97. Negligence-Liability.-One creating a danger which sooner or later will cause injury held responsible for the injury.-Lee v. Powell Bros. & Sanders Co., La., 52 So. 214. 98. Liability of Manufacturer. The only duty of a manufacturer and seller of a machine not itself dangerous flows from contract, and he' is not liable to a third person and a stranger for injuries because of negligence in the construction of the machine.-Laudeman v. Russell & Co., Ind., 91 N. EL 822. 99. New Trial-Misconduct of Jury.-Where the misconduct of the juror might have been prejudicial, the successful party to prevent a new trail must rebut the presumption of prejudice. Cooper v. Carr, Mich., 126 N. W. 468. 100. Partnership-Mortgage to Secure Debt of Member.-A mortgage of property of a solvent firm to secure a debt of a member held not a fraud on firm creditors.-J. L. Knox & Co. v. Parker, Ala., 52 So. 438. 101. Pleading-Judgment On Pleadings.-A motion for judgment for plaintiff on the plead- ·| ings is in effect a demurrer to the answer, and as such admits the truth of the allegations and denies their legal sufficiency.-Helms v. Holton, N. C., 67 S. E. 1061. 102. Principal and Surety-Discharge of Surety. A surety of a building contractor held not released from liability merely because the owner made payments according to excessive estimates made by the superintendent.-Y. M. C. A. of North Yakima v. Gibson, Wash., 108 Pac. 766. 103. Railroads-Fires.-Where fire is communicated to property by a locomotive, the burden is on defendant to show absence of negligence.-Miller-Brent Lumber Co. V. Douglas, Ala., 52 So. 414. 104.- -Liability of Lessor. The lessor and lessee of a railroad both being liable for proper construction and maintenance of a bridge, they are jointly liable.-Delashmutt v. Chicago, B. & Q. R. Co., Iowa, 126 N. W. 359. 105. Negligence.-A person traveling along a highway close to a railroad track held entitled to rely on signals to be given by trains at public crossings and other points where signals are ordinarily required.-Norris V. Atlantic Coast Line R. Co., N. C., 67 S. E. 1017. 106. Negligence.-Where injury is established by the running of a locomotive, the burden is upon the railroad company to show that its agents exercised reasonable care to prevent the injury.-Johnson v. Louisville & N. R. Co., Fla., 52 So. 195. 107. Who Are Passengers.-One going to a depot, intending to take passage on a train to arrive in 15 minutes, held a passenger.-Metcalf v. Yazoo & M. V. R. Co., Miss., 52 So. 355. 108. Reformation of Instruments-Correction. -Reformation or correction of an instrument may not be had in an action at law.-Skiba v. Gustin, Mich., 126 N. W. 464. con 109. Sales-Conditional.-A seller in a tract of conditional sale held to rescind the sale by retaking the property, defeating his right to recover the price.-Reeves & Co. v. Miller, Ind., 91 N. E. 812. 110.- -Election to Renew Contract.-An election by a buyer to renew the contract held ineffectual because made after the expiration of the contract.-San Pedro Salt Co. V. Hauser Packing Co., Cal., 108 Pac. 728. 111.-Performance.-A buyer of the mer chantable output of a sawmill for a specified period held not entitled to terminate the contract on the ground of past failures that have been acquiesced in.-Barnette Sawmill Co. v. Ft. Harrison Lumber Co., La., 52 So. 222. 112.Rescission.-In an action for the price of goods sold, a showing that the value of the goods was less than the consideration paid is available only in support of a claim for rescission or of damages for a breach of warranty.-Rudolph Wurlitzer Co. v. Rhea, Iowa, 126 N. W. 345. 113. Specific Performance Ancillary Relief. -Where a contract is for special or extraordinary personal services or personal services purely intellectual and individual, equity will grant an injunction in aid of specific performance.— Roquemore & Hall V. Mitchell Bros., Ala., 52 So. 423. 114. Doubtful Title to Land.-Equity will not compel a purchase under an executory contract to accept a doubtful title to land.-MeNutt v. Nellans, Kan., 108 Pac. 834. 115. Statutes-Construction.-The court in construing a statute, making any innovation on the common law, will presume that the Legislature did not intend to make any innovation further than the case absolutely required.Northern Cent. Ry. Co. v. Green, Md., 76 Atl. 90. 116. Taxation-Tax Deed.-A tax deed need not recite the amount of subsequent taxes paid by the purchaser.-Lecompte v. Smith, Kan., 108 Pac. 810. 117. Telegraphs and Telephones-Failure to Deliver Message.-A telegraph company, though not an insurer of the delivery of messages, must, up to its capacity, transmit and deliver paid messages tendered, and a failure to do so raises a prima facie showing of negligence.Western Union Telegraph Co. v. Ivy. U. S. C. C. of App., Eighth Circuit, 177 Fed. 63. 118.- -Maintenance of Line.-An ordinance authorizing a telephone company to construct a telephone line is not valid, where it conflicts with a subsequent statute.-Boland v. Washtenaw Home Telephone Co., Mich., 126 N. W. 425. 119. Time for Filing Claims.-A provision of a telegraph contract that claims for delay in delivery shall be filed within 60 days after transmission is reasonable and valid. Forney v. Postal Telegraph Cable Co., N. C., 67 S. E. 1011. 120. Trial-Duty to State Nature of Testimony Offered.-Before a party can complain of the court's action in proceeding to judgment, notwithstanding his offer to introduce further testimony, he must have disclosed what that testimony was.-United Hardware-Furniture Co. v. Blue, Fla., 52 So. 364. 121. Vendor and Purchaser-Bona Fide Purchaser. If a deed is void, a subsequent innocent purchaser is not protected; but, if it is merely voidable. he is protected.—Bardin V. Grace, Ala., 52 So. 425. 122. Rescission by Vendee. Continuous possession of house and lot by purchaser, with other acts, held not a bar to the right to cancel contract and to relief from forfeiture for fraud of seller.-Culver v. Avery, Mich., 126 N. W. 439. 123. Waters and Water Courses Draining Land-Injunction held to lie against a landowner who by ditching his land casts upon the land of an adjoining owner water in excess of the amount which would naturally flow thereon. -Offley v. Garlinger, Mich., 126 N. W. 434. 124. Wills-Construction.-A will referring to a deed held to require construction of the deed and will together. Snyder v. Greendale Land Co., Ind., 91 N. E. 819. 125. Witnesses-Books of Account.-Where in proceedings before a referee a party's books of account are admitted in evidence, his adversary may call for any particular documents in his possession which in the referee's opinion tend to elucidate the accounts or books, or bear on questions at issue.-Seaboard Air Line Ry. v. Earle, S. C., 67 S. E. 1069. Central Law Journal. ST. LOUIS, MO., SEPTEMBER 2, 1910 THE ANCIENT RULE DENYING RECOVERY BY DRAWEE PAYING FORGED PAPER. Late decisions have exhibited quite a frequency in reference to right of party paying forged paper. We discussed at page 417 of 70 Cent. L. J., the bearing of Negotiable Instruments Law on this subject, taking the view that St. Louis Court of Appeals was in error in holding that it bore upon the question at all. Again at page 139 of 71 Cent. L. J., we annotated the decision of another court holding that the maker paying a forged note as his own had no recourse on the innocent holder to whom he paid it. The Supreme Court of Nebraska, in State Bank of Chicago v. First Nat. Bank of Omaha, 127 N. W. 244, follows the rule of Price v. Neal, 3 Burrows, 1355, saying, in a case where drawee bank paid a draft purported to be drawn by its correspondent bank in South Dakota, cashed by a Nebraska bank, that there was no recourse on the Nebraska bank. It was remarked in the opinion that: "Counsel for the respective litigants stated at the bar, that the negotiable instruments law does not control this case, and we shall treat their statement as correct for the purposes of this case." This may lend some force to our suggestion in 70 Cent. L. J., supra, that this law ought to be amended in this particular. This opinion also says: "The cases are annotated in a note to First National Bank v. Bank of Wyndmere, 15 N. D. 299, 10 L. L. R. A. (N. S.) 49, 125 Am. St. Rep. 588. Courts and text writers generally recognize that the preponderance of authority is in favor of the rule, but it seems in conflict with a well-established principle of law, that money paid by mistake may be recovered back, and has not been accepted without qualification by all of the American courts. North Dakota refuses to follow Price v. * * Neal. * The position assumed by North Dakota is in harmony with suggestions made by many text writers but so far as we are advised, not sustained by the opinion of any other court." As to this we refer to our annotation. There seems to us little reason for adherence to the rule in Price v. Neal, "in conflict with a well-established principle of law," as above stated. The practice of banks is not to cash paper on other banks, unless they rely on the credit or standing of the payee therein or on that of someone vouching for him. If they do otherwise, it shows negligence. If they do rely as stated, they are presumptively able to save themselves against loss, if the paper is not honored. What requirement then, of commercial dealing is there which should make a drawee bank suffer for a mistake in paying a forged check, if it acts within time to save the cashing bank from changing its position? In the rush of business a simulated signature upon an accustomed form might pass, and to say, that, not even by telegraphic advice, can such a mistake be corrected is a harsh and seemingly unnecessary rule. Conditions now and in 1562, when Lord Mansfield decided Price v. Neal, are vastly different. Time required for a return on a foreign bill was several times as great and no means of intercepting the delivery of proceeds were available. To ask for cash now instead of awaiting return ought to have other significance than formerly. The intervening period is too brief for any appreciable discount, and cashing a draft instead of awaiting return from collection is like a friendly accommodation, instead of a transaction of a purely commercial nature. In the days of Lord Mansfield a bill held at one point and payable at another, whether it were payable on demand or at so many days after date or sight, might naturally be regarded as time paper. It might well be thought then that the place of payment "is to be deemed the place of final settlement, where all prior mistakes and forgeries shall be corrected and settled once for all; and if not noticed and payment is made, the money cannot be recovered back." But why should there exist an inflexible rule of this kind in these days? As we have said, banks do not cash paper of this kind, except for collateral reasons. It is done either to accommodate a depositor or for other personal reason in no way connected with the transaction as a commercial transaction. In the days of Lord Mansfield the length of time for a return presented a basis for discount, so that in each instance there was as distinctly a banking proposition of purchase of paper and the earning of interest, as in the discount of a note to mature at a future time. Furthermore, there would more certainly exist a presumption of irretrievable loss from lapse of time in Lord Mansfield's age than now, when no appreciable time inter venes. The old phrase, called to the defense of the rule in Price v. Neal, that the drawee is bound to know the signature, of the drawer, has been twisted from its legal relation. The obligation is essentially one of contract, and, therefore, is confined to what is for the benefit of the drawer. No third party has any concern in that obligation. But the fact was more apparent in the time of Lord Mansfield, that he would know such signature than now. In those days banks and transactions through them with remote places were greatly rarer than now, when facilities of quick transportation and immediate communication exist. Such banks as had foreign correspondents were perhaps still rarer. Neither was forgery such a fine art as now, nor could the form and appearance of banking paper be so well simulated as now. Then it would have been considered a most extraordinary thing for a forgery not to be detected at the place where a genuine signature existed. Now no special wonder would exist as to a paper coming through commercial channels, if a skillful forgery were successful. We confess our sympathy with departure from a rule which all seem to agree is opposed to natural justice, because there is no such urgency for its enforcement as when it was announced. To it the maxim may well apply cessante ratione legis cessat ipsa lex. I Hughes G. & R. of Law, sec. 54. NOTES OF IMPORTANT DECISIONS CARRIERS PASSENGER ELEVATORS AS COMMON CARRIERS UNDER NEGLIGENCE RULE.-It seems to be the tendency of decisions to hold that a building, whether a hotel or office building, using an elevator for passengers is bound to the same degree of care as a railroad, steamboat, or stage coach. The Texas Civil Court of Appeals in Farmers' & Mechanics' Nat. Bank v. Hanks, 128 S. W. 147, is an illustration of this tendency. This decision holds that a statute mentioning railroad, steamboat, stage coach "and other vehicle for the conveyance of goods or passengers" embraces "an elevator car in an office building habitually used for the transportation of passengers," and that "the reasons underlying the giving of damages" against what is specifically mentioned "apply with equal force" to the owner of such an elevator car. It seems to us that the statute rather hinders than aids the conclusion reached, because in one respect at least the general words claimed to support it would seem limited by the maxim id omne genus. What were mentioned were common carriers. We doubt whether elevators in an office building are. Wo recognize that a common carrier must not necessarily hold himself out to the public in absolutely general way, but he may be such in the way limited, that is for carriage of specific things. But his customers need not have any prior relation with him or have their right to carriage of person or property depend upon some other antecedent or existing relation. This, however, does exist for right of carriage in an elevator. If one is a guest of a hotel, the elevator is for his convenience. So as to the tenant of an office building. In neither case are others entitled to use the elevator except for the presumptive benefit of the guest or tenant. The guest or tenant may be said to have purchased the elevator privilege. Others are licensees through such right. The invitation to the general public as to those not guests or tenants would appear to be thus limited. But, if so, why should one such have any right against the elevator owner unless at least he go to a hotel or an office building upon the guest's invitation or tenant's business, or in furtherance, even though in a general way, of the guest's pleasure or the tenant's business? The case of Fraser v. Harper House Co., 141 Ill. App. 390, was in favor of a guest, and the distinction we discuss was not considered. The case of Sweden v. Atkinson Improvement Co. (Ark.), 125 S. W. 439, was that of an office building, and the rule was generally stated But whether the rule as to this strictness be limited to tenants and guests or not, there doe not seem to have been any necessity for its an nouncement in the Hanks' case, as the plaintiff's son was working in the shaft of an ele vator and was killed by a descending eleva tor. That was not a passenger case at all. An elevator for hotels and office buildings is just a substitute for stairways. Its use is for convenience if there are also stairways, and we doubt greatly whether it would be held that the keeper of a stairway is bound to the same degree of care in its proper use as a railroad of its roadbed. The case of Shattuck v. Rand, 142 Mass. 83, ruled that the owner of an apartment hotel was not liable for injuries sustained by the city shutting off the water, from elevator machinery, if he did not know and could not learn by the exercise of reasonable care that there was danger from its being shut off. Here the rule seems to be reasonable, not extraordinary care. It seems to us that something else is needed than the common law rule for that high degree of care applicable to common carriers. OPEN ACCOUNT-BURDEN OF PROOF TO SHOW PAYMENT.-At page 100 of 71 Cent. L. J., we submitted note to the case of Pollak v. Winter, 51 So. 998, and now wish to add to that note the case of Parker v. Harrison, 129 S. W. 1026. decided by Springfield, (Mo.), Court of Appeals. The facts in these two cases seem to be on all fours and the decisions squarely opposed. The first sentence in the Pollak case says: "As a general rule the burden of proving a negative averment is not put upon the plaintiff, but this rule does not seem to prevail in actions upon an open account as distinguished from a stated or uncontroverted one and when suit is brought upon an open account the plaintiff does not overcome the burden by merely showing the rendition of service and the value of the same, but must offer some proof that it was not paid for when rendered or when due." Our note claimed that no such exception was well grounded. In the Parker case there was a suit for attorney fees by administrator of decedent and proof rendition of services. "There was no evidence by either plaintiff or defendant tending to show whether or not" the services had been paid for. "At the close of the testimony the court gave instructions to the jury which placed the burden of proof upon the plaintiff to show that the deceased, Harrison, had not paid Parker." Arguing, the opinion says: "There can be no question but that in the trial of a case, either for money had and received or for debt, where the plaintiff can show that the defendant received the money for the plaintiff, or defendant was indebted to plaintiff, this makes a prima facie case for the plaintiff and casts the burden of proof upon the defendant of showing that the money or the debt as the case may be, has been paid to the plaintiff." This case published since our annotation, is so very apt, and the Alabama case seems so out of line with principle, that we think authority should be heaped up to stop, if possible, its harmful career. MECHANICS' LIENS-THEIR ENFORCEMENT AGAINST PROPERTY AFFECTED BY A PUBLIC USE.-There exists something of contrariety in decision as to what constitutes a quasi-public corporation when the question is of acquiring an enforceable mechanics' lien against its property, where the statute does not specifically provide about this. But conceding the claim of exemption for a given corporation, its limitations are very interestingly treated by the Oregon Supreme Court in the case of Benbow v. The James Johns, 108 Pac. 634. The James Johns is a ferry boat and a mechanics' lien for material and labor used in its construction by the contractors was being foreclosed by the subcontractors and its exemption was pleaded. The answer was demurred to and demurrer being overruled the action was dismissed. The supreme court reverses this decision. The opinion says as to exemption because the property is affected with a public interest that: "There is sound authority for saying that it cannot be applied at all, except so far as the property has become entirely the property of the company divested of specific liens. When that has been accomplished, there may be reason in saying that a general creditor may not levy on or sell a part of the property of a company, which is necessary to the carrying out of its assumproperty A study of psychology, ethnography and juridical history in relation to modesty, reveals the fact that the statutory epithets "obscene and indecent," etc., do not in and of themselves furnish either uniform, or any criteria of guilt, such as should enable every man of ordinary understanding, under all circumstances to know with certainty whether or not his proposed conduct is penalized, and without which certainty in the criteria of guilt no penal statute can be "due process of law." (See my essays in numerous law and medical journals). It remains to inquire how far the unconstitutional judicial legislation in the creation of criteria of guilt has supplied the necessary certainty in the tests of obscenity. That this is not accomplished is the opinion of hundreds who have been convicted for a mere difference of opinion with the censors, as it seemed to them, and some of these have left valuable and intelligent protests. But these are not alone. At the National Liberal League's convention held in Philadelphia July 1st to 4th, 1876, the following resolution was adopted: "Resolved, That the league, while it recognizes the great importance and the absolute necessity of guarding by proper legislation against obscene and indecent publication, whatever sect, party, order, or class such publications may claim to favor, disapproves and protests against all laws which by reason of indefiniteness or ambiguity, shall permit the prosecution and punishment of honest and conscientious men for presenting to the public what they deem essential to the public welfare, when the views thus presented do not violate in thought or language the acknowledged rules of decency; and that we demand that all laws against obscenity and indecency shall be so clear and explicit that none but actual offenders against principles of purity shall be liable to suffer therefrom." The annual meeting of the National Purity Federation, October 11, 1906, unanimously adopted a resolution praying for relief from the evils of this uncertainty. From the preamble of this resolution I quote the following: "In view, however, of the fact that purity workers are constantly placed in jeopardy because of the uncertainty of the judicial test of obscenity and because these laws have in some instances been made the means of injustice and cruel wrong; and in view of the fact also that the indefinite character of the law renders he is acting within the law or is violating it is impossible for anyone to know whether the law, and because the law has been made a menace and a hindrance to many earnest workers whose efficient help is most seriously needed," etc." Similar resolutions complaining of the uncertainty of the law and offering definite suggestions for amendment were adopted by the joint session of the Medical and Surgical Section of the State Medical Society of Illinois.3 The foregoing statements are entitled to great weight because in each case they come from persons who expressly approve the general purposes of the laws in ques |