30. Joint Adventures-Waiver of Contract.A contract between a property owner and seller of the property, limiting to $20,000 the amount of the seller's expenditures in developing the property chargeable against the proceeds of their sale thereof, unless a larger expenditure was approved in writing by both parties, could be waived, and was waived where the owner personally knew of and consented to increased expenditures as being necessary for the proper development of the property.-Allen Bros. V. Raleigh Savings Bank & Trust Co., N. C., 105 S. E. 401.

31. Landlord and Tenant-Breach of Covenant to Repair.-A landlord's breach of his covenant to repair the roof of demised premises does not authorize the tenant to recover for injury inflicted on his goods by the weather, he knowing for years of the leaky condition.- Guynn v. Tremont Hotel Co., Ind., 129 N. E. 336.

32. Expressions in Lease as to Extension Held to Satisfy Statute of Frauds. When the expression "privilege of two more years if desired," or similar expressions are used in the original lease, the holding for a term exceeding the minimum will not require an additional instrument, and the statute may be satisfied by the original written lease, for such expressions constitute agreements for extension, not renewal covenants.-City Coal Co. v. Marcus. Conn., 111 Atl. 837.

33. Termination of Lease. Where lease provided that it might be terminated on 60 days' notice, "if the landlord should sell said premises," such notice could be given on execution of a bona fide contract to sell; it being unnecessary to wait for the actual transfer of title. Hyman v. Federal Doll Mfg. Co., N. Y., 185 N. Y. S. 678.

34 Validity of Housing Laws.-Where a landowner sued for a mandatory injunction to require tenants, who had refused to deliver possession, claiming they were entitled to remain in possession by virtue of the Housing Laws (Laws 1920, cc. 942, 947), which suspended the remedies of ejectment and summary proceedings, to specifically perform their covenants in the lease to surrender possession, the suit was based on the assumption of validity of the Housing Laws and the landowner cannot in such proceedings attack their constitutionality-William Brandt & Co. v. Weil, N. Y., 185, N. Y. S. 497.

35. Libel and Slander-Privileged Statement, Where statements made to another are qualifiedly privileged, the circulation of such statements by the confidant as rumors impose no liability on the one making the privileged statements-Vacicek v. Trojack, Tex., 226 S. W. 505. 36. Privileged Statement.-If the proprietor of a department store and her manager, with reasonable cause to believe some one had been stealing from the store, had attempted to discover the guilty party for their own protection. and in good faith, without malice, and in the belief it was true, had charged plaintiff, their employee, with the theft, on discharging her. their words would have been privileged.-Pion' V. Caron, Mass., 129 N. E. 269.

37. Master and Servant-Bursting Blood Vessel an "Accident."-The bursting of a blood vessel by the increased blood pressure resulting from the exertion of an employee in lifting a sack of grain is an "accident" within the Workmen's Compensation Act. "accident" being defined as undesigned or unexpected event.-Patrick vs. J. B. Ham Co., Me., 111 Atl. 912.

38. Employers' Liability Act.-Employers' Liability Law Ariz. § 4. cl. 2, protecting employees in all work necessitating dangerous proximity to explosives. is not applicable to a miner, injured by an explosion which occurred on the surface of the soil in the morning, before beginning work, resulting from a fire built by the servant to warm himself.-New Cornelia Copper Co. v. Espinoza, U. S. C. C. A., 268 Fed. 742.

to Guest.-The

41. Negligence-Liability owner of a house is not liable to a guest for injuries sustained when the guest slipped on an unfastened oriental rug on a polished hardwood floor; the guest being a mere licensee, and it not appearing that the floor and rug constituted any trap.-Greenfield V. Miller, Wis., 180 N. W. 834.

42. Physicians and Surgeons-Negligence.— In a malpractice case. where intoxicated patient died under anaesthetic before the operation, no presumption of negligence could arise from the fact that it was dangerous to administer anaesthetic to the patient: other evidence disclosing that the element of danger is present in every instance where a patient is anaesthetized.--London v. Scott, Mont.. 194 Pac. 488.

43. Principal and Agent-Authority to Give Warranty.-In a locality where hog cholera was prevalent to the knowledge of the seller of pigs, so that there was an apparent necessity of stating the health and condition of the pigs to a proposed buyer, the agent to sell had such authority from the seller. Sharlette V. Lake Placid Co., N. Y.. 185 N. Y. S. 543.

44. Railroads-Contributing Negligence.That deceased knew a slow milk train was scheduled to arrive and stop at the station about five minutes after he was struck by a late passenger train, which he did not hear in time. is immaterial on the question of contributory negligence of deceased who knew that other trains passed over the line at that point. -State v. Reynolds, Mo.. 226 S. W. 564.

45. Employers' Liability Act.-Where a locomotive engineer, after completing yard shifting movements in furtherance of interstate commerce, was injured while taking his engine to the roundhouse, either to put it up for the night or to receive further orders, held, that he was engaged in interstate commerce, within the Employers' Liability Act (Comp. St. $$ 8657-8665).Director General of Railroads v. Bennett, U. S. C. C. A.. 268 Fed. 768.

46. -Operation at Loss Not Required.-Apart from statute or express contract, people putting their money into a railroad are not bound to go on with it at a loss, if there is no reasonable prospect of profitable operation in the future. and no implied contract to do so can be elicited from the acceptance of a charter or a grant of the power of eminent domain.-Bullock v. State, U. S. S. C.. 41 Sup. Ct. 193.

17. Sales Breach of Contract. Where there was no market for sugar on the date that buver was alleged to have breached contract to buy sugar at a price above the contract price, which market continued for long period of time thereafter, seller. after holding sugar for speculative purposes. instead of selling it at such market price, could not recover damages. since in holding sugar he assumed risk thereof.---Sheldon v. Argos Mercantile Corporation, N Y., 185 N. Y. S. 513.

48.-Conditional Sale-Under conditional sale contracts, where an option is retained by the vendor on default of the vendee either to consider the transaction as a sale with the right in the vendor to collect the balance of the purchase price or to stand on the condition that title remains in the vendor and to sue for the prop

erty on default, the vendor must elect, and, having elected, is bound thereby.-Harter v. Delno, Cal., 194 Pac. 300.

49. Street Railways-Diversion From Usual Course. Where a street car running on a sevenminute headway was detained nine minutes at a railroad crossing, so that the following car overtook it, there was an emergency preventing the car from proceeding in the usual course, so that a motorman was not guilty of violating the city ordinance, prohibiting diversion of cars from usual course, by turning the car around at the first opportunity after crossing the railroad track, though it had not yet reached the end of its scheduled run.-City of Milwaukee v. Becker, Wis., 180 N. W. 838.

50. Trade-Marks and Trade-Names-Jurisdiction of Trade Commission.-Under Federal Trade Commission Act, § 5 (Comp. St. § 8836e), giving the commission jurisdiction when it has reason to believe that any person, partnership, or corporation is guilty of unfair competition, the commission has jurisdiction over methods of an association of manufacturers in a certain line, though the association is unincorporated, view of section 4 of the act (section 8836d), defining a corporation as any company or association, incorporated or unincorporated, organized to carry on business for its own profit or that of its members.-National Harness Mfrs. Ass'n v. Federal Trade Commission, U. S. C. C. A., 268 Fed. 705.

51.

in

Trusts-Recovery of Advancements.Where, on request of the life beneficiary, the trustee made certain monthly advances to her from his own personal funds, which she promised in writing to repay him, the trustee can recover such advances from her.-Cole v. Hawley, Conn., 111 Atl. 892.

53.

Waters and Water Courses-Right to Build Dam. Water running over land outside of and apart from any natural or artificial water course is "surface water," against which a lower proprietor may dam, to prevent it from entering his land; and he cannot be held liable for damages resulting from the accumulation of water above the obstructions, or because such obstruction causes the water to fiow upon the land of another to his damage.-Watts v. Evansville, Mt. C. & N. Ry. Co., Ind., 129 N. E. 315.

54. Making General Rules 1s Quasi Legislative Act. The making of an order by the board of purification of waters establishing general rules and regulations under the authority given by Pub. Laws, 1920, c. 1914, § 8, is a quasi legislative act from which no appeal lies. Standard Oil Co. of New York v. Board of Purification of Waters, R. I., 111 Atl. 887.

55. Wills-Accumulated Fund.-The fund being distributed to testator's beneficiaries being part of his residuary estate, and the right thereto in the beneficiaries having vested with filing of petition for distribution by the executors, the beneficiaries or legatees are entitled to the accumulations of the fund in the interim.-In re Dalrymple's Will, Wis., 180 N. W. 829.

56. The Word "Then" Held to Indicate That Remainder Went to Heirs Living at Termination of Life Estate.-In a will directing "After the death of my son F., I will and direct that the one-half of my estate then remaining be given to my sister J., and the balance to be divided under the interstate laws of Pennsylvania," the word "then" was used as an adverb of time, referring to the expiration of life estate given F., and gave the remainder to those who might be heirs at the expiration of the life estate. In re Dailey, Pa., 111 Atl. 922.

57. Testimony of Physician Attending Testator Admissible.-In will contest testimony of

physician as to information that came to him in his professional capacity while attending testator held admissible.-Spur v. Spurr, Mo., 226 S. W. 35.

58. Workmen's Compensation Act-"Arising Out Of."-If an injured employee receives the injury in the act of violating an instruction.of his employer, by which violation he is taken outside of the scope of his employment, the injury does not arise out of his employment within the Workmen's Compensation Act.Rockford Cabinet Co. v. Industrial Commission. III. 129 N. E. 142.

a

59. -"Arising Out of"-Assault.-Where factory oiler, upon being accused of using too much oil, called his foreman a liar, whereon the foreman struck him, held, that the oiler provoked the assault, and was neither injured by his employment, nor within his employment when injured, and hence was not entitled to relief under the Workmen's Compensation Law.— Knocks v. Metal Package Corporation, N. Y., 185 N. Y. S. 309.

60-Award Disaffirmed by Minor.-The Industrial Accident Commission being a judicial body exercising judicial functions, its decisions and awards are subject to those general legal principles which circumscribe and regulate the judgments of all judicial tribunals, including the principle that a minor can disaffirm an adjudication obtained in a proceeding in which he has not been duly represented until barred by laches after reaching his majority.-Gouanillou v. Industrial Accident Commission, Cal., 193 Pac. 937.

61. Constructive Notice Held Binding on Injured Employee Deserting Wife.-Workmen's Compensation Insurance and Safety Act of 1917, § 24(b) subd. 5, allowing living expenses to the wife or minor children of an injured employee who has deserted or is neglecting his family, is not unconstitutional in permitting a wife to proceed in behalf of the community to secure the compensation, which is community property.Northwestern Redwood Co. v. Industrial Acc. Commission of California, Cal., 194 Pac. 31.

62. Death From Fall Due to Caisson Disease Held to "Arise Out of Employment."— Where, on an attack of caisson disease, an employee fell and was killed and the disease came on suddenly because of the negligence of a coemployee in decompressing the air too fast, the injury arose out of the employment within Workmen's Compensation Act and not some inherent physical defect.-Williams V. Missouri Bridge & Iron Co., Mich., 180 N. W. 357.

from

63.Excitement, Precipitating Heart Trouble. Causing Death, Held Not "Accidental Injuries." The chief operator of the electrical system of an electric power company, who died from acute dilation of the heart, precipitated by mental effort, worry, nervousness or excitement while in his office, directing restoration of the current interrupted by storm damaging the wires, held not to have died from "accidental injuries" within the Workmen's Compensation Law. O'Connell v. Adirondack Electric Power Corporation, N. Y., 185 N. Y. S. 455.

64. Employee Returning to Work by Employer's Private Way When Struck by Train Held Injured in "Course of Employment."Where an entire town, probably including a railroad track running through it, was on the employer's land, and the only well-defined crossing over the railroad track was a more or less private way leading to the employer's various buildings, and an employee who had gone home for dinner, as was customary, was returning to his work by such private way in the usual routine of his service when struck by a train. the injury was sustained in the course of the employment.-Lumbermen's Reciprocal Ass'n v. Behnken, Tex., 226 S. W. 154.

65. Loss of Phalange of Finger.-Within Workmen's Compensation Act, § 16, specifying the compensation for loss of the first phalange of a finger, there is not even a substantial loss thereof, where the injured employee is still able to bend the finger at the distal joint, and has left practically a third of the bone of the phalange and some part of the nail.-Maxwell Case. Me.. 111 Atl. 849.

Central Law Journal.

ST. LOUIS, MO., APRIL 1, 1921.

THE LIMITATIONS ON THE POWER OF THE UNITED STATES GOVERNMENT ΤΟ SEIZE EVIDENCE UNDER A SEARCH WARRANT.

There has been much comment in the public press on the recent decision of the Supreme Court in Gouled v. United States (Feb. 28, 1921, not yet reported.) The public's attention has been directed principally to the obviously correct ruling based on the Fourth Amendment that the secret taking from the office of one suspected of crime of a paper belonging to him by a representative of the Government of the United States is an unreasonable search and seizure. But we are more interested in the other ruling in the case, namely, that property cannot be seized even under a search warrant merely for the sake of securing evidence against a defendant.

In this case search warrants were issued to seize "certain letters, papers, documents and writings which relate to and have been used in the commission of a felony." The felony in this case was a conspiracy to defraud the United States through contracts for clothing and equipment for the United States Army. There was no objection to the form of the search warrant but the defendant raised the point that the papers seized thereunder were not in themselves property to which, by virtue of their inherent criminal tendencies or possibilities, the Government was entitled. One of these papers was an unexecuted form of contract with Lavinsky, a stranger to the indictment. Not itself being an existing contract injurious to the Government, the defendant contended that it was not subject to seizure simply to furnish evidence against the defendant. "While the contents of this

paper are not given," said the Court, "it is impossible to see how the Government could have such an interest in such a paper that under the principles of law stated it would

have the right to take it into its possession to prevent injury to the public from its use. The Government could desire its possession only to use it as evidence against the defendant and to search for and seize it for such purpose was unlawful."

The Court applied the same rule to an executed contract with one Steinthall, a stranger, which had also been seized. The Court held that nothing in the evidence showed that the contract, admitted to be executed, was still dangerous to the Government or that its seizure was necessary "in order to prevent further frauds." The Court held that to seize this contract simply to secure evidence to convict the defendant was unlawful. It will be interesting to attorneys to read the Court's views on the exact limitations on the power of the Government to issue search warrants. The Court said:

"The wording of the Fourth Amendment implies that search warrants were in familiar use when the Constitution was

adopted and, plainly, that when issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized," searches and seizures made under them, are to be regarded as not unreasonable, and therefore not prohibited. by the Amendment. Searches and seizures are as constitutional under the Amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them-the permission of the Amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter. All of this is abundantly recognized in the opinions of the Boyd and Weeks cases, in which it is pointed out that at the time the Constitution was adopted stolen or forfeited property, or property liable to duties and concealed to avoid payment of them, excisable articles and books required by law to be kept with respect to them, counterfeit coin, burglars' tools and weapons, implements of gambling "and many other things of like character" might be searched for in home or office and if found might be seized, under search warrants, lawfully applied for, issued and executed.

"Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks cases, they may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders posession of the property by the accused unlawful and provides that it may be taken."

It has been customary for courts to hold that they would not stop in a trial to determine how the State got its evidence. The Supreme Court declares, however, that "while this is a rule of great practical importance, yet, after all, it is only a rule of procedure and therefore it is not to be applied as a hard and fast formula to every case, regardless of its special circumstances." "We think rather," said the Court, "that it is a rule to be used to secure the ends of justice under the circumstances presented by each case, and where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial court to entertain an objection to their admission or a motion for their exclusion and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial."

The rule here announced is too unnecessarily rigid and offers a way of escape to many criminals. It will make very difficult the enforcement of the Volstead Act. One federal judge has already announced from the bench that police were wasting time to raid places where liquor is sold illegally as no evidence obtained by a search and seizure of the premises would be admissible and that he would order all liquors

so seized returned to the defendants. We understand that this is now becoming the practice in many districts since this decision was rendered. The general rule in the state courts permits evidence to be used against accused without regard to the manner in which it was obtained, and we see no reason why this rule should not be the same in the federal courts. There is no reason why a constitutional safeguard should be used to shield the lawbreaker. The general rule in the state courts, supported by abundant authority, is well stated in 35 Cyc 1271, as follows:

"If any person, even by an illegal search and seizure procure possession of any article, instrument or document, the state may, notwithstanding such illegal seizure, use it, if necessary, as legitimate evidence against the person from whom it was so obtained to convict him of a crime, it being the estab lished rule that the court can take no notice of how such evidence was obtained, whether originating from a legal or an illegal

source.

NOTES OF IMPORTANT DECISIONS.

THE DUTY OF THE COURT TO INSTRUCT THE JURY AS TO WEIGHT TO BE GIVEN TO DYING DECLARATIONS.-The Supreme Court of Tennessee reversed a judgment for manslaughter because the trial court failed to give an instruction on the weight to be given to a dying declaration, although an instruction had not been requested by the defendant. Pearson v. State, 226 S. W. Rep. 538.

In this case defendant objected that the court failed to state in its general instruction on the weight of the testimony of witnesses what weight should be given to the dying declaration of deceased, and that this omission tended to create in the minds of the jury that this kind of evidence was entitled to greater respect. The State contended that, even if this be true, the error was caused by the plaintiff's failure to ask for such an instruction. The Supreme Court, in upholding defendant's contention, said:

"The jury had been instructed how to weigh the evidence of witnesses introduced upon the stand. A declaration made under conviction of

impending death stands no higher than evidence under oath. The jury must weigh the testimony of every witness by taking into consideration the reasonableness or unreasonableness of the statement of the witness, contradictions, if any, by his interest or lack of interest, his intelligence and his position and situation to know the facts. Why should not the jury take into consideration these same things and in fact all circumstances shedding light upon the reliability of a dying declaration? The fact that the jury was given instructions and rules for weighing the evidence of witnesses placed upon the stand, and that no instructions were given for weighing dying declarations is itself calculated to induce the jury to give more evidential value to a dying declaration than it is entitled to. Juries are not practiced in weighing evidence, and are entitled to have given to them such guides as the law recognizes as proper to aid them in determining the weight to be given to dying declaration, certainly as much if not more than with respect to the evidence given to their presence."

EXTENT OF

LIABILITY ON SURETY BONDS GIVEN BY CONTRACTORS FOR UNITED STATES GOVERNMENT WORK.There has been much controversy over that provision in the surety bonds given by contractors with the United States that the contractors "should promptly make full payment to all persons supplying them labor or materials in the prosecution of work provided for in said contract." Some decisions of the federal courts have construed the surety's liability very strictly as including only claims for labor and material used directly in doing the work contracted for and not work and materials used in preparing for the work or in getting materials to the place where the work is to be done. (See United States v. Conkling, 135 Fed. Rep. 508.) The recent case of United States v. Taylor Co., 268 Fed. Rep. 635, shows, however, how liberally later cases construe such bonds.

In the Taylor Company case the defendant contracted to build a breakwater at Cape Lookout, N. C., and gave a bond with the Fidelity and Deposit Company of Maryland as surety with the usual conditions, one of which was the condition set forth above. Defendant became insolvent and this proceeding is brought by the United States for the use of various claimants. The surety company offered to pay all claims for material and labor used in building the breakwater, but objected to paying for labor and materials used in preparing for the work. Two claims will illustrate the point of their objection. One was by the Delaware Dredging Company for dredging a channel at Morehead City about twelve miles from the breakwater; and the other was by L. R. Con

nett, of New York, for the rental of four scows to haul rock from Morehead City to the breakwater. The reason for these two contracts was that rock which defendants had purchased could not be delivered at the breakwater by the railroad. The contractor decided to have the rock delivered by the railroad company to a pier at Morehead City and dumped into scows, to be then towed to the breakwater. When it was discovered that the water at the pier was not sufficient to receive the scows, the defendants contracted to dredge a channel from the pier to deepwater. It was for this work, as well as for the rental of the scows that the surety company refused to be responsible, on the theory that it was not "labor or materials supplied in the prosecution of the work provided for in the contract." The Court, however, granted both claims, declaring that where the specifications and map for a proposed breakwater, with reference to which a contract for its construction was made, showed that the stone for the breakwater must be secured from distant quarries and transported by rail and barge to the site of the breakwater, the term "construction," as used in the contract, is not confined to the last act of putting the stone in place in the water, but includes the essential steps of getting it to that place, so that services in transporting the stone were protected by the contractor's bond.

This decision is in line with the latest Federal cases. The principle upon which claims of this character are held to be within the condition of the bond is illustrated in United States Fidelity Co. v. United States, 189 Fed. 339, 111 C. C. A. 73 (C. C. A. 2d Cir.), in which the contract was for the same character of work, namely, constructing a breakwater. Discuss

ing the contention made by the bonding company, Judge Noyes said:

"We find nothing in the statute to support the contention made in this case that the bond given in accordance with its provisions covered only the labor performed at the breakwater itself. Had there been a quarry at the shore end of the breakwater, and had the stone been wheeled out from such quarry in wheelbarrows and dumped, it could hardly be claimed that the laborers who got out the stone or hauled it were not engaged in the prosecution of the work. And the fact that a quarry might be fifty miles instead of fifty yards away from the dumping place should make no difference. We think that the bond in question covered the labor which the contractor was obliged to furnish to fulfill his contract with the government, whether it was performed at the particular place where the stone was finally placed or elsewhere; that the quarrying of the stone, its transportation and dumping, should be regarded as a continuous operation, contributing