a certain fixed price must have a direct effect upon the cash prices in unfettered sales. The effect of such a 'deal' as that of May, 1922, as explained by Mr. J. H. Barnes, shows this clearly and illustrates in a striking way the direct effect of such manipulation in disturbing the actual normal flow of grain in interstate commerce most injuriously. Mr. Barnes also points out the effect of the operation of the rule limiting deliveries to warehouse receipts from warehouses selected by the directors of the board, whose unregulated power to suspend or modify the rule pending settlement adds to the speculative character of the market and frightens consignors.

"More than this, prices of grain futures are those upon which an owner and intending seller of cash grain is influenced to sell or not to sell as they offer a good opportunity to him to hedge comfortably against future fluctuations. Manipulations of grain futures for speculative profit, though not carried to the extent of a corner or complete monopoly, exert a vicious influence and produce abnormal and disturbing temporary fluctua tions of prices that are not responsive to actual supply and demand and discourage not only this justifiable hedging, but disturb the normal flow of actual consignments."

FEE AGREEMENT BY ATTORNEY FOR INTEREST IN LAND IN LITIGATION IS WITHIN STATUTE OF FRAUDS.-The Supreme Court of Minnesota, in Oxborough v. St. Martin, 187 N. W. 707, 21 A. L. R. 350, holds that an agreement between attorney and client that the attorney shall receive as a part of his fee a portion of certain land involved in the litigation is within the Statute of Frauds, and in order to be valid such agreement must be in writing. "Clearly the contract alleged purported to create an 'estate or interest in lands,'