the term.-Davis v. Laurel River Lumber Co., W. Va., 101 S. E. 447.

on

65.-Wrongful Discharge.-A corporation's buyer and manager, employed by contract under seal at a salary of $100 per week, terminable six months' notice, and wrongfully discharged without notice, could not maintain actions of debt to recover weekly instalments of salary for the six months' period for which his contract entitled him to notice; the damages being unliquidated, as capable of reduction b whatever might have been earned in other employments. Ögden-Howard Co. v. Brand, Del., 108 Atl. 277.

are

66. Malicious Prosecution-Bad Character.— In an action for malicious prosecution, proof of the general bad character of the plaintiff is admissible on the measure of damages, where damages for mortification and disgrace sought; but the reputation sought to be shown must be bad in the same respect in which his reputation was, or otherwise would have been injured by the malicious prosecution.-Boyers v. Lindhorst, Mo., 216 S. W. 536.

67. Burden of Proof. To maintain an action for malicious prosecution, one must show that the prosecution has ended in his favor.McLaughlin v. Lehigh Valley R. Co., N. J., 108 Atl. 309.

or

68. Mechanics' Liens-Subcontractor.-A subcontractor on a building which has perfected its lien for work, labor, and material furnished, tractor's assignment to a bank of funds the greater part before the date of the conpayments due, has a prior and superior right to payment from such funds over that of the bank. -Neil & Co. v. Sedlachek, Wis., 175 N. W. 89 69. Mines and Minerals-Partnership.-A partnership to secure a block of oil and gas leases, and to drill a test well to develop field and enable partnership to dispose of the leases, in pursuance of which one test well was drilled, producing but small amount of gas, held a general and not a mining partnership.-Snider v. Davidson, Kan., 185 Pac. 724.

70. Mortgages-Deed Absolute.-A deed absolute upon its face may be shown by parol evidence to have been intended as a mortgage, without alleging fraud, accident, or mistake.Sutton v. Hardison, Ky., 216 S. W. 609.

71. Rents.-Where mortgage does not expressly pledge rents, etc., of mortgaged premises as further security, the rents accrued prior to appointment of a receiver in a foreclosure proceeding on application of second mortgagee belong to mortgagor or the owner of the fee.Stewart v. Fairchild-Baldwin Co., N. J., 108 Atl. 301.

72. Municipal Corporations - Governmental Power. Though neither counties nor the state nor its governmental agencies can be sued in tort, one whose personal porperty has been wrongfully taken, damaged, or converted to the county's use may waive the tort and sue upon an implied contract to pay for such property.Nelson County v. Coleman, Va., 101 S. E. 413. 73. Negligence-Performance of Duty-Any liability for negligence must rest upon the existence of a duty, which must arise out of a relation between the parties, and a negligent failure to perform the duty.-Mercer v. Meinel, Ill., 125 N. E. 288.

74. Patents Description of Elements. Where the language of a claim includes elements described in general terms, the court may look to the specification for the purpose of construing the language and ascertaining its meaning.-I. T. S. Rubber Co. v. Panther Rubber Mfg. Co., U. S. C. C. A., 260 Fed. 934.

75.-Novelty.-The Bone patent, No. 705,732, for a retaining wall of reinforced concrete, with a heel such that the weight of the earth thereon tends to keep the wall erect, held, under Rev. St. § 4868, in view of prior patents and description of the device in foreign printed publications, to contain no patentable novelty, except, perhaps, in its special form, and in that respect not infringed.-Bone v. Commissioners of Marion County, U. S. S. C., 40 Sup. Ct. 96. 76.-Utility. That a patented process for manufacturing steel was used, and that a large manufacturer, through its officers, having the fullest knowledge of the science and art and having at their command the best experts, paid

a large sum for infringement and right to use, is strong evidence of utility-Chruchward International Steel Co. v. Bethlehem Steel Co., U. S. C. C. A., 260 Fed. 962.

77. Principal and Agent-Scope of Agency. An act which an agent is not expressly authorized to do may bind his principal if it is necessary to enable him to effectuate the purpose for which the agency is established.-Davison v. Parks, N. H., 108 Atl. 288.

78. Principal and Surety-Release of Surety. -Where money is used by the owner to liquidate demands for which if unliquidated he would be liable, the contractor's surety is not released on its bond, even though the stipulated percentage of amounts due are not withheld by the owner as security.-Harvey v. George, Mich., 175 N. W. 140.

79. Railroads -Contributory Negligence.-A motorman's act in driving an electric car through a dense fog at such a speed that he could not stop within the range of his vision, with knowledge that freight cars of another company might be on the track, held to constitute contributory negligence precluding recovery for damages to the car by a collisionNorth Coast Power Co. v. Cowlitz, C. & C. Ry., Wash., 185 Pac. 615.

80. Trespasser.-A railroad owes no duty to a trespasser on its track, except not to wilfully or wantonly injure him after discovering his presence there.-Hubbard v. Southern Ry. Co., Miss., 83 So. 247.

81. Reformation of Instruments-Conformity to Oral Agreement.-The basic principle upon which reformation of a written instrument is allowed is that the writing does not express the prior oral agreement upon which it is founded.-Heard v. Nancolas, Iowa, 175 N. W.

13.

82. Robbery-Force and Intimidation.-"Robbery" is the felonious and violent taking of money, goods, or other valuable things from the possession of another by force or intimidation, and is punishable by imprisonment in the penitentiary not less than one and not more than fourteen years.-People v. Jones, Ill., 125 N. E. 256.

83. delivery of personal property at the place agreed on or designated by the buyer is a completed delivery.-Fiske v. H. E. Dunbar & Co., Me., 108 Atl.

Sales-Delivery.-Generally,

324.

84. Misrepresentation.-If representations inducing a sale were material and false, and the maker knew or should have known that they were false, or made them recklessly without knowledge, and the injured party relied on them as true without present means of knowledge of their falsity, and suffered damage, he was defrauded in the legal sense.-Denis v. Nu-Way Puncture Cure Co., Wis., 175 N. W. 95.

85. Offer and Acceptance.-For a contract of purchase to become effective when entered into by mail, the offer to sell must be accepted by buyer unequivocally, unconditionally, and without any variance.-Dunn v. Freeman, Ga., 101 S. E. 393.

86. Street Railroads-One-Man Car.-An ordinance requiring every street car to be operated by a conductor and motorman, subject to penalty for violation, is presumed a lawful exercise of the police powers for public safety, and, notwithstanding a contested claim of safety of a one-man car, cannot be held unconstitutional, in the absence of a shownig of a clear case of arbitrary conduct on the part of the local authorities. Sullivan v. City of Shreveport, U. S. S. C., 40 Sup. Ct. 102.

87. Wills Attestation. Where attesting witnesses signed after attorney who had drawn will had stated in testator's presence and hearing that testator wished them to attest will, and after testator had himself signed will, there was a publicaion of will, there having been, in effect, a declaration by testator that it was his last will.-Lohmann v. Lohmann, Mo., 216 S. W. 518.

88. -Laches.-An attack on the validity of a will disposing of testator's entire estate comes too late when made nearly 13 years after his death.-Gerke v. Citizens' State Bank of Spencerville, Ind., 125 N. E. 238.

to ask is a fair return upon the value of that which it employs for the public convenience."

Both of these cases have been cited over

and again where rates fixed by legislative acts, by public service commissions and by municipal ordinances were passed upon and now, for the first time, we see in an opinion by U. S. Supreme Court a qualification about impossibility of performance and about the necessity of showing that a rate contract will not be unremunerative when the entire term is taken into consideration.

The question of impossibility of performance is not one that concerns the compensation which one is to receive for a service that is contracted to be rendered. This is a supervening condition arising after a contract is entered into. A familiar illustration is found in leases for a particular kind of business which statute forbids to be carried on, or it may arise out of circumstances that make it, without the fault of either party, impossible of performance. It is where present surroundings are assumed to continue, but unexpectedly they cease. Generally speaking, it may be said it is not a thing that relates to cost and it applies, if it apply at all, to any and all sorts of contracts, whether the public have an interest in their performance

or not.

The guarantee of adequate compensation, however, to a public service company, is in the rendition of service in the usual customary way. And agreements cannot vary this.

It is the duty of the state to see to it that such a company shall be vested with an inherent power and with inherent right, to exact a living compensation for its services, or it must fail in its duty to the public.

It might be possible for the state or its authorized tribunals to say that contracts for a fixed term shall be irrepealable. But, even that sort of thing must be within reason. If it is plainly evident that a rate contract for a twenty-five-year term would, or

probably might, endanger the ability of a public service company at all times to render to the public the service it should, the state in sustaining it would overstep the limits of police power, which must always have regard to the constitutional rights of the

company.

If such a term were fixed by a statute, then inquiry would be open whether it could tie up the police power of successive legislatures. But whether the term be stated by constitution or statute the length thereof. if unreasonable, could be inquired into under the right of the public service company to maintain itself throughout the term.

NOTES OF IMPORTANT DECISIONS.

UNLIQUIDATED CLAIMS ARISING EX DELICTO NOT PROVABLE IN BANKRUPTCY UNLESS TORTFEASOR WAS ENRICHED THEREBY.-The Supreme Court lately has held that amendments to the bankruptcy act have not had the effect of making a claim for damages arising out of tort provable in bankruptcy. Schall v. Connors, 40 Sup. Ct. 135.

The opinion of the court, by Justice Pitney, is a very elaborate review of the course of legislation and of the efforts in a long period of agitation by commercial conventions, boards of trade, chambers of commerce and other commercial bodies to include tort claims among provable debts against bankrupts. There is also recitation of measures proposed in Congress supposably to this end.

The court held, that it requires a strained construction of the new legislation to make it so to amend existing law so as to "include claims arising purely ex delicto." Therefore, the court concludes that: "upon every consideration we are clear that claims based upon a mere tort are not provable." But the opinion says that:

"Where the tortions act constitutes at the same time a breach of contract, a different question may be raised with which we have no present concern; and where, by means of the tort, the tortfeasor obtains something of value, for which an equivalent price ought to be paid, even if the tort as such be forgiven, there may be a provable claim quasi ex contractu.”

It seems to us that every intendment should be in favor of one having a claim in which

though based primarily on tort, the tort may be waived, and the claim provable in a court of bankruptcy. The question of the damages being unliquidated ought not to be a test of provability, or an estate could be enriched by a tortfeasor in property, obtained at the positive loss to another, who would have no claim for his contribution to an estate, unwillingly though that contribution has been made.

When an amendatory law is claimed to go further than this, it ought to be very clear that such is its intent. This would be to expose assets to diminution in distribution to creditors on claims arising ex contractu, to which estates ought to be, primarily at least, subject. Bankruptcy is a statutory mode for distribution of assets, and those entitled to participate therein ought to stand on the same basis of general right. What is not provable, of course, should not be released by discharge in bankruptcy. Tort-feasors do not pledge or be thought to pledge particular property for wrongdoing, even though judgment therefor shall be, or has been, rendered.

The facts in that case show that a decedent with a hammer, from which blow he died. A quarrel arose and deceased told another employe to "straighten up" in the carrying of a heavy bar. Words passed between the two and the other employe seized a hammer and threw it at deceased.

The court said: "It has been held that an employe is injured in the course of his employ. ment where the injury occurs within the period of his employment at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental thereto."

Then the court quotes from a decision in another state, where it is said:

"Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference one with one another, and many other details, which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the employer's work, in which two men are engaged, and as a result of it one in

jures another, it may be inferred that the injury arose out of the employment."

This sort of ruling certainly takes into consideration the strictly human element, and to contemplate that it is always present as a factor in the risk assumed. And it considers a human being as an instrumentality with all of the qualities of a human being.

While, however, this is recognized, there is nothing said about conduct of one injured as being of a nature provocative of what results in injury, and, therefore, making him guilty as bringing it on. Many workmen's compensation acts make a workman's wilful fault preclude recovery. If so, might not the essential wrong resulting in injury be considered, when there are disputes or disagreements between workmen?

PROTECTING TRADE NAME AND GOOD WILL IN PREVENTION OF PRICE-CUTTING IN RESALES.-The case of Robert H. Ingersoll & Bro. v. Hahne & Co., 108 Atl. 128, decided by New Jersey Court of Chancery, shows an attack on price-cutting by retailers in the sale of a manufactured article, under a contract between them and a manufacturer, from what to us is a wholly new angle.

The facts show that the manufacturer had built up a large business in the manufacture of watches, which it sold under certain trade names, as, for example, "Yankee Watch" and "Dollar Watch," to be sold to ultimate purchaser for $1.35. Its trade had grown under much advertising for watches at this price, all of which were sold under a trade mark and guaranty. It made contracts with the retail trade not to resell at less than this price unless there should be removed from the article sold the name of the watch sold, the trade name and the notice of guaranty.

The manufacturer brought its bill to prevent retailers reselling or otherwise disposing of watches with the trade name and notice of guaranty unremoved, when they were resold at less than the standard price. It is recited that defendant, a jobber, had sold to defendant the watches to be disposed of at a cut price, etc. It was urged by defendant that the contract against price-cutting was contrary to the Sherman and Clayton Acts, reference being made especially to Boston Store of Chicago v. American Graphopone Co., 246 U. S. 8.

It is unnecessary here to go into much consideration of federal cases touching these acts, but we content ourselves with what the Chancery Court says, as differentiating this case

from those coming under their scope. The Court said:

"In the cases which have gone to the Supreme Court of the United States there have been involved questions of patent or copyright law not here present. In those cases in which the right to fix a resale price has been under consideration the prohibition against the resale has been against the resale of the article itself. The name or trade mark or what not has been so much an integral part of the article that a resale of the article without reference to the trade mark or trade name would be practically impossible. In the case at bar the prohibition is not against the resale of the article, nor is it impracticable to resell the article without reference to the trade name. Indeed, complainant offers to manufacture watches similar to those marked with its trade name without the trade name. Complainant does not seek to retain any right in the article itself; it merely seeks to restrain the use of its trade name and good will, except under conditions fixed by it. *** It has an interest, in addition to that of mere protection to its trade name and good will, for it guarantees the article sold and scrupulously performs its guaranty, maintaining a large and expensive repair department for this purpose."

Omitting the final clause of the above sentence, as being a volunteer act by the manufacturer for its own benefit, and we must confess that it seems to us there is not such an inextricable mingling of trade name and good will with the sale and price of the article that some scheme for their protection should be thought impossible. Certainly trade name and good will are property and entitled to protection. Each contract of this kind, however, is referable to surrounding circumstances as to the separability of their properties in resales.

IS THE JUDGMENT OF A FEDERAL COURT A DOMESTIC JUDGMENT?-Domestic judgments by courts of superior and general jurisdiction are not subject to collateral attack, unless want of jurisdiction appears in the face of the evidence; otherwise, an irrebutable presumption is indulged that the court had jurisdiction, both of the persons and the subject-matter. This is a rule of evidence, which is adhered to by the great majority of courts, although in some states there is a tendency to let down the bars and permit want of jurisdiction to be shown by extrinsic evidence. The old rule is the wisest, however, and a perfect remedy is afforded to one injured by a void or voidable judgment to proceed directly to correct or vacate the judgment by motion or bill in equity.

But the point has recently been raised whether the judgment of a federal court located in the state is a "domestic judgment" and

entitled to the benefit of the rule just referred to. Louisville & Nashville Ry. Co. v. Tally, 83 So. Rep. 114. The Court in holding that such a judgment was a "domestic judgment," said:

"It is true the judgment in question was rendered by the federal court, but it is a court of this state, and to every intent and purpose its judgment is what is termed a 'domestic judgment' and should be accorded the same verity as one rendered by the courts of general jurisdiction of this state. Black on Judgments, § 285; Pearce v. Winter Iron Works, 32 Ala. 68; Riverside Cotton Mills v. Ala. Mfg. Co., 198 U. S. 188, 25 Sup. Ct. 629, 49 L. Ed. 1008; 15 R. C. L., § 364, p. 886; Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133, and note. See, also, note 32 Am. St. Rep. 213. We think that the rule was well stated in the case of Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N. W. 938, wherein it was said that a judgment of a federal court in this state cannot be collaterally attacked in a state court, unless a want of jurisdiction appears on the face of the record; the theory being that it stands on the same footing as a judgment of a domestic court of record."

(See 23 Cyc. (d), p. 1600, note 73.)

THE CONSTITUTIONALITY OF THE CONSTITUTION IS NOT A JUSTICIABLE QUESTION.

If the procedure outlined in the Constitution has been followed in adopting the amendment and the subject-matter is not excepted under Article V, the validity of the amendment is not open to question. In a republican or democratic form of government, the people are the ultimate source of power. They have been called the Court of Last Resort. When they adopt a constitution or an amendment to it, in a legal and orderly manner, the court interprets it and determines whether the procedure followed in amending it was valid. But once it has been adopted according to the manner prescribed therein, the court, which is one of the great departments of government, operates under that Constitution, not above it. The people under this form of government may, of course, do unwise things. This is the alleged danger of a republican or democratic form of government. If the elector