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action, was not community property, and was
not subject to attachment in an action against
the husband. — Rhoades v. Lyons, Cal., 168 Pac.
385.

54. Contract by Wife. — Wife entering into

contract to buy timber and agreeing to pay stip-
ulated price, is bound by her obligation, though
on the purchase the husband's debt on prior sale
of same timber to him was to be canceled. —
Bateman v. Cherokee Fertilizer Co., Ga.. 93 S. E.
1021.

^6. Conveyance. — Grants of rights-of-way

made to county by landowners took effect as
grants leading to dedication of land to public,
though not signed by either of their wives. It
being stipulated that they were owners of the
land. — Horton v. Okaifogan County. Wash., 168
Pac. 479.

56. Indictment and Information — Presump-
tion. — In an indictment for murder against an
infant under 14 years of age. it is not necessary
to negative the presumption of his incapacity to
commit the crime. — State v. Vineyard, W. Va..
93 & E. 1034.

57. Infanta — Compos Mentis. — To convict an
infant under 14 years of homicide. It is neces-
sary to show that he knew or understood the
nature and consequence of his act and showed
design and malice in its execution. — State v.
Vineyard. W. Va.. 93 S. E. 1034.

58. Innkeepent — Invitee. — Where one at de-
fendant's hotel, by Invitation j>f guest, in leaving
took circuitous route to freight elevator, where
he opened door, insecurely fastened, and fell
Into shaft and was killed, held there could be
no recovery. — Money v. Travelers' Hotel Co.. N.
C. 93 S. E. 964.

59. Ini«Mne Pemona — Conveyance. — Convey-
ance by woman 78 years old of about one-tenth
of her property to a son in expectation that he
would provide a home for her. held not evidence
of incompetency requiring a guardian. — In re
Watson. Cal., 168 Pac. 341.

60. Innurance — Changing Beneficiary. — Where
insured has right to change beneficiary in life
policy, and, in attempt, has met all require-
ments of policy or statute, except surrender of
policy, which is withheld by one claiming rights,
equity will deem effort made to change bene-
ficiary sufficient. — Metropolitan Life Ins. Co. v.
O'Donnell, Del., 102 Atl. 163.

61. Concurrent Insurance. — WTiere insur-
er's agent, issuing policy, permitting concurrent
insurance by agreement, knew that insured had
other insurance, and without his knowledge at-
tached a slip fixing a limit, policy might be con-
strued or reformed to provide generally for
additional concurrent insurance. — McPherson
Mercantile Co. v. Reliance Ins. Co. of Philadel-
phia. Kan., 168 Pac. 323.

62. Depreciated Value. — Measure of recov-
ery under policy covering household furniture,
held not the depreciation in market value or in
the fair selling value in the market for any

Surpose to which they may be susceptible. —
laden v. Imperial Assur. Co., Mo., 198 S. W. 72.

681. Description of Property. — Under policy

of insurance covering laces, trimmings and em-
broideries, including samples and supplies, the
word "supplies" cannot be held to cover benzine



kept in violation of all policy, though it was
necessarily kept to dye laces. — Ertischek v. New
Hampshire Fire Ins. Co. of Manchester, N. Y.,
167 N. Y. S. 68.

64. Fraternal Society. — Beneficiary under a

policy of a company organized under the life
insurance laws, as distinguished from a fra-
ternal or mutual benefit association, takes a
vested interest, which cannot be impaired by
act of assured, and the company without her
assent. — Lloyd v. Royal Union Mut. L»lfe Ins.
Co.. U. S. D. C. 245 Fed. 162.

65. Salary of Agent. — ^Where Insurance

company agreed to pay agent $200 a month on
condition he secured insurance to $60,000 during
each 90 days, agent failed to perform, and made
other agreement, whereby amounts were reduc-
ed to $20 per week, which were paid, in insur-
ance company's suit against him on his notes
on advances not earned, chancellor properly
denied him relief on claim that $200 payments
were salary. — ^Mutual Life Ins. Co. of New York
v. Miles. Ky., 198 a W. 30.

66. Intoxicating Llqaom — Illegal Sale. — Pur-
chase by defendant of 2'>6 gallons of wine In
sealed Jugs on premises of manufacturer, who
made same from fruit grown on premises, held
not to show violation of law, for manufacturer
to sell or for defendant to purchase and have in
possession under Pub. Laws 1911. c. 86. § 3.
Pub. Laws 1913. c. 44. Pujt) Laws 1916. c. 97. —
State V. Hicks. N. C. 93 S. E. 964.

67. Landlord and Tenant — Invitee. — Where
plaintiff came on demised premises as implied
invitee of tenant, who used same for a store,
plaintiff cannot, having received injuries, recov-
er from lessor on theory that, as he allowed
platform in which was defective trapdoor to b^
used by public, he was bound to maintain it in
repair.— Beaulac v. Robie. Vt., 102 Atl. 88.

68. Libel and Slander — Charging Crime. — '
Statement that plaintiff had no right to sell a
piano, and that she knew It was mortgaged,
held not actionable per se as charging a crime
under Ky. St.. $ 1358. which required that the
mortgage be "of record." — Sengel v. Plerson,
Ky.. 198 S. W. 1.

69. Libelous per se.-— Article entitled. ''Mis-
statements of (?).•• and charging untruthful-
ness, held libelous per se, within Rev. St. 1911.
art. 5595, as exposing person to hatred, ridicule,
or financial injury. — Hibdon v. Moyer. Tex., 19l
S. W. 1117.

70. Mandnmna — Banking Commissioner. —
Banking commissioner's discretion must be ex-
ercised within limits prescribed by statute, and
when incorporators have placed themselves
within requirements of law he may be required
by mandamus to approve articles of incorpora-
tion. — Speer v. Dossey, Ky., 198 S. W. 19.

71. Manter and Servant— "Arising Out of Em-
ployment." — An empldye, * leaving employer's
premises and injured by a fall while reaching
lor rail of outside storway he was descending
while other employes were rushing down stair-
way, received an injury "arising out of his em-
ployment." — In re O'Brien. Mass.. 117 N. E. 619.

72. Course of Employment. — Bricklayer.

employed by lithographing and printing com-
pany to repair wall of its plant, was engaged
in employment requisite to company's business,
and injury received while qo doing arose out of
and in course of employment carried on for
pecuniary gain. — Dose v. Moehle Lithographic
Co.. N. Y.. 117 N. E. 616. 221 N. Y. 401.

73. Fellow Servant. — The employer is not.

ipso facto liable for injuries to a servant
through the act of a fellow servant merely be-
cause he employs fellow servants who cannot
speak the English language, but the alleged
incompetency must be the proximate cause of
the injury. — Barber v. Smeallie. N. Y., 117 N. E.
611. 221 N. Y. 407.

74. Negligence. — It was inexcusable negli-
gence for yardmaster to open switch and leave
it open without a switch tender, as to gang of
workmen passing through yArd in motor car



furnished by company, where track wa^ appar-
ently free of - switching operations. — Thode v.
Louisiana Ry. & Nav. Co.. La.. 76 So. 687.

75. Negligence. — It Is actionable negligence

on part of master to stretch skidder cable, by
• which logs are being dragged from woods, closfe



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beside and behind woodsman, who is felling:
timber, and thereby cut off his escape from
falling: timber. — Fletcher v. Ludington Lumber
Co., La.. 76 So. 592.

76. Renewal of Employment. — One employ-
ed for a year at a stated salary, who continued
In that service after the period, was presumed
to be employed for another year, although from
time to tinre Increases were made in the salary.
— Stewart Dry Goods Co. v. Hutchison, Ky., 1^8
S. W. 17.

77. Simple Tool. — SIedg:e hammer made by

employer's head smith, its handle being: placed
for servant to use in striking-, who never had
used a sledge before, equipped with a defective
handle, was not a simple tool which an employ-
er need not inspect. — Sante Fe Tie & Lumber
Preserving Co. v. Collins. Tex., 198 S. W. 164.

78. ^Workmen's Compensation Act. — A

school teacher received an injury "arising out
of the employment," within the Compensation
Act, where she was injured in shoving over a
. heavy desk not in its accustomed place, to en-
able her to get a book from a case, required
to facilitate her school work. — Elk Grove
Union High School Dist. v. Industrial Ace. Com-
mission of State of California. Cal.. 168 Pac. 392.

79. Blines and BltnemUi — ^Lease. — ^Unddr oil
and gas' lease for five years, and so much longer
as either mineral is produced in paying quanti-
ties, the production required to effectuate such
extension is that which will bring a retfisonably
pecuniary return in excess of cost of produc-
tion. — Barbour, Stedm%n & Co. v. Tompkins. W.
Va.. 93 a B. 1038.

80. MortKum^u — Record Title. — ^Where record
title to dwelling place of husband and wife was
in a corporation owned by the husband, a mort-
gagee is not called upon to investigate the
rights of the wife in such property. — -Houts v.
First Trust & Savings Bank, Cal.. 168 Pac. 383.

81. Right of Redemption. — As a general

rule, a mortgagor who has conveyed the equity
of redemption by warranty deed to a third per-
son cannot maintain a bill to redeem. — ^Watson
V. First Nat Bank, N. M.. 168 Pac. 488.

82., Bfimlelpal Corporations — ^Abutting Owner.
— One whose place of business abutted upon
sidewalk was not guilty of negligence, or viola-
tion of any ordinance in piling empty chicken
coops on outer side of walk while express
wagon was coming to take them away. — whit-
tle V. Southern Express Co.. La.. 76 So. 623.

83. Ordinance. — Ordinance of city council

which forbids owner or agent of property to
rent same to prostitute, but does not forbid him
to rent his property for purposes of prostitu-
tion, is null and void. — City of New Orleans v.
Piazza, La.. 76 So. 598.

84. Res Gestae. — In fiction for injuries in

collision with automobile, court properly refused
to permit plaintiff to be questioned as to what
he had said concerning damage done to de-
fendant's automobile in collision, fact only, not
what plaintiff said, being material. — ^Townsend
v. Keith, Cal.. 168 Pac. 402.

85. Navtsable IVatem — ^Marshes. — Stream
flowing through marsh or tidelands. never used
or regarded as navigable except for small boats,
and which it was impracticable to use without
deepening it held not a navigable stream. —
North American Dredging Co. of Nevada v.
Mintzer. U. a C. C. A.. 245 Fed. 297.

86. Nesrllsenoe — ^Accident. — Express company
whose driver while backing his wagon to side-
walk curbing struck shipper's employe while
he was trying to get empty coops out of wag-
on's way. so that he. fell aguinst plaintiff pass-
ing on sidewalk, was not liable for plaintiff's
injury. — Whittle v. Southern Express Co., La..
76 So. 623.

87. Imputability. — ^Where plaintiff and own-
er of an automobile agreed upon a trip at joint
expenses, and the automobile was struck by a
train, plaintiff was a joint adventurer, and as
such the negligence of the owner of the car in
driving it upon the track was imputed to him. —
Derrick v. Salt Lake & O. Ry. Co.. Utah, 168
Pac. 835.

88. Principal and Asent — Counter-claim. — In
action for money received by agent for the sale
of automobiles, the agent cannot recover on
counter-claim expenses of trips to the principal



office to adjust alleged overcharges made by
plaintiff.— J. W. Leavitt & Co. v. Dimick, Ore.,
168 Pac. 292.

89. RaJiroads — Look and Listen. — Where one
approaching railroad crossing is familiar with
situation, he must use greater care as danger
is greater; must, 'as he approaches, look from
place where he can see. and listen from place
where he can hear — an imperative duty so long
as there is any need of its exercise. — Cat^cart
V. Oregon-Washington R. & Nav. Co.. Ore., 168
Pac. 308.

90. Reformation of Instmmenta — ^Laches. —
Where a deed in April, 4909. contained mis-
taken descriptions of property, and the grantee
made some claim of ownership in 1912, or 1913,
but did not attempt to take possession until
July, 1914, the grantor was not guilty of laches
in failing to sue for reformation of the deed
until January, 1915. — Hagge v. Moran. Wyo., 168
Pac. 248.

91. Sales — Fraud. — Seller of jitney bus was
not guilty of actionable fraud by promising
buy^r that if his venture should fail to be
flnancial success it would procure contracts
from individuals and firms for profitable use of
car, and by failing to fulfill such agreements. —
Fleming v. Gerlinger Motofcar Co., Ore., 168
Pac. 289.

92. Guaranty. — That contract described

trees as "on myrobalan roots" of itself consti-
tuted guaranty that trees sold should be grafted
on myrobalan roots. — Burge v. Albany Nurs-
eries, Cal.. 168 Pac. 343.

93. ^Notify Bill of Lading— Where seller

ships goods on buyer's order. **on usual terms
delivered." and forwards bill of lading with
draft attached, with direction to notify buyer,
the title does not pass without clear proof of
contrary intention of parties. — Allen & wheeler
Co. v. Farr. W. Va.. 93 S. B. 1030.

94. Speculative Contract. — Rule that, where

parties knowingly enter into a speculative con-
tract, they assume the risk, does not apply to
sale of newspaper routes, in respect to conttnu*
ance of publication. — Kirtley v. Perham, Cal..
168 Pac. 861.

96. Street Railroad* — Crossing Accident — One
driving team across street railway track and
having unobstructed view for quarter of mile
in direction from which car came, and who at-
tempted to cross without trying to ascertain
movement of cars and was struck, was negli-
gent. — Moses V. Northwestern Pennsylvania Ry.
Co., Pa.. 102 Atl. 166.

96. ^Negligence of. — Where defendant's

motorman knows or should know that fire auto-
mobile is* coming at great speed, and runs his
car out on crossing suddenly, forcing automobile
to swerve to walk, injuring plaintiff, company
is negligent. — King v. San Diego Electric Ry.
Co., Cal.. 168 Pac. 131.

97. Tm«t» — Express Trust. — When the set-
tler, the trustee, the cestui que trust, the prop-
erty transferred to the trustee, and the object
to be attained, all appear with reasonable cer-
tainty from the writing, the requirements of
the law are satisfied, and an express trust is
thereby established. — ^Holsapple v. Schrontz, Ind.,
117 N. E. 647.

98. Vendor and Porchaaer — Evidence. — Where
one is induced to purchase land by false and
fraudulent representations in prospectus, let-
ters and orally, it is not proper to admit parts
of prospectuses having no relation to false rep-
resentations relied upon. Berrendo Irrigated
Farms Co. v. Jacobs, N. M., 168 Pac. 483.

99. Executory Contract. — ^Where purchaser

fails to perform his executory contract, and
vendor is not in default, purchaser cannot recov-
er money or property advanced, nor obtain af-
firmative relief as to cancellation of mortgrage
given on other land to secure part of considera-
tion.— Kershaw V. Hurtt, Okla., 168 Pac. 202.

100. War — ^Alien. — Where employe was kill-
ed prior to war by United States against Ger-
many, and deceased's mother was an alien, resi-
dent in Austria-Hungary, to which declaration
of war had not been expended, appeal from a
judgment dismissing her action will not be dis-
missed on ground that she was an alien enemy.
— Taylor v. Albion Lumber Co., Cal., 168 Pac.
348.



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Central Law JoumaL

ST. LOUIS, MO., JANUARY 11, 1918.



WHAT SHALL THE LAWYERS DO TO WIN
THE WAR?



On December the seventh, vvc pub-
lished an editorial stating that the war
would be fought in two phases — the one
in the trenches and the other behind the
lines — and that the two efforts wore of
equal importance, because of their co-
relation. A call was made upon Amcri-
*can lawyers to take the lead as otliccrs
in organizing the important work neces-
sary to be carried on behind the lines.

From the earnest, patriotic and well
known lawyer, wishing to be of real
service, came the inquiry for more defm-
ite suggestions. Almost coincident there-
with there appeared in the daily press
a cartoon depicting the Kaiser mocking-
ly extending his hand to a sleeping
American citizen and requesting him to
"Shake Hands, Friend."

The first commission, therefore, is to
wake up America and particularly those
good and earnest citizens who imagine
they are awake but who are walking in
their sleep. To say that such people
know that America is involved in a
desperate war would be to admit that
one comfortably .seated in his library
arm chair, smokirig a costly Plavana,
knew that his residence was on fire.
Manifestly, if awake, he would be be-
stirring l\imself to do something and to
do everything that would protect his
home from destruction. Once really
awake to danger the initiative of his re-
sourcefulness would be equaled by the
eflfectiveness of his intelligence. The
trained mind of the lawyer, like the
drilled discipline of the officer, w^ould in-
tuitively direct him where leadership



beckoned and where organization lacked
or languished.

But, what is meant by carrying on the
war behind the lines? That too, may be
treated in two phases — the one as to the
government and the other as to the peo-
ple.

The first is in sustaining and en-
couraging spiritually the President and
the entire government, that they may
reach out with a mighty arm strong
driven by the consciousness of duty well
performed and the sustaining plaudits
of a grateful and appreciative people. In
the midst of the carnage and the strife,
words of coftfidence and approval stim-
ulate the dignified and mature .spirit of
a great and trusted chief executive and
a seasoned and honored Congress, no less
than that of the young; hero on the
gridiron. No man can do his best con-
fronted by a silent people and the un-
vocal question it imports.

But, this voice must be that of Ameri-
ca and not that of the letter writer. It
• must be so clearly distinct in its volume
as to require no ear upon, the ground ; so
musical in its inspired tone as to need
no band for leadership, and so earnest in
its determined effort as to quicken the
stagnant blood of the indifferent

No, America does not need, a revival
of patriotism. She requires a quickening
of a sense of service. America does not
need censure. She deserves local lead-
ership. Traditional energy, initiative an^.
verve await to be marshalled in the
battalion and assigned to duty under the
guidance of men prepared to direct the
execution of the orders of the command-
er-in-chief at Washington and his aides.
It is deeds that are needed and perform-
ance will follow organized leadership.

Does one have to search the records
for these orders, for a signal to start, or
^re they still sounding upon the ear-



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drums of conscience like the command
to charge the enemy, for that is what
they mean. Let us be more specific.

Are the lawyers energetically and
cheerfully performing the duties in-
volved in the important work of the
Legal Advisory Boards? Or, are they
begrudingly donating an hour here and
there, the while complaining of the loss
of income incurred. Are they sys-
tematically reporting when and. where
assigned like military guardsmen, con-
scious of a second duty, or are they er-
ratically strolling in at convenience?
Let every lawyer answer these questions.

So important is it that the proposed
classification of registrants shall com-
mand the respect and confidence of the
people, that one would not dare prophesy
the result of failure. A deep and wide-
spread sense of dissatisfaction over the
order in which our young men shall be
called to the front will be a greater dis*
aster than the loss of a battle, aye, many
battles. Disunion at home means dis-
union in the trenches.

Let us never forget that the fighting
spirit of the men in the trenches is
measured by the object they have gone
out to achieve — the preservation of
democracy and all it implies — freedom,
fairness, justice and equal opportunity
under ihe law. Are the lawyers seeing
to it that the splendid and scientific pro-
gram for classification, conceived by the
Provost Marshal General, is being prop-
erly executed. If not, drive into their
very souls the certainty of danger and
an exalted sense of duty in the circum-
stances.

Millions of dollars are being spent up-
on cantonments, forts and other public
works. Is proper return in service real-
ized? Manifestly, the answer is in the
negative. Who is at fault? Is it the
system employed by the respective gov-
ernmental departments? Is it the craft-



iness and covetousness of contractors
who are mindful only of increasing the
account upon which they are to receive
ten per cent, who pay extravagantly for
material, and who pad pay-rolls by en-
couraging slothfulness in service? Or, is
it the indiflference of the workman to the
dire need of the Nation in its hour of
stress.

Our sons and brothers are dying of
pneumonia and its kindred diseases
caused by exposure and inadequate
housing due to unexpected slowness of
construction. Whatever may be the
trouble it can and must be reached by
the organized eflfort of the people. They
will send these men the message that
ever>' man is a soldier and every soldier
is expected to do his duty; that failure
or refusal is traitorous as surely as if
a trench or a fort had been betrayed to
the enemy. If churches, chambers of
commerce and civic organizations have
not done this, has any lawyer suggested
it? It is worthy of thought? These
men, too, need to hear the voice of the
people, but not in acclaim. It must be
in a condemnation carrying the convic-
tion of the determined will of the Ameri-
can people.

The need of economy and of conser-
vation of food and fuel has long since
been too patent to require the official
'^regulation" of a patriotic nation fully
awake. There is something wrong with
a people who willingly surrender their
sons and who need to be driven into
giving up a petted dish or a small de-
gree of heat. Both of these traits of
character are the children of habit and
not the free offering of a patriotic spirit
— the splendid habit of obedience to the
government. But that is not enough.
This lack of individual spontaneity and
initiative denote lethargy awaiting
duress. Instead, a great majority should
be themselves intuitively doing the right



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thing and driving the recalcitrants to it
by the weight of their irresistible, organ-
ized wills.

As public sentiment has controlled
this country in peace, so it will dictate
its policy in the war. If wrongs are be-
ing committed and advantage being
taken of the stress of circumtances ; if
men are not unselfishly responding to
the many calls of service and sacrifice
made upon their assumed patriotism, it
is because public sentiment is unvocal
and imorganized, for there can be no
doubt of its existence. Will the lawyer
be that voice? Will he be the Paul Re-
vere of 1918 carrying the countryside to
war? That is where he can serve.

The Red Cross soldiers are not found
only on the battle front of France and
Italy and in the devastation, sorrow and
sickness of Belgium. Without uniforms
or insignia they walk the streets and
highways of the country gathering, or-
ganizing and assembling the substance
upon which the uniformed men and
women are sustained and with • which
they do their angelic work of mercy.
Are the lawyers leading and striving in
this propaganda, or are their eyes lifted
away from the ordinary labor awaiting
and appealing to them, to the imaginary
heroic scenes upon bloodstained battle
fields. Are they doing their bit for the
Liberty Loan? Are they encouraging
economy that war expenses may be paid
out of income? To such it may be said
that greatness consists of performing
cheerfully and patiently the inconspicu-
ous things of life. It is the ensemble
that appears big. The measure of pa-
triotism in this war is not going to be ,
the sword alone, but unselfish, patriotic



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