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That last drive was terrific. Our men were terribly exhausted and the horses were more exhausted than the men. We had only horses enough left in the artillery regiment of our division to pull up in that last advance three batteries per regiment instead of six. We had then been in the fight continuously since February and it was now November; the men's vitality was gone. We went down between the 15th of October and the 1st of November from about 12,000 rifles in the division to a little over 5,000, about half casualties and the rest from exhaustion and sickness. When we reached Sedan we were very tired.

On the 10th of November we were relieved and pulled back from Sedan and on the 12th we started to march to Germany. The armistice did not make much difference except that the shell fire and the bombing stopped. The roads were still terrific. The first visible signs that war was over were seen at night when the motor trucks began to light up. Before that time we couldn't show a light at night because of the bombing planes.

On the 12th the march began and our division was finally billeted close to Coblenz. We had been in the line for 264 days. We had been under fire, actually fighting, for 184 days; we had been in reserve just behind the line and marching from front to front seventy days, and in all that time we had had six days' rest. That division was in line more days than any American division and made a further advance into enemy territory.

It was not American resources or wealth that won the war; it was the American doughboy with his bayonet that did it. It was just the men who went through the carnage of battle, battles like these and at the end still had their bayonet at the German breast that brought this war to a conclusion. NOBLE B. JUDAH.

Chicago, Ill.

INSURANCE-FAILURE TO TAKE APPEAL.

MCALEENAN v. MASSACHUSETTS BONDING & INS. CO.

Supreme Court, Appellate Division, First Department. February 6, 1920.

180 N. Y. S. 287.

Where a liability insurer, defending an action against insured, resulting in a judgment against him, assured him that an appeal would be taken, thereby leading him to take no appeal until the time for appealing had expired, it was estopped from asserting that an appeal would not have resulted in a reversal, or that he was not damaged in the full amount he was compelled to

pay.

MERRELL, J. The plaintiff, Joseph A. Mc Aleenan, was insured by the defendant, Massachusetts Bonding & Insurance Company, against liability for damages for injuries to third persons caused in the operation of said plaintiff's automobile. Under the contract of insurance the liability of the defendant company was lim ited to $5,000. The plaintiff met with an accident, as the result of which one Pietro Cimino lost his life as the result of an injury received from plaintiff's said automobile. An action was brought by the administratrix of Cimino to recover damages based upon the alleged negligence of the plaintiff herein. Under the terms of the policy of insurance issued by the defendant to the plaintiff, the defendant bonding company assumed the defense of the action. The defendant herein furnished its attorney, Holmes, and trial counsel, Heermance, to defend the Cimino action against the plaintiff. The trial resulted in a judgment in favor of the administratrix of Cimino against this plaintiff for $13,131.98. No appeal was taken from that judgment. The defendant bonding company paid the administratrix the limit of its liability, $5,000, besides interest and costs of the action. The plaintiff in this action was compelled to pay the balance of the recovery, amounting to $7,826.58. Thereupon the present action was brought by McAleenan against the bonding company to recover the moneys thus paid by him to satisfy the judgment rendered against him. The basis of the action was the alleged negligence and failure of the defendant to take and prosecute an appeal from the judgment recovered against this plaintiff in the Cimino action.

The defendant in the present action, upon the trial, offered in evidence the minutes of the trial in the personal injury action against this plaintiff, for the purpose of showing that no grounds existed upon which to obtain a reversal of the judgment in that action. Under

objection of counsel for the plaintiff herein the trial court refused to receive said minutes of trial in evidence, the court holding that the defendant, through its attorneys and agents, having refused to permit an appeal to be taken by the plaintiff herein from the judgment in the personal injury action, and in agreeing and assuming to prosecute an appeal from said judgment, took away from the plaintiff valuable rights which he had, and was estopped from denying that there were reversible errors upon the trial, and from asserting that the plaintiff herein suffered no damages by reason of the failure of the defendant to bring an appeal from said judgment. The defendant insists upon this appeal that as a part of plaintiff's case, showing that he suffered damages by reason of the failure to bring said appeal, it was incumbent upon him to introduce in evidence the record and minutes of the trial of the personal injury action, showing the commission of error on said trial, or that the verdict rendered was against the weight of the evidence, and that a reversal would have resulted from such appeal, had one been taken.

It seems to me that the court properly held that in view of the attitude of the representatives of the defendant bonding company, and of its assurance to the plaintiff herein that an appeal would be taken and that a reversal would result, thus lulling him into security and depriving him of his right to appeal, defendant is precluded from asserting that an appeal would have been without effect, and that a reversal would not have resulted, had such an appeal been taken. Aside from the question as to whether or not errors were committed upon the trial requiring a reversal, had an appeal been taken it might thereon have been determined whether or not the verdict rendered was against the weight of the evidence. The amount of the verdict also might have been tested, and a determination reached whether or not the recovery was, under the circumstances, exces sive. Not only that, but the failure of the defendant to bring an appeal precluded any possible compromise of the recovery which might have been effected, had an appeal been taken. Furthermore, there was lost to the plaintiff herein the privilege of paying up the amount of the judgment recovered promptly and stopping the accumulation of interest thereon. All of these were valuable rights, which the plaintiff herein lost as the result of the failure of the defendant to keep and perform its representation and promise to bring an appeal from said judgment.

The case of Globe Navigation Co., Ltd., v. Maryland Casualty Co., 39 Wash. 299, 81 Pac.

826, seems to be exactly in point. In that case it was held that estoppel to deny liability on the part of the appellant to respond in damages arose from a similar act of the defendant. In the course of its opinion in that case, the Court said:

* * *

"It is insisted that estoppel does not arise unless it is shown that respondent has been actually prejudiced, and that it does not appear that the judgment of the Hawaiian court was wrong, and would have been reversed on appeal. That is a matter this court cannot determine. The respondent, therefore, had the absolute right to have the cause reviewed on appeal. It was induced to abandon that right by the conduct of appellant, and the latter should not now be heard to say that respondent was not prejudiced because of mere absence of a positive demonstration that it would have secured a reversal on appeal. No one except the Infinite Mind can determine that question to a certainty at this time. Not even the court that would have reviewed the case can now know whether in its view reversible error would have appeared or not. But the certain fact does appear that, by reason of appellant's conduct, respondent did not have the benefit of the wisdom and experience of the learned judges of the appellate tribunal, the United States Circuit Court of Appeals. We therefore think appellant is now estopped to deny its liability to pay as it promised, which included both the amount of the judgment and the subsequently incurred costs."

It is of course impossible, in the case at bar, to say what would have been the result, had an appeal been taken; but by reason of the conduct of the defendant bonding company, plaintiff was deprived of opportunity of review, in the appellate court, and the defendant, whose act deprived plaintiff of his rights, is, it seems to me, estopped to deny its liability to reimburse plaintiff for the full amount which he was compelled to pay. Affirmed.

NOTE-Proof of Injury Which from Failure to Perform Is Incapable of Estimation.-There is a maxim omnia praesumuntur contra spoliatorem, but it has been said, "There is great danger that the maxim may be carried too far." For example, where the maxim has reference to the contents of a paper destroyed or withheld if the contents are proved, there is no need for resort to the maxim. Bote v. Wood, 56 Miss. 16; Jones v. Knauss, 31 N. J. Eq. 609. But the destruction of a receipt may presume payment of money. Downing v. Plate, 90 Ill. 268. And where agreement is made to keep strict account of the working of a coal mine extending under adjoining land, this may raise the presumption that the entire mass, or no part of the same, according as it was the interest of his adversary to contend, was from under the adjoining land. Dean v. Thwaits, 21 Beav. 621.

And so where it was the duty of a member of a firm to keep its books, the other partner may claim he used more in his family expense

than he charged himself with. In other words, it shifted the burden to him. Dimond v. Henderson, 47 Wis. 172.

And if a second will is destroyed, it was said: "It is far better to declare an intestacy, than that a spoliator should be rewarded for his dishonesty." Of course, this ruling should be deemed as the limit as against the spoliator in a particular case. Jones v. Murphy, 8 Watts & S. (Pa.) 275.

But suppose one makes an engagement to do a certain thing and both know that failure of performance, in the very nature of the case, can leave behind it no competent evidence as to the injury that may thus arise, does this constitute a contract to do anything at all? It seems to me, that, if this were a casual contract and outside of the engagement, the contracting parties incurred no obligation, one to the other, it would have no binding force. But suppose this were a matter of default by, say an agent, would not the matter take on a different attitude? The case of Dimond v. Henderson, 47 Wis. 172, is illustrative of the distinction suggested, making the maxim above set up apply.

The insurance company occupied a position in which it was the agent of the assured and to its default the maxim applied. But as an independent contract it seems to me there would be a nudum pactum. The agent should not be allowed to deprive the principal of a positive right, by his neglect of duty, upon any supposition that this right was of no real value. It had a possibility of value. As this case was merely a defense, the legal possibility was of the assured being entitled to a verdict in his favor. It would not cover a case where there was a counterclaim.

ITEMS OF PROFESSIONAL

INTEREST.

C.

BAR ASSOCIATION MEETINGS FOR 1920WHEN AND WHERE TO BE HELD.

American-Statler Hotel, St. Louis, Mo., August 25, 26 and 27.

Alabama-Birmingham, April 30 and May 1. Arkansas-Hot Springs, June 2 and 3. Georgia-Tybee Island, May 27, 28 and 29. Illinois-Hotel Sherman, May 28 and 29. Indiana Indianapolis, July 7 and 8. Iowa Cedar Rapids, June 24 and 25. Kentucky-Henderson, July 14 and 15. Louisiana-New Orleans, May 7 and 8. Maryland-Hotel Chelsea, Atlantic City, N. J., June 24, 25 and 26.

Michigan Detroit, June 25 and 26. Minnesota-St. Paul, July 27, 28 and 29. Mississippi-Meridian, April 28 and 29. New Jersey-Atlantic City, June 11 and 12. North Carolina-Asheville, June 29, 30 and July 1.

Ohio-Cedar Point, July 6, 7 and 8. Pennsylvania-Bedford Springs, June 22, 23

and 24.

South Carolina-Columbia, April 23 and 24. Virginia-The Jefferson Hotel, Richmond, May 11, 12 and 13.

Wyoming-Casper, May 7 and 8.

HUMOR OF THE LAW.

A Probate Judge who talks in verse Suggests a decorated hearse.

A Probate Judge who outlives you
May break your will-yes, tax it. too.

Concerning various other things
His power outrivals that of kings.
If he decides you are insane
All your remonstrances are vain.

Patient he sits, while year by year Old women whisper in his ear; All sorts of skeletons he knows, Sad secrets told beneath the rose.

He construes the obscure devise,
And shows the difference which lies
"Twixt tweedledum and tweedledee,
Which is sometimes hard to see.
In times of stress his powers prevail;
He sends contemptuous folks to jail.

And by injunction's awful might

Protects the weak and guards the right.
Thus equity corrects the flaw
Which justice finds in common law.

ROBERT GRANT.

"So you've got an accident to report, have you?" said the head clerk to the foreman of the works.

"Yes, sir," said the foreman; then he paused a while, gnawing his pen reflectively, before handing over his report.

The latter read as follows:

"Date: March 31. Nature of accident: Toe badly crushed. How caused: Accidental blow from a fellow-workman's hammer. Remarks-" "Right," said the clerk. "But why no 'Remarks'?"

"Well, sir,' replied the foreman, slowly, "seein' as 'ow you know what Bill is, and seein' as 'ow you know that it was 'is big toe what was hurt, I-well, I didn't like to put 'em down. -London Tit-Bits.

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1. Bailment-Burden of Proof.-The gist of a cause of action as bailor against bailee is negligence, and the burden rests on the bailor to plead and prove negligence as the cause of the loss or injury; a burden resting on him to the end of the case.-McKeever v. Kramer, Mo., 218 S. W. 403.

2. Banks and Banking-General Deposit.— The making of a general deposit with a bank creates the relation of debtor and creditor between the bank and the party in whose name the deposit is made.-Meador v. Rudolph, Tex., 218 S. W. 520.

3. Joint and Several Liability.-The directors of a bank may be severally or jointly, or severally and jointly, liable to stockholders for a loss resulting from negligence on their part, dependent on varying degrees of fidelity to the trust imposed, and on the character of negligence, whether by them as individuals or as a board.-Tackett v. Green, Ky., 218 S. W. 468.

4.Ultra Vires.-An action may be maintained against a national bank for damages resulting from its malicious or negligent torts, and in such a case the doctrine of ultra vires has no application.-Security Nat. Bank v. Home Nat. Bank, Kan., 187 Pac. 697.

5. Bills and Notes-Equitable Owner.-Where plaintiff sold a saloon business to defendants and had the note for the price made payable to a liquor company, to which he expected to sell the note, he was the equitable owner, and could sue on the note in his own name.-Wahl v. Ramsey, 218, Tex., S. W. 559.

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9. Monuments.-Monuments will control courses and distances in construing a deed.Schiffmann v. Youmans, Ore., 187 Pac. 630.

10. Breach of Marriage Promise-Repetition of Promise.-When a man and woman once promised to marry each other, different and subsequent repetitions were mere ratifications and constituted no new contract.-Dyer v. Lalor, Vt., 109 Atl. 30.

11. Carriers of Live Stock-Proximate Cause. -Where an act of negligence on the part of a carrier of live stock concurs with an act of God in producing an injury, and the injury would not have happened without the negligent act, the carrier is responsible for the damages arising from its act.-Kansas City, M. & O. Ry. Co. of Texas v. Blackstone & Slaughter, Tex., 218 S. W. 552.

12. Carriers of Passengers-Collision.-The facts constituting the negligence resulting in collision being peculiarly within the knowledge of defendant railway company, plaintiff passenger was not bound to prove the particular acts of commission or omission upon the part of the employes of defendant which caused the accident, and was not therefore required to allege the same in his petition.-Arnett v. Illinois Cent. R. Co., Iowa, 176 N. W. 322.

13. Charities—Forfeiture.-Where an instrument donating a fund to a university, provided for a forfeiture and a return of the fund for noncompliance with the conditions and trusts thereof, a suit to enforce such provision and for an accounting was properly brought in equity, as equity will grant relief for breach of a condition subsequent, though it will not enforce a forfeiture.-Curtis & Barker v. Central University of Iowa, Iowa, 176 N. W. 330.

14. Contracts-Adequate Consideration.-Ordinarily Courts will not inquire into the adequacy of the consideration of a contract.-Mowbray Pearson Co. v. E. H. Stanton Co., Wash., 187 Pac. 370.

15.- -Breach.-Where plaintiff's contract to do carting for defendant for a year had been partially performed, and payment made for some months, even if it was unilateral in its inception, defendant cannot urge such objection, when sued for its breach.-Manhattan Carting

Co. v. Keen's English Chop House, N. Y., 180 N. Y. State 40.

16.

Ejusdem Generis.-It is the ordinary rule in construction of contracts and written instruments that special terms will control general terms.-Southern Surety Co. v. Town of Greeneville, U. S. C. C. A., 261 Fed. 929.

17. Embargo.-Contract for sale of steel plates for export was not illegal, because thereafter a government embargo on such shipments was promulgated, where it is not shown that either party intended to make shipment without government permit.-Commons v. Pearson, N. Y., 180 N. Y. State 482.

18. Impossibility of Performance.-Generally one contracting to do a thing possible in itself will be liable for a breach, notwithstanding the occurrence of a contingency which, though not foreseen by him or within his control, might have been provided against, has put it out of his power to perform.-Western Drug Supply & Specialty Co. of Kansas City, Mo., v. Board of Administration of Kansas, Kan., 187 Pac. 701.

19. Place of. Arkansas Courts will, as Texas Courts would, in a like controversy, apply the laws of Texas in determining the validity of a contract made and to be performed in Texas.-Buchanan-Vaughan Auto Co. v. Woosley, Tex., 218 S. W. 554.

20. Corporations-Cumulative Voting.-Shareholders may cumulate and vote shares for one or more candidates for director.-State v. Du Brul, Ohio, 87.

21. Foreign Corporation.-Service of summons on a foreign corporation in a state where it is not shown to be doing business or to have property, and in which it has not appointed an agent under the state law on whom service may be made, is ineffective.-Pine Hill Coal Co. v. Gusicki, U. S. C. C. A., 261 Fed. 974.

22. Majority Stockholders.-Majority stockholders of an insolvent and failing company occupied a fiduciary relation to the minority stockholders, and were held to the highest good faith in the disposition of the corporate property; but the trust imposed upon them having been discharged, and it being shown that their actions were just and fair to the interests of all, minority stockholders will not be heard to invoke the well-grounded principles applied in cases involving fraud, imposition, or design to obtain corporate property by ulterior means.Carrier v. Dixon, Tenn., 218 S. W. 395.

23. Preference.-A creditor, who sold coal to an insolvent corporation, making delivery on the days on which bill for appointment of a receiver was filed, is not entitled to a preferred claim, unless the corporation was insolvent at the time of the purchase, and unless it concealed its insolvency and purchased the coal without intention of paying therefor.-Hyman v. Trow Directory Printing & Bookbinding Co., U. S. C. C. A., 261 Fed. 991.

24. Promoter.-Promoters of a corporation stand in a fiduciary relation to the corporation and its stockholders, and owe the utmost good faith, so where the promoter of a mining corporation obtained title to mining claims, and without disclosing the facts induced the corporation to issue stock in return for the con

veyance of such claims, the corporation and stockholders have an option to have the stock So issued annulled.-Frame v. Maloney, Ariz., 187 Pac. 584.

25.- Repurchase of Stock.-A corporation's agreement to repurchase stock sold an employe in case the employe quit or was discharged constituted only an option until the employe elected to sell.-Security Sav. Bank v. Workman, Iowa, 176 N. W. 307.

26. Res Judicata.-Where deficiency judgment was rendered against corporation in action on notes secured by chattel mortgage, questions as to the due execution of the note, the consideration therefor, and as to other matters relating to the validity thereof were res adjudicata in judgment creditor's action against stockholder on stockholder's liability.-Barnard v. McIntire, Cal., 187 Pac. 440.

27. Criminal Law - Accomplice.-Corroboration of the testimony of an accomplice may be by proof of circumstances, as well as by direct testimony.-Bush v. People, Col., 187 Pac. 528.

28. Confession.-That a confession was made while defendant was in custody, and in answer to questions propounded, is not sufficient ground for the rejection of the confession, as being involuntary.-State V. Hayes, Kan., 187 Pac. 675.

29.- -Prosecuting Witness.-In a prosecution for assault with intent to commit rape, testimony as to declarations and complaint of the prosecuting witness, defendant's servant ог housekeeper, made after she had removed to another person's house temporarily some time after the alleged offense, was inadmissible, and not part of the res gestae, as the declarations not spontaneous.-State v. Johns, Iowa, 176 N. W. 280.

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31. Death-Measure of Damages.-The measure of damages for death of child is the difference between the probable money value of the child's services and the probable expense of his education, support, and maintenance from the time of the accident until he becomes of age; but probable money value is not solely tested by what the child might earn if put to outside labor.-Linstroth v. Peper, Mo., 218 S. W. 431.

32. Deeds Delivery.-A deed is presumed to have been delivered on the day it bears date. -Tausk v. Siry, N. Y., 180 N. Y. State 439.

33. Heirs of the Body.-Under the law of South Carolina, as settled by decision, the words "heirs," "heirs of the body," or "issue," must be construed to mean children, when the testator or grantor clearly indicates that he used the words in that sense.-Davenport v. Hickson, U. S. C. C. A., 261 Fed. 983.*

34. Divorce Alimony.-An alimony decree is generally considered a debt of record as much as any other judgment for money.-Levine v. Levine, Ore., 187 Pac. 609.

35. Constructive Service.-Where a husband residing in Nevada obtained a divorce on service by publication from the wife, then a resi

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