avoided his contract, is not liable for conversion.-Drude v. Curtiss, Mass., 67 N. E. Rep. 317.

84. INJUNCTION-Action for Rent.-Equity will not restrain an action for rent, and cancel the lease, on the ground that the same is void.-Slater v. Schwegler, N. J., 54 Atl. Rep. 937.

85. INJUNCTION-Reference.- Where plaintiff obtained leave, over defendant's objection, to discontinue an injunction suit, on ground that a determination of the merits was unnecessary, defendant was entitled to an order of reference to ascertain damages. Perlman v. Bernstein, 82 N. Y. Supp. 148.

86. INNKEEPERS — Bailee. - An innkeeper, to whom a package addressed to a guest was delivered after the guest's departure, held liable for the negligent loss of the package as an ordinary bailee. - Bachr v. Downey, Mich., 94 N. W. Rep. 750.

87. JUDGES- Disqualification.-A judge is not disqualified by an opinion as to the guilt or innocence of the defendant, where he has no prejudice preventing a fair and impartial trial.-State v. Morrison, Kan., 72 Pac. Rep. 554.

88. JUDGMENT-Suit to Enjoin Collection. -In a suit to enjoin the collection of a void judgment, the judgment defendant has a good defense if the claim was barred by limitations. Strowbridge v. Miller, Neb., 94 N. W. Rep.

825.

89. JUSTICES OF THE PEACE-Judgment. A justice's docket held to show a sufficient judgment to protect succeeding justice in the issue of the execution, and the constable in levying the same. Fowler v. Thomsen, Neb., 94 N. W. Rep. 810.

90. LANDLORD AND TENANT-Husband and Wife.-A wife, to whom leased land was conveyed by her husband, held a proper party to a suit by a lessee for the determination of his rights over the property leased to the others, though all of the leases expired at the same time. Stolts v. Tuska, 82 N. Y. Supp. 93.

91. LIFE INSURANCE-Forfeiture of Policy. A forfeiture incurred by the holder of a life insurance policy held waived, if the company, with knowledge of the facts, subsequently retains premiums, dues, or assessments on account of the contract.-Modern Woodmen of America v. Colman, Neb., 94 N. W. Rep. $14.

- Statement

92. LIFE INSURANCE-Misrepresentation. by applicant for insurance that he had an equitable title to the property, where he held a contract therefor which he had pledged for a debt, held not a misrepresentation. -Born v. Home Ins. Co., Iowa, 94 N. W. Rep. 849.

93. LIMITATION OF ACTIONS-Mortgage Lien. - The absence from the state of the owner of realty upon which there was a mortgage, but for which he is not liable, will not prevent limitations from running against the mortgage lien.-Hogaboom v. Flower, Kan., 72 Pac. Rep. 547. 94. LIMITATION OF ACTIONS-Parol Trust.-Where defendant did not repudiate a parol agreement to apply certain farms conveyed to him by plaintiff to her debts until shortly before an action for performance or restitution was brought, such action was not barred by limitations.-Greenley v. Shelmidine, 82 N. Y. Supp. 176.

95. MANDAMUS-Dismissal of Appeal. -Mandamus will not lie to compel Court of Appeals of District of Columbia to reinstate appeal from Supreme Court in action brought before a justice, when dismissed for want of jurisdiction.-In re Key, U. S. S. C., 23 Sup. Ct. Rep. 624.

96. MANDAMUS-State Civil Service Commission. -Decision of state civil service commission, placing certain employees of sheriff in competitive class, held not reviewable by mandamus. - People v. Collier, N. Y., 67 N E Rep. 309.

97. MASTER AND SERVANT-Contract of Employment.In an action for breach of a contract of employment, defendant held entitled to allege plaintiff's intoxication as a defense, without charging the same in connection with a counterclaim or set-off - Mowbray v. Gould, 82 N. Y. Supp. 102.

98. MASTER AND SERVANT-Defective Appliances. - Α master, having furnished sufficient new ropes for use on its derricks, held entitled to delegate to a servant the duty of watching the condition of the ropes on the derricks and determining when new ones should be supplied.-Ivers v. Minnesota Dock Co., 82 N. Y. Supp. 193.

99. MASTER AND SERVANT-Fellow Servant.-Employee of electric railway car held not precluded from recovery by the fact that the car on which he was injured was in charge of fellow servant.-Noe v. Rapid Ry. Co., Mich., 94 N. W. Rep. 743.

100. MASTER AND SERVANT- Measure of Damages. Where a contract is for personal services only, and a breach is total, the measure of damages is what the plaintiff would have earned, less cost of performance. School District of Omalia v. McDonald, Neb., 94 N. W. Rep. 829.

103. MECHANICS' LIENS-Premature Filing. A building contractor, whose mechanic's lien was void because prematurely filed, held not entitled to enforce the same for the amount due at the time of filing, on the theory of quantum meruit.—General Fire Extinguisher Co. v. Chaplin, Mass., 67 N. E. Rep. 321.

104. MECHANICS' LIENS - Statutory Requirements. Where, in a suit to enforce a mechanic's lien, no proof is made showing the existence of any lien, questions raised on appeal as to the extent thereof are not open to consideration. - McGlaflin v. Wormser, Mont., 72 Pac, Rep. 428.

105. MINES AND MINERALS Lode Location. - Under Rev. St. U. S. § 2322, U. S. Comp. St. 1901, p. 1425, the owner of a lode mining claim held to have extralateral rights in secondary veins apexing within the surface lines, though not within the same segment of the claim in which the discovery vein apexes.-Ajax Gold Min. Co. v. Hilkey, Colo., 72 Pac Rep. 447.

106. MORTGAGES-Authority of Partner.-A member of a nontrading firm, who refused to join in the execution of a mortgage by the firm for money advanced, held esestopped to contend that the mortgage was invalid as to his interest in the firm's assets. Matthies v. Herth, Wash., 72 Pac. Rep. 480.

107. MORTGAGES - Election. Election to enforce a mortgage held to destroy the lien of another mortgage given as a substitute for the one enforced. - Martin v. Ornelas, Cal., 72 Pac. Rep. 440.

108. MORTGAGES-Notice. - One who purchases a note, and takes a mortgage and assignment thereof, with the note, is chargeable with notice of the contents of the mortgage.-Garnett v. Myers, Neb., 94 N. W. Rep. 803.

Bur

109. MUNICIPAL CORPORATIONS Hole in Sidewalk. Pedestrian, whose foot slipped into a hole in the sidewalk, held not guilty of contributory negligence. rell v. City of Greenville, Mich., 94 N. W. Rep. 732. 110. MUNICIPAL CORPORATIONS - Negligent Driving.One driving a horse along the streets of a city is bound to anticipate that pedestrians may be at a crossing, and if he fails to look for them, and does not so far as is in his power avoid them, he is negligent.-Lahne v. Seaich, 82 N. Y. Supp. 67.

111. MUNICIPAL CORPORATIONS Police Force. A policeman, who was dismi sed from the service and neglected to bring certiorari for his reinstatement for almost two years, should not, on being reinstated, be al lowed his salary for the time he was not on duty. - People v. Partridge, 82 N. Y. Supp. 109.

112. PARTITION-Power of Sale. - Objection that partition is defeated by power of sale in will of common ancestor does not affect title to property sold in the suit.Parish v. Parish, N. Y., 67 N. E. Rep. 298.

113. PARTNERSHIP-Sharing in Profits. Payment for services, or for the use of money or property to be used in a business, may consist of a share of profits, without making of the loaner or employee a partner. — Johnson Bros. v. Carter & Co., Iowa, 94 N. W. Rep. 850.

114. PARTNERSHIP-Tort of One Partner.-Where one partner carries away property of a third person which is employed in the partnership business the innocent partner is liable for its use. -Sun v. Skutt, Mich., 94 N. W. Rep. 733.

115. PAUPERS-Relief by City.-A city, furnishing relief to a pauper on refusal of the county commissioner to furnish such relief, may maintain assumpsit against the county, and need not resort to mandamus.-Ogden City v. Weber County, Utah, 72 Pac. Rep. 433.

116. PRINCIPAL AND AGENT--Warranty.-A sales agent, intrusted with samples of goods by his principal, is thereby given apparent authority to warrant that the goods sold shall be of the quality of the samples.-Dreyfus v. Goss. Kan., 72 Pac. Rep 537.

117. PUBLIC LANDS-Effect of Resurvey.-Title to lands embraced within patents from the United States under the swamp land act held not affected by a resurvey of land covered by water at the time of the original survey and patents granted for tracts below the original water line.-Kean v. Calumet Canal & Improvement Co., U. S. 8. C., 23 Sup. Ct. Rep. 651.

118. RAILROADS-Assumed Risk.-The mere knowledge of the existence of a dangerous custom is not sufficient to charge a person injured with the assumption of the risk thereof, unless he has appreciated the danger involved.-Carver v. Minneapolis & St. L. R. Co., Iowa, 94 N. W. Rep 862.

119. RAILROADS-Damages.-Injuries resulting from a shock received in averting an accident at a railroad crossing held sufficient to base a recovery on.-Wood v. New York Cent. & H. R. R. Co., 82 N. Y. Supp. 160.

of

120. RAILROADS-Privity Contract.-Stipulations and exemptions from liability for loss caused by fire in a lease of a storage platform near a railway held not binding on one not in privity with the lessee.-Texas & P. Ry. Co. v. Watson, U. S. S C., 23 Sup. Ct. Rep. 681.

121. REMOVAL OF CAUSES-Suit Against Citizen and Alien.-A suit by a citizen of the state in which it is brought against a citizen of another state and an alien is removable on the joint petition of defendants -Roberts v. Pacific & A. Ry. & Nav. Co., U. S. C. C. of App., Ninth Circuit, 121 Fed. Rep. 785.

122. SALES-Caveat Emptor.-In the sale of a fire in surance expiration register, without any representation as to the quality of the register with reference to the privacy of the information imparted, the rule of caveat emptor applies.-Kinkel v. Winne & Winne, Kan., 72 Pac. Rep. 548.

123. SALES-Contract Construed.-A contract for the sale and purchase of herd of cattle on the range, to be delivered from time to time during the ensuing season, construed, and the rights of the parties thereunder determined.-McNamara v. Home Land & Cattle Co., U. S. C. C. of App., Seventh Circuit, 121 Fed. Rep. 797.

124. SEAMEN-Injury in Service.-A seaman, injured while in the service of the ship, without fault on his part, held entitled to compensation from the ship for the failure to provide him with proper support, medical attendance, and care until he was cured, so far as that was possible. The Troy, U. S. D. C., W. D. N. Y., 121 Fed. Rep. 901.

125. SHIPPING-Injury to Chartered Vessel.-A charterer is liable for an injury to a scow resulting from the negligence of a tug hired by him to tow the same.— William H. Beard Dredging Co. v. Hughes, U. S. C. C. of App., Second Circuit, 121 Fed. Rep. 808.

126. STREET RAILROADS-Crossing Tracks.-A pedestrian, crossing a street car track in reliance on the slackening of speed of an approaching car, is negligent. -Du Frane v. Metropolit n St. Ry. Co., 82 N. Y. Supp. 1.

127. TAXATION-Income Tax Law.-A provision of an income tax law exempting from its operation private schools, colleges, commercial colleges, and fraternal benefit societies, does not make an illegal discrimination which renders the law invalid as to other corporations or persons upon whom the tax is imposed.-W. C. Peacock & Co. v. Pratt, U. S. C. C. of App., Ninth Circuit, 121 Fed. Rep. 772.

128. TELEGRAPHS AND TELEPHONES - Delivery. -A telegraph company does not, by merely accepting a message for transmission, impliedly agree to deliver it to the addressee in person.-Norman v. Western Union Tel. Co., Wash., 72 Pac Rep. 474.

129. TELEGRAPHS AND TELEPHONES-Failure to Transmit.-Telegrams held sufficient on their face to put telegraph company on inquiry as to their importance, and to authorize a recovery for damages caused by failure to transmit them.-Brooks v. Western Union Telegraph Co., Utah, 72 Pac. Rep. 499.

130. TROVER AND CONVERSION-Interest of Purchaser. -Mortgagee of interest of vendee of piano, sold under conditional sale, and who subsequently purchased the vendee's rights, held entitled to maintain trover for conversion of the piano.-Friedman v. Phillips, 82 N. Y. Supp. 96.

131. TRUSTS-Lien.-A beneficiary has no lien on the realty of the trustee, to reimburse him for the trustee's defalcation, which will take precedence of a lien secured by the trustee's creditor before the beneficiary attempted to assert his claim.-Wales v. Sammis, Iowa, 94 N. W. Rep. 840.

132. TRUSTS-Parol Agreement.-A parol agreement creating a trust in real estate, while executory, is with. in the statute of frauds, though it may be proven in sup. port of an executed conveyance.-Brown v. White, Ind., 67 N. E. Rep. 273.

133. VENDOR AND PURCHASER-Specific Performance.A defect in an abstract of title tendered by the vendor, which is not assigned by the vendee as the reason for refusing the deed, and which can be cured, will not justify refusing the vendor a decree of specific performance.-Wold v. Newgard, Iowa, 94 N. W. Rep. 859.

134. WILLS-Effect of Instrument. An instrument making no disposition of property, further than providing for the payment of debts, but which appoints an executor, may be a will.-Mulholland v. Gillan, R. I., 54 Atl. Rep. 928.

135. WILLS-Mental Capacity.-It could not be presumed, from the mere fact that, immediately following a stroke of apoplexy, one was rendered mentally incompetent, that his incapacity continued some two years later, when he executed his will.-Kirsher v. Kirsher, Iowa, 94 N. W. Rep. 846.

136. WILLS-Right of Creditors.-A husband to whom a wife had devised one-third of her property in his own right and the balance as trustee, held to have an interest in remaining realty which could be reached by creditors, notwithstanding he had converted more than three-fourths of the entire estate.-Wales v. Sammis, Iowa, 94 N. W. Rep. 840.

137. WITNESSES - - Constitutional Privilege.-Comparison of shoes of defendants with footprints made at house of deceased on night of murder held not a violation of constitutional privilege that accused need not be compelled to testify against himself.--People v. Van Wormer, N. Y., 67 N. E. Rep. 299.

138. WORK AND LABOR-Breach of Contract.-Where one party to a contract for employment breaks the contract, and makes it impossible for the other party to perform, the innocent parcy may either sue for damages for the breach or recover upon the quantum meruit.— Brown v. Woodbury, Mass., 67 N. E. Rep. 327.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 16, 1903.

THE LAW AS A BUSINESS VERSUS TRUE ADVOCACY.

Mr.

Mr. James B. Dill, the well-known corporation lawyer, speaking recently before the Michigan Political Science Association, makes a plea for the recognition of "Commercialism" on the part of the American lawyer, and deems it inevitable in extracting "trade dollars from the emergencies of life!" Dill's plea runs thus: "The successful lawyer of today is not the man who is the last resort of the business man, to whom the business man appeals when he is on the verge of destruction. On the contrary, he is consulted at the outset and throughout the progress of every enterprise of magnitude, that by reason of his special legal experience along business lines he may, primarily, make the undertakings to the business man of more profit than without his assistance, and, secondarily may avoid the possibility of attack and litigation. The more nearly the lawyer brings his profession into touch with business methods the greater will be his suc cess, and the profession is today beginning to realize the fact and to act upon it."

The above is another of Mr. Dill's effusions on a particular hobby of his, a bright discovery of which he claims to be the inventor, by means of which, also, he seeks to draw away the young lawyer from the old ideals of the profession into the practice of methods less idealic but more remunerative.

"Trade dollars" seems to be Mr. Dill's sole idea of success at the bar. While we have no objection to the lawyer desiring to make all the money he can, still we would suggest to him that equal ability and energy thrown into some other line of employment would probably result in greater cash returns, if that is his sole ambition.

The truth of the business is that Mr. Dill's idea is not a new one. The old solicitor in the ancient and modern practice in England is the kind of a lawyer he is describing. The solicitors of England, as a general rule, earn more money than the class of lawyers called barristers, although most of the former have

not the ability to try a case .or make a speech that would be effective for any purpose. The solicitor lives in the business affairs of his client; the barrister knows nothing of him until he is thrown into court, and has nothing further to do with him when he leaves the halls of justice. The solicitor advises his client not only as to matters of law but also as to matters of business; he invests his money, draws his contracts, plans his commercial enterprises. While all this is very interesting and quite remunerative it is not advocacy at all, nor does it bring an advocate's reward. Erskine, Brougham, Evarts and Choate,these are the great advocates, and the fame and forture of each of them were made in the court room, not in the business world. Some of them knew little of business and were, as to their own private affairs, poor financiers, but before a jury or in the presence of an appellate tribunal, they were undisputed masters of any situation. The question, therefore, finally resolves itself into the further question -Does the young advocate desire the rewards of the solicitor and counselor or those of the advocate. While in this country we attempt to unite the two, the profession is, nevertheless, divided by natural selection into the two classes we have already mentioned, advocates and counselors, or solicitors, and the glories and rewards of the profession are apportioned between them. The young lawyer, therefore, who has a genius for true advocacy should not cast his eyes with too much longing and nervous unrest upon the picture set forth by Mr. Dill, or he may meet the fate of God's people, Israel, who, not willing to tread the path God had marked out for them, longed again for the flesh-pots of Egypt.

IS THERE AN IMPLIED WARRANTY ON THE SALE OF AN ANIMAL THAT IT IS EITHER MALE OR FEMALE?

Centainly in no profession outside of the law is human nature, and we might well add animal nature also, encountered in so many various forms. Not the least curious of the cases that have come before the courts is the recent Irish case of Gill v. McDowell, Irish Rep. 2 K. B. D. 463.

The action in this case was for damages for breach of warranty upon the sale of an animal

by the defendant to the plaintiff. It appeared that the defendant sent three head of cattle to a fair for sale, a bullock, a heifer, and an animal which from one point of view appeared to be a bullock, and from another a heifer, and which was in fact, a hermaphrodite. The three animals were bought by the plaintiff. No warranty was given, and nothing was said, as to the sex of the animals, but the plaintiff bought under the belief that he was buying either a bullock and two heifers or a heifer and two bullocks. The defendant knew of the malformation of the hermaphrodite, and knew that the plaintiff would not have purchased it had he known of the malformation. By a careful and skilled examination the defect could have been discovered by the plaintiff, but in fact it was not discovered by him until after the sale. The animal afterwards died, the death being the direct consequence of the malformation. The Irish court, following Smith v. Hughes, L. R. 6 Q. B. 597, held that as there was evidence that the defendant knew that the plaintiff believed that he (the defendant) was contracting to sell two heifers and a bullock, and that the plaintiff did so believe; in other words, that the seller knew that the buyer was under a mistake as to the subject-matter contracted to be sold the defendant was responsible. The vendor could not force on the purchaser an article which he knew the latter never proposed to buy.

In commenting on this case the Solicitors Journal makes this comment: "We have been unable to find in any system of foreign law an implied warranty upon the sale of an animal that it shall be either male or female.' We believe that this comment is enough to show the absurdity of the court's decision. Here was a fault which the buyer could have discovered by a reasonable examination; the seller also made no representations of any character. Here, if anywhere, was an occasion for the application of the rule of caveat emptor. Indeed, in respect to the merchantable quality of goods sold, or their adaptability for the purpose for which they are purchased, where the purchaser has an opportunity of inspecting them, the rule of law is that the seller may let the buyer cheat himself ad libitum, but must not actively assist him in doing so; for, in the absence of a warranty, the purchaser buys on his own respon

sibility. Armstrong v. Bufford, 51 Ala. 410; Biggs v. Perkins, 75 N. Car. 397; Gentilli v. Starace, 133 N. Y. 140.

NOTES OF IMPORTANŢ DECISIONS.

NEGLIGENCE-EFFECT OF AN UNSUCCESSFUL ATTEMPT BY PLAINTIFF TO PROVE THE CAUSE OF THE ACCIDENT UPON THE APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR.-The question stated in the subject of this note is not an unusual one, and its importance will at once manifest itself to the active practitioner. It is, therefore, with much satisfaction that we find the question clearly and conclusively determined in the very recent case of Cassady v. Old Colony Street Railway Co., 68 N. E. Rep. 10, where it was held that plaintiff does not lose his rights under the doctrine of res ipsa loquitur by unsuccessfully attempting to prove the cause of the accident. The court said:

"The defendant also contends that, even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that where the evidence shows the precise cause of the accident, as in Winship v. New York, New Haven & Hartford R. R., 170 Mass. 464, 49 N. E. Rep. 647, and Buckland v. N. Y., N. H. & H. R. R., 181 Mass. 3, 62 N. E. Rep. 955, and similar cases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there s no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it."

ESTOPPEL-EFFECT OF OWNER'S SILENCE ON A SALE OF HIS PROPERTY AS CREATING AN ESTOPPEL.-When will silence create an estoppel? A rather unusual and interesting phase of this question was discussed by the United States Supreme Court in the recent case of Wiser v. Lawler, 22 Sup. Ct. Rep. 624. In this case the owner of the legal title to certain mines permitted a corporation to whom they had been transferred, to be paid for out of the proceeds of operation, to send out prospectuses which contained gross misstatements as to the corporation's title to the mines. In an action against the owners by certain persons who were led to subscribe to the stock of the corporation because of the false statements in

the prospectus, the court held that the said owners of the legal title to the mines were not chargeable with fraud because of their silence, although they may have known the contents of such prospectuses, and that some of the prospectuses did contain the fraudulent statements as alleged. The court said in part:

"Putting the case in the most favorable light for the plaintiffs, it was only a case of estoppel by silence. Indeed, it was not even an ordinary case of estoppel by silence, but an estoppel by silence concerning facts of which defendants may have had no actual knowledge. To constitute an estoppel by silence there must be something more than an opportunity to speak. There must be an obligation. This principle applies with peculiar force where the persons to whom notice should be given are unknown. So, too, to constitute an estoppel, eithe by express representation or by silence, there must not only be a duty to speak, but the purchase must have been made in reliance upon the conduct of the party sought to be estopped; and the express finding of the court in this case is 'that the subscribers to the capital stock of the Seven Stars Company, in making their several subscriptions therefor and payments thereon, did so without any knowledge of, and without relying on, anything said or done, or omitted to be said or done, in the premises by the said Lawler and Wells, or either of them.' But, conceding defendants to have been apprised of the contents of the prospectus, it would certainly be an exceptional case if a person holding a deed of property which he has placed upon record would be bound to disclose his title to a person contemplating purchasing or making improvements upon the land, or would be estopped from making his claim thereto by mere silence, since he has a right to rely upon the constructive notice given by the record; although the rule would be otherwise in case of positive misrepresentations upon his part. Brant v. Virginia Coal & I. Co., 93 U. S. 326, 337, 23 L. Ed. 927, 929; Knouff v. Thompson, 16 Pa. 357; Brinckerhoff v. Lansing, 4 Johns. Ch. 65, 8 Am. Dec. 538; Rice v. Dewey, 54 Barb. 455; Kingman v. Graham, 51 Wis. 232, 8 N. W. Rep. 181; Sulphine v. Dunbar, 55 Miss. 255; Porter v. Wheeler, 105 Ala. 451, 17 So. Rep. 221. The authorities also recognize a distinction between mere silence and a deceptive silence accompanied by an intention to defraud, which amounts to a positive beguilement. Sumner v. Seaton, 47 N. J. Eq. 103, 19 Atl. Rep. 884; Hill v. Epley, 31 Pa. 331; Markham v. O'Connor, 52 Ga. 183, 21 Am. Rep. 249."

CONTRIBUTORY NEGLIGENCE AS AN

OFFSET AGAINST FRAUD.

We are to consider at this time whether the law will allow one guilty of procuring a contract and the payment of money thereon by false representations, to defeat rescission and

recovery of the moneys paid by imputing negligence to his victim.

In

No better introduction to a discussion of this question would hardly be possible than a Careful analysis of the comparatively recent case of Bostwick v. Insurance Co.1 that case an insurance agent, in order to induce the plaintiff to make application for a policy, fraudulently represented that when ten annual payments of premium had been made, the plaintiff's policy would be full paid and he would not have to make any further payment to assure the receipt by him, annually thereafter during his life, of income therefrom to the amount of $600 or $700, Plaintiff, though he could both read and write, relied upon such representations and was thereby induced to sign an application which he believed was for such a policy. Within a reasonable time after discovering the fraud plaintiff tendered a surrender of this policy and demanded a return of the money he had paid. The defendant having refused to take back the policy and return plaintiff's money, he sued at law for its recovery. The pertinent question was whether the defendant could successfully defend on the plea that the plaintiff was guilty of negligence in relying upon its false representations. And this general question involves three inquiries, viz: Did the plaintiff owe a duty to the defendant, to suspect that its representations were false and take precautions accordingly? If the plaintiff was negligent in relying upon such representations, was the defendant estopped from imputing negligence in trusting to its representations, for the purpose of gaining advantage through its own wrongdoing? And if the defendant was not so estopped whether mere negligence in failing to guard against injury, can be a defense in favor of the party intentionally inflicting injury? The law answers no to each of these inquiries, and thrice no to the above stated general question which involves them; and a proper answer theretó would necessarily have resulted in an affirmance of the judgment. The opinion ignores this question and the inquiries involved, and pre-determines, resting the decision upon the proposition stated in the head note, that fraud of an insurance company in furnishing a policy different from that contracted for

1 89 N. W. Rep. (Wis.) 538.