ways and well holes of factories to be protected on all sides at each floor by substantial vertical inclosures, does not apply in favor of fireman, answering fire alarm, injured by falling into coal pit on burning premises.-Meiers v. Fred Koch Brewery, N. Y., 167 N. Y. S. 740.

79. Railroads-Evidence.-Where team and interurban car collided at a highway crossing, evidence that car was traveling from 30 to 35 miles an hour, and that no warning signals were given until after team got upon track, held to support a verdict for plaintiff.-Yoakum v. Atchison, T. & S. F. Ry. Co., Mo., 199 S. W. 263.

80. Removal of Causes-Filing Petition.-It is essential to the removal of a cause that the petition provided for by the statute be filed with the state court within the time fixed by statute, unless the time be in some manner waived-Southern Pac. Co. v. Stewart, U. S. S. C., 38 Sup. Ct. 130.

81. Sales-Delivery.-Under contract as construed by letters between parties, held, that buyer could not compel seller to deliver whole of shipment made in vessel, on theory that entire cargo had been purchased, but seller was bound only to deliver minimum quantity speciCo. fied.-Pennsylvania Sugar V. CzarnikowRionda Co., U. S. C. C. A., 245 Fed. 913.

82. Perishable Goods.-If the seller ships perishable goods, which must be speedily disposed of, and they are not up to specifications, the purchaser may dispose of them, if the seller cannot be communicated with and his instructions cannot be quickly obtained.-White Schweitzer, N. Y., 117 N. E. 941, 221 N. Y. 461.

V.

83.- -Reservation of Title.-Plaintiff having reserved title to automobile and having elected to repossess same, he could not thereafter subject buyer to liability for unpaid purchase price on ground that his possession was under lien for repairs.-Alexander v. Mobile Auto Co., Ala., 76 So. 944.

84. Specific Performance-Ground of Recovery.-Specific performance of contract for sale of land which would require conveyance for inadequate consideration should be denied, and plaintiff, who lent funds to discharge purchasemoney obligations inducing defendant to sign through fraud, is entitled only to recover loan. -Darnell v. Alexander, Ky., 199 S. W. 17.

85. Street Railroads-Last Clear Chance.-If motorman, carelessly coasting to intersection with street where view was obscured, was unable to stop car when he saw carriage, street railway was not necessarily relieved of negligence if motorman's failure to control car was because he was handicapped by his own carelessness in attaining high speed.-Bridenstine v. Iowa City Electric Ry. Co., Ia., 165 N. W. 435. 86. Subrogation-Right to. Deed and a check of third persons for purchase price of land having been delivered in escrow to be held until mortgage to secure purchase price was executed by grantee and delivered to makers of check, where deed and check were delivered and mortgage not executed, makers of check were subrogated to vendor's lien discharged by payment of check.-Gibson v. Gibson, Ala., 76 So. 949.

87. Sunday Statutory Construction. The word "druggist." within Code 1907, § 7814, prohibiting "any person who, being a merchant or shopkeeper, druggists excepted," from keeping open store on Sunday, refers to the occupation and not to the person, and a druggist cannot sell anything but drugs on that day.-Stollenwerck v. State, Ala., 77 So. 52.

88. Telegraphs and Telephones-Elevation of Wires. While telegraph and telephone wires crossing a highway must be high enough for the usual and ordinary travel, they need not be high enough for extraordinary travel, in which case traveler must keep a lookout.Wegner v. Kelly, Ia., 165 N. W. 449.

89.-Instructions.-In action against telephone company for cutting trees, the province of the jury was invaded by an instruction to find for plaintiff under the first count if defendant's president directed its agents to clear its telephone lines of all timbers touching them, as being, in effect, an instruction that the cutting was willful if the president ordered all

timber removed which touched the line, irrespective of his knowledge or intent.-Climer v. St. Clair County Telephone Co., Ala., 77 So. 30.

90. Limitation of Liability.-Where sender of telegram telephoned it to the company's agent, who wrote it upon blanks containing provisions limiting liability, such provisions were not binding as a part of the contract. Postal Telegraph-Cable Co. v. Prewitt, Tex., 199 S. W. 316.

91.-Liability.-If defendant undertook by telegraph to pay or cause to be paid to plaintiff's wife a certain sum of money deposited with it, and negligently failed to do so, it would be liable, although it did not maintain a line of telegraph between point of receiving and destination, and was not engaged in business of transmitting telegraphic money orders.-Western Union Telegraph Co. v. Bowen, Ala., 76 So. 985. Provision of ordinance granting franchise to telegraph company, for payment of annual license tax on each pole erected, applies to poles on railway right-ofway, specified as part of its route.-Mackay Telegraph & Cable Co. v. City of Little Rock, Ark., 199 S. W. 90.

92. Taxation.

95. Vendor and Purchaser-Rescission.-Sale of portion of restrictive residential subdivision to railroad company for right of way warrants purchasers under executory contracts in rescinding their contracts, it not appearing that sellers, who were also bound by restrictive covenants, were compelled to make sale, or that property was necessary to company and subject to condemnation.-Houser v. Paducah & I. R. Co., Ky., 199 S. W. 3.

96. Waters and Water Courses-Mandatory Injunction.-Injunction to prevent defendant from forcing by a wall water to accumulate on his land over plaintiff's land, in a way contrary to its natural flow, is not unlawful on ground that it is mandatory, as compelling defandant to do an affirmative act of pulling down his. wall. Sweetman v. Owens, Ga., 94 S. E. 542.

97. Riparian Rights. To entitle riparian owner to injunction, he must show not only that defendant makes or threatens unreasonable use of the water, but must further establish facts entitling him to such relief under general equitable principles applicable to injunctions. McDonough v. Russell-Miller Milling Co., N. D., 165 N. W. 504.

98. Wills-Construction of Instrument. Written instrument signed by father purporting to convey to his son certain land in fee simple not to take effect until after father's death, and under which son was to occupy premises as tenant, with direction for its delivery after father's death, was a will and not a deed.-Baxter v. Chapman, Ga., 94 S. E. 544.

99.- -Residuary Estate.-After bequest of residuary estate in trust to pay income to three legatees for life, with proportionate share of principal over to child or children of deceased legatees, codicil revoking bequest to one legatee did not affect gift in remainder to his children, but created an intestacy as to such income, which such legatee would have received.-In re May's Estate, Pa., 102 Atl. 422.

100.-Testamentary Character.-If testatrix placed money at the disposal of defendant with the understanding that he was to pay interest thereon until her death, and on her death the money was to be his, the gift was a testamentary disposition which was invalid in the absence of compliance with the requirements of the statute of wills.-Reed v. Bonner, N. J., 102 Atl. 383.

or elective. The policy is as much concerning the welfare of the business as in the interest of employe, and to have differing rules as to injury occurring within the state and outside the state, is to militate against the plan as an entirety.

court could or not take the Nebraska land into consideration, for such purpose and if Nebraska court found it did not, its holding should have been sustained upon conflicting evidence, if as matter of law it had the right to consider the evidence at all.

DIVORCE DECREE AS TO LAND IN ANOTHER STATE.-Bates v. Bodie, 38 Sup. Ct., 182, decided by U. S. Supreme Court, reverses the Supreme Court of Nebraska, which rendered judgment in favor of a divorced wife obtaining a decree in Arkansas, upon the ground, that the land owned by the defendant in Nebraska, not being embraced in the Arkansas suit, could be taken into account in action in Nebraska upon the Arkansas decree and new finding there made as to what the defendant ought to pay his wife, because of his ownership of such land.

The interesting question, or rather the series of questions, thus presented receive no solution at the hands of U. S. Supreme Court, because it was held, that the state court of Arkansas, though having no particular jurisdiction over Nebraska land, was shown by the evidence to have taken their ownership into consideration in the rendition of the decree.

Possibly U. S. Supreme Court decision holds that, whether this ownership was actually taken into consideration or not, this was within the scope of the judgment rendered by Arkansas court and it operated as an estoppel in Nebraska in the later suit for fixing the amount of alimony. The ruling by U. S. Court leaves this somewhat in a state of uncertainty.

Speaking of the contention, that the Arkansas court did not take into consideration ownership of the Nebraska land, it was said: "This proposition is based on the record, which the (Nebraska) Supreme Court said: 'Shows that the (Arkansas) court did not in fact make any allowance on account of the Nebraska lands,' and resort is had to parol testimony for the purpose of limiting the decree. But we cannot give the testimony such strength. It is conflicting. It consists of the impression of opposing counsel and of the private opinion of the court orally delivered in direction for the decree."

Speaking of the recollection of the trial judge it was said: "His view was that the court had jurisdiction of the parties, and held it had not of the land in Nebraska, but it did have jurisdiction to consider its value in determining the amount of alimony."

It seems to us that U. S. Supreme Court should have said whether or not Arkansas

COMMERCE-INTOXICATING LIQUORS IN TRANSIT THROUGH PROHIBITION STATE. -In Moragne v. State, 77 So. 322, the Supreme Court reverses a ruling of Alabama Court of Appeals holding that one transporting intoxicating liquors through the prohibition state of Alabama en route from Georgia to Florida came under the law of Alabama by virtue of provisions of the Webb-Kenyon Act.

The court said that the trial court and the court of appeals held that Alabama prohibition statute in connection with the Webb-Kenyon act prohibited such carrying through Alabama. "Where the holding of the Court of Appeals correct, then it would follow that there could not be an interstate shipment through this state along the public highways thereof from one person to another of intoxicating liquors, even though the shipping point and the point of delivery be in different states and neither in this state." It was thought that an attempt to effect such a result would be to make the statute unconstitutional.

It would seem that this is true, however plausibly it might be claimed, that the use of highways which come under a state's police power pro tanto is a submission to state power. The same reasoning would paralyze effort of interstate commerce commission to prescribe rates in interstate transportation. The history of the exercise of such power by such commission is against the validity of such a claim. It, however, would seem to be different, were there a rest in the intermediate state and then, resort were had to a local company under complete control of the state to aid in a delivery. This is a new question that lately has been considered in two cases, involving the same subject matter, one case by Supreme Court of Kansas and one by a federal district court. State ex rel. Kaster v. Landon, 96 Kan. 372, 152 Pac. 22; Landon v. Pub. U. Comm. 245 Fed. 950. There the effect of storing gas and distributing it through pipes to customers in cities is considered. As to this the state and federal court are in opposition. It seems to us the state court takes the sounder view. An article on this subject will shortly appear in this journal.

ING RIGHT TO LICENSE OR PROHIBIT SALE OF INTOXICATING LIQUOR, TO AIM AT THE LATTER UNDER GUISE OF PROHIBITORY LICENSE LAW.

Licensing, Regulation and Prohibition.It is quite usual for statutes to vest in cities and towns the right to license, tax, regulate and (or) to prohibit the sale of intoxicating liquors. And in such event ordinances in fixing licenses so onerous as to be virtually prohibitory have been upheld. Thus it is stated in Cyc.1 that as the Legislature having unlimited control over the liquor traffic, may fix a license fee at any sum in its absolute discretion and no one can plain that this is in effect prohibitive, "the same rule applies in the case of a municipal corporation which by its charter or a general statute possesses full control over the traffic." And it has been ruled that the

com

power to license cannot be used to suppress useful occupations. This view has been taken, as for example, by the Supreme Court of New Mexico3 distinguishing between grants of power to "license or regulate" and where the grant was to "license, regulate or prohibit."

But it has been said that: "When prohibition is the object, the end may generally be more directly accomplished by legislation which by its terms is prohibitory, than by the circuitous method of imposing a burden difficult or impossible to be borne; and the direct method is consequently the one usually adopted." And in a Georgia case" the court, arguendo, said: "We think the best way to prohibit is to prohibit." The court argued further, that if the ordinance in question had been aimed at usurers, this

cific regarding sale of intoxicating liquor." This kind of a sale stands, it is conceivable, differently from the practicing of usury. Contracts are respected as to the one, but not as to the other, thing.

Strict Construction of Powers Conferred on a Municipality.-In discussing the grant of powers to a city or town as a governmental agency, it is to be remembered that "it is a well settled rule of law, that a municipal corporation has only such powers as are expressly conferred by its charter, or by some other legislative enactment, or which are necessarily implied from the general objects and purposes of the municipality, or implied from some other power expressly granted by the legislature." And upon this principle it is endeavored herein to inquire whether under a power conferred on a municipal corporation to license, regulate or (and) prohibit the selling of intoxicating liquor in its limits, a municipal corporation, when it undertakes, by ordinance, to license, regulate or prohibit, the doing of each being within its conferred powers, it may, under guise of the exercise of one of such powers, aim at the other. For example, if a city may license, may it do this as a means of regulation or with the is said in a Virginia case, that where a purpose to suppress or prohibit? Thus it city charter empowers it to wholly prohibit the sale of intoxicating liquors or license such sale, the only limitation on such a grant is its exercise in good faith. Is it an attack on the exercise of good faith to show that a license fee is not intended as a regulation, but as a means of prohibition? This language in that case was used merely arguendo, but does it not suggest a negative pregnant? Certainly an ordinance to prohibit sales could have no relation to licensing sales. May one to license have any relation to prohibition of sales?