fect of power, by the apparent authority with which he clothes the agent within the scope of his agency.-Dysart v. M., K. & T. Ry. Co., U. S. C. C. of App., Eighth Circuit, 122 Fed. Rep. 229.

145. PRINCIPAL AND SURETY-Extension of Payment.The rule that an extension which does not indulge the principal beyond the time in which a judgment could be obtained does not release the surety does not apply, where the time of extension is definite and unconditional.-Revell v. Thrash, N. Car., 44 S. E. Rep. 596. 146. PROHIBITION Jurisdiction. Prohibition lies from a circuit court to a justice to restrain him from proceeding in an action when he has not acquired jurisdiction.-Pennsylvania R. Co. v. Rogers, W. Va., 44 S. E.

Rep. 300.

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147. RAILROADS-Contributory Negligence.-In action by an administrator of child killed on railroad track, held, that contributory negligence could not be imputed to such child nor its parent or custodian in an action by his administrator.-Watson v. Southern Ry., S. Car., 44 S. E. Rep. 375.

148. RAILROADS-Excessive Speed.-Mere negligence in running a train faster than allowed by ordinance is not sufficient to entitle a licensee to recover for injuries caused by the excessive speed.-Illinois Cent. R. Co. v. Eicher, Ill., 67 N. E. Rep. 376.

149. RAILROADS-Frightening Horse. The unnecessary sounding of a railroad whistle, which frightened plaintiff's horse while it was standing in close proximity to a street crossing, by which plaintiff was injured, held to constitute actionable negligence. McGrew v. St. Louis, S. F. & T. Ry. Co., Tex., 74 S. W. Rep. 816.

150. RAILROADS-Licensee. - A person walking along the tracks of a railroad company on a path usually used by persons for travel held a licensee, as to whom the railroad was only bound to refrain from willful injury.— Griswold v. Boston & M. R. R., Mass., 67 N. E. Rep. 354.

151. RAILROADS - Location of Stations. In the absence of statutory authority, the railroad commission may not order a railroad company where to locate a station and what depots to build.-Nashville, C. & St. L. Ry. Co. v. State, Ala., 34 So. Rep. 401.

152. REFORMATION OF INSTRUMENTS Mistake. Where, by mistake of the scrivener, a deed does not execute the purpose of the grantor, equity will reform it at his instance. -Ferrell v. Ferrell, W. Va., 44 S. E. Rep. 187. 153. REMOVAL OF CAUSES-Diverse Citizenship. - Sep. arate defenses, alleged by different defendants jointly sued, cannot be considered in determining whether the cause was removable to the federal courts. - Dougherty v. Yazoo & M. V. R. Co., U. S. C. C. of App., Fifth Circuit, 122 Fed. Rep. 205.

154. REMOVAL OF CAUSES Joinder of Defendant to Prevent Removal. — An averment in a petition for removal that a co-defendant of the petitioner has no connection with the cause of action sued on, and was joined solely for the purpose of preventing a removal, supported by affidavit, presents an issue of fact for trial by the federal court, and will be taken as true, unless controverted.-Kelly v. Chicago & A. Ry. Co, U. S. C. C., W. D. Mo., 122 Fed. Rep. 286,

155. REMOVAL OF CAUSES - Resident Agent. - Making of resident agent of foreign corporation party defendant to action of ejectment held not to prevent removal to federal courts. Carothers v. McKinley Mining & Smelting Co., U. S. C. C., D. Nev., 122 Fed. Rep. 305.

156. SALES-Bona Fide Purchaser -Though the immediate vendee at a private sale of a minor's property by his tutor may be a possessor in bad faith, it does not follow that his vendee, nor the vendee of his vendee, is likewise in bad faith.-Blair v. Dwyer, La., 34 So. Rep. 464.

157. SALES-Novation. Conditional vendor, transferring his claim against the conditional vendee for the purchase money, also passes his interest in the chattels. -Cutting v. Whittemore, N. H., 54 Atl. Rep. 1098.

the vendor of a movable ceases to exist when the movable becomes incorporated into immovable property.Swoop v. St. Martin, La., 34 So. Rep. 426.

159. SALES-Rescission. - Buyer of sheep held not entitled, in an action for the price, to set off expense incurred in caring for them because of their diseased condition. Steiger v. Fronhofer, Oreg., 72 Pac. Rep. 693.

160. SALES-Rights of Seller. The buyer in an unexecuted contract of sale may interdict performance, in which case an action will not lie on the contract of sale for the price of the goods, but only for breach of the contract. Herring-Hall-Marvin Co. v. Smith, Oreg, 72 Pac. Rep. 704.

161. SALES-Validity. - A contract of sale, which reserves title until paid for, is valid against purchasers from the vendee, without other notice than given by its record. Troy Wagon Co. v. Hutton, W. Va., 44 S. E. Rep. 135.

162. SCHOOLS AND SCHOOL DISTRICTS Board of Education A meeting of two members of a board of edu cation, without notice to the other member of the board, and at which he was not present, is not a legal meeting. -Cunningham v. Board of Education, W. Va., 44 S. E. Rep. 129.

163. SEDUCTION - Demurrer to Evidence. - In an ac tion for the seduction of plaintiff's daughter, a demur. rer to plaintiff's evidence presents the question whether the plaintiff's testimony is sufficient to sustain a finding of loss of service.-Snider v. Newell, N. Car., 44 S. E. Rep. 354.

164. SHIPPING Construction of Contract. Under a contract by which the hirer of a vessel agreed to "pay the insurance" thereon for a certain sum, the duty of procuring the insurance devolved upon the owner, who had recourse upon the hirer only for the amount of the premium.-City of Detroit v. Grummond, U. S. C. C. of App., Sixth Circuit, 121 Fed. Rep. 963.

165. SPECIFIC PERFORMANCE-Tender.-Vendors hav ing repudiated their contract from the beginning, when the purchaser sought performance, and was ready and willing, he need not make a formal tender of perform. ance.-Tobin v. Larkin, Mass., 67 N. E. Rep. 340.

166. SPECIFIC PERFORMANCE-Unacknowledged Deed. -A contract of sale of a wife's land by her and her husband, not acknowledged for recordation, cannot be specifically enforced, nor can wife be decreed to repay the purchase money. - Amick v. Ellis, W. Va., 44 S. E. Rep. 257.

167. STATUTE OF FRAUDS-Caveat Emptor.-Purchasers at judicial sale are not bona fide purchasers, as against a claim of fraud on the debtor in the sale; the doctrine of caveat emptor applying. -Barstow v. Beckett, U. S. C. O., S. D. Ga., 122 Fed. Rep. 140.

168. STATUTES - Grammatical Construction. Grammatical rule that a relative pronoun refers to the last antecedent, where it might refer to several, will not be applied in the construction of a statute, where the punctuation shows a different intent. Seiler v. State, Ind., 67 N. E. Rep. 448.

169. STREET RAILROADS-Negligence.-An operator of a street car held not warranted in running into a wagon on the track, nor excused for negligence in failing to avoid a collision.-Schafstette v. St. Louis & M. R. R. Co., Mo., 74 S. W. Rep. 826.

170. TAXATION -- Assessment of Omitted Property. Authority to assess property because of its omission from taxation in previous years must be derived from the terms of some statute.-Parkinson v. Jasper County Telephone Co., Ind., 67 N. E. Rep. 471.

171. TAXATION-Mortgage.-A mortgage on land does not give the mortgagee an interest in land, so as to make it taxable as such.-Adams v. Colonial & United States Mortg. Co., Miss., 34 So. Rep. 482.

172. TAXATION -Omitted Property. — County board of supervisors held to have power to contract for discovery of property omitted from assessment and for col

175. TOWAGE-Negligence of Tug. - A suit in rem may be maintained by the owner of a tow against a tug to enforce liability for an injury caused by alleged negligence in towing, although at the time of the injury the tow was under charter to the owner of the tug.-The Temple Emery, U. S. D. C., E. D. Wis., 122 Fed. Rep. 180.

176. TRADE MARKS AND TRADE NAMES - Infringement.-A technical trade-mark, although not a fac simile of another, may be so used by a rival manufacturer as to imitate another's trade-mark; and, when such use actually deceives the public, it constitutes an infringement, against which a court of equity will grant relief.-National Bisouit Co. v. Swick, U. S. C. C., N. D. N. Y., 121 Fed. Rep. 1007.

177. TRIAL-Confusing Jury.-The danger of confusing the jury by stating to them substantially the entire pleadings, instead of stating the issues in an abbreviated form, is to be discouraged and avoided.-Shebeck v. National Cracker Co., Iowa, 94 N. W. Rep. 930.

178. TRADE MARKS AND TRADE NAMES-Unfair Competition. A suit to restrain unfair competiton in trade is one sounding in tort, and a court of the United States cannot entertain such a suit, based on acts done wholly in a foreign country, merely because it obtains jurisdiction of the parties.-Vacuum Oil Co. v. Eagle Oil Co. U. S. C. C., D. N. J., 122 Fed. Rep. 105.

179. TRESPASS-Damages.-Where a trespasser on land cuts the timber thereon, and continues so to do after notice to desist, he should be held liable for a full measure of actual, and also for exemplary, damages.-Nickerson v. Allen Bros. & Wadley, La., 34 So. Rep. 410.

180. TRESPASS-Trial.-In trespass for cutting and removing timber, the question whether the patents under which plaintiffs claim covered the land from which the timber was taken should have been submitted to the jury. Whitehouse Cannel Coal Co. v. Wells, Ky., 74 S. W. Rep. 736.

181. TRIAL-Cross-Examination.-It cannot be said as a matter of law that, if a party to an action has testified falsely to a material question, the presumption is that all her testimony is false.-Root v. Boston Elevated Ry. Co., Mass., 67 N. E. Rep. 365.

192. TRIAL-Instructions.-An exception to apart of a charge, particularly setting out the language complained of, is sufficient to question its accuracy in the particular specified.-Scott v. Astoria R. Co., Oreg., 72 Pac. Rep. 594. 183. TRIAL-Misconduct of Court.-It is not misconduct, warranting a reversal, that during the trial, and when reading the evidence to the jury, the court moved to a table within the bar in front of the jury.-Seawell v. Carolina Cent. R. Co., N. Car., 44 S. E. Rep. 610.

184. TRUSTS-Collection of Claims.-The undertaking by certain creditors to act for all in the collection of claims, the same as they would act for themselves, held not to import that they were to act without compensation.-Rowland v. dock, Mass., 67 N. E. Rep. 347.

185. UNITED STATES-Presumption as to Special Agent. -The presumption is that the special agent of the gov ernment, whose authority is not disclosed, is without power to estop the United States from asserting its legal rights.-Potter v. United States, U. S. C. C. of App., Eighth Circuit, 122 Fed. Rep. 49.

Middle States Loan, Building & Construction Co., W. Va., 44 S. E. Rep. 250.

187. VENDOR AND PURCHASER-Bona Fide Purchaser.To support the defense of bona fide purchaser, as against a claim of fraud in the vendor's title, the purchase money must have been actually and fully paid.-Barstow v. Beckett, U. S. C. C., S. D. Ga., 122 Fed. Rep. 140. 188. VENDOR AND PURCHASER- Mistake of Fact. Where a contract for the sale of land required the title to be satisfactory to a certain title examiner, and his objection thereto was based on a mistake of fact, it did not justify a refusal to complete the sale. - Hoffman v. Colgan, Ky., 74 S. W. Rep. 724.

189. VENDOR AND PURCHASER - Title Acquired. - The possessor under a title, void on its face, cannot claim the protection awarded to purchasers who acquire on the face of a title conveying ownership.-Rocques' Heirs v. Levecque's Heirs, La., 34 So. Rep. 454.

190. VENDOR AND PURCHASER-Void Contract.-A contract for the sale of a partner's interest, which was void in so far as it required a conveyance of a homestead in public lands, held not severable and unenforceable in to to.-Horsman v. Horsman, Oreg., 72 Pac. Rep. 698.

191. WEAPONS Civil Officers. -A United States mail carrier is not a civil officer of the United States, within Code 1883, § 1005, declaring that the prohibition against carrying concealed weapons shall not apply to "civil officers of the United States."-State v. Boone, N. Car., 44 S. E. Rep. 595.

192. WILLS-Construction. Provision of the will giv ing testator's widow, for charitable purposes, the balance of the lands not willed, and the balance of certain bonds, gives the wife the money absolutely. - Baker's Ex'rs v. Baker, W. Va., 44 S. E. Rep. 174.

193. WILLS-Construction.-In case of doubt, that interpretation of a will is preferred which approximates Miller v. the closest to the legal order of distribution. · Hirsch, La., 34 So. Rep. 435.

197. WILLS

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Residuary Legatee. Where a will gave pecuniary legacies, and there was no personalty, and directed a farm to be sold and any balance to go to tes. tator's daughter, except certain other named legacies, the daughter takes as a residuary legatee. - Lynch v. Spicer, W. Va., 44 S. E. Rep. 255.

198. WITNESSES-Contesting Will. In a suit to contest a will, the widow of the testator, having elected to take under the will, was not a competent witness, though, if the will was aunulled, a prior will, substan. tially giving the same interest to her, would be entitled to probate.-Baker v. Baker, Ill., 67 N. E. Rep. 410.

199. WITNESSES-Refreshing Memory.-A witness held entitled to use certain telegrams to refresh his memory, though they were not original writings or made by the witness.-Commonwealth v. Burton, Mass., 67 N. E. Rep.

419.

200. WITNESSES - Reputation. The reputation of a man can be proved only by those who know it, whether it be his general reputation for truth and honesty, or any special fitness for any employment for which he may be engaged.-Lamb v. Littman, N. Car., 44 S. E. Rep. 646.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 30, 1903.

IS A MAN JUSTIFIED IN KILLING HIS FATHER-IN-LAW WHO ATTEMPTS TO TAKE HIS WIFE FROM HIM.

Some of the saddest pictures in life arise out of bitterness and disagreements in the family relations, and not the least serious are those following the marriage of a beloved daughter to a man whom her parents do not approve. In such cases generally, the story of the gay Lochinvar and the irate father in pursuit, is reenacted in real life.

From the earliest times there has been a never-settled controversy as to which relation is the closest, that of parent and child or of husband and wife. The bible answers the question unequivocally by declaring that marriage makes the two parties to that status one. The common law embodies that declaration as one of its fundamental rules in defining the domestic relations. The bible goes still further and says the parties to the marriage state should forsake father and mother and cleave to each other. While this last exhortation may be a little idealic, as far as the actual facts seems to demonstrate, yet we have no doubt that the majority of people approve the sentiment there stated, and no legislature or court would think of establishing a rule that in any wise ran contrary thereto. In fact, every move of the government is an effort to realize this sentiment. Thus the courts give the husband a right to drive his mother-in-law out of the house, and the wife the right to extort damages from her fatherin-law for alienating her husband's affections.

In a recent case, however, one of our state courts of last resort, in a very interesting case, has gone further and held that a husband has the right to kill his wife's father in order to prevent the latter from taking his wife and child away from him, or in attempting to prevent him from removing her from the house of her father. Cole v. State (Tex. Cr. App.), 75 S. W. Rep. 527. In thiscase, defendant and wife was living with the deceased, the latter's father. Between the father-in-law and the son-in-law there was constant friction, until the latter told his wife that he couldn't live there any longer. She seemed

to be of the same mind and agreed to leave with him, but was afraid of her father's anger. They prepared to leave stealthily, but were surprised and overtaken by the deceased, who demanded the return of his daughter. In the scuffle which followed, the son-in-law drew a revolver and shot his father-in-law through the heart. would be unnecessary to go into a detailed statement of all the troubles, criminations, and recriminations and threats testified as having been made by deceased against appellant; and the numerous troubles that were brought about by reason of these facts between appellant and his wife. It is evident that his married life had not been strewn with roses. The state met this view of the case by showing that on occasions deceased had assisted appellant financially and otherwise, and had manifested evidences of kindness. These matters pro and con were spasmodic and at intervals. There is no question upon either side of the fact that appellant and his wife thought it incumbent upon them to stealthily leave the home of deceased for fear of serious troubles if appellant undertook to carry his wife away.

The court in rendering its decision in favor of the defendant, said: "Defendant insists that in regard to manslaughter, if deceased was seeking to take appellant's wife and child from him to prevent him carrying them away, and was approaching him for that purpose, and was in the act of doing so, and he shot and killed to prevent this, it would be manslaughter. This would be such provocation as would require a pertinent charge on manslaughter; and if it was necessary to prevent deceased from taking the wife and child, and if, preventing this, he was in danger of death or serious bodily injury, then it would be justifiable homicide. The same principles would govern under these circumstances as in case of illegal arrest, and subject to the same limitations; and appellant would have the same right to kill as would his wife if she were resisting the alleged arrest or attempt to detain her. We believe these phases of the law should have been directly and pertinently submitted. Appellant had the legal right to the company and custody of his wife and child, and deceased had no authority to prevent it. If it was necessary to kill deceased in order to prevent deceased killing him or

taking his wife and child from him, and thus endangering him in life or serious injury, he would be justified-that is, he could repel force with force until the attempted wrong was prevented; and, if this resulted in death of deceased, appellant would be justified, but if he was infuriated to such an extent that his mind was incapable of cool reflection, by reason of the fact that deceased was trying to take his wife, and child from him, and it was not necessary to kill to prevent this, as above stated, and the killing occurred simply because of this provocation, it would be manslaughter.

NOTES OF IMPORTANT DECISIONS.

NEGLIGENCE

APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR to the Burning OF A FUSE IN AN ELECTRIC CAR. - Any case throwing any light on the interesting and increasingly frequent application of the doctrine of res ipsa loquitur, is eagerly seized by the profession, especially that particular branch of it interested in the prosecution of "damage" suits against the large corporations. We have such a case in Cassidy v. Old Colony Street Railway Co., decided September, 1903, by the supreme court of Massachusetts and reported in 68 N. E. Rep. 10. It is there held that the ordinary burning out of a fuse used to prevent an excessive amount of electricity entering the motors of an electric street car is not prima facie evidence of negligence in an action for injuries to a passenger alleged to have been caused thereby; but that where the flame was not the instantaneous and harmless flame resulting from the burning out of a fuse in proper condition, the fuse is presumptively defective, and the doctrine of res ipsa loquitur applies and makes out a prima facie case of negligence against the defendant. The action in this case was for injuries caused by the burning out of a fuse, and the expert evidence on both sides showed that the report, flash, and vapor-like puff attendant on the burning out of a fuse in proper condition was instantaneous and harmless. The evidence in this case, however, established that the fuse on the car in question was located directly under plaintiff's seat, and that the burning thereof was attended with a flame lasting a few seconds, which partly enveloped plaintiff and burned her face and clothing. The court discusses in a very interesting manner as follows:

"A fuse of the character above described is in general use upon cars run by electrical power. It is a safety device, and the evidence in this case shows that, in view of the rapid action of electricity, the practical difficulty of controlling it at all times, the inability of the motorman to ascertain the amount of power upon the wires or

on the motors, the variable weight of the load to be carried. the reasonably necessary conditions of the traffic as to weight of machinery and cost of transportation, it is a proper device. It is intended to prevent harm to the machinery which otherwise might result from the practically unavoidable fluctuations of the power. The fuse is expected to burn out when, for any cause, the electrical current exceeds its carrying capacity; and the evidence of the experts in this case shows that in the ordinary operation of cars properly wired and equipped such an event is liable often to happen without negligence upon the part of any one. When, therefore, a fuse burns out, it can not be said that the connection between the occurrence and negligence is such as, in the absence of other evidence, to justify the conclusion that the result was due to negligence. As well might it be said that the escape of steam from the safety valve of a locomotive engine momentarily stopping at a station is evidence of negligence. The ordinary burning out of a fuse, therefore, is not prima facie evidence of negligence; and, if there had been nothing else in this case, the defendant would have been entitled to a verdict. But the jury may properly have found that there was something else in this case. The expert evidence on both sides showed that the report, flash, and vapor-like puff attendant upon the burning out of a fuse like this when in proper condition are instantaneous and harmless and no physical injury, either by burning or by an electrical shock, could be expected to result therefrom. The evidence for the plaintiff tended, however, to show something more than a mere instantaneous, harmless flash. * There was evidence tending to show that the flames existed long enough to burn. There was

*

evidence therefore, which would warrant the conclusion that the intensity and duration of the flame produced by this explosion was greatly in excess of what could have been the result if the fuse had been in proper condition and that this imperfect condition of the fuse could have been discovered by the use of reasonable care. Such being the case, the defendant was not entitled to the ruling requested. [i. e. what the doctrine of res ipsa loquitur did not apply.] And the jury were properly instructed that the matter was before them to decide how far negligence could be inferred from the accident itself.

The defendant also contended 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 and the court so held. An unsuccessful attempt to prove by direct evidence the precise cause of an accident does not estop the plaintiff from relying upon the presumptions applicable to it.