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56. Limitations of Actions-Accrual of Action. Where limitation begins to run against to cause of action, as the right to enforce a recover land adversely held, the running of the statute is not interrupted by any subsequent event or condition, and the death of the person entitled to sue will not stop such running v. Fielder, against her successors.-Henderson Ky., 215 S. W. 187.

57. Livery Stable and Garage Keepers-Reasonable Care.-A garage keeper is bound to exercise reasonable care to preserve from injury automobiles left by the owners at his garage for hire, such as a reasonable person would exercise in respect to his own property, and he is bound to see that the person to whom he delivers an automobile left with him for safekeeping is the proper person to receive it.-Morgan Millwork Co. v. Dover Garage, Del., 108 Atl. 62.

58. Mandamus-Plain Duty.- Where there is a plain duty on the part of an official body, such as the council of a city, compliance therewith may be enforced by mandamus.-State v. City of Madison, Wis., 174 N. W. 471.

59. Master and Servant-Burden of Proof.It is not sufficient for a servant to show that the master may have been guilty of negligence, but the evidence must point to the fact that he was guilty.-Wyman v. Chicago, R. I. & P. Ry. Co., Okla., 184 Pac. 758.

60.- -Safety Appliance.-An employer cannot discharge its duties by allowing employes to hammers pneumatic without safety operate springs.-Pittsburgh, C., C. & St. L. Ry. Co. v. Cole, U. S. C. C. A., 260 Fed. 357.

61. Mines and Minerals-Incorporeal Hereditament.-A lease, granting oil and gas mining privileges for a term of years, is only a grant of an incorporeal hereditament.-State v. Welch, Okla., 184 Pac. 786.

62. Mortgage-Attestation.-A mortgage attested by witnesses who are incompetent stands on the same footing as if it was without witnesses, and is good between the parties.-Farmers' Banks and Trusts Co. v. Fudge, S. C., 100 S. E. 628.

63. Rents.-Mortgagee in possession will be charged with the rental value of the land.Brown v. Berry, N. J., 108 Atl. 51.

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64. Transfer.-A mortgage being a security for debt, it is not transferable without transfer of the debt.-Johnson v. Razey, Cal., 184 Pac. 657.

65. Negligence Imputability.-Negligence of the driver of an automobile as a general rule is not chargeable to another occupant thereof.Lake Erie & W. R. Co. v. Howarth, Ind., 124 N. E. 687.

66. -Mitigation of Damages.-Contributory negligence does not bar an action under the feder Employers' Liability Act (Comp. St., §§ 86578665), but only mitigates the damages.-Pittsburgh, C., C. & St. L. Ry. Co. v. Cole, U. S. C. C. A., 260 Fed. 357.

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Cause. To constitute 67. Proximate tionable negligence, where the wrong is not willful and intentional, it is necessary that there exist a duty to protect from injury, the failure to perform such duty, and injury proximately resulting therefrom.-Missouri, K. & T. Ry. Co. v. Wolf, Okla., 184 Pac. 765.

68. Patents-Combination of Old Elements.A combination of old elements. which produced an old result in a new and cheaper way, embodies patentable invention.-Meurer Steel Barrel Co. v. Draper Mfg. Co., U. S. D. C., 260 Fed. 410.

69. Perjury-Willful and Corrupt.-To constiture perjury, both at common law and by statute, the false testimony must have been given willfully and corruptly.-State v. Henry, Me., 108 Atl. 49.

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in the thing or estate to be disposed of or managed under the power.-Todd v. Superior Court of California in and for City and County of San Francisco, Cal., 184 Pac. 684.

71.

Principal and Surety-Surrender of Security. A principal is not allowed to surrender the security which it holds for the performance of a bond, and then to hold the personal surety on the bond liable for it.-Guilford Lumber Mfg. Co. v. Holladay, N. C., 100 S. E. 597.

72. Voluntary Surety.-Though a voluntary surety is a favorite of the law, entitled to stand on strict letter of his contract, the rule of strictissimi juris does not apply to surety corporations, as they are essentially insurers, whose contracts, usually expressed in terms prescribed by them, should be construed most strongly in favor of obligee therein.--Board of Com'rs of Ohio County v. Clemens, W. Va., 100 S. E. 680.

73. Public Service Commissions-State Law.Whatever powers a state may deny to its Public Service Commissions, it cannot give them power to do what laws of the United States forbid, whether their action be called administrative or judicial.-Pennsylvania R. Co. v. Public Service Commission of Commonwealth of Pennsylvania, U. S. S. C., 40 Sup. Ct. 36.

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76. Trade-Marks and Trade-Names-Profits. -Where, in making sales of their product, defendants infringed complainant's trademark, the latter is entitled to the profits due to the use of the trademark.-Prest-O-Lite Co. v. Bournonville, U. S. D. C., 260 Fed. 446.

77. Trusts--Equitable Right.-Where property is left in trust, leaving the matter of distribution of the income solely to the discretion of the trustee, a cestui que trust has only an equitable right, which might be enforced in equity only upon a showing that the trustee had abused such discretion.-De Long v. Anheir's Trustee, Ky., 215 S. W. 189.

78.- Resulting Trust.-A resulting trust does not spring from a contract between the parties. but arises by operation of law from the acts of the parties.-McCarthy v. McCarthy, Ill., 124 N. E. 578.

79.

Resulting Trust.-Where A and B jointly buy land, each paying one-half of purchase money, and title is taken in name of a third party, a trust in favor of A and B will be implied, in view of Civ. Code 1910, § 3739.-Jenkins v. Georgia Inv. Co., Ga., 100 S. E. 635.

80. Wills-Insane Delusion.-An "insane delusion" is a belief in something impossible in the nature of things or impossible under the circumstances surrounding the afflicted individual and which refused to yield either to evidence or to reason. Farmer v. Davis, Ill., 124 N. E. 640.

81. Precatory Words.-Precatory words in a will create a binding trust if meant to govern the conduct of the person to whom addressed and not merely as an indication of what the testator thinks would be a reasonable exercise of a discretion thereby left to such person.Laws v. Christmas, N. C., 100 S. E. 587.

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Central Law Journal.

ST. LOUIS, MO., JANUARY 9, 1919.

VALIDITY OF THE MIGRATORY BIRD TREATY.

Until recently there had never been much of a question raised as to the extent of the treaty-making power. But in recent years this power has been quite frequently questioned. Thus, it was contested in the case of treaties which abrogated state laws denying to aliens the right to inherit land. California denied the right of the President to interfere by treaty with its laws exclud

ing Japanese from the exercise of rights enjoyed by other aliens. The League of Nations Covenant has raised a host of objectors to the idea that the treaty-making power is practically unlimited by the Constitution.

One of the recent treaties against which vehement objection has been made is the Migratory Bird Treaty by which the United States and Canada establish what is practically an international game law relating to migratory birds and regulating the seasons in which and the methods by which they may be captured. The objection to this treaty is that it purports to regulate the taking of game birds, whereas such regulation, it is argued, is vested in the states alone as part of their reserved powers.

In the recent case of United States v. Rockefeller, the U. S. District Court for Montana held the treaty and the statute and regulations in pursuance thereof to be constitutional and sustained a conviction of the defendant for capturing wild ducks by means of a power-boat contrary to regulations established by Act of July 3, 1918C, 128 (Comp. Stat. 1918, Append. § 8837a). In support of the power of the federal government to make a treaty of this kind, the court said:

"The power to enter into treaties is an 'authority, under the provisions of the federal Constitution,' vested in the United States alone. Is this treaty a 'valid exer

cise' thereof? Before the Constitution the states severally possessed plenary treatymaking power, and by the Constitution they were shorn of the whole thereof, and the larger part of it was vested in the United States; the larger part, not all, for it is clear a state by treaty could have entered into some contracts affecting itself which the United States cannot. This power extends to all subjects usual to treaties, to all within the international domain, to all of international concern and negotiation, but limited, nevertheless, to subjects and treaties not inconsistent with our system of government, with the relations of the states and the United States, with the federal Constitution. Treaties in relation to such subjects, and within such limits, by the federal Constitution are made part of the supreme law of the land, to which all state

Constitutions, statutes and rights yield to

the extent of any conflict. Gibbons v. Ogden, 9 Wheat. 211, 6 L. Ed. 23; License Cases, 5 How. 504, 12 L. Ed. 256; United States v. Whisky, 93 U. S. 197, 23 L. Ed. 846; Hauenstein v. Lynham, 100 U. S. 488. 33 L. Ed. 628; Geofroy v. Riggs, 133 U. S. 267, 10 Sup. Ct. 295, 33 L. Ed. 642; Downes v. Bidwell, 182 U. S. 312, 21 Sup. Ct. 770, 45 L. Ed. 1088; Compagnie Francaise v. Board, 186 U. S. 388, 22 Sup. Ct. 811, 46 L. Ed. 1209.

"This supremacy of federal authority to that of the states is not peculiar to treaties, but extends to all 'valid exercise of authority under the provisions of the federal Constitution.' The states themselves (in the sense of their people) so provide in the federal Constitution ordained and established by them.

"To illustrate in the matter of treaties, though it is of the reserved powers of states to control the inheritance of real property, any of their laws that aliens cannot inherit yield to treaties to the contrary. See Blythe v. Hinckley, 180 U. S. 340, 21 Sup. Ct. 390, 45 L. Ed. 557, and cases cited, and United States v. Whisky, supra.

"Though it is of the reserved power of states to allow, prohibit, and regulate the introduction and sale of intoxicating liquors, they cannot allow nor prohibit such introduction contrary to treaty, nor allow sale in parts of their territory where treaties otherwise provide. License Cases, 5 How. 504, 12 L. Ed. 256; United States v. Whisky, 93 U. S. 197, 23 L. Ed. 846.

"Though it is of the state's reserved powers to protect health and to establish and

regulate quarantine, their laws to those ends yield to the extent of any conflict with treaties. Compagnie Francaise v. Board of Health, 186 U. S. 388, 22 Sup. Ct. 811, 46 L. Ed. 1209, and cases cited.

"Fisheries have been the subject of treaties always, and the principles and objects thereof are equally applicable and desirable in relation to migratory birds and other game. So doubtless of air and water, their protection from pollution, their conservation, apportionment, and use. The object of all thereof is to peacefully share those natural resources which are the property of no one till reduced to possession, from which all may take when within their territory, which are alternately found within the territory of the several nations and in places common to all as the high seas, which may be wholly seized and exterminated by one to the great and irreparable damage of all, which in accord may be preserved and enjoyed a blessing to all, but in discord may be annihilated to the injury of all, and which may become legitimate causes for war, to obviate which is of the most ancient and important objects of treaties."

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It seems to us that the attorneys and statesmen who are seeking to set limitations upon the treaty-making power are trying to put the United States in a straitjacket which the framers of the Constitution sought deliberately to avoid. defense of the unrestricted power to make treaties granted by the Constitution, Alexander Hamilton argued that the treatymaking power "ought to exist without limitation because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them."

It is curious to note that in spite of dicta. and argument against the unrestricted power to make treaties, no treaty has ever been held unconstitutional. The reason is probably that while inter nos a treaty is part of the "law of the land," internationally speaking, a treaty is only a contract made by the only authority having power to pledge the word of the United States; and there does not seem to be anything in the Constitution that restricts in any manner the subject matter of such contracts.

NOTES OF IMPORTANT DECISIONS.

FAILURE TO TAKE PROPER CARE OF AN INJURY AS PROXIMATE CAUSE OF DEATH. -What is the proper care to be taken of an injury, the failure to exercise which would release the party responsible for the injury from such damages as flowed from such neglect? The Supreme Court of Wisconsin has just held in the case of Banner Coffee Co. v. Industrial Commission, 174 N. W. Rep. 344, that a laborer who is kicked on the shins by a horse is not acting without common prudence when he does not at once consult a doctor. In this case the injured man applied carbolic salve and other home remedies and did not consult a physician until it was too late to save his life from the resulting infection.

The Industrial Commission allowed the injured workman's widow the sum of $3,000, from which award the employer appealed to the Supreme Court. In discussing the appeal the

court said:

"Conceding that persons highly appreciative of the dangers resulting from infection would at once consult a physician, we cannot say that this is true of the great mass of mankind under the same or similar circumstances. It is a mat ter of common knowledge that strong, healthy men engaged in manual labor frequently give such trifling injuries, which would arouse the apprehension of others, little thought, and in comparison with the number of such injuries the instances followed by infection are not numerous. If they are treated at all, home remedies are applied, just as was done by the deceased. Carbolic salve was his remedy for cuts, bruises, etc., and this he applied. The injury itself was not sufficient to keep him from his work, and he went about the performance of his daily duties, attaching little consequence to the injury. We do not think it is customary for laboring men to rush to a doctor every time they sustain a cut, bruise or abrasion of the skin, and we cannot say as a matter of law that the conduct of the deceased was not that of the great mass of mankind under the same or similar circumstaces."

MAY A DEFENDANT RAISE THE DEFENSE OF FORMER JEOPARDY TO A VERDICT IMPOSING A SEVERER PUNISHMENT THAN ON A PREVIOUS TRIAL FOR THE SAME OFFENSE.-An appeal in a murder case is often a dangerous speculation with the life of the defendant. The case of Stroud v. United States, 40 Sup. Ct. Rep. 50, decided by the Supreme Court on a third appeal, illustrates this point. On the first trial defendant was convicted and sentenced to be hung. Upon confession of error by the United States District Attorney

the Circuit Court of Appeals reversed this judgment. 245 Fed. 990, 157 C. C. A. 672. Stroud was again tried at the May term, 1917; the jury in the verdict rendered found Stroud "guilty as charged in the indictment, without capital punishment." Upon writ of error to this court the Solicitor-General of the United States confessed error, and the judgment was reversed; the mandate commanded:

"Such further proceedings be had in said cause, in conformity with the judgment of this court, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding."

In pursuance of this mandate the District Court issued an order vacating the former sentence, and ordered a new trial. The trial was had; the jury found Stroud guilty of murder in the first degree as charged in the indictment, making no recommendation dispensing with capital punishment. Upon this verdict sentence of death was pronounced. A third appeal was taken and the case carried for a second time to the Supreme Court. On this appeal the defend

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We lawyers in some respects very much resemble handicraft men, who hand down their particular calling from generation to generation, and test an apprentice by how nearly like his master he can perform his task. As a result, much time, motion and

ant raised the point of former jeopardy because efficiency are wasted, due to a following of

the second conviction was "without capital punishment." On this point the court said:

"It is true that upon the second trial the jury added 'without capital punishment' to its verdict, and sentence for life imprisonment was imposed. This recommendation was because of the right of the jury so to do under section 330 of the Criminal Code. This section permits the jury to add to the verdict, where the accused is found guilty of murder in the first degree, 'without capital punishment,' in which case the convicted person is to be sentenced to imprisonment for life. The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for the first degree murder. Fitzpatrick v. United States, 178 U. S. 304, 307.

"The protection afforded by the constitution is against a second trial for the same offense. Ex parte Lange, 18 Wall. 163; Kepner v. United States, 195 U. S. 100. Each conviction was for murder as charged in the indictment, which, as we have said, was murder in the first degree. In the last conviction the jury did not add the words 'without capital punishment' to the verdict, although the court in its charge particularly called the attention of the jury to this statutory provision. In such case the court could do no less than inflict the death penalty. Moreover, the conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding. Thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the constitution. Trono v. United States, 199 U. S. 521, 533."

tradition.

A recent study of brick laying disclosed that present day masons performed their work "in much the same way as their predecessors did on the walls of Babylon. From time immemorial masons have worked from a scaffolding which was raised only when the mason could no longer reach the top of the wall. It was then raised to such a height that he must bend his back constantly or work on his knees until the wall grew so high as to relieve him of such awkward positions. From time immemorial also the mason's tender has dumped unsorted brick and mortar on the scaffold at the mason's feet so that the mason has to stoop to get both mortar and brick, selecting the brick as he went along, and often working up the mortar with his trowel." It was found also that many of the motions made by the workers were useless and used up valuable energy with no effect.

One of the first innovations introduced by the investigator was a "scaffold that could be raised quickly a few inches at a time so as to be kept at or near the best

level for economic working. To this was added a shelf-like attachment on which the bricks and mortar could be placed near the workman's hand. The sequence in which the brick should be laid for various types of wall was worked out and in order to save the high-priced mason's time in sorting the brick, low-priced men were employed to sort the brick on the ground. The bricks were sent up to the mason in packets of twenty-four each with the bricks arranged with the right side up so that no sorting was necessary. The mortar was carefully standardized and a special mortar box made it easy for the mason to secure mortar while still following with his eye

the hand which held the brick. A careful study of the mason's motions and a rearrangement of methods eliminated about half the motions previously performed. As a result of these changes it was found that the worker could lay about three times as many bricks per hour as formerly, and with less fatigue."

The improved method of laying brick was discovered not by a mason, but by an outsider who applied to brick laying prin ciples of scientific industrial management, and carried on time and motion studies to determine wherein, and how much, time and motion was being wasted in the old way of laying brick.

It may be that we lawyers, trained in legal lore and tradition, need some cutsider to turn a scientific searchlight on the ancient precepts and practices with which we are familiar, and show us wherein and wherefore our mistress, the law, is inefficient, and how by a turning from tradition and an improvement in precepts and practices our mistress may be better able to perform her task.

Mr. F. W. Taylor, the founder of scientific industrial management, has stated: "Time and motion study is the accurate scientific method by which the great mass of laws governing movements of men are

investigated. * * * They substitute exact knowledge for prejudiced opinion and force in determining all the conditions of work and pay."

The effort to measure human effort in a scientific, quantitative manner is or should be common to scientific industrial management and to law.

The general principles of any science may be known qualitatively or quantitatively. Thus we know that beams will bend if loaded. The chemist knows that the addition of a certain acid to a given mixture. will precipitate a certain substance. A lawyer knows that fraud makes a transaction voidable, or that negligence may impose a liability upon one guilty thereof. If, however, the knowledge of the chemist, the engineer or the lawyer does not go beyond these generalities their knowledge is qualitative only.

But if the chemist can state that a given quantity of acid will precipitate a definite amount of a certain material from the liquid in question, he is said to know the laws pertaining to the operation quantitatively. A lawyer possesses similar knowledge, for instance, when he can ascertain with certainty whether a given state of facts constitutes fraud or negligence, or comes within the pale of "reasonable," as the case may be.

The development of chemistry from a qualitative into a quantitative science affords a bit of interesting history here pertinent. Naturally, the early chemists, known as alchemists, first learned the existence of certain substances and something of their properties. They acquired a limited amount of qualitative knowledge, just enough to give them one great aim-to ennoble the base metals and to prolong life indefinitely -a most utilitarian desire, but which of course availed nothing, though lasting well on into the seventeenth century A. D. There then came a revolution against tradition and a change toward the direction of true re

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