surance policies signifies those policies issued (a) in same calendar year, (b) upon lives of persons of same age, and (c) on same plan of insurance.-Miller v. New York Life Ins. Co., Ky., 200 S. W. 482.

54. Contract.-The master's contract to protect the servant absolutely from violence by strikers was not void as an insurance contract made without requisite formalities.-Hansen v. Dodwell Dock & Warehouse Co., Wash., 170 Pac. 346.

55. Loss by Burglary.-Meaning of clause in burglary policy, requiring direct and affirmative evidence of loss, is to be determined by intention of parties as expressed in policy, considering subject-matter, character and purpose of contract.-Garner v. New Jersey Fidelity & Plate Glass Ins. Co., Mo., 200 S. W. 448.

56. Renewal of Policy. Where an authorized agent orally agreed to renewal of a policy and nothing was said about any change in the terms or the amount of premium, the terms of the new policy were presumed to be the same as those in the old. Liverpool & London & Globe Ins. Co. v. Hinton, Miss., 77 So. 652.

58. Waiver.-Where insured made no representations that he was owner of land upon which building insured was situated, held company by accepting risk and issuing policy without inquiry waived condition that policy should be void if building insured was not located upon ground owned by insured.-Gregerson v. Phenix Fire Ins. Co., Wash., 170 Pac. 331.

59.Warranty in Application.-In absence of language in policy sufficient for purpose, incorporation in it of application does not make warranties of answers therein purporting to be representations only.-Merchants' Reserve Life Ins. Co. v. Richardson, Ind., 118 N. E. 576.

60. Intoxicating Liquors-Indictment and Information.-Information alleging that defendant druggist knew that grain alcohol sold was not to be used for chemical or mechanical purposes, and was not sold for such purpose, presented issue of defendant's good faith.-State v. Holland, Wash., 170 Pac. 332.

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61. Landlord and Tenant-Cancellation Lease. Where tenant defaulted, the lease was not canceled by the issuance in summary proceedings to dispossss him of the precept or the making of the final order therein, in view of Code Civ. Proc., § 2253, providing that the issuing of the warrant for the removal of the tenant cancels the lease, where none was issued. -Cornwell v. Sanford, N. Y., 118 N. E. 620, 222 N. Y. 248.

62. Lease.-Where landlord owned three corners of street intersection, covenant in lease to that corner grocer no "properties on the corner" of such streets would be let to another grocer, did not apply to store adjoining such tenant in same building but on different lot.Fenton v. Crook, N. J., 102 Atl. 834.

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63. Lost Instruments-Notice. —— Where dorser of notes, given for garage property sold, indorsed another note in consideration of destruction of first two by buyer, who had possession and substituted forgeries, he had sufficient notice of infringement of seller's rights to put him on inquiry and to prevent his defeating his obligation.-Motley v. Darling, N. J., 102 Atl. 853.

64. Marriage-Deceit.-In action for deceit of defendant husband in marrying plaintiff while he was husband of another, plaintiff was not bound by financial condition of defendant as of date of discovery of fraud, and it was within court's discretion to fix compensation as of date of verdict.-Larson v. McMillan, Wash., 170 Pac. 324.

65. Master and Servant-Assumption of Risk. -Plaintiff held to have assumed risk of injury from cutting steel rails without goggles, and company not to be liable, danger being obvious,

even though section foreman who assured him it was all right be treated as vice-principal.Union Pac. R. Co. v. Marone, U. S. C. C. A., 246 Fed. 916.

66.- -Direction of Verdict. Where person injured by automobile, shows that the driver was in the employ of the owner, there is an inference that the servant was acting within the scope of his employment at the time of the injury, and the court cannot direct a verdict for defendant on that issue.-Penticost v. Massey, Ala., 77 So. 675.

67. Presumption of Agency.-That a wife is driving an automobile owned by her husband with his express consent and permission raises the presumption that she was his agent, and makes a prima facie case against the husband in favor of one injured while she was driving the car.-McWhirter v. Fuller, Cal., 170 Pac. 417.

68.- -Scope of Employment.-Indigent applicant, employed as teamster in municipal woodyard, held, when proceeding to remove household goods of indigent family, as directed by superintendent of yard, within scope of his employment, so that city would be liable for resulting injuries.-City of Oakland v. Industrial Acc. Commission of State of California, Cal., 170 Pac. 430.

69Unsafe Appliance.-Employer is liable in damages for injury to employe from employer's attempt to use an apparatus generally recognized by men of practical and expert knowledge to be of insufficient size or strength to stand strain to which it is put.-Haynes v. Fisher Oil Co., La., 77 So. 781.

70. Warning.-A master was justified in considering a servant 40 years of age, who had worked around stagings, high steel towers, derricks, lumber, bridges and was a "rigger," as qualified to move timbers along cross-beams of a trestle work without warning him of the dangers thereof.-Murinelli v. T. Stewart & Son Co., Me., 102 Atl. 821.

71. Mechanics' Liens-Materialman.-Act No. 167 of 1912, giving in general terms a privilege upon "buildings" or "works" in favor of laborers,. materialmen, etc., gives no privilege upon public property.-Red River Valley Bank & Trust Co. v. Louisiana Petrolithic Const. Co., La., 77 So. 763.

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72. Mortgages-Evidence.-Where land after contracts to sell parts thereof executed a mortgage thereon, and as further security assigned in trust the amounts unpaid on contracts, and the mortgagee sued to foreclose, making the purchasers, but not the trustee, parties, and the priority of the purchasers' right was established, it was error to hear evidence and make findings with reference to the amount of payments received by the trustee and to conclude that the mortgage as to the purchashad been satisfied. Seattle Trust Co. Cameron, Wash., 170 Pac. 379.

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73. Municipal Corporations Contributory Negligence.-Passenger seated on left side of open car, who looked up street as he arose to get off on right side, and walked around front of car to cross street without looking again, and was run down by automobile coming from rèar, was guilty of contributory negligence.Di Stephano v. Smith, R. I., 102 Atl. 817.

74. Last Clear Chance.-Where plaintiff, starting across the street, saw defendant's automobile approaching, and became confused, which the chauffeur saw, but failed to stop, the doctrine of last clear chance applied, and it was for the jury whether the chauffeur's failure to stop was the proximate cause of the injury.Underhill v. Stevenson, Wash., 170 Pac. 354. 75. Right of Way.-One who changes his course at street intersection is not entitled to full benefit of ordinance providing that automobile going north or south has right of way. Clark v. Fotheringham, Wash., 170 Pac.

323.

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76. Navigable Waters-Land Under Water.State had right to grant land under waters of cove below low-water mark for any public use. when possible without substantial impairment of public interest and subject to paramount right of Congress to control navigation.-New York, N. H. & H. R. Co. v. Armstrong, Conn., 102 Atl. 791.

The close distinction sometimes sought to be made between the exclusive right of the patentee "to use" and his right "to vend" the patented article, with particular reference to restrictions sought to be imposed after sale, is wholly ignored by the United States Supreme Court in the recent case of Boston Store v. American Graphophone Co., 38 Sup. Ct. Rep. 257.

In this case it appeared that American Graphophone Co. was the owner of certain phonograph patents. Seeking to comply with certain conditions declared to be important in previous decisions of the Supreme court, the Graphophone Company put the following notice on all its manufactured articles and inserted it in all its

contracts:

"All 'Columbia' Graphophones, Grafonolas, Records and blanks are manufactured by the American Graphophone Company under certain patents and licensed and sold through its sole sales agent, the Columbia Phonograph Company (General), subject to conditions and restrictions as to the persons to whom and the price at which they may be resold by any person into whose hands they come. Any violation of such conditions or restrictions make the seller or user liable as an infringer of said patents."

In addition to this notice, all dealers specially covenanted "to adhere strictly to and be bound by the official list prices established from time to time by said company" and the agreement closes with this significant clause:

"We understand that a breach of this agreement will amount to an infringement of said patents and subject us to a suit and damages therefor. We admit the validity of all patents under which said product is manufactured and hereby covenant and

agree not to question or contest the same in any manner whatsoever."

The evident purpose of this contract was to avoid the construction that the price. limitation was a mere contract obligation, for a violation of which an action for damages might lie, and to have such limitation construed as an integral part of the patentee's monopoly "to vend," a violation of which would be an infringement of the patent.

This is the same situation which puzzled the Court in the Dick case (Henry v. A. B. Dick Co., 224 U. S. 1.), and led to the four to three decision in that case holding that a patentee might insert a limitation in his contract of sale on the "use" of a patented article that would not be permitted in the sale of an unpatented article. The Dick case was overruled in the case of Motion Pictures Patent Co. v. Universal Film Mnfg. Co., 243 U. S. 502, 37 Sup. Ct. 416. In the Dick case it was sought to compel the vendee of a rotary mimeograph to purchase all supplies of ink, wax sheets, etc., from the owner of the patent. In the Motion Pictures case, the seller of a patent moving picture machine attempted to compel all users of his patent to use his films and no others.

In the principal case the Court reviews all the cases and, with two judges dissenting (Holmes and Vandeventer), applies the principle of the Motion Pictures case to the patentee's exclusive right "to vend" a patented article and declares that this right does not authorize the patentee to impose conditions upon the re-sale of the patented article which are contrary to the policy of the law and void as being in restraint of trade.

In a very learned article by Mr. Thomas Reed Powell in 17 Columbia Law Rev. 663, the author contends that there is no difference in the right of a patentee to the product of his invention that is not enjoyed by the owner of an unpatented article. Every right of property based on absolute ownership includes the right to manufacture, vend

and use, but that the right of a patentee includes the right to exclude others from manufacturing, vending or using the patented article. Applying this reasoning in support of the decision in the Dick case the writer attempts to show that when a patentee sells his exclusive right to "use" his patented invention, he does not in effect impose limitations on the "use" in the nature of a mere contract liability on the vendee, but that he conveys only a part of his exclusive right of "use," the remainder being protected not by the contract but by the patent laws. "He has the right," says Mr. Powell "to exclude others from using in Chicago plus a right to exclude them from using in New York. He has a right to exclude from use on Monday, plus a right to exclude on Tuesday. The patentee has a right to exclude others from use with supplies manufactured by the patentee, plus at right to exclude from use with supplies manufactured by a single named competitor of the patentee, etc. If what the patent law grants is a bundle of an indefinite number of separate rights to exclude from separate specific uses, and if the patentee may part with one of these rights and still retain the others, it would seem to follow

that any specific right of user not permitted by the patentee remains under the protection of his monopoly."

Referring to the practical effect of this argument, Mr. Powell observes:

"If one chooses to call this a monopoly over materials not covered by the patent, it is only a monopoly over the use of such materials with the patented mechanism. Since the materials cannot be used with the mechanism unless the mechanism be used with the materials, the complete monopoly over the use of the mechanism inevitably involves a monopoly over the use of materials with the mechanism."

The essential question in all these cases is: Does the violation of restrictions upon the subsequent use or resale of a patented article arise under the patent law or under the general law relating to contract? If a

violation of such a restriction amounts tc an infringement of the patent it would be useless to argue the question whether the restriction is lawful or unlawful, since that question is foreclosed by the patent laws which grant the monopoly. If, on the other hand, the restriction is collateral to the patent right and merely an obligation created by the contract of sale, then its legality may be tested by the same rules which apply to contracts generally.

That such qualifications upon the subsequent use and resale of a patented article are not included in the patent right is clearly the effect of the recent cases. In the Boston Store case Justice White, in referring to the Motion Pictures case, declared that "it was decided in that case that one who had sold a patented machine and received the price and had thus placed the machine so sold beyond the confines of the patent law, could not by qualifying restrictions as to use keep under the patent monopoly a subject to which the monopoly no longer applied."

Applying these principles to restrictions. regulating the price of patented articles on resale, Justice White says, in the principal tions "in derogation of the general law was case, that the power to make such restricnot within the monopoly conferred by the patent law and that the attempt to enforce its apparent obligations under the guise of a patent infringement was not embraced within the remedies given for the protectior of the rights which the patent law conferred."

Referring to the general question of the right of a vendor to fix the price at which an article may be re-sold, the Court holds that the decisions of the Supreme Court have determined that such retrictions are contrary to public policy and void. Bobbs Merrill Co. v. Straus, 210 U. S. 339; Dr. Miles Medical Co. v. Park, 220 U. S. 373; Bauer v. O'Donnell, 229 U. S. 1; Strauss v. Victor Talking Machine Co., 213 U. S. 490.

It appears therefore that a patentee under his monopoly has no greater right than any other vendor to impose restrictions on the subsequent use or ré-sale of such article which are in restraint of trade or against public policy.

Whether the public policy declared by the Court to be violated by price-fixing restrictions is a wise policy is still another question and a much debated one. However, such a question is for Congress and not the courts to decide. On this point it is interesting to note the comment of Justice Erandeis in his concurring opinion. The learned Justice says:

"Whether a producer of goods should be permitted to fix by contract, express or implied, the price at which the purchaser may resell them, and if so, under what conditions, is an economic question. To decide it wisely it is necessary to consider the relevant facts, industrial and commercial, rather than established legal principles. On that question I have expressed elsewhere views which differ apparently from those entertained by a majority of my brethren. I concur, however, in the answers given herein to all the questions certified, because I consider that the series of cases referred to in the opinion settles the law for this Court. If the rule so declared is believed to be harmful in its operation, the remedy may be found, as it has been sought, through application to the Congress or relief may possibly be given by the Federal Trade Commission, which has also been applied to."

A. H. R.

the proclamation distinguishing between unintentional and willful failure by owners to make returns for that year. Also there was a general order by the state tax commission directing tax collectors to accept without penalty taxes from unintentional delinquents. However, the court treats only executive power under the constitution, there being no claim of existence of any statute vesting any such power in the tax commission. In this case the tax collector refused to accept taxes from a delinquent without payment of penalty, and the taxpayer sought by mandamus to compel acceptance of the tax without penalty. He had judgment in the lower court and appellant, tax collector, secured a reversal.

It being stated that the Governor's power depended on the constitutional provision referred to, this provision is quoted. This provision is as follows: In all criminal and penal cases except those of treason and impeachment, the governor, shall have power to grant reprieves and commutations of sentence and pardon after conviction; and to remit fines, etc. The court then speaks of the provision, the contention being advanced by appellant, that the power granted was remission of fines and forfeitures and to grant reprieves, commutations and pardons in penal cases.

It is said: "Punctuation is generally the least reliable guide to the true meaning of a sentence and should be given controlling effect only when other tests fail. The manifest design of the framers of the constitution was to limit the power to pardon for crime and remit fines and forfeitures, to criminal and penal cases, after conviction of crime or judgment for the imposition of fine or forfeiture, and not to allow its application to penalties and forfeitures civil, remedial and coercive in their nature. This is clearly indicated in another provision of the constitution which expressly declares that 'No power of suspending or setting aside the law or laws shall ever be exercised except by the general assembly.' The effect of a general amnesty such as is attempted would operate as a suspension of the law."

ALIEN ENEMY-RIGHT TO SUE IN OUR COURTS.-In Arndt-Ober v. Metropolitan Opera Company, 169 N. Y. Supp.it was held in Appellate Division of New York Supreme Court that a subject of Germany actually residing in New York and guilty of no misconduct may maintain an action in its courts.