153. MASTER AND SERVANT Negligence of Train Dispatcher.-A railroad company held liable for the negli. gence of a train dispatcher in issuing orders for the movement of trains. - Northern Pac. R. Co. v. Mix, U. S. C. C. of App., Ninth Circuit, 121 Fed. Rep. 476.

154. MASTER AND SERVANT-Per se Negligence.-Disobedience by a servant of the rules of the master held not negligence per se. - Missouri, K. & T. R. Co. of Texas v. Bodie, Tex., 74 S. W. Rep. 100.

155. MASTER AND SERVANT-Scope of Employment.-A railroad company held not liable for injuries to a member of a switching crew by the explosion of a torpedo, placed on the track by the foreman of the crew as a prank.-Sullivan v. Louisville & N. R. Co., Ky., 74 S. W. Rep. 171.

156. MECHANICS' LIENS-Increase of Wages. - A raise in the wages of laborers employed by a contractor to grade a railroad does not constitute a new contract, so as to require a lien account for wages at the original rate to be filed within six months of the raise. - Kasper v. St Louis Terminal Ry. Co., Mo, 74 S. W. Rep. 145. 157. MORTGAGES Foreclosure Decree. It is competent, in a proper case, to determine the question of personal liability for a deficiency by the original decree in a foreclosure proceeding, and to leave the amount to be determined in the subsequent proceedings. — Field v. Howry, Mich., 94 N. W. Rep. 213.

160. MUNICIPAL CORPORATIONS Defective Platform over Gutter. - A city, permitting business firm to erect platform over gutter in street, held bound to see that it was kept in good condition.-Bell v. City of Henderson, Ky., 74 S. W. Rep. 206.

161. MUNICIPAL CORPORATIONS Extra Work.-Extra excavation of filling held not within a contract for the construction of a sewer, so as to exempt a city from liability therefor.-Thilemann v. City of New York, 81 N. Y. Supp. 773.

162. MUNICIPAL CORPORATIONS - Negligence. - A pedestrian has a right to stop on a street for a reasonable time, when required by illness or fatigue, where such act does not inconvenience other persons in the use of the street.-Kessler v. Berger, Pa., 54 Atl. Rep. 887.

163. MUNICIPAL CORPORATIONS — Notice of Injury. -A notice to a city of injury from a defective street held sufficient to give notice of a prelapsus of the womb.City of Dallas v. Moore, Tex., 74 S. W. Rep. 95.

164. NEGLIGENCE - Crippled Person.-Where a plaint. iff was injured in alighting from a train, the fact that she was old, crippled, and deaf, and traveling alone, held not contributory negligence as a matter of law.— Texas & P. Ry. Co. v. Reid, Tex., 74 S. W. Rep. 99.

165. NEGLIGENCE — Injuries to Child. — A child of tender years and immature discretion held not guilty of contributory negligence where, while playing on a side

walk, it received injuries resulting from a defect in such walk.-Caskey v. City of La Belle, Mo., 74 S. W. Rep. 113. 166. NEGLIGENCE Proximate Cause. Act of boys in turning lever of electric truck standing in street held the proximate cause of an injury to persons in the street. -Berman v. Schultz, 81 N. Y. Supp. 647.

167. PARTIES - Assignment.of Claim. — An assignment of a claim as collateral does not preclude the assignor from bringing an action to enforce the same. Hawkins

v. Mapes-Reeves Const. Co., 81 N. Y. Supp. 794.

168. PARTITION - Inadequacy of Price.-A joint owner of real property held entitled to have set aside a sale made under the court's order, on the ground of misapprehension and inadequacy of price. Columbia Finance & Trust Co. v. Bates, Ky., 74 S. W. Rep. 248.

169. PARTNERSHIP - Names of Policy Holders. - The list of names of customers of a firm of insurance agents, with the dates of expiration of their policies, is not an asset which, on dissolution, the court may order sold by itself. Whitney v. Whitney, Ky., 74 S. W. Rep. 194.

170. PAYMENT-Mistake of Law.-A payment by a mar. ried woman on her void note by mistake of law, but made in good conscience, held not recoverable.-Ruppel v. Kissel, Ky., 74 S: W. Rep. 220.

171. PAYMENT-Retention of Money.-An indorsement of a check by a principal to his agent, by which the agent was enabled to retain a certain sum for his serv ices, held not a voluntary payment. Reed v. Hayward, 81 N. Y. Supp. 608.

172. PLEDGES-Title.-By subpledging, and redeeming the subpledge, the pledgee does not acquire a new title to the pledged property, but merely continues the same tenure.-Meyer v. Moss, La., 34 So. Rep. 332.

173. PRINCIPAL AND AGENT-Sufficiency of Evidence.The fact that one addressed an envelope is not sufficient proof that he is bound by the letter contained therein, purporting to authorize the addressee to act as his agent. -Darr v. Darrow, Iowa, 94 N. W. Rep. 245.

174. PUBLIC LANDS-Sale During Lease.-The assignee of the rights of a lessee of public land may purchase the land during the life of the lease. - Fields v. Davis, Tex., 74 S. W. Rep. 52.

175. RAILROADS Division of Surface Water. -The grant of a right of way to a railroad company does not include the right to construct a grade in such a manner as to throw surface water on the grantor's property, thereby injuring it. - Childers v. Louisville & N. R. Co., Ky., 74 S. W. Rep. 241.

176. RAILROADS - Failure to Signal.-Railroad, failing to give signals prescribed by statute, must not only show that noise made by train was sufficiently loud to warn injured party, but also that he actually heard the noise. Missouri, K. & T. Ry. Co. of Texas v. Taff, Tex., 74 S. W. Rep. 89.

177. RAILROADS - Stop, Look and Listen. Plaintiff's failure to stop before driving on a railroad crossing in a city, where his view was obstructed by freight cars standing on a switch track and other obstacles, held contributory negligence as a matter of law. Shatto v. Erie R. Co., U. S. C. C. of App., Sixth Circuit, 121 Fed. Rep. 678.

178. REFERENCE Consent to Order,-A consent to an order of reference included a consent to the proper exercise of all the powers possessed by the referee, including the amendment of pleadings. — Perry v. Levenson, 81 N. Y. Supp. 586.

Surety Co., U. S. C. C. of App., Seventh Circuit, 121 Fed. Rep. 499.

181. SALES-Breach of Contract.-Where a contraet for the sale of bananas was to continue while plaintiff did not aid any one in importing bananas, defendant was not entitled to terminate the contract because plaintiff purchased bananas from the defendant's competitors.Underhill v. Buckman Fruit Co., Md., 54 Atl. Rep. 873. 182. SALES Construction of Contract. A tender of a car load of flour, not in transit at the date of the contract, but shipped three days later, is not a sufficient compliance with the offer to purchase by "transit car." -Stock v. Towle, Me., 54 Atl. Rep. 918.

183. SALES-Memorandum of Contract. Statement in a memorandum of a contract of sale that money given the seller was a payment is binding, and it cannot be shown that it was given as a forfeit. Cousins v. Bowling, Mo., 74 S. W. Rep. 168.

184. SALES-Warranty of Suitableness.-A contract for the sale of secondhand machinery, limiting the authority of the seller's agent, held not to prevent the implication of a warranty of suitableness. - New Birdsall Co. v. Keys, Mo., 74 S. W. Rep. 12.

Illegal Arrest.—

186. SHERIFFS AND CONSTABLES Sureties of sheriff on his official bond held not liable for an illegal arrest made by him without a warrant.-State v. Dierker, Mo., 74 S. W. Rep. 153.

187. SPECIFIC PERFORMANCE-Sufficiency of Contract. -Where the proof leaves it in doubt whether an alleged agreement to convey land was an obligatory contract, or a declaration of the purposes to confer a benefit, specific performance will not be decreed. Wolfinger v. McFarland, N. J., 54 Atl. Rep. 862.

188. STREET RAILROADS - Negligence. - Behavior of pedestrian held to amount to a warning to a motorman to get ready to avoid an accident. Aldrich v. St. Louis Transit Co., Mo., 74 S. W. Rep. 141.

189. STREET RAILROADS-Res Ipsa Loquitur.-Where a pedestrian was injured by falling over a fender attached to an unlighted street car, such fact was not prima facie evidence of negligence. - Adams v. Metropolitan St. Ry. Co., 81 N. Y. Supp. 553.

193. TAXATION-Power to Sell Land. - A tax collector has no power to sell land beyond the limits of his own county.-Morrison v. Casey, Miss., 34 So. Rep. 145.

194. TAXATION-Suing for Others. -One may not sue, on his own behalf and that of other taxpayers, to recover taxes collected, where his interest is only three cents. Sparks v. Robinson, Ky., 74 S. W. Rep. 176.

195. TAXATION-Valid Assessment. - Where there is a valid assessment of lands under a certain statute, the subsequent passage of an unconstitutional statute relative to taxation does not work a legislative abandonment.-Butts v. Ricks, Miss., 34 So. Rep. 354.

196. TELEGRAPHS AND TELEPHONES-Mental Anguish. -Relation between sender and sendee of telegram an

198. TROVER AND CONVERSION-Good Will of Business. -A mortgagee of a laundry, in continuing the business at the same place after foreclosure of the mortgage and purchase of all the tangible property, held not guilty of a conversion of the mortgagor's good will. -Millspaugh Laundry v. First Nat. Bank, Iowa, 94 N. W. Rep. 262.

199. TRUSTS-Husband and Wife.--In a suit to enforce a trust on land purchased by a husband with his wife's money, where the allegations of the complaint are denied, the burden is on the complainant to show such purchase.-Emfinger v. Emfinger, Ala., 34 So. Rep. 346. 200. TRUSTS-Purchase of Land. Where an adminis trator purchased an heir's interest in lands for another heir with funds of the estate belonging to her during her minority, she was not precluded from enforcing a conveyance thereof by Ky. St. 1899, § 2353. — Stone v. Burge, Ky., 74 S. W. Rep. 250.

201. USURY-Interest. - Where it appears from the decree in foreclosure that a portion of the amount reported to be due by the master is tainted with usury, it was error to allow any sum whatever for interest, under Acts 1891, p. 51, ch. 4022. — Lyle v. Winn, Fla., 34 So. Rep.

158.

202. VENDOR AND PURCHASER-Bona Fide Purchaser.The actual payment before notice of the price is indispensable to the maintenance of the claim that one is a bona fide purchaser for value without notice. — Trice v. Comstock, U. S. C. C. of App., Eighth Circuit, 121 Fed. Rep. 620.

203. VENDOR AND PURCHASER-Defective Description. -Rule that monuments will control courses and distances held not applicable to cure defective description, so as to compel vendee to accept title. -Fuhr v. Cronin, 81 N. Y. Supp. 536.

204. VENDOR AND l'URCHASER Marketable Title. — Where the title offered by the vendor of land is not marketable, the vendee may have rescission, but may not recover damages for the loss of his bargain.-Roberts & Corley v. McFadden, Whiss & Kyle, Tex., 74 8. W. Rep. 105.

205. WAREHOUSEMAN Pledge of Grain. The grain and warehouse statutes of the state of Minnesota have no force as to transactions had by a domestic corporation in a sister state. -In re St. Paul & K. C. Grain Co., Minn., 94 N. W. Rep. 218.

206. WATERS AND WATER COURSES Percolating Wa ters. An owner of an artesian well supplied by percolating water held not liable for wasting the water, though his acts in so doing stopped the flow of other wells of adjoining property owners. Huber v. Merkel, Wis., 94 N. W. Rep. 354.

207. WILLS Contest - In a will contest, held reversible error to instruct that, in determining whether testator had been unduly influenced, the reasonableness or unreasonableness of the will might be considered.-King v. Rowan, Miss., 34 So. Rep. 325.

person

208. WILLS Mark as Signature. Where a writes the name of a witness to a will for him, and the latter thereupon makes his mark, it operates as the sig nature of such witness. Appeal of Reaver, Md., 54 Atl. Rep. 875.

239. WILLS-Payment of Debt.-A legacy by a testator is not an extinguishment of the debt, unless such was clearly the intent of the testator.-Sharp v. Wightman, Pa., 54 Atl. Rep. 888.

210. WITNESSES - Inability to Hear Oath. - Where a deaf person was consciously sworn as a witness, it was sufficient, whether she actually heard the officer who administered the oath or not. -Texas & P. Ry. Co. v. Reid, Tex., 74 S. W. Rep. 99.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 9, 1903.

COMPETENCY OF WITNESSES APPEARING BEFORE THE GRAND JURY AS AFFECTING AN INDICTMENT RETURNED UPON SUCH

EVIDENCE.

We have for editorial discussion a question of great practical interest to the criminal lawyer and to prosecuting attorneys everywhere.

Our grand jury system is one of the great institutions of the Anglo-Saxons. Its stands as the great bulwark of the people, to protect them from the evil results of false charges. A man cannot be charged with a felony until there is sufficient competent evidence to base such a charge upon, and whether there is such evidence or not, it is within the province of the grand jury to decide. But while the grand jury is for the protection of the people, it is a constituent part of the court to which it makes its report. Indeed, it stands, as it were, in the place of the trial court, proceeding by secret and preliminary examination to determine whether there is sufficient grounds on which to charge and try a person suspected of the commission of a certain crime. The evidence, therefore, given before the grand jury, is a part of the record of the

court.

State v. Little, 42 Iowa, 51.

It will not be any assumption on our part, therefore, to take for granted three quite indisputable propositions,-first, that the grand jury is a constituent part of the trial court and that all evidence received before it is part of the records of the court; second, that the grand jury stands also as a protection against the bringing of serious charges by the state against its citizens based upon incompetent or insufficient evidence; third, that a grand jury should not return an indictment on incompetent evidence or evidence which is, in its discretion, insufficient to convict the defendant according to the rules, usages and practice of the trial court of which it is a part. Admitting these propositions we come the kernel of the difficulty,-when will incompetent evidence admitted by a grand jury in the course of its investigations invalidate an indictment found upon such evidence.

In the first place, it must be borne in mind that grand jurors are not lawyers, nor are they always expert in the technical rules of evidence, and that, therefore, it often happens that witnesses are examined, and questions put and evidence elicited that would not be allowed in court. The rule therefore obtains that "where there is sufficient legal evidence to warrant the finding of a bill, no court would set it aside for technical illegalities, which it is apparent did not and could not have influenced the action taken." People v. Briggs (N. Y.), 60 How. Pr. 17. This rule is probably the reason for the decision in the case of State v. Tucker, 20 Iowa, 508, which is often cited as opposed to the rule that an indictment will be quashed which is shown to be based upon or influenced by the admission of incompetent evidence before a grand jury. This was a case in which the testimony of a wife of one of the defendants was admitted in evidence before the grand jury. For this reason, the trial court quashed the indictment. It is true that Dillon, J., in reversing the judgment of the trial court, did hold broadly that the admission of incompetent evidence by the grand jury does not constitute sufficient ground for setting aside the indictment. Indeed, he says in his opinion: "Whether witnesses are competent is often a very difficult question of law, and to hold that if the grand jury, in the course of their investigation, happen to examine an incompetent witness, that this will have the effect to vitiate their finding, is going a step further than we are prepared to take." Even with this, however, we believe that the facts of the decision in this case bring it within the exception which we have already noted,i.e., the incompetent evidence had no influence on the indictment; indeed, the court says in another part of the opinion: "The record shows that five witnesses, in addition to the said Philomela, (the wife), gave competent evidence before the grand jury, and sufficient, even if hers was excluded, to justify and even require them to find a bill." This, also, was the ground of the decision in the well-reasoned case of State v. Logan, 1 Nev. 510, and in the more recent case of State v. Coats, 130 N. Car. 701, 41 S. E. Rep. 706, in which it was held that where an indorsement on an indictment shows that the grand jury has examined accused's wife, but also another and

competent witness, a motion to quash is properly overruled, the court being justified in awaiting the verdict of the trial jury on the competent evidence considered by the grand jury.

We, therefore, again reaffirm what we believe to be the correct rule on this question, that where an indictment can reasonably be said to be based upon or, to some material degree, influenced by incompetent evidence before the grand jury, such indictment should be set aside on proper motion. This rule, indeed, is definitely supported by the case of People v. Briggs, 60 How. Pr. (N. Y. 1880), 17, where the court held that if an indictment be found or based wholly, or in part, upon evidence clearly incompetent and illegal, it will be quashed and the defendant remanded, that his case may be passed upon by another grand jury upon competent and proper evidence. The motion to quash the indictment, in this case, was based solely on the ground that the wife of the prisoner was called as a witness, and gave important testimony against him. The court's opinion shows conclusively the damaging effect of the wife's testimony; not that there was no other evidence. There was evidence, indeed, evidence sufficient to indict for manslaughter, but the admission of the wife's testimony furnished the necessary evidence on which to base an indictment for murder in the first degree. The same conclusion was reached on almost the identical statement of facts in the later case of People v. Moore, 65 How. Pr. (N. Y. 1882), 177.

Cases discussing similar principles in relation to the effect upon the indictment of illegal and insufficient evidence, may be consulted with profit: Boone v. People, 148 Ill. 440, 36 N. E. Rep. 99; State v. Morris, 36 Iowa, 272; State v. Donelon, 45 La. Ann. 744, 12 So. Rep. 922; People v. Rosenblatt, 1 Abb. Pr. (N. Y.) 268; People v. Haines, 1 N. Y. Supp. 55; People v. Price, 2 N. Y. Supp. 414; Dockery v. State, 35 Tex. Cr. Rep. 487, 34 S. W. Rep. 281; People v. Clark, 14 N. Y. Supp. 642; People v. Brickner, 15 N. Y. Supp. 528; People v. Edwards, 25 N. Y. Supp. 480; Menchecar v. State (Tex. 1844), 28 S. W. Rep. 203; Spearman v. State, 34 Tex. Cr. Rep. 279, 30 S. W. Rep. 229; In re Gardiner, 64 N. Y. Supp. 760. The only we have found directly opposed to the

case

conclusions we have reached on this question is that of United States v. Cutler, 5 Utah, 608, 19 Pac. Rep. 145, where the supreme court of Utah held, one judge dissenting, that, under the Utah Code of Civil Procedure, the fact that an indictment is found solely on the testimony of an incompetent witness, (a wife in this case), is not ground for quashing the indictment.

DAMAGES-MENTAL SUFFERING RESULTING FROM BREACH OF CONTRACT TO PREPARE WEDDING TROUSSEAU.-The greatest event in the life of a girl is when she becomes a bride. With that event the whole current of her life changes. It is not strange, therefore, that in preparing for her wedding a girl's nervous system is keyed at the highest pitch, and anything that seriously disturbs her in her preparations for that great event is almost certain to result in her great mental distress. Even apparently little things, which on other occasions would be considered merely an annoyance, now assume the nature of a catastrophe. It is, therefore, very important for persons undertaking to perform any service having anything to do with preparing a bride for her wedding day to either be certain that the contract can be fulfilled, or make provision for delays and other things that may hinder the performance of the contract. That this is the law is now definitely decided by the Supreme Court of Louisiana, in the case of Lewis v. Holmes, 34 So. Rep. 66, where the court holds that damages may be recovered for the deprivation of intellectual enjoyment and for mental suffering resulting from the breach of contract of a fashionable milliner to furnish the dresses for the trousseau of a bride of wealth and high social standing. The court states that it must take into consideration not alone the disappointinent of the bride in not having the dresses in time for the wedding, and her mortification and humiliation in going to her husband unprovided with a suitable trousseau, but also the fact that entertainments had been planned in her honor on her wedding tour and at her arrival at the home of her husband, which entertainments she had to forego for want of the dresses.

NEGLIGENCE LIABILITY OF OWNER OF PREMISES FOR INJURIES OCCASIONED BY DEFECTIVE PLATFORM SCALES, OWNED BY ANOTHER. — Our individual conviction is opposed to the reasoning of the court in the recent case of McIntyre v. Pfaudler Vacuum Fermentation Co. (Mich.), 95 N. W. Rep. 527. In this case it appeared that plaintiff, engaged in hauling steel to appellant, for the purpose of weighing a load drove on platform scales on land owned by appellant, and was injured by reason of the platform giving way. The platform was in a private alley between buildings owned by appellant and a safe company. The beam of the scales was in the latter's

office. The safe company originally owned the scales, and appellant's manager testified that they remained the property of the safe company. They were used by appellant and the safe company without asking permission of either. It was held that appellant's liability did not depend on its ownership of the scales, but, having invited plaintiff to use them, it was responsible for defects which by the exercise of due diligence it could have remedied. The court, in rendering its decision, said: "In our judgment the liability of the Pfandler Company does not depend on its ownership of the scales. At the time of the injury, plaintiff was an employee of the Shedden Cartage Company, engaged in conveying a load of steel to the Pfaudler Company. He was on the premises of the Pfaudler Company at its invitation. The scales being on its premises and being used by the plaintiff in fulfilling a contract in which both had an interest, and at its invitation, that company owed to him the obligation which an occupier of premises owes to one on those premises by its invitation."

*

*

The court rests its decision on a principle enunciated in the leading and celebrated English case of Indemaur v. Dames, L. R. 1 C. P. 274. Plaintiff in that case was injured on defendant's premises, while there "on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest." Said the court: "We are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop, but it is obvious that this is only one of a class. The class to which the customer belongs includes persons who go, not as mere volunteers or licensees or guests or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business that concerns the occupier, and upon his invitation, express or implied. And with respect to such a visitor, at least, we consider it as settled law that he, using reasonable care on his own part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger of which he knows or ought to know, and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negligence by the sufferer, must be determined by a jury as a matter of fact.

There

was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business."

While we recognize the principle enunciated in the case from which we have just quoted, we do not believe it can be extended to a case like the one before us. The principle as just stated im

plies that the owner or occupant shall have control of the premises, the defective nature of which has been the cause of the damage. Kinkead's Commentaries on Torts (1903), sec. 315. If the scales in the case before us did not belong to the defendant, it certainly can make no difference that they happen to be on his land. He had no more authority over them than if they had been on the land of another, and although he was the owner of the land he was not the "occupier" of the particular "premises." Nor does the fact that the plaintiff came upon the scales at the defendant's invitation change the rule. Would it be contended that a buyer of goods was liable if he requested the seller to drive his team on a public scales, and the latter there sustained injury because the scales happened to be defective? The seller in that case goes upon the scales at the buyer's invitation, but the controlling factor is that the scales are not the buyer's premises, although with the rest of the public he has a right to use them. So in the principal case, even though the scales may be on defendant's land and even though, by agreement, he has the right to use them at will, if the scales are not his property, they are not his "premises" over which he has control and for the safety of which he is responsible.

LIABILITY OF PARTIES WHO ARE AT THE SAME TIME BOTH JOINTLY AND SEVERALLY LIABLE EX CONTRACTU.

Origin of Joint and Several Contracts.Contractual liability as it early existed in English jurisprudence consisted of the relationship of lord and tenant, being the return of feudal service either free or base, for the tenant's use of the land and the lord's protection of the tenant.1 This contractual relation pervaded the whole nation from king to villein. At first, feuds were granted in severalty, and along with the feudal tenure, in time came the different estates of tenancy in common, co-parcenary and joint tenancy." As England grew from an agricultural to a commercial country, contract as a relation between parties was developed by the needs of trade. 3 Contracts would naturally follow the one contract known to the people, that is the feudal obligation existing between lord and vassal, and at first were no doubt several,

1 Reeve's Hist. Eng. Law, I. p. 19; Pollock & Maitland. I. 34.

2 Reeve's Hist. Eng. Law, II. p. 587; Pollock & Maitland; I. 656, II. 20, 243.

3 Reeve's Hist. Eng. Law, II. 598; Pollock & Mait land, II. ch. 5, p. 34.