99. Partition-Right to Partition.-A widow to whom dower has been assigned by metes and bounds held not a tenant in common, joint tenant or co-partner with the owner of the fee, and she may not sue for partition.-Newell v. Willmarth, R. I., 76 Atl. 433.

100. Patents-Prior Patents.-The lack of interchangeability of parts in two combinations is an important factor in determining the question of equivalency or mechanical suggestion, where lack of novelty and invention is claimed because of a prior patent.-Steiner & Voegtly Hardware Co. v. Tabor Sash Co., C. C., 178 Fed. 831.

101. Reissues. It is not necessary that a patent should be wholly inoperative or invalid to justify a reissue; but if it is so broad as to be of doubtful validity, and the defect was due to inadvertence, the patentee is entitled to a reissue to limit his claims to his actual invention. Steiner & Voegtly Hardware Co. v. Tabor Sash Co., 178 Fed. 831.

102. Pleading-Amendment.-It is within the discretion of a federal court to permit the amendment of a complaint during the trial to conform to the evidence, where the facts alleged and the relief prayed for are the same; the only change being in the allegations as to the legal effect of the transaction.-Hoogendorn v. Danby, C. C. A., 178 Fed. 765.

103. Defenses.-An insurance order might, with the defense that insured's membership had been canceled for his failure to pay his dues, set up that plaintiff had failed to make proof of death.-Boren v. Brotherhood of Railroad Trainmen, Mo., 129 S. W. 491.

104. Non Est Factum.-The plea of non est factum is not incompatible with the defense of payment, and the defense of delivery without authority, which is practically the defense of non est factum, is not incompatible with the defense that the consideration had failed.-Settles v. Moore. Mo., 129 S. W. 455.

105. Pledges-Payment of Debt.-An assignee of rent due as collateral for a loan made to the landlord held not entitled to prosecute an action against the tenant for rent. where the landlord paid the amount of the loan.-Jackson v. Ehrsam, 123 N. Y. Supp. 986.

106. Principal and Agent-Authority of Agent. -An agent employed to collect notes due his principal held not a general agent with power to treat the principal's money as his own.-Dixon v. Jackson Exch. Bank, Mo., 129 S. W. 481.

107. Revocation of Authority.-The power of an agent held revocable at any time unless coupled with an interest.-McCallum v. Grier, S. C., 68 S. E. 466.

108. Principal and Surety-Liability.-Sureties can be charged only when brought within the very terms of their contract.-Chicago Crayon Co. v. Slattery. 123 N. Y. Supp. 987.

a

109. Property Ownership.-Possession of property right acquired secretly or by false assertions or unknowingly surrendered by the owner does not deprive the latter of ownership. -Drach v. Isola, Colo., 109 Pac. 748.

110. Public Lands-Bona Fide Purchasers.In an action by the United States to recover the value of timber unlawfully cut from public lands and alleged to have been converted by defendant, it is not a defense that defendant purchased the timber in good faith from the person who cut and femoved it; his title being no better than that of his vendor.-United States v. Bagnell Timber Co., C. C. A., 178 Fed. 795.

111. Quieting Title-Proof Required. One must quiet title on the strength of his own title, and not on, the weakness of his adversary's. -Mohn v. Mohn, Iowa, 126 N. W. 1127.

112. Railroads.-Action to quiet title will He against a railroad which has entered on complainant's land and constructed its road thereon.-Stuart v. Union Pac. R. Co., C. C. A., 178 Fed. 753.

113. Railroads Crossing Accident.--A railroad company, violating a statute requiring the ringing of a bell for at least 60 rods as an engine approaches any street crossing, held liable for damages resulting from frightening a horse.-Warn v. Chicago Great Western Ry. Co., Iowa, 126 N. W. 1104.

held not to begin to run against remaindermen until the death of the life tenant.-Blakeney v. DuBose, Ala., 52 So. 746.

115. Replevin-Action

on Bond.-Defendant

in replevin could not recover on plaintiff's bond for loss of time, attorney's fees and expenses, in the absence of malice, want of probable cause, or bad faith of plaintiff.-Lake v. Hargis, Kan., 109 Pac. 670.

116.- -Burden of Proof.-An affirmative plea of property in defendants held not to cast on them the burden of proof as to such plea.Moore v. Marsh, Wash., 109 Pac. 606.

117. Sales-Acceptance.-In an action for the price of pumps sold, acceptance without test and without complaint held to waive damages Mach. for delay.-Byron Jackson Works V. Duff, Cal., 109 Pac. 616.

118.- -Conditional Sale.-One of the essentials of a conditional sale is that the title shall remain in the seller.-Smith v. Kemether, Del., 76 Atl. 482.

119. Set-Off and Counterclaim-Subject Matter. A claim for damages for breach of a contract, although unliquidated, may be made the basis of a counterclaim where the measure of damages is fixed and certain.-Davis v. Bessemer City Cotton Mills, C. C. A., 178 Fed. 784.

120. Specific Performance—When Granted.— A court of equity will not compel specific performance of a contract in favor of one who has not been diligent in performing his part of the obligation.-Towner v. Blue, Wash., 109 Pac.

601.

121. Statutes-Repeal by Implication.-A later statute will not be construed as repealing a prior act on the same subject, in the absence of express words, unless the latter act is clearly contradictory of and repugnant to the former.-Sims v. State, Ga., 68 S. E. 493.

122. Telegraphs and Telephones-Delay in Delivery. Though a telegraph company may be liable to both sender and addressee for delay in delivering a message, they have not a joint cause of action.-Brockelsby v. Western Union Telegraph Co., Iowa, 126 N. W. 1105.

123. Trade-Marks and Trade-Names-Use of Names.-A person will not be prohibited from using his own name on articles of his own manufacture, but will not be permitted by any device to induce the belief of customers that articles so marked are the products of another. Aetna Mill & Elevator Co. v. Kramer Milling Co., Kan., 109 Pac. 692.

124. Vendor and Purchaser-Contract.-In a suit to rescind a sale of land for misrepresentations by the vendor, where the representation was of a material fact which influenced the transaction it was of no consequence that it may have been made in good faith.-Shahan v. Brown, Ala., 52 So. 737.

125.

Warehousemen-Receipts.-A bank was not a bona fide holder of a warehouse receipt assigned to it as collateral to secure a pre-existing overdraft.-Wright v. Missisisppi Valley Trust Co., Mo., 129 S. W. 407.

126. Waters and Water Courses-Appropriation. An appropriator of waters acquires no exclusive right to a channel which carries more water than his appropriation, and is used by others.-Ison v. Sturgill, Or., 109 Pac. 579.

127. Wills-Construction.-An express devise of all the real estate of testator to his grandchildren after the death of life tenants is not a devise to the grandchildren as residuary legatees.-Blakeney v. Du Bose, Ala., 52 So. 746.

128. Construction.-In determining testator's intent, the court will construe the will by placing itself as nearly as possible in testator's position, and hence will consider his relation to the beneficiaries as well as the surrounding circumstances when the will was executed.-Cox v. Jones, Mo.. 129 S. W. 495.

129. Contingent Remainders.-A contingent remainder may be devised, where the contingency is one of event, and not of person.Mohn v. Mohn, Iowa, 126 N. W. 1127.

130. Testamentary Capacity. If a person, against all evidence and probability, persistently believes wholly imaginary facts and conducts himself, however logically, on the assumption of their existence, he is, so far as they are concerned, under an insane delusion. In re Riordan's Estate, Cal., 109 Pac. 629.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 11, 1910

MENTAL ATTITUDES OF BENCH AND BAR TOWARD REFORM IN JUDICIAL PROCEDURE CONTRASTED.

Judge Evans of the Supreme Court of Alabama in a dissenting opinion tells of his "one day thinking of the case" of Pollak v. Winter, 51 So. 998 (to which appears annotation at page 100 of 71 Cent. L. J.) and his becoming first "doubtful of the correctness of the opinion" in the case, and “on more thorough investigation convinced that the opinion was erroneous." Then, by way of further digression, he reveals why he did not "at first make the investigation which led to my (his) present conclusion."

In this digression he says: "Each judge has assigned to him four times as many cases as he can possibly investigate and write as should be done; especially, if he understands the law after he investigates."

From this he proceeds to say: "Our system of pleading is like an exogenous plant, whose capacity for multiplying limbs is only limited by the climate and the fertility of the soil. **** What the system should be in this state, could in my opinion best be devised, after a most thorough investigation into the workings of the different systems of pleading of the different states and countries of civilization by a body of men most learned in the law and altruistic in character. It may be true that the common law system had its snakeheads, but it seems to me that in nearly every instance where one has been cut off by our legislature, two have grown out to take its place."

The learned judge then proceeds to speak of an infinity in number of pleas, consistent and inconsistent, which may be filed under Alabama practice, and of requests for instructions in varying phraseology to the point that there is "probability that the jury is too much instructed to understand the instruction."

Thereupon he brings his digression to a close as follows: "Do I object to the system? I can't say that I do. While as a citizen and a judge I deplore it, yet as a lawyer and dialectician I rejoice in it. As a means for the administration of justice, its efficacy is to be doubted; while as an intellectual gymnasium its appointments could scarcely be improved upon."

We believe that, in general aspect, the portrayal of the Alabama situation may be considered by our readers applicable in other states, but we dissent from the view that members of the bar, as lawyers and dialecticians, may rejoice therein. Furthermore, we see little in the system as “an intellectual gymnasium" for special laudation,

The system fosters, it seems to us, astuteness more than acumen, expertness more than erudition, cheese-paring more. breadth, in interpretation and trivialties in literalness more than the spirit of a noble science.

Nevertheless, what the learned judge intimates about differing viewpoints of the practitioner and the judge on the subject of practice and procedure has in it some element of truth, even if we regard both as being or trying to be "altruistic."

The evil in our administration of justice is being as freely acknowledged by lawyers as by judges and with neither appears a more sincere desire to have this evil corrected. It is the bent of mind it has produced in the bar and the bench, which we imagine to exist and which we will attempt to portray.

At the threshold of this attempt we will assume that an environment in the evil has been created for practitioner and for court. It has produced exigencies, which have caused both to yield. It has made the practitioner devote no inconsiderable, if not the greater part, of his attention and effort to the obstructing, rather than the facilitating of the administration of justice. It has overwhelmed the court so that it cannot "possibly investigate" sufficiently to "understand the law." Therefore, the environment

accentuates these exigencies the more it is prolonged.

The bar has come to regard successful practice of law to consist in avoiding, and interposing obstacles to, a trial on the merits, notwithstanding that the shibboleths of the codes are that pleadings shall contain plain statements of facts constituting actions and defenses, and that they shall be fairly and freely construed in the interests of justice. This is not saying that they relish this style of success, but merely that it is the only way that is open to them under the lawless law that is to be administered.

In their Syssaphan efforts to roll stones

of principle to the top of our system's hill, only to see them roll back to its base, if they are lawyers with ideals worthy to be cherished, their minds incline to the desire, that the machinery of justice shall be scientifically exact. Under any other plan they constantly encounter judicial whims they cannot anticipate and they reap discomfiture from rules as uncertain as the length of "the chancellor's foot."

Neither is the practitioner inclined to believe, that, because desultory or interested efforts have not produced a scientific system, which by reason of its certainty will insure the largest measure of justice, such a system is unattainable. The harder he struggles with a loose, disjointed, uncorrelated affair, the more he yearns for its opposite, and that for which one most yearns, the more clearly it appears in the horizon of endeavor.

Upon the judge the environment presses in a wholly different way. His prime purpose is in reference to a concrete resultthe disposition of a cause on the merits. He thinks of precedents, but they are more like restraints than guides. It is natural to every man to believe, that he is possessed of an intuitive sense of justice which needs no prods or fetters. His inclination is to debate within himself in each case, whether he should go the length a precedent invites or stop at the point a precedent defines. If the precedent is not in accord

with his own sense of justice, he is inclined to distinguish it away or squarely repudiate it. In a word he wishes to do justice, but it is his own justice he wishes to do.

Further than this, he wishes, if he can, to do justice in his own way, and rules and forms may seem to him either as merely declaratory of his own plan, and, therefore, largely superfluous, or he is impatient of them as making him do something he does not wish to do. Also the judge tires of unending discussion about the interpretation and practical application of these mere accessories of the law.

That a court cannot go directly to the heart of controversies it is established to de

cide, after it has tried so hard to end discussion about preliminaries, is a covert reflection on its intelligence, and it is merely human they should become weary about. them.

Also it may be said that just as the practitioner is inclined to believe that fixed rules are the only safe course, judges may conceive themselves able to mould a less exact system into a good working plan.

At the same time, if judges were left to devise and formulate their own system, they would make each rule as universal as they could and one regulation consistent with another. There is sufficient disposition on the part of every one to try to do this much. The judge, like the counsel before him, wants certainty, but the judge may not care so much about its according with old precedents as the counsel. The judge would be willing to trust to the judiciary developing and correcting the accessories to justice, while the counsel might think that this development and amendment would endanger the harmony of an original plan.

Something, all agree, must be done. What is the best course to pursue? To our mind legislative tampering with a code is a distinct failure. Responsibility should be placed somewhere else. We believe there is but one of two methods left-either that suggested by Judge Evans or to devolve the duty on the judges of courts of record.

If Judge Evans' suggestion can be followed and we doubt greatly that it can, it is nevertheless a proposal for a theoretic plan. If judges at the start might not produce what might be in appearance so scientific, it could be more successfully corrected. And the bar, which has formulated everything that legislatures have ever enacted, could get before the judges a fairer hearing, in the making of a code, than they have ever had. The fact that judges are not chosen for life helps rather than hurts the plan we propose.

NOTES OF IMPORTANT DECISIONS

EQUITABLE

CONVERSION-DIRECTION

BY WILL TO SELL LAND AND DISTRIBUTE PROCEEDS.-We alluded at page 346 of 70 Cent L. J., to a décision by a federal Circuit Court, applying the doctrine of equitable conversion and now refer to a similar decision by Connecticut Supreme Court of Errors. Appeal of Emery, 76 Atl. 529.

The opinion says: "The doctrine of Equitable Conversion is an equitable one, adopted for carrying into effect, in spite of legal obstacles, the intent of a testator or settler. It is not a fixed rule of law, but proceeds upon fixed principles which take into account the result which its application will accomplish. It's application is, therefore, governed by somewhat different considerations, acording to the connection in which it is invoked. As applied in determining the devolution of interests attempted to be given by will, the overwhelming weight of authority is to the effect that a gift of the proceeds of a sale directed to be made by a testator will be regarded as a gift of personalty, even though the actual conversion of the property into personalty is definitely postponed till some future time, unless to do so will clearly defeat the intention of the testator or result in the evasion of some rule of law." For authorities on this question see note to Beaver v. Ross, 20 L. R. A. (N. S.) 65, 70.

This public policy should not control private benefaction any further than is expressly stated. These observations seem a little inconsistent with the view expressed by us in our former note, but we hope always to derive some benefit from a sober second thought.

CARRIERS ELEVATORS IN OFFICE BUILDING.-The case of Quimby v. Bee Bldg. Co., 127 N. W. 118, decided by Supreme Court of Nebraska treats the question of the degree of care imposed on the owner of an office building equipped with elevators as to passengers carried therein.

We discussed this question briefly at page 148 of 71 Cent. L. J., and suggested a distinction to which as yet we have not seen any allusion by any of the courts. This Nebraska case shows, that the plaintiff was a messenger boy conveying a telegram to a tenant in the building and he was injured by reason of his foot extending slightly beyond the floor of the elevator so that it was caught, as the elevator ascended, by the floor above. The claim was negligent construction of the elevator and negligence in the conductor to allow a boy of his age to stand in what the conductor knew was a place of danger.

The verdict for plaintiff was sustained on the theory, that the responsibility of the owner of the elevator was that of a common carrier.

Here it is seen, that the only right of the boy to be on the elevator was a derivative one viz: he was there invited because it was to the interest of the tenant, that he, as a member of the public, should have access to the tenant's place of business. A loiterer there would appear to be like one on a train without any rights of a passenger. But a passenger on a train is there in his own interest and by his own contract and for such as a railroad holds itself out to the public, and as such, he may compel the railroad to take him as a passenger. We think no one of the general public may compel an elevator to transport him from one part of the building to another.

But it may be said, that the obligations of a common carrier is not necessarily governed by this test, but it rather depends on the way one holds himself to all of a class of the public, as in the case of an elevator to all of the public who have business with tenants. These are surely invitees, but still there seems a difference between them and customers of a carrier. The tenants themselves are customers and those who go to them are presumptively their guests, that is, it is a part of the tenant's contract in renting a business