exercise nothing short of the uberrima fides of the civil law, and they must not in any degree allow their official conduct to be swayed by their private interests or welfare, unless that interest be one they have in the good of the company in common with all of the stockholders.-Reinhardt v. Owensboro Planing Mill Co., Ky., 215 S. W. 523.

14.

Promoter.-Whenever in the organization of a corporation a quasi trust relation arises between the promoter and the inchoate corporation, and there is a breach of fiduciary duty growing out of such relation, the corporation may maintain an action in equity for discovery and accounting, to rescind or set aside the agreement or transfer, to establish the trust and recover secret profits.-McNabb v. Tampa & St. Petersburg Land Co., Fla., 83, So. 90.

15. Criminal Law-Corpus Delicti.-The corpus delicti cannot be established alone by the uncorroborated extrajudicial confession of the accused.-Francis v. State, Okla., 185 Pac. 126.

16. Damages-Mitigating.-The rule that an injured party should do what reasonable care and business prudence requires to reduce loss has no application where the wrongdoer has the opportunity to remedy the wrong and avoid damage, and when it would require the expenditure of money by the injured party.-Shaw v. City of Greensboro, N. C., 101 S. E. 27.

17. Deeds-Undue Influence.-In executor's suit to set aside, for undue influence, deed of his 93-year-old testatrix to one who was her housekeeper and nurse, the burden was on defendant grantee, because of the confidential relationship, to establish the clearest proof that the transaction was fair and free from fraud or undue influence.-Jacobs' Ex'r v. Meyers, Ky., 215 S. W.

20.

Executors and Administrators-Equality in Distribution.-Since it is illegal for an admin- | istrator to prefer part of the creditors, creditors cannot secure a preference by reducing their claims to judgments and levying on the goods in the hands of the administrator.-Blaisdell v. Peavey, N. H., 108 Atl. 134.

21. Secured Debt.-The holder of a secured debt need not exhibit it as a demand against the estate of his debtor, if he is content to look only to his security for payment.-Linn County Bank v. Grisham, Kan., 185 Pac. 54.

22. Exemptions · Waiver. Incumbrance of property exempt to head of family being, under Code 1897, § 2906, void, where his wife does not join therein, he does not waive his exemption by alone giving a mortgage thereon, and cannot waive it thereafter.-Augustine v. Gold, Iowa, 174 N. W. 581.

23. Frauds, Statute Of-Debt, Default or Miscarriage. An agreement by defendant that if plaintiff who had charged his son with seduction would marry the son and stop civil and criminal proceedings against the son defendant would convey to her a parcel of land is not within the statute of frauds as an agreement to answer for the debt, default or miscarriage of another.Bader v. Hiscox, Iowa, 174 N. W. 565.

24.- -Deceit Action For. To sustain action for deceit, the representation must be shown to have been not only false in fact, but known to be false and made with fraudulent intent.Sarson v. Maccia, N. J., 108 Atl. 109.

25.- -Performance Within One Year.-In view of the rule that the construction of a contract must be determined by the intent of the parties, where an agreement to furnish funds to acquire and improve real estate, and for sale of stock in the corporation to be formed, could not be performed in one year even by excluding the acts required of the new corporation, the agreement was not one to be performed within one year and to be enforceable must be in writing, in view of Burns' Ann. St. 1914. § 7462.-Meyer v. E. G. Spink Co., Ind., 124 N. E. 757. 26. Fraud-Proximate Cause. To recover for fraud, it is not necessary that the party injured relied solely on the misrepresentations in changing his situation; it is sufficient if the misrepresentation was one of the effective causes of the change of situation.-Bledsoe v. Letson, Mo., 215 S. W. 513.

27. Fraudulent Conveyances-Bulk Sales Act. -Goods and fixtures used in a restaurant conducted on the ordinary plan is not a "stock of merchandise" within the meaning of the Bulk Sales Act; such words being used in their common and ordinary acceptation, and meaning the goods or chattels which a merchant holds for sale, being equivalent to "stock in trade."Swift & Co. v. Tempelos, N. C., 101 S. E. 8. 28.- -Participant in Fraud.-In order to defeat a transfer which has been made with the intent to defraud creditors, it is not necessary to show that the transferee was an actual participant in the fraud of the grantor.-Burn well Coal Co. v. Setzer, Ala., 83 So. 139.

29. Preference.--An insolvent debtor may prefer a bona fide creditor by making an assignment of the proceeds of an insurance policy to such creditor, where the creditor's claim is an amount equal to the fund transferred.-Cavanaugh v. Dyer, Mo., 215 S. W. 481.

30. Good Will-Trade Name.-A person has a property interest in his trade name and good will, and, even in the absence of a statute, will be protected against injury to that trade name and good will.-Robert H. Ingersoll & Bro. v.. Hahne & Co., N. J., 108 Atl. 128.

31. Guaranty Consideration Imported. Where the guaranty of a note was in writing. the writing itself imports a consideration.Security Commercial & Savings Bank of San Diego v. Seitz, Cal., 185 Pac. 188.

32. Husband and Wife-Adverse Possession. -Plaintiff, who did not go into possession of defendant's land until after defendant's marriage, could not, by reason of such possession while defendant was under coverture, acquire title by adverse possession; the statute not havVa., 101 S. E. 68. ing run during such period.-Nichols v. Miller,

33.

-Estoppel.-Where a married woman allowed her husband to hold title to property in which she had the beneficial interest, and the husband before indorsing a note informed complainant that the property to which he held title belonged to his wife, held, that the wife is not estopped as against complainant to assert her interest.-Wood v. Lester, Va., 101 S. E. 52.

34. Injunction-Placarding Business Place.Acts of union men in maintaining placards in proximity to complainant machine company's plant reading: "Don't scab. Honest jobs are plenty. Strike at *** machine company"-in distributing like cards to prospective employes, etc., held illegal, and subject to injunction at the suit of the company.-Thomson Mach. Co. v. Brown, N. J., 108 Atl. 116.

35. Insurance Accidental Injury.-Where insured, who was employed to select and separate unmarketable from marketable oranges, ate three of them, resulting in gastritis, which

shortly caused his death, the death was not by "accidental means," within the provisions of the policy, although the result was accidental.Martin v. Interstate Business Men's Acc. Ass'n, Ia., 174 N. W. 577.

36. Cancellation by Mail.-If a notice of cancellation is mailed to assured at his latest address appearing on the company's record, with check for unearned premium, that is sufficient; the assured assuming the risk of due receipt of the notice.-Wolonter v. U. S. Casualty Co., Va., 101 S. E. 58.

37. Total Disability.-A nurse who became afflicted with a disease, known as subacute congestion of the conjunctiva, accompanied with iritic irritation and eczema of the eyes and eyelids, which calls for exclusion of light from the eyes and exercise in the open and fresh air, was not "totally disabled and confined within the house," within the meaning of an accident and sickness policy, having gone from place to place for change of air, etc.-Bucher v. Great Eastern Casualty Co., Mo., 215 S. W. 494.

38.-Waiver of Forfeiture.-Where monthly premiums on a benefit certificate are collected and retained by insurer month after month, and the certificate continued in force, the insurer thereby itself and not by its local agents and collectors, waives the forfeiture provision for nonpayment of premium.-Knights of the Maccabees of the World v. Johnson, Okla., 185 Pac. 82.

39. Intoxicating Liquors-Action on Bond.The basis of an action on a liquor bond sounds in tort, and the tort-feasor rule applies.-Brown v. Kemp, Ind., 124 N. E. 777. 40.

Judgment-General

Jurisdiction.-Where record of judgment of domestic court of superior and general jurisdiction is merely silent upon any particular matter affecting jurisdiction, it will be presumed, notwithstanding, that whatever ought to have been done was not only done, but that it was rightly done.-Louisville & N. R. Co. v. Tally, Ala., 83 So. 114.

41. Verity Implied.-Estoppel arises from the record of a judgment when considered as a memorial or entry of the judgment and when considered as a judgment; the record importing absolute verity impeachable by no one, and the judgment having the effect of precluding a reexamination, by the parties thereto and their privies, into the truth of the matters decided.Price v. Edwards, N. C., 101 S. E. 33.

42. Kidnapping-Physical Force.-To consti. tute the offense of kidnapping, it is not necessary that actual physical force should have been employed; it only being essential that the taking or detention be against the will of the person kidnapped.-State v. Marks, N. C., 101 S. E. 24. 43. Landlord and Tenant-Annual Crops.-A tenant is entitled, as against the landlord and his successors to the annual crops raised on the land during the tenancy, and as between them such crops are not a part of the freehold, but the property of the tenant in the absence of contrary stipulation.-Estep v. Bailey, Ore., 185 Pac. 227.

44. Change in Law.-A lease, lawful when made, does not become unlawful by a subsequent change in the law, though such change may under certain circumstances destroy the contract obligation.-Coklin v. Silver, Ia., 174 N. W. 573.

45. Practical Construction.-In cases where parties have put a consideration upon a lease, especially in cases of doubt, that construction will be applied to the instrument by the courts. -Ohio Oil Co. v. Burch, Ind., 124 N. E. 781.

46. Tenancy at Will. The holding of a tenant at will may become one for a year, if it may be inferred that such is the parties' intentlon, and payment of an aliquot part of the yearly rent, without contrary explanation, is sufficient evidence of such intention.-Siemers v. Huechel, N. Y., 178 N. Y. S. 649.

47. Quiet Enjoyment.-No acts of molestation, even if committed by the landlord himself or by a servant at his command, amount to a breach of a covenant to quiet enjoyment unless they are more than a mere trespass.-North

Pac. S. S. Co. v. Terminal Inv. Co., Cal., 185 Pac. 205.

48. Libel and Slander-Voluntary Testimony. -Where a witness while on stand makes a "voluntary statement," one not given in reply to a question asked him, he is entitled to absolute privilege with respect to it, and, regardless of his motive, is not answerable in an action for slander, if the statement was pertinent to the issues being tried.-Weil v. Lynds, Kan., 185 Pac. 51.

49. Malicious Prosecution-Probable Cause.In a malicious prosecution case "probable cause" is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that defendant is guilty of the offense charged. -Parisian Co. v. Williams, Ala., 83 So. 122.

50. Marriage Annulment. Where plaintiff was 17 years of age, when she married without the consent of her parents, she may have the marriage annulled, where it was never consummated and she and her husband separated immediately after the ceremony, unless she is guilty of laches.-Price v. Price, N. Y., 178 N. Y. S. 561.

51.Annulment.-In an action to annul a marriage on ground that the wife was an epileptic at time of marriage, proof that she was then an epileptic, in absence of a showing of fraud in concealing her condition, is not sufficient to warrant a decree.-Behsman v. Behsman, Minn., 174 N. W. 611.

52. Master and Servant-Assurance by Master. An employe is not chargeable as a matter of law with contributory negligence merely because, before notifying master, he feared the possibility of injury from circumstances coming to his own knowledge, where he afterwards relied on master's assurance that work might be safely performed.-Fletcher v. Henry Baden Mercantile Co., Kan., 185 Pac. 7.

com

53. Defective Coupling.-A railroad pany cannot be held liable for a trainman's injuries by a defective coupling, where there is no showing the defect was known, or could have been known, by it in time to have made repairs. Hunsaker's Adm'x v. Chesapeake & O. Ry. Co., Ky., 215 S. W. 552.

54.- -Imputability. Negligence of servants in the course of their employment is to be imputed to their master.-Fahey v. Niles, Del., 108 Atl. 135.

55. Tools and Appliances.-The tools and appliances adopted by the master must be reasonably safe to do the work required of them and for which purpose they are used.-Davis v. Ball., Okla., 185 Pac. 105.

56. Workmen's Compensation Act. That employe performed his duties in an unusual and dangerous manner does not of itself place him outside of provisions of Workmen's Compensation Act.-Industrial Commission of Colorado v. H. Koppers Co., Colo., 185 Pac. 267.

57. Mechanics-Nonlienable Items.A claim for mechanic's lien will not be sustained where it appears that the claimant in bad faith, or with a recklessness tantamount thereto, has included in his statement items which he knows, or ought to know, are nonlienable.-Stephenson & Peterson v. Svenson, Ia., 174 N. W. 570.

A

58. Monopolies-Interstate Commerce. conspiracy to restrain interstate or foreign commerce, in violation of Sherman Anti-Trust Act, July 2, 1890, is proved by proving the forbidden meeting of minds, like a common law conspiracy, and proof of an overt act is not essential.Lamar v. U. S., U. S. C. C. A., 260 Fed. 561.

59. Mortgages-Future Advances.-In an action to foreclose a mortgage securing a note given to cover future advances, the burden of proof rests upon the plaintiff to establish the amount of money advanced to the defendant.Graber v. Boswell, Ore., 185 Pac. 231. 60. Municipal Corporations Constructive Knowledge.-The rule of constructive knowledge applies only to such defects in a sidewalk as might have been discovered by ordinary care and diligence.-City of New Albany v. Slattery, Ind., 124 N. E. 755.

61. Respondeat Superior. Though city's employes were negligent in kindling or guarding fire on city dumping ground and sparks set fire to house of plaintiff's intestate, the city is not liable; the doctrine of respondeat superior not applying to municipalities.-Reilly v. City of New Brunswick, N. J., 108 Atl. 107.

62. Street Obstruction.-When an obstruction is rightfully placed in a street, the party placing it must take due precaution not to injure any person lawfully using the street for public travel.-Bailey v. Columbia Grocery Co., Ind., 124 N. E. 784.

63. -Speed Regulations.-Defendant's driving of his automobile at a rate of speed in excess of 25 miles an hour within the business part of the city of Springfield could properly be found to have been greater than was reasonable and proper, having regard to the use of the way and the safety of the public.-Buoniconti V. Lee, Mass., 124 N. E. 791.

64. Partition-Complete Relief.-A court of equity, having jurisdiction of the subject-matter and of the parties for the primary purpose of a sale for distribution among joint tenants, will retain and exercise such jurisdiction to give complete relief to a cotenant who has another interest in the land.-Winsett v. Winsett, Ala., 83 So. 117.

65. Equity.-The action of partition is in the nature of a chancery action, cognizable under equity powers.-Knight v. Harrison, N. D., 174 N. W. 632.

66. Patents-Abandonment.- Where the use of a device exhibited at a world's fair was only experimental, and tests then made were unsucsuccessful, there was no public use or sale, constituting an abandonment, so as to invalidate a patent application made over two years later.Alvey-Ferguson Co. v. John F. Trommer Evergreen Brewery, U. S. D. C., 260 Fed. 572.

a

67. Payment-Receipt.-A receipt is not contract, but a mere admission in writing of the fact of payment or other settlement between debtor and creditor, and under Civ. Code 1910, § 5795, is only prima facie evidence of payment, subject to explanation.-Hamlin v. Lupo, Ga., 101 S. E. 5.

68. Quieting Title-Cloud on Title.-Judgment lien claimant may sue to remove a cloud on the title to the property.-Robben v. Benson, Cal., 185 Pac. 200.

Mutual

71. Reformation of Instruments Mistake. In order to justify a decree for reformation in cases of pure mistake, it is necessary that mistake should have been mutual.Long v. U. S. Fidelity & Guaranty Co., N. C., 101 S. E. 11.

72. Mutual Mistake. Where a condition was omitted through mutual mistake from a contract of sale of land, the contract could be reformed so that the condition would be included therein.-Gray v. Van Gordon, Ia., 174 N. W. 588.

73. Sales Inspection.-Where buyer inspected onions when he purchased them, he was not entitled to again inspect them, in the absence of a claim that seller attempted to deliver other onions.-Naftzger v. Henneman, Ore., 185 Pac.

233.

74.- -Nullity.-A contract of sale vitiated by fraud is voidable ab initio at the election of the innocent buyer, who, having taken proper steps to avoid it, may treat it as a nullity and bring action at law where the legal remedy is adequate, in which action he is required to establish the fraud and to show that he promptly took proper steps in avoidance.-Farrell v. Hunt, Ind., 124 N. E. 745.

75.-Performance Prevented.-Seller, having contracted to make deliveries of woolen goods, was not relieved from liability for failure to so do by fact that United States government had preempted practically the entire woolen goods supply on account of war.-Salembier, Levin & Co. v. North Adams Mfg. Co., N. Y., 178 N. Y. S. 607.

76. -Tender.-When one party to a contract notifies the other party that he elects to breach the contract, other party need not make tender, since tender would be an idle performance.— Clinton Oil & Mfg. Co. v. Carpenter, S. C., 101 S. E. 47.

77. Set-Off and Counterclaim-Equity.-The general rule is as regards set-offs that equity follows the law.-Edelman v. Schwartz, N. Y., 178 N. Y. S. 587.

78. Specific Performance-Judicial Discretion. -Though the right to specific performance of a contract to sell and convey land is not absolute, but a matter of discretion with the chancellor, the discretion is a sound judicial discretion, controlled by established principles of equity, and where the contract is in writing, is certain, for value, fair and just, and capable of being enforced without hardship, specific performance will be decreed as a matter of course.-Sims v. Best, Ark., 215 S. W. 519.

79.- -Tender of Performance. The court cannot decree specific performance by the seller of a contract for the sale of land, where the buyer's assignee, who asks relief, has not specifically performed and does not tender performance in full, but simply erpresses its willingness. Smith v. Martin, Ore., 185 Pac. 236.

The rule

81. Trusts-Mingling Funds. charging a trustee who mingles trust funds with his own as trustee of all mingled funds does not apply where two persons knowingly mingle their own funds, especially where the two are man and wife.-Agnew v. Agnew, Colo., 185 Pac. 259.

82. Usury-Legal Rate.-A contract for the legal rate of interest during the time of forbearance, and for interest upon interest thereafter, is not usurious.-Shear Co. v. Hall, Tex., 215 S W. 567.

83.

Warehousemen-Restoring Property.—A storage company which was negligent in the care of property left with it was liable only for the expense of restoration or repair, if such cost was reasonable.-Herrick V. Merchants' Transfer & Storage Co., Ia., 174 N. W. 569.

84. Waters and Water Courses-Prescription.-Landowners who used all the waters of a natural stream continuously, openly, and under a claim of right for at least five years, paying taxes, acquired title by prescription.-Turner v Bush, Cal., 185 Pac. 190.

85. Wills Election.-That a widow has obtained an allowance out of her deceased husband's estate in the probate court on the asserted ground that she was a beneficiary under his will, under which she had elected to take. precludes her from subsequently maintaining an action to set aside the election.-West v. West, Kan., 185 Pac. 4. 86.

Probate.-If a

testator comprehends and approves the instrument as written, it should not be refused probate because it fails to carry out his intention as to part of his property. In re Knutson's Estate, Minn., 174 N. W. 617.

Central Law Journal.

ST. LOUIS, MO., JANUARY 30, 1920.

HOW FAR CAN CONGRESS OR A STATE LEGISLATURE GO IN EXCLUDING

DULY ELECTED REPRESENTATIVES?

An interesting question affecting the power of a legislature to unseat or to expel a member duly elected is raised by the action of Congress in the Berger case and by the recent action of the New York Legislature in expelling five Socialist members. In the latter case the New York City Bar Association after a stormy session passed a resolution condemning the action of the New York Legislature and appointing a committee, of which Hon. Charles E. Hughes is chairman, to attend the trial before the legislature of the suspended men. The action of the legislature was denounced as "threatening the very foundations of representative government."

This controversy discloses some of the necessary limitations and, possibly, the unavoidable weaknesses of a republican form of government. But it is encouraging to remember that such weaknesses or limitations are not and never can be fatal to our institutions, since in every case the people themselves hold the supreme power and can easily correct any temporary abuses at the ballot box.

There can be no doubt that the present hysteria prevailing in the country against Bolshevism and anarchy is responsible for actions of this character, which is quite without precedent in the previous history of the country. The universal condemnation, however, of the abuse on the part of any legislature of its power to determine the qualifications of its own members will no doubt put a stop to such futile efforts to suppress undesirable political beliefs and propaganda.

But, aside from the question of the injustice and the stupidity of such a proceeding

on the part of the legislature in any particular case, there can be no doubt of the constitutional right of the legislature to expel a member for any cause and that there is confided to no other body, judicial or executive, any power to correct the abuse of the legislative discretion in such

matters.

The courts have uniformly declined to interfere with the action of the legislature in seating or unseating any of its members, on the ground that the legislature is a coordinate branch of the government whose powers may not be controlled by any other department of the government. This was made clear in several early decisions in this country which have been accepted as precluding any right of appeal to the courts in such cases. Opinion of Justices, 56 N. H. 570; State v. Rogers, 56 N. J. Law 480; Opinion of Justices, 35 Me. 576; Garrard v. Gallagher, 11 Nev. 382; Hiss v. Bartlett, 3 Gray (Mass.) 468. In the first case cited the New Hampshire Supreme Court was asked "whether the legislature were the final judges under the Constitution of the qualifications of its own members." To this question the Supreme Court replied as follows:

"By the express terms of the constitution, the action of the Senate is made final. If the framers of our organic law had intended that some court or other tribunal should have the power, by writ of quo warranto or mandamus or other process, to reverse the action of the Senate, they would have so expressed themselves in language which could not be misunderstood.

"There is no principle more fundamental, more thoroughly interwoven with the whole fabric of our republican institutions and form of government, and probably none more familiar to the great mass of intelligent citizens of the State, than that the three branches of the government-the legislative, the executive and the judicial-are co-ordinate and independent. Neither can interfere with the duties or functions of either of the others, without striking a blow at the foundation upon which rests all security as well for private rights as the public welfare.

"If a mistake, or even an intentional wrong, should be committed by the executive, the remedies under our form of government are ample and prompt, the wrong to be suffered temporary. If, on the other hand, a precedent of interference by one department with the discharge of its duties by another should be established by the form of a judicial decision, a dangerous blow would, in our judgment, be struck at one of the most vital principles of our system of government, the consequences of which no one could foretell, but which no intelligent and candid citizen could fail to see must be lasting and pernicious."

The case of Hiss v. Bartlett, supra, is even more conclusive of the unrestricted power of the legislature not only to determine the qualifications of its members at the inception of their terms of office but to unseat any member for any cause satisfactory to the legislature itself. In this case plaintiff was arrested and on habeas corpus proceeding contended that as a member of Congress he was exempt from arrest under the circumstances of that case. The creditors at whose instance plaintiff was arrested denied that he was a member of Congress, alleging his expulsion. Plaintiff, on the other hand, contended that he had been improperly expelled by the House of Representatives because as alleged his conduct on a certain commission "was highly improper and disgraceful both to himself and to this body of which he is a member." He claimed that he had not been given a fair trial, nor permitted to be represented by counsel. In answer to this contention Chief Justice Shaw said:

"The power of expulsion is a necessary and incidental power, to enable the House to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally or morally unfit; he may be afflicted with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene and abusive language.

"I am strongly inclined to believe that the power to commit and to expel its members was given to the House and Senate, respectively, because it was regarded as

inherent, incidental and necessary, and must exist in every aggregate and deliberative body, in order to the exercise of its functions, and because without it such body would be powerless to accomplish the purposes of its constitution; and therefore any attempt to express or define it would impair rather than strengthen it. * * *

"But, independently of parliamentary customs and usages, our legislative houses have the power to protect themselves, by the punishment and expulsion of a member. It is urged that this court will inquire whether the petitioner has been tried. But if the House have jurisdiction for any cause to expel, and a court of justice finds that they have in fact expelled, I think we are bound to say that when he was arrested he was not a member of the House of Representatives and his privilege from arrest was at an end."

It seems, therefore, that there can be no judicial review of the action of a legislature in determining the qualifications of its own members or in unseating a member for misconduct or for any reason or for no reason. But representative government would indeed be "threatened," as the New York Bar Association resolution declares, if the

legislature should be permitted, without strong public protest, to unseat duly elected members on grounds that had no connection with any purpose to protect itself in the discharge of its high functions but which had only to do with the political beliefs of such members.

NOTES OF IMPORTANT DECISIONS.

EXEMPTION FROM TAXATION OF CHARI. TIES ENGAGED IN SELLING MERCHANDISE FOR PROFIT.-A clear, close, but, to our mind, accurate distinction is made by the Illinois Supreme Court when it declares that profit-making nor the character of the causes to which the profits of a charity are applied is the test by which their exemption from taxation is determined, but whether the business which the charity engages in is itself a charity. Congregational Sunday School and Publishing Society v. Board of Review, 125 N. E. 6.