+ 2(,1 1/,1(Citation: 1 Law 485 1905-1906

Content downloaded/printed from HeinOnline (http://heinonline.org)Thu May 7 12:47:57 2015

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

PUBLICATIONOFFICE: SUITE813-14 MISSOURITRUST BUILDINGSAINT LOUIS, MO.

THE LAWISSUE D EV ERY FRIDAY

SUBSCRIPTIONPRICE, 64.00 PERYEAR, IN AD-VANCE. SINGLECOPY, 20 CENTS

V

Vol. I Friday, Deemzber 9, 1905 No. 16

TH E LAWPublished by

THE LAW PUBLISHING COMPANY,813-14 Missouri Trust Bldg., St. Louis, Mo.

WM. H. O'BRIEN,President and Manager.

NEEDHAM C. COLLIER,Editor.

Associate Editors:ROBERT F. WALKER, - CorporationsJAMES C. JONES, - - InsuranceRICHARD T. BROWNRIGG, - Real PropertyMcCUNE GILL, - - Titles and AbstractsBENJAMIN H. CHARLES,

Municipal CorporationsWM. F. WOERNER, AdministrationCLAUD D. HALL,

E Torts, Negligence and DamagesEDGAR R. ROMBAUER,

Medical JurisprudenceJOSEPH DICKSON, Jr., - Common CarriersMONTAGUE LYON,

Commercial Paper, Banks and BankingEDWARD S. MURPHY,

Accounts, Credits and CollectionsHENRY H. OBERSCHELP ContractsM. U. HAYDEN, - Partnership and EvidenceBENJAMIN J. KLENE,

Factors, Brokers and Commission MerchantsEDWARD E. LONGAN,

Patents, Trademarks and CopyrightsBYRON F. BABBITT, BankruptcyJOHN M. DICKSON.

Limitations and Statute of FraudsGEORGE T. DESLOGE, - - - WillsWALTER H. SAUNDERS, Constitutional Law

SPECIAL.The columns of THE LAW are open to

the profession for fair discussion of courts.decisions, ethics of the profession or anysubject relevant or interesting, within thescope of legal information. Its readers areinvited to send in their views, and if theyprove Interesting we will give others thebenefit of them. It is the ambition of thepublishers of THE LAW to make it themedium of thoughtful discussion, by thelegal fraternity, of subjects of interest tothe profession.-EDITOR.

Refusing to Perform a MarriageCeremony for Marriageable

Persons.In the issue of THE LAW Of last week

we published an article from. the Vir-ginia Law Register under the title:"Has a Minister of the Gospel the Rightto Refuse to Perform a Marriage Cere-mony ?"

The view, that he had not, was basedlargely on the statutes of Virginia, whichforbid common-law marriages and pro-vide that only those may perform a mar-riage ceremony who are appointed by thecourts and give bond for the faithfulperformance of their duties. This kindof appointment creates an office and thusthe answer may be different, if there isa mere permissive performance by a min-ister, recognized as valid by the state.

Our attention has been called sincethen to an article -in the London LawJournal, which presents the question asit relates to ministers of the establishedchurch of England.

The Law Journal gives an account ofa Church Congress, in which there arosea discussion on marriage and divorce.Among the ecclesiastical dignitariespresent was the Bishop of Rochesterwho is reported to have said that "hewas prepared to inhibit any clergymanwho might remarry persons who hadbeen guilty parties in divorce cases," andlooking around among the assembledclergymen the bishop added grimly thathe had the inhibition papers present withhim in his bag. Upon this the LawJournal says: "What a pronouncementwhen we think of it is this! The mar-riage of divorced persons is a perfectlyvalid marriage. The state allows it., the

THE LAW

law upholds it, yet here is the bishop ofa state church established by law declar-ing publicly that he will punish with theloss of livelihood and office any clergy-man who solemnizes such a marriage,though according to law, as declared byParliament, and even according to theconscience of the celebrating clergyman.What greater disrespect could be offeredto the legislature than this -episcopal ut-terance; what greater disparagement ofthe state's authority than by imputingto it a lower standard of morals thanthat arrogated to itself by the church?"

Here is suggested the principle thathe who feels a benefit, must also bear aburden.

Re-Rating by Fraternal BeneficialAssociations.

A decision rendered during the pastweek by Judge Wm. J. Gaynor, in oneof 'the New York courts .of originaljurisdiction, again brings to an acutestage the question of the power of fra-ternal insurance associations to changetheir rates of assessment.

Judge Gaynor seems to have heldquite broadly, that the recent re-ratingin the Royal Arcanum was void as beingin violation of rights secured by con-tract.

It does not appear from the shortstatement given, that this holding isgoverned by any peculiarity that mayexist in the charter, constitution or formof benefit certificate in the Royal Arca-num case, but the inference rather is,that it is general in its scope and appliesas well to other fraternal insurance socie-ties as to it. Furthermore, the RoyalArcanum is one of the largest and mostwide-spread of associations of this na-ture and it has not been the impressionthat there are .any features in its char-ter, laws or form of certificate, which.as to this question, would . particularlydifferentiate it from the others.

Taking the decision as of general ap-plication, it is not entirely new in Ameri-can courts, and of others we have notsufficiently investigated to be able tostate. See Strauss v. Mutual Reserve

Fund, L. Assn., 126 N. C. 465, 39 S. E.55, 54 L. R. A. 605, 83 Am. St. Rep.699, and Hogan v. Pacific EndowmentLeague, 99 Cal. 248, 33 Pac. 924, inwhich cases it was said that the insuredhas a vested right to have the assess-ments remain at the original rate. Inother courts the right to change has beenheld to depend upon the form of the cer-tificate providing for the holder beingbound by amendments duly passed. SeeFullenwider v. S. C. Royal League, 180Ill. 621, 54 N. E. 485, 72 Am. St. Rep. -affirming 73 Ill. App. 321; Miller v.Nat. Council K. & L. of H. (Kans.),. 76Pac. 830, and Duer v. S. C. Order ofChosen Friends 21 (Tex.), Civ. App.493, 52 S. W. 109. And in the absenceof agreement not to be so bound. See casefrom Kansas in 73 Pac. 88 and fromIllinois in 188 Ill. 431, 58 N. E. 966.In Massachusetts it was ruled that wherethe certificate makes no mention of therate of assessment, it was competent tochange from the level plan to one basedon classification according to age, as thiswas merely the changing of generalforms and plans of business without af-fecting the general plan and purpose ofthe organization. Messer v. 'A. 0. U.W., 180 Mass. 321, 62 N. E. 252. Butthe contract of the member with the as-sociation could not be enlarged so as torequire him to pay assessments for dis-ability purposes, in addition to the mor-tuary. Margesson v. Mass. Ben. Assn.,165 Mass. 262, 42 N. E. 1132. It isreadily understood, we think, why thisnew feature could not be added withoutunanimous consent of all concerned, forit would be adding a new and distinctpurpose to that already existing.

But it has been held squarely that thecontract with an association of this char-acter implies that the amount of assess-ments will vary according to the num-ber of deaths, the growth of the asso-ciation and the earning capacity of itsreserve fund, and that, therefore, there isauthority, rising out of the nature of therelation of the member to the associa-tion and to other members, to change therate of assessment from time to time tomeet death losses and expenses, provided

THE LAW

that the apportionment be equitable. SeeEbert v. M. R. Fund L. Assn., 81 Minn.116, 83 N. W. 506. Some'of the courtsin construing the provision as to amend-ments take that as being limited to regu-lations in carrying out the contracts sub-sisting between members and associationand not as in anywise affecting vestedrights.

We believe that thus such a provisionis meant to be construed and that thecontention of right to change would reston very narrow ground, if that were itsonly support. Certainly that is the ex-tent to which such a provision would go,if found in the constitution and by-laws,or even the charter, pf a corporation or-ganized purely for profit or business pur-poses.

But we believe the general principlestated by the Minnesota Supreme Courtin the Ebert case, supra, is correct, aswe" will endeavor to show.

The ordinary form of incorporation 3fthese associations regards them as beingsimilar in purpose to those denominatededucational, religious, scientific, benevo-lent and the like. They are admitted tocharter rights because they are consid-ered to subserve a useful purpose and areentirely devoid of private gain, in thesense of business profit. They are en-couraged as combinations for mutualprotection and as shields against pau-perism in the families left by members.

To insure their being reliable in thepursuit of such a praiseworthy objectthe state ordinarily requires that they es-tablish and maintain -a reserve fund,sometimes prescribing a minimum sumaccording to age of charter and strengthin numbers. The organizers of such anassociation are, therefore, primarily pre-sumed to bend every regulation to theaccomplishment of the statutory pur-pose, and every law or rule that is pre-scribed under a charter, having per-manency in view., should be construedas temporary expedients subject tochange, as experience under changingconditions may indicate the need ofchange.

Furthermore., it is patent that the statecannot conceive that any inequity reaped

by one member, through the association,from other members would be in further-ance of a useful purpose, or that suchwould not militate against the perma-nency its policy of providing for a re-serve fund shows it has the purpose tosecure.

The state, therefore, intends that theburden of membership in such a societyshall be as nearly equal and equitable asis possible to be obtained. It does notcontemplate that a mere corporation,which is in effect but a sort of clearinghouse for the distribution of what itsmembers contribute to beneficiaries ofdeceased members, shall by stipulationand agreement destroy the equality thatshould subsist between the contributorsand thereby endanger the permanencywhich state policy cherishes. To holdotherwise would give to form a potency,which would be a destruction of effect.This would be sacrificing substance toshadow.

Take thus the fixing of the scale oforiginal assessments. Let us supposethat. between one hundred charter mem-bers a scale is fixed based on initiationage and to continue through membership.As between them it might be, accordingto actuarial experience, entirely and atthat time equitable and just. But, if atthe end of six months two hundred newmembers are brought in, it becomes lessequitable than it was, because memberssix months younger would be paying thesame rate as those six months older. Astime elapses and there are other acces-sions the inequality in burden increases,until, if it be true that a member has avested right in his original assessment,an invitation to a new member becomesa request to lift a portion of the old bur-den from his shoulders.

This is so evidently true, unless thereis being paid to a reserve fund a suffi-ciently large sum to bridge over the in-equality arising from advanced age be-tween old members and new members,that it cannot be supposed that a statute,providing for permanency as a criterionof usefulness in such associations, in-tended that regulations prescribing ratesshould vest contract rights in members.

THE LAW

It would be to say the state aims at auseful purpose, but will allow inequityto prevail by reason of vested rights ob-tained through the agency selected tobring it about.

A society of this kind has no capitalof its own but its furniture, and evenas to that it stands similarly as it standsto its reserve fund. It is a mere conduitthrough which the means of its membersare passed, as by their laws they agreethey should be passed. It has the rightto sue and be sued, but this is a mererepresentation of itself to the public, andfor convenience in transacting business,for in all other respects it is simply atrustee. Its members know that its con-tracts have no responsibility from assetsit holds, in its own right, and that in-equality of burden defeats the end andpurpose of its being created the agent ofthose it is intended to serve.

So far we have proceeded upon thetheory that a change of rate, involvingan apparent change of ratio of burdenbetween members, is an impairment ofthe position of a member, as indicated byhis original assessment.,

Let us suppose again that the originalassessment of a member was just andequitable and accessions at initiationchanged it to injustice. That changenecessarily would be the lightening ofthe burden to the extent that every newmember is paying more than he shouldpay. Now, if there are so many new ac-cessions that the burden is very greatlyless than what it would be, is there anyimpairment of a vested right, if thereis a vested right, if change of rate putsit where it would be had the new mem-bers not come in? The princiethat there can be no impairment ofvested rights is one of law; whether ornot there is impairment is one of fact.When the courts deny a re-rating, be-cause there is merely a change in amountof assessment, they may not be protect-ing a right secured by contract, but theymay be giving an unconscionable advan-tage, under a claim of impairment ofright.

It is the history of fraternal insurancesocieties, that assessments grow more

frequent or less frequent, accordingly asnew blood keeps aloof from or joins theold stock. Ii actuaries may figure, withthe old stock only on hand, losses willamount to so much per month and withnew stock added they will proportionallydecrease, does the principle of no im-pairment of vested rights demand thatthat decrease shall enure entirely tohim who has the vested right? Thechange of rate may be the exact equiva-lent of that right. If there has to be achange merely in the appearance, butnot in the substance, of that r-ight, hasnot the old member invited that appear-ance? Is it not true, as a fact of whichcourts take judicial notice, that this newblood is contemplaied as a necessity insecuring the fruit of the contract eachmember enters into with the others,through their common representative?When his needs h ave been met shall hebe heard to complain, that though -hiscontract is the same in substance as itwould be were there no new blood, itdoes not appear to be so?

We are loath to believe that the courtswill be alert to declare that the forms oflaw necessarily plant a cancer in thevitals of fraternal insurance associationsfrom their first start -in business.

Such a holding would not greatly ex-alt the law as a science in the estimationof the general people, but rather wouldthe tendency be to the debasement ofour jurisprudence as being a misnomerfor pitfalls of destruction.

Fraternal insurance, whatever may beits defects in eomparison with insur-ance conducted by organizations formedto write contracts as a business, hasits friends and adherents, and the morethan two hundred years of its existencedo not yet give promise of its decay anddeath. Its record shows some defalca-tions and breaches of trust, but no fes-tering corruption has found lodgment inits affairs such as has startled the al-most fatigued indignation of our age.If it has been able to live so long underthe crude and unscientific plans devisedfor its maintenance, this is proof thatthe principle, which is its inspiration, isone near the heart of the people.

THE LAW

If the American Bar Association andits Commissioners on Uniform StateLaws will take note of this wide-spreadand deeply-rooted sentiment, they willbend their attention to the perfection anduniformity of legislation to further itsaspiration. It seems to us idle to saythe scheme of fraternal insurance iswholly impracticable and thereforeshould be dismissed from consideration.With a carefully prepared statute pro-viding for a large reserve fund to guar-anty fixed periodical assessments and anactuarial re-rating every five or less num-ber of years, it could be made safe, and,if safe, it certainly is every whit ascheap as old line insurance, and has otheradvantages in sentiment which the othercan never know. And what is especiallytrue about it is that thousands of peo-ple want it, whom old line insurance willnever reach,

Take up this subject, gentlemen of theAmerican Bar Association, and you willbegin to put yourself, where as yet youhave shown no great desire to be-intouch with the people.

When you do this you may cultivatea very large sympathy towards the se-curing of the other things you have beeninteresting yourselves about.

When Does Exempt Property Be-come Subject to Attachment

Against a Resident Remov-ing from the State?

Brown v. Beckwith, Constable, et al.,51 S. B. 977. (Supreme Court of Ap-peals of West Virginia, Oct. 24, 1905.)1. Exemptions-Personal Property-Forced

Sale-How Lost.A person who has acquired, under the pro-

vision of chapter 41 of the Code of 1899, theright to have personal property exemptedfrom forced sale, does not forfeit it on theground of non-residence until he begins toremove his person from his place of abodein this state to another state or country,with intent to fix his residence in such otherstate or country, although he may intend toleave the state permanently, and has madecomplete preparation so to do, and deliv-ered his personal property and effects forshipment to a point outside the state.

2. Judgment-Res Judicata.A finding of non-residence on a sugges-

tion and motion to require security for costsin a pending action is not res judicata inanother action between the same parties.Such proceeding is a collateral one, notreaching the merits of the case.

3. Exemption-Claim-Sufficiency.An exemption list and claim, irregular in

form, considered, and pronounced sufficient.

4. Same-Order of Attachment.An order of attachment is process, within

the meaning of sections 23 and 24 of chap-ter 41 of the Code of 1899, against whichthe right to exempt personal property maybe exercised.

(Syllabus by the Court.)Appeal from Circuit Court, Wood

County.Bill by Minnie Brown, alias Minnie

Blake, against B. F. Beckwith, constable,and others. Decree for defendants, andplaintiff appeals. Reversed.

Walter E. McDougle, for appellant. H.B. Dodge and L. R. Via, for appellees.

POMENBARGER, J. Minnie Brown com-plains of a decree of the circuit courtof Wood County dissolving an injunc-tion by which she attempted to preventthe sale of certain personal propertyclaimed by her as exempt under the pro-visions of sections 23 and 24 of chapter41 of the Code of 1899, and dismissingher bill. The property consisted princi-pally of household goods, and B. F.Beckwith, constable, was proceeding tosell the same under orders of a justiceof the peace in attachment proceedingsinstituted by three several creditors ofthe plaintiff, Samuel L. Koonse, SamuelCross, and A. E. Beatty. The attach-ments were levied on the 9th day of De-cember, 1902, exemption claims were de-livered to the officer on the 13th day ofDecember, 1902, judgments were ren-dered and orders of sale made on the18th day of December, 1902, and on saidlast-named day the debtor served on theconstable written instruments demandingthe release of the property, notifying himthat, in case of his refusal to do so, shewould claim the damages allowed by lawfor detention thereof. By some collateral

THE LAW

proceedings which need not be here de-tailed, action was delayed, so that thetime fixed for sale was the 5th day ofMarch, 1903, on which day a preliminaryinjunction was awarded on the plaintiff'sbill against the justice, constable, andcreditors, restraining the sale. Answerswere filed by the defendants, depositionswere taken and filed, and on the 20th davof August, 1903, the order complainedof was made and entered.

The defense relied upon mainly isthe alleged non-residence of the plain-tiff at the time she presented her claimof exemption. She had occupied as ten-ant a certain house in the city of Park-ersburg, from which, on the day onwhich the actions were commenced andher property seized, she had removed all

,er property and effects, including herwearing apparel not in actual use, to thewharfboat at said city, and had themconsigned to herself at Marietta, in thestate of Ohio, and had vacated the housein which she had resided. She testifiesthat she stayed at the De Witt hotel, inParkersburg, on the night of the day onwhich her property was sent to thewharfboat and levied upon, and laterwent to the residence of a Mrs. Core, inParkersburg, with whom she stayed forsome time, and then went to anotherplace in said city. She denies thatshe ever had any intention of leav-ing the city, and explains the ship-ment of her property by saying she hadrented it to certain persons in Marietta.In addition to the fact of the removal ofplaintiff's property and the evidence ofintent on her part to take up her resi-dence at Marietta, the defendants relyupon testimony showing her presence atMarietta at a time subsequent to thepresentation of her exemption claim, andalso an admission made by her in an ac-tion which she prosecuted in a justice'scourt against the constable for damagesfor the detention of the property. Thistrial was had at Williamstown, directlyopposite the city of Marietta, and a wit-ness testifies that she came to Williams-town on the morning of the trial fromMarietta. On that occasion she testifiedthat she had no legal residence. If it

be conceded that the evidence justifiesthe finding by the court of a fixed inten-tion on the part of the appellant to re-move from Parkersburg to Marietta, andof preparation by her to do so, we areconfronted with the question whetherthere does not yet remain to be suppliedone essential element of change of resi-dence, namely, actual commencement ofremoval, not of the property, but of theperson-personal departure from the oldplace of residence in the state for thenew outside of it. Burt v. Allen, 48 W.Va. 154, 35 S. E. 990, 50 L. R. A. 284,868 Am. St. Rep. 29, decides that withinthe meaning of the attachment laws aperson becomes a non-resident the mo-ment he begins the removal of his per-son from the place of his residence withintent to acquire a residence in anotherstate, even before he gets outside thestate. To the same effect are Moore v.Holt, 10 Grat. 289, and Clark v. Ward,12 Grat. 440. According to many au-thorities, such commencement of remov-al, coupled with an intent to abandon thestate, falls short of the requisites of non-residence. Shinn on Attach. Sec. 96,says it is necessary that the defendantacquire a residence and place of abodeoutside of the state. Drake on Attach.Sec. 64, says a mere purpose to changeresidence, evidenced by acts of the re-moval of the party's property, will notmake him a non-resident of the statefrom which he purposes to depart untilhe shall have begun at least the removalof his person. Wade on Attach. Sec. 78,accords with the proposition last abovestated. No case has been found whichpropounds a doctrine more rigid and il-liberal toward the defendant. Hence itmay be safely said that by the greatweight of authority nothing short ofsuch act of removal, accompanied by in-tent to abandon the state, will render theparty amenable to an attachment on theground of non-residence.

This proposition seems to be in accordwith the general principles of the lawrelating to domicile and residence, enun-ciated by this court in White v. Tennant,31 W. Va. 790, 8 S. E. 596, 13 Am. St.Rep. 896, as follows: "The original

THE LAW

domicile continues until it is fairlychanged for another. It is a legal maximthat every person must have a domicilesomewhere; and he can have but one ata time for the same purpose. From thisit follows that one cannot be lost or ex-tinguished until another is acquired.Baird v. Byrne, 3 Wall. Jr. 1, Fed. Cas.No. 757. When one domicile is defi-nitely abandoned and a new one selectedand entered upon, length of time is notimportant. One day will be sufficient,provided the animus exists. Even whenthe point of destination is not reached,domicile may shift in itinere, if theabandonment of the old domicile and thesetting out of the new are plainly shown.Munroe v. Douglass, 5 Hadd. 495. Thusa constructive residence seems to be suf-ficient to give domicile, though an actualresidence may not have begun." Burtv. Allen, cited, further declares that theelements of non-residence in the law ofattachment and the elements of non-residence within the meaning of thestatutes conferring a right to exemptpersonal property from forced sales arethe same. This position seems to be sup-ported by both principle and reason.Surely the law is not less favorable tothe claimant of a constitutional right ofa character so high that the statutes pro-viding for its vindication are by thecourts of almost all the states liberallyconstrued (12 Am. & Eng. Enc. Law,75) than to the right of a debtor to de-feat an attachment. In the former casethe law impresses upon the property astatus, immunity from forced sale, andwithdraws it from the reach of thecreditor; in the latter, the party is onlygiven the benefit of a strict constructionof remedial statutes, designed to give thecreditor a means of obtaining from himwhat he is entitled to have, satisfactionof his debt out of the property. In bothinstances the law is liberal to the debtor.Hence it would seem that in both casesthe same rules for determining the ques-tion of non-residence ought to govern.

What evidence in the case suppliesthis element of personal removal? No-body testifies to any departure by the ap-pellant from Parkersburg. A witness

states that she came from Marietta toWilliamstown to attend the trial of anaction brought by her against the con-stable, and that on that occasion she saidshe had no legal residence. Her comingfrom Marietta is in no sense inconsistentwith the retention of her residence inParkersburg at the time, which she es-tablishes by the testimony of herself andother witnesses. The statement that shehad no legal residence must be subjectto the rule that she did have a legalresidence somewhere; for, having had aresidence in this state, it continued untilshe acquired one elsewhere. The lan-guage in Burt v. Allen, importing thatone need not acquire a domicile or resi-dence in another state in order to renderhim a non-resident of this state, meansthat there need not be an actual domicileor residence in another state. There maybe a constructive residence in either statefor the purpose of working out the legalrights of parties. Appellant not havingacquired either an actual or constructiveresidence elsewhere, her residence in thisstate must be deemed to have continued.Our conclusion is that the evidence whol-ly fails to establish the element of actualremoval to a place out of the state, andalso the inception or beginning of suchremoval with it. On the question ofresidence, the principle of res judicata isrelied upon. In the action by the appel-lant against the constable, an affidavit ofher non-residence was filed and a de-mand made for security for costs. Thismotion was resisted and evidence washeard upon it, and the justice, believingnon-residence to have been established,required security to be given, and, in de-fault thereof, dismissed the action. Thiswas not a hearing on the merits, but oneupon a more collateral motion. "Ajudgment not based upon the merits isnot final and conclusive in the sense thata plea of res judicata may be foundedon it." 21 Am. Eng. Enc. Law, 266. Anonsuit is not res judicata. Id. 271. Thedismissal in equity for want of jurisdic-tion, or any cause precluding inquiry intothe merits, is not res judicata. Id. 271.

But one other proposition remains tobe disposed of, namely, that the claim- of

THE LAW

exemption is insufficient, which conten-tion is based upon two grounds, one ofwhich is predicated upon the folio.winglanguage in the affidavit: "That she isentitled to have and claims all the above-listed property claimed by her as hus-band and parent exempt from executionor other process in the above cause."The point made is that she does notspecify the character in which she claims.To determine this question it is necessaryand proper to read the language abovequoted in connection with another partof the affidavit, in which the appellantsays she is a parent and resident of thestate. This language established hercharacter as a female parent, and iswholly inconsistent with the character ofhusband. Moreover the word "husband"was used by way of recital and descrip-tion of the property, and its use appearsto have been a mere inadvertence. Soread, the affidavit plainly asserts a claimas parent and resident. In this respectthe demand is sufficiently certain in alegal sense.

The other is based upon the assertionthat at the time the officer received thelists and claims of exemption he held noexecution or other process authorizing asale of the property. The statute clearlyincludes an order of attachment withinthe term "process." In section 25 ofchapter 41, attachment is specificallymentioned, and provision made for re-lease by the officer of claims and de-mands garnished under the order of at-tachment. While there is no specific di-rection to him as to property levied uponand taken into his possession under anorder of attachment, the provision forthe release of claims and demands sug-gested and garnished shows a clear leg-islative intent that the officer shall not,after the delivery to him of the listsspecified in the statute and the lapse ofthe time prescribed for appraisement,withhold the possession of the propertytaken under process of any kind, unlessit be in respect to claims which are ex-cepted from the operation of the exemp-tion laws.

The conclusion resulting from this ex-amination of the record and authorities

is that the circuit court erred in dissolv-ing the injunction and dismissing thebill, and that the decree must be re-versed, with costs in this court to theappellant, the bill reinstated, and a de-cree entered perpetuating the injunctionand requiring the appellees to pay to theappellant her costs in the circuit court.

NOTE.-While the exact situation described in the principal case may have frequently arisen, or at least existed so thatattachment might have been sought, thereare not found many decided cases "on allfours" with it. Though the condition ofthings has seemed yet more a'dvanced thanthe principal case shows, still non-residencehas been ruled not to have arisen. Thus itwas ruled in two cases, that mere startingeven of the person is not sufficient andresidence continues until he who is remov-ing actually gets out of the state. Ballingerv. Lautier, 15 Kan. 608; Degnan v. Wheeler,2 ott & McC. (S. C.), 323. This gives, soto speak, a sort of locus poenitentiae forhis intention. In New Jersey it was ruledsimilarly to the principal case, where thefacts made an exact parallel to the prin-cipal case. Kugler v. Schreve, 2!8 N. J. L.129. And so in Alabama, Herzfleld v. Beas-ley, 106 Ala. 447, 17 So. 623. In a case inKentucky where the facts as to intentionwere somewhat more fully developed, resi-dence was still deemed to continue. Thusthe debtor's family had absolutely gone tothe other state and his joining was merelydelayed for the necessary closing up of hisbusiness, when he was to join them. Hisexemption could still be claimed. Stirmanv. Smith, 8 Ky. L. Rep. .781, 10 S. W. 131. -

The general rule as to interpretation isliberal, where the benefit of exemption isintended for the family of the debtor andpresumptions are indulged in their favor andconditions which would otherwise work ad-versely are shorn of their force. Thusabandonment by husband does not deprivethe wife of the exemption, as the husbandmay return. Baum v. Turner, 23 Ky. L. Rep.600, 76 S. W. 129. Nor is an abscondingdebtor to be presumed a non-resident. Fieldv. Adreon, 7 Md. 209; Croxall v. Hutchings,12 N. J. L. 97; McCauley v. Shute, 5 Harr.(Del.), 97; Bank v. Griffith, 8 Pa. Dist. R.333; Green v. Simon (Ind. App.), 46 N. E.693. Where the debtor had concealed him-self, leaving his children at his place incare of their grandfather, the grandfathermay claim for them the exemption on the

THE LAW

presumption that the father had given himtemporary charge of them. Wilson v. Swan,68 Ark. 102, 56 S. W. 635. And where hehad absconded, he was still adjudged thehead of his family engaged in agricultureso as to allow his wife to claim a team ofhorses allowed to one so engaged. Frazierv. Lyas, 10 Neb. 115, 4 N. W. 1034; 35 Am.St. Rep. 466; Bonnel v. Dunn, 29 N. J. L.435. But in Michigan exemption was de-nied to an absconding merchant, whoabandons his business, in his merchandise.the court saying the abandonment of hisbusiness was abandonment of exemption inthe assets thereof. Betz v. Brenner, 106Mich. 87, 63 N. W. 970.

As to fugitives the rulings have differedwith the circumstances surrounding eachcase. Thus where only four days hadelapsed and the leaving was without havingmade any provision for his family, residencewill not be deemed to have changed. Starkev. Scott, 78 Va. 180. The court appears tohave seized on the fact in the last casethat process was served at the debtor's resi-dence to save the exemption for the family,making such seemingly operate as a kindof estoppel against the creditor. Starke v.Scott, 78 Va. 180. In Washington it washeld that a fugitive leaving with intent to'defraud his creditors, prevents wife, as hisagent, from claiming the exemption. Car-ter v. Davis, 6 Wash. 327, 33 Pac. 833. Wehave not examined the Washington statutesto discover how much this ruling turnsupon their precise language. As seemingto go either upon the theory of ex turpicausa non oritur actio or on the presumptionthat for escape to be effective the debtorwould go beyond state lines, it was ruledin New York, that a fugitive from justice,who escaped from the sheriff subsequentto conviction will, for every purpose, beregarded as a non-resident. New York v.Gepet, 63 N. Y. 646, 4 Hun. 487.

As to an absentee it has been held thatthe mere formation of intention to remainaway without actual change of domicile doesnot make him a non-resident. Smith v.Story, 1 Humph. 420.

In the line of liberality in favor of theexemption it has been ruled that residenceon an Indian reservation, which is terri-tory in a state under the jurisdiction of theUnited States, is residence, under the ex-emption laws, within the state. Coey v.Cleghorn (Idaho), 79 Pac. 72; and as soonas one comes into the state with his family

to acquire residence therein, he becomes aresident, though he has not yet acquired apermanent residence. Chesney v. Francisco,12 Neb. 626, 12 N. W. 94; and resident in-cludes a temporary resident. Everett v. Har-din, 46 Me. 357, 74 Am. Dec. 455; Lowe v.Stringham, 14 Wis. 222. And where such acase is not in terms excluded by the statutea debtor whose family resides without thestate is' entitled to the exemption. Pettitv. Muskegon Booming Co., 74 Mich. 214, 41N. W. 900. So held' where the exemptionwas to "a householder having a family,"though the family was in Canada and hadnever been within the state. The contrawas held in Zimmerman v. Franke, 34 Kan.650, 9 Pac. 747.

It is said by Shinn on Attachment, sec.96, for which he cites authority, that thereis an obvious difference in acquiring a resi-dence elsewhere in states which make "non-residence" a ground for attachment and astatute which authorizes attachment wherethe debtor is "not a resident of the state,"the requirements of the latter being moreeasily satisfied than those of the former,as by the latter departure from the statemakes him "not a resident," while underthe other he has his residence in the statehe is leaving until he acquires a residenceelsewhere. This distinction seems quite re-fined. It is also ruled that though tem-porary absence does not constitute one anon-resident, yet a mere intention to re-turn at a remote and indefinite time, nomatter how often expression is given tosuch intention does not give residentialrights in the state to which return is pro-posed. Shinn on Attachment, see. 92citing. Hanson v. Graham, 82 Cal. 631,23 Pac. 56; Wheeler v. Cobb, 75 N. C. 21;Carden v. Carden, 107 N. C. 214, 12 S. E.197; Charles v. Amos, 10 Colo. 272, 15 Pac.417.

It it were otherwise held a debtor mightoccupy the very favorable position of beingable to secure exemption, at the same time,in two different states.

Life Tenure of Federal Judges.In speaking of defects in the federal

constitution, Judge Walter Clark, ChiefJustice of the Supreme Court of NorthCarolina, said, among other things:

"But by far the more serious defect

THE LAW

and danger in the constitution is the ap-pointment of judges for life, subject toconfirmation by the Senate. So far ascorporate wealth can exert influenceeither upon the President or the Senate,no judge can take his seat upon the fed-eral bench without the approval of alliedplutocracy. It is not charged that suchjudges are corruptly influenced. Butthey go upon the bench knowing whatinfluence procured their appointment, ortheir confirmation, and usually with anatural and, perhaps, unconscious biasfrom having spent their lives at the barin advocacy of corporate claims. Havingattempted as lawyers to persuade courtsto view debated questions from thestandpoint of aggregated wealth, theyoften end by believing sincerely in thecorrectness of such views, and not un-naturally put them in force when in turnthey themselves ascend the bench. Thistrend in federal decisions has been pro-nounced. Then, too, incumbents of seatsupon the federal circuit and districtbench cannot be oblivious to the influ-ence which procures promotion; andhow fatal is the expression of any judi-cial views not in accordance with the'safe, sane and sound' predominance ofwealth.

"As far back as 1820, Mr. Jefferson haddiscovered the 'sapping and mining,' ashe termed the life tenure, appointive fed-eral judiciary, owing no gratitude to thepeople for their appointment and fearingno inconvenience from their conduct,however arbitrary, in the discharge ofsuch office. In short, they possess theautocratic power of absolute irresponsi-bility. 'Step by step, one goes very far,'says the French proverb.

"This is true of the federal judiciary.Compare their jurisdiction in 1.804, whenMarshall ascended the bench, and theirjurisdiction in 1904. The constitutionhas been remade and rewritten by thejudicial glosses put upon it. Had it beenunderstood in 1787 to mean what it isconstrued to mean today, it is safe tosay not a single state would have ratifiedit. This is shown by the debates in thestate conventions, in many of which thebare possibility of much less objection-

able construction was bitterly denied andyet nearly caused defeat of ratification.In 1822, in his letter to Mr. Barry, Mr.Jefferson said that it was fmperative thatthe United States judges should be madeelective for a term of years and sug-gested six years as the period. The ten-ure of judges for a term of years is thepopular will and judgment, as is shownby the adoption of that method in forty-one states. It has worked satisfactorilyin those states, else they had rettirnedto the appointive life tenure. The lattersystem of selecting the United Statesjudges has not proved satisfactory. Itlends itself to the appointment of cor-poration attorneys, whose natural bias,however honest they may be, is adverseto any ruling that will conflict with theviews maintained by them while at thebar. The life tenure is especially objec-tionable, because the conduct of thejudge is beyond review by any authority.A more autocratic and utterly irrespon-sible authority nowhere exists than thatof the United States judges, clothed wittthe power to declare void acts of Con-gress, and -rendered by life tenure free.from any supervision by the people orany other authority whatever. An elec-tive judiciary is less partisan, for in manystates half the judges are habitually tak-en from each party and very often inother states the same men are nominated'by both parties, notably the recent se-lection by a Republican convention of aDemocratic successor to Judge Parker.The people are wiser than the appoint-ing power, which viewing judgeships as.patronage has with scarcely an excep-tion filled the federal bench with 'ap-pointees of its own party. Public opin-ion, which is the corner stone of freegovernment, has no place in the selec-tion or supervision of the judicial augurswho assume power to set aside the willof the people when declared by Congressand the Executive. Whatever theirmethod of divination, equally with theaugurs of old, they are a law to them-selves and control events. A people'sdestiny should always be in their ownhands.

"As was said by a great lawyer, mow

THE LAW

deceased, Judge Seymour D. Thompson,in 1891 (25 Am. Law Review, 288):'If the proposition to make the federaljudiciary elective instead of appointiveis once seriously discussed before thepeople, nothing can stay the growth ofthat sentiment, and it is almost certainthat every session of the federal SupremeCourt will furnish material to stimulatethat growth.'

"Great aggregations of wealth knowtheir own interests, and it is very cer-tain that there is no reform and no con-stitutional amendment that they will op-pose more bitterly than this. What thenis the interest of all others in regard toit?"-The Arena.

The Negotiable Instruments Law.The Uniform Negotiable Instruments

Law, which has been adopted in nearlytwo-thirds of the states, is being sub-jected not only to critical analysis by thecourts, but by the banking institutionsas well. Its departures from former con-ditions, and its improvements and defectsare being noted, and, without doubt, thecommercial world will be prepared by thetime of the.next meeting of the commis-sioners on uniform state laws to submitpractical suggestions as to its working.In all new legislation there are roughplaces, for a time, which disappear asconditions more and more adjust them-selves to a new regime. But also thereare, often, radical defects, which may notbe fully understood, until the new lawhas had a reasonable period of trial.

Now that the American Bar Associa-tion has put in legislative form its propo-sition, it devolves upon the bankers ofthe country to co-operate with the law-yers to the perfection, by amendment, ofwhat has been submitted., In the courts, too, there will be differ-ences of construction, which will have tobe harmonized by such legislation, andthis, too, can be more successfully accom-plished by co-operation between businessmen and lawyers, than if either alone un-dertake the task.,

As the same words do not mean thesame thing to different courts, it may bethat in different states different wordsmay have to be employed to reach iden-tical results. These things representhuman biasses or limitations, but theyhave to be respected.

We were visited with this view ofthings, in connection with our other read-ing about this law, on perusing the ad-dress on "The Negotiable InstrumentsLaw of Missouri," lately delivered by

-Virgil M. Harris, trust officer of theMercantile Trust Company of St. Louisbefore "Group Six, the Missouri Bank-ers' Association," Fulton, Mo. Mr.Harris made a very creditable addressand it gives evidence of the effort thebankers are making to adjust practice tonew conditions, and a law journal oughtto be in hearty sympathy with his sug-gestion that where bankers are "in doubtas to duties, rights or liabilities a goodlawyer should be consulted."

But there are details in the workingout of the law, which such officials as Mr.Harris daily encounter, which will tendto formulate practical suggestions, thatthe "good lawyer" might not happen tohit upon, and, therefore, the need of theco-operation we have adverted to, wewish to specially emphasize..

The bankers of the country have anexcellent opportunity to demonstrate thebeneficial effect of the work done by thelawyers in causing the adoption of thislaw. We would like to suggest that inits perfection earnest care should betaken to avoid too much amendment, andthat none be resorted to unless it bethrough the medium which procured thelaw as it is. If there be independenttinkering, ere we may be aware, uniformlegislation on this subject will have be-come a record of yesterday.

Another suggestion comes to us, whichwe have been trying to impress when-ever a place to hang it on appears, is that,if uniform legislation is to be sought byany particular class in the business world,sympathy for it must be created amongthe kind of people who create the legis-lative bodies. If the bankers, the com-mon carriers, the warehousemen, the

THE LAW

merchants generally, wish uniformity oflegislation on any subject, they woulddo well to become interested in othermatters that the general public might alsodesire uniform legislation about.

This movement is progressive in itsnature, and no set form of similar lan-guage in statutes adopted in differentstates is an end of the matter by anymeans, even if subsequent experiencemight not call for change and extension.

The bankers have, no doubt, alreadydiscovered provisions that were faulty insome respects, and they will no doubtdiscover others. To secure their elim-ination there must be liberality and re-spect for the desires of others. There isbelieved to be a method of sometimes se-curing legislation, that on its meritswould not greatly attract support, but weare assuming that the kind of lobbyingalluded to is to have no place in the uni-form state laws movement.

The Lighter Vein.(Readers of THE LAW are kindly invited

to help along this column with any incident,witty or humorous, in their knowledge orexperience.)

THE JUDGE EVENED UP WITH THE LAW-YERs-The judge had his patience sorelytried bylawyers whowished to talk and bymen who tried to avoid jury service. Be-tween hypothetical questions and excusesit seemed as if they would never get to

the actual trial of the case. So whenthe puzzled little German who had beenaccepted by both sides jumped up, thejudge was exasperated.

"Shudge!" cried the German."What is it?" demanded the judge."I tink I like to go home to my wife,"

said the German."You can't," retorted the judge. "Sit

down.""But, Shudge," persisted the German,

"I don't tink I make a good shuror.""You're the best in the box," said the

judge. "Sit down.""What box," asked the German."Jury box," said the judge."Oh,. I though it was a bad box that

the peoples gets in somedimes.""No," said the judge, "the bad box is

the prisoners' box.""But, Shudge," persisted the little Ger-

man, "I don't speak goot English.""You don't have to speak any at all,"

said the judge. "Sit down."The little German pointed at the law-

yers to make his last desperate plea."Shudge," he said, "I can't make nod-

ings out of what these fellows say."It was the judge's chance to get even

for many annoyances."Neither can any one else," he sai

"Sit down."With a sigh the little German sat

down.-Exchange.

THE LAW

CORPORATIONS.By ROBERT F. WALKER, Esq.

This department of "THE LAWT" will be devoted to a succinct presentation of thelatest rulings of the Courts in regard to corporations, with such terse comments thereonas the Editor may see fit to make.-Publisher.

Corporation-Setting Aside Judgment byDefault.-The St. Louis Court of Appeals inBillingham v. Miller & Teas Com. Co., 89S. W. Rep. 356, holds, that to authorize acorporation to set aside a judgment by de-fault when it is shown that it has beensummoned by the delivery of a copy of thepetition and writ to its secretary at itsusual business office, the president not be-ing found, it must in explanation of its fail-ure to answer and its right hereafter to doso show negligence in the secretary in noti-fying the corporation of the service.

Who Are Passengers-ObligatIons of Car-riers.-The Court of Civil Appeals of Texasin Green v. Houston Electric Co., 89 S. W.Rep. 442, holds that one hurt in the act ofgetting on a street car, by the violent andsudden starting of same, is a passenger al-though not entirely on. the car at the timethe injury was inflicted; that the duty ofexercising such foresight by those in chargeof the car as to prevent dangers to thosegetting on or off of same is imposed aswould be used by very prudent and com-petent persons under like circumstances.

Fraud Defense Against Contract for Sub-scriptions.-The Supreme Court of Michiganin French v. Ryan, 104 Mich. 625, holds thatfraud may be a good defense to an actionfor the subscription price of shares of stock;and the Upper Canada Common Pleas holdsin Provincial Ins. Co. v. Brown, 9 U. C. C. P.286, that where the evidence tends to showthat one soliciting 'subscriptions to stockfalsely represented such stock, it was errorto direct a verdict for plaintiffs.

See also 70 N. H. 350.

Parol Representations Varying WrittenContract in Regard to Stock.-The SupremeCourt of Alabama in Smith v. Ta. Br. Cent.,30 Ala. 650, holds that parol representationsmade to induce a person to take sharesof stock cannot be urged to avoid the con-tract when such representations will causea variance or contradict the written con-tract. See also

Evansville, etc. v. Posey, 12 Ind. 363;Miller v. Han. June. Ry., 87 Pa. St. 95.

Directors Cannot Sell Corporate Assetsand Business.-It is held in many jurisdic-tions that the directors of a corporationcannot, unless thereto authorized by thestockholders, put an end to a corporation'sbusiness and thereby defeat the object ofits creation by selling out all of its prop-erty, or any portion of its real estate nec-essary for the transaction of its ordinarybusiness.

Chicago City Ry. Co. v. Allerton, 18Wall. (U. S.) 233, 21 Law Ed. 902;

Coleman v. East Co.'s Ry. 10 Beav. 1;Rollins. v. Cray, 33 Me. 132;

Metro. El. Ry. v. Same, 14 App. N. Cas(N. Y.), 103;

Clay v. Rufford, 19 L. & Eq. (Eng.), 350.

Cannot Use Funds of Corporation to BuyIts Own Shares.-It is held in Evans v. Cov-entry, 2 Jur. N. S. 557, that a corporationhas no power to buy its own shares and 'dis-tribute its capital among its stockholdersin advance of its creditors and to the possi-ble prejudice of future creditors. See also

Currier v. Leb. St. Co., 56 N. H. 262;Bedford Ry. Co. v. Bowser, 48 Pa. St.

29; andLauman v. Leb. Val. Ry. (Pa.), 72 Am.

Dec. 685.

Owner of Shares of Stock Liable, When..-The Supreme Court of California inBarnes v. Babcock, 95 Cal. 581, holds thatone whose name appears as owner of shareson the books of a corporation is to be re-garded as the shareholder both as to thecorporation and as to the public. See alsoState v. Ferris, 42 Conn. 560; Holyoke Bankv. Burnham, 11 Cush. 183; Night Co. v.Stenkemeyer, 6 Mo. App. 575. The forego-ing is true although he may hold the sharesas trustee for others. Borland v. Haven, 37Fed. 394; Force v. Dalonegha, T. etc. Mfg.Co., 22 Ga. 86; Richmond v. Irons, 121 U. S.27; or he may hold them for the companyitself. In re Natl. Finan. Co., L. R. 3 Chan.791; or as collateral for money loaned, Sim-

THE LAW

mons v. Hill, 96 Mo. 679; Pullman v. Upton,96 U. S. 328.

Directors Cannot, at Same Time, Deal forCorporation and Themselves.-The SupremeCourt of Missouri in Ward v. Davidson, 89Mo. 445, holds that -directors will not be al-lowed to assume the double relation of deal-ing for themselves and a corporation at thesame time; and that so doing they will berequired to account to the corporation forany secret profits they may make by suchdealing. See also Wardell v. U. P. Ry. Co.,103 U. S. 651, 26 Law Ed. 509; Attaway v.St. L. 3rd Natl. Bank, 93 Mo. 485, and theannotated case of Cook v. Sherman, 20 Fed.167, 4 McCrary 20; Van Home v. Fonda, 5

John's Ch. (N. Y.), 388, and Galbreath v.Elder, 8 Watts (Pa.), 220.

When Executive Officers May Act forCorporation.-The U. S. C. C. of App. inCunningham v. Ger. Say. Bank, 101 Fed. R.977, holds, where shareholders of a corpo-ration either by direct act or acquiescence,invest executive officers with the powersand functions of the board of directors asa continuous arrangement, the board beingentirely inactive and the officers discharg-ing all 'duties, a mortage on the property ofthe corporation made by such officers isvalid although not formally sactioned bythe shareholders or directors.

INSURANCE.By JAMES C. JONES, Esq.

Employers' Indemnity Insurance-Policy--Damages Outside of Terms of Policy.-The policy agreed to indemnify the insuredagainst loss for damages on account of bod-ily injuries accidentally suffered by any em-ploye of insured while on duties on or aboutits vessels, caused by the negligence of theinsured and resulting from the operationof its vessels. An employe of insuredsuffered an injury and brought suit claim-ing damages for the injury suffered and forfailure to furnish proper medical and sur-gical assistance. Held, that the insurancecompany was liable for the whole expenseof the defense, though under the policy itwas not liable for damages on account offailure to furnish surgical treatment.

Same - Same - Same - Estoppel. - Theinsured notified the insurance com-pany of the suit and furnished it a copy ofthe libel. The insurance -company tookcharge of the suit and after judgment wasrendered against Insured directed it to takean appeal. Afterwards, under advice fromthe insurance company, the appeal wasabandoned, the Insurance company agreeingto reimburse insured for the amount, whichinsured thereupon paid. Held, that the in-surance company was liable for the amountof the judgment and the subsequently in-curred costs, although the judgment againstplaintiff was based upon a claim outside theprovisions of the policy.

(Ju'dgment for plaintiff below. Here af-

firmed against insurance company.)Globe Nav. Co. v. Maryland Casualty

Co., Wash. S. C. 81 Pac. Rep. (Sep-tember 11, 1905), 826.

Storm Insurance-Ice Gorge.-The plain-tiff's property, situated about 200 yardsfrom a creek and about half a mile from ariver, was insured against "all direct lossor damage by fire or storm." During March6 and 7 there were light rains and on March8 when the weather was clear, the Ice, whichhad sometime previously gorged about fivemiles up the river, broke and again gorgedbelow the mouth of the creek, forcing backup the creek water and Ice, which destroyedthe plaintiff's property. Held, that the plain-tiff could not recover under this policy.

Same-Loss Not Covered.-Damage by astorm anywhere but at the place where theproperty is located, is not contemplated insuch policy.

Same-Same-Court and Jury.-The ques-tion of proximate cause is for the jury, butwhere the facts are undisputed and the in-tervening agency is manifest the court maywithhold the evidence from the jury.

Riale v. Old Guard Mut. Fire & StormIns. Co., 62 The Legal Intelligencer(Oct. 13, 1905), 408, 14 PennsylvaniaDistrict Reporter 639.

Concealment.-A party is not excusedfrom the consequence of concealment ofmaterial facts by the mere fact that it wasdue to his ignorance or mistake. He must

THE LAW

disclose facts not only of which he hasactual knowledge, but those of which thelaw requires him to have knowledge. Henceif the fact is such which comes within thescope of this rule, and is not disclosed tothe insurer, the policy cannot be enforced,although the failure to disclose it was dueto his negligence or mistake, or was a mereaccident.

Weigle v. Cascade F. & M. Co., 12Wash. 449; 41 Pac. 53.

See also-Carpenter v. American Ins. Co., 1

(Story), C. C. 57.

Negative Answers.-A mere check markplaced after a question cannot be deemeda negative answer when the same kind of

marks appear after other questions notanswered and deeme'd immaterial.

Manhattan L. I. Co. v. Willis, 60 Fed-236; 8 C. C. A. 594.

Incomplete Answers to Inquiries.--In.Parker v. Otsego County, etc. F. I. Co., 47N. Y. App. 204, the court said:

"The failure to answer the question im-plied in the paragraph referred to or ans--wering it to a certain point and' not com-pleting the answer was notice to the com--pany simply to divulge and the company-might or might not issue to him the policyas it pleased or such facts as the company-had."

Same.-No breach of warranty can. bebased upon such an answer, as a breach ofwarranty must be based upon the affirma-tion of something not true.

TITLES AND ABSTRACTS.By McCUNE GILL, Esq.

Administration.-It is often the case inthe smaller communities that abstractorsignore probate proceedings. This is usuallythe result of an intimate knowledge of theaffairs of the owner of the land, but evenwhere there exists no such information,there is a tendency to shirk the examinationof proceedings in probate. This custom ismuch to be decried; it is not only unfairto the client, who pays for all the recordinformation, but is likewise disastrous inits ultimate effect on the business or pro-fession of title-examining. The more in-formation furnished by the examiner, themore confidence will be placed by the cus-tomer in the abstract or certificate; this inturn effects the ouster of the professionalattorney from the field of title-examining-a result which, from the point of view ofthe title-examiner, is much to be desiredand which has already been accomplishedby the trust companies of the great cities.

The subject of probate sales to pay debtsis perhaps the most important for the ex-aminer, but aside from this phase of thesubject-considered in a former issue--there are other items of Information thatare indispensable to the client in forminghis estimate of the validity of the title,which are obtainable only from the files orrecords of the probate court. From theprobate proceedings the client is informedwhether or not the debts of the estate havebeen paid, whether the legacies, if any, havebeen satisfied, the number and names of

the heirs, and the fact of assessment ofthe collateral inheritance tax.

An adherence to the following form of-abstracting probate matters, with a notationof any element that a search of the filesand records fails to disclose, will furnish allthe data necessary to the intelligent forma-tion of a correct opinion of-title, whetherthis opinion is to be arrived at by the clientupon an abstract, or is to be furnished bythe examiner in the form of a certificate.

Estate of NJohn Smith. No. 3220.26 Jan. 70. Died.

3 Feb. 70. Renunciation to Mary Smith,widow, of right to administer,filed. (If the letters are issuedwithin 30 days after the deathof the decedent,. and there ap-pear to have been relativescapable of administering-non-residents and married womenare incapable-there must be arenunciation. Skelly v. Veer-kamp, 30 Mo. App. 49.)

3 Feb. 70. Letters of administration grant-ed to James Smith.

3 Feb. 70. Bond filed and approved. (Itwas decided in 71 Mo. 152, thatthe administration is valid, eventhough the probate records donot state that the bond was ap-proved, if it appears that the

THE LAW

court allowed the administratorto proceed with his duties, inthe same manner as if the ap-proval had been made.)

10 Feb. 70. Administrator's affidavit as tothe number and names of heirs.

15 Mch. 70. Proof of publication for fourweeks of notice to creditors.(The creditors of the deceasedhave two years after the pub-lication, in which to prove uptheir claims, and if no publica-tion be made, the only bar isthe general statute of limita-tions, which is usually 5 or 10years.)

20 Mch. 70. Inventory filed.15 Apr. 70. Appraisement for and assess-

ment of collateral inheritancetax, showing amount of same.The payment or non-payment ofthis tax as indicated on thebooks of the collector, shouldbe shown.

16 June 71. Annual settlement.15 June 72. Annual settlement.10 May 73. Proof of publication for five

weeks of notice of final set-tlement. (It was decided in54 Mo. 102, that if a final set-tlement is filed pursuant to anotice, and this settlement isdisapproved by the court, and

the administrator thereuponfiles an amended settlement, thatthe original publication doesnot support the amended set-tlement. This state of affairsis of frequent occurrence, and,while not a serious defect inthe title, should at least bebrought to the client's atten-tion by a suitable note.)

10 May 73. Final settlement filed. Showbalance in hands of adminis-trator, and order of distribu-tion.

15 June 73. Final receipts filed for amountsin above order of distribution.

15 June 73. Administrator discharged.

If there was a will, it and the attestationand the probate of it should be copied ver-batim, and there should appear receipts forcash legacies. That is, it is not necessarythat there be receipts for legacies of specificpersonal property, nor for general legacies(as where the entire estate is bequeathed tothe widow), nor for residuary legacies, norfor devises of realty. If there has been asale for the payment of debts, the follow-ing proceedings should appear-petition, or-der of publication and personal service,proof of publication and personal service,order of sale, proof of publication of noticeof sale, oath of appraisers, appraisement,report of sale, confirmation.

TORTS, NEGLIGENCE AND DAMAGES.By CLAUD D. HALL, Esq.

Master and Servant-Master's Duty toFurnish a Safe Place to Work-Qualifica-tions of Rule.-It is a master's duty to usereasonable care to provide the servant asafe place to work. The phrases used bythe courts to express this duty of the mas-ter are numerous. Such terms as, "reason-able skill," "reasonable caution," "reasonableprudence," "reasonable diligence," etc. arefrequently used as synonymous with thewords, "reasonable care" and "ordinarycare." The best expression, however, isprobably the term, "reasonable care," whichmeans "ordinary care." This is defined bythe courts as "such care as reasonable andprudent men would use under similar cir-cumstances." The care required of themaster, of course, in furnishing the servanta safe place to work, depends on the na-

ture of the employment, the dangers towhich the servant is exposed, and the dan-gers which the master can apprehend andavoid. The rule is thus laid down in aMissouri case:

"It is well-established law that the mas-ter impliedly agrees with his servant, whenhe employs him to perform any work orservice, to use reasonable care to providehim with suitable means, appliances and in-strumentalities, to do his work as safelyas necessary hazards of the employment-will permit. This duty includes that ofcare to provide as safe a place to performthe service as the character of the workwill permit."

Bradley v. Ry. Co., 138 Mo. I. c. 302.

The measure of the master's duty is

THE LAW

largely determined by the facts and cir-cumstances of each case.

Claybaugh v. K. C. F. T. & MemphisR. R. Co., 56 Mo. App. 630.

The master's duty to furnish the employea safe place to work is a continuing one.

Zellars v. Mo. Water & Light Co., 92Mo. App. 107.

It is a personal one to the master, andit cannot be delegated.

Zackewitz v. American Biscuit Mfg. Co.,78 Mo. App. 144.

And the servant has the right to pre-sume that the matter has performed thisduty and that he will not send the servantinto a dangerous place.

Doyle v. M. K. & T. Trust Co., 140Mo. 1.

But the master is not an insurer againstaccidents, nor is he chargeable or respon-sible for not providing against all possibleand unanticipated happenings.

Grover v. K. C. Nut & Bolt Co., 153 Mo.327.

Nor is the duty to furnish the servant asafe place to work an absolute one, but it

is the master's duty to see that the place iskept in a reasonably safe condition.

Zellars v. Mo. Water & Light Co., 92Mo. App. 107;

Turner v. Haar, 114 Mo. 335.

And this does not take away from themaster his right to conduct his business inhis own way as long as the place is keptreasonably safe.

Bradley v. Ry. Co., 138 Mo. 293;Doyle v. M. K. & T. Trust Co., 140

Mo. 1.

There is a necessary exception to therule requiring the master to furnish theservant a safe place to work in cases wherethe place where the servant is employed isnecessarily made dangerous in performingthe required services, and the rule is thusexpressed by Mr. Justice Gray in Armour v.Hahn, 111 U. S. 318:

"The obligation of a master to providereasonably safe places and structures forhis servants to work upon does not imposeupon him the duty, as toward them, of keep-ing a building, which they are employed inerecting, in a safe condition at every mo-ment of their work, so far as its safety de-pends on the due performance of that workby them and their fellow servants."

MEDICAL JURISPRUDENCE.By EDGAR R. ROMBAUER, Esq.

Dentists-Degree of Care Required of.-In the absence of express agreement, den-tists do not insure or warrant the result oftheir work, nor do they engage to bring toit the highest skill known to the professionand they are not answerable for mere mis-takes in judgment. But the law does placeupon them the duty, and hold them liablefor the want thereof, of possessing and ex-ercising that reasonable degree of diligence,learning and skill ordinarily possessed bydentists in similar localities and of keepingabreast of the times and exerting theirbest judgment.

McCracken v. Smathers, 122 N. C. 797.

Physician Rendering Service WithoutCharge-Degree of Care Required of.-Thefact that the services of a physician or sur-geon were rendered gratuitously 'does notaffect his duty to exercise reasonable andordinary care, skill and knowledge, nor his

liability to respond for damages resultingfrom not exercising them.

Dubois v. Decker, 130 N. Y. 325.

Fees of Physician.-A physician is notprecluded from recovering the reasonablevalue of his services by the fact that he hassent 'the patient a bill for an amount lessthan the services were reasonably worth.Where there is no conflict in the experttestimony concerning the value of the serv-ices rendered, the jury are not at liberty todisregard such testimony and enter the fieldof their own uninstructed conjecture.

Ladd v. Witte, 116 Wis. 35.

Osteopaths-Medical Practitioners with-in Illinois Statutes.-A person who givestreatment after a diagnosis, by rubbing orkneading the body to free the nerve force,as in osteopathic treatment, practices medi-cine within the meaning of a statute provid-ing that any person shall be regarded as

THE LAW

practicing medicine who "shall treat or pro-fess to treat, operate on or prescribe for anyphysical ailment, or physical deformity, or in-jury of another," although such practitionerdoes not use drugs, medicine or instrumentsnor does he by means of such treatment,treat the sick by mental or spiritual meansalone.

People v. Gordon, 194 Ill. 560.

Physicians-Duratidn of Employment of.-A physician called in generally, withoutlimitation as to his attendance, is Impliedlyengaged to attend the patient through theillness, or until his services are dispensedwith.

Dale v. Donaldson Lumtner Co., 48 Ark.188.

Liability of Accident Insurance Companyfor Negligence of Its Examining Physician.-A physician, who at the request of an ac-cident insurance company examines thelimb of one insured in such company, theperson injured permitting the examinationto be made in pursuance of a clause in theinsurance policy providing that "any medi-cal adviser of the company shall be allowed

to examine the person, or body, of the in-jured in respect to any injury or cause ofdeath in such manner and at such timesas he may require," is a servant of the in-surance company so as to render the com-pany liable for an injury caused the in-sured by the negligence of the physician inmaking an examination.

Tompkins v. Pacific Mutual Life Ins.Co., 53 W. Va. 479.

Poison-Restriction on Sale of-Canvass-er for Orders with Authority to ReceiveMoney.-A shopkeeper who, acting as agentupon commission for the manufacturers ofa poison within the meaning of the Phar-macy Act, 1868, receives at his shop ordersfor the poison and the purchase money forit, and does not make aiy binding contractof sale with respect to it, but merely for-wards the orders and the money to themanufacturers for them to deal with, doesnot "sell" the poison within the meaningof section 15 of the act, and does not keepopen shop for the purpose of retailingpoison within the mean-ing of that section.

Pharmaceutical Society v. White, 70 L.

J. K. B. (England), 386.

COMMERCIAL PAPER, BANKS AND BANKING.By MONTAGUE LYON, Esq.

Liability of Individuals Signing as Trus-tees.-Certain trustees for creditors tookover the construction of a building fromthe owner, and in furthering the work ofcompleting the building it became neces-sary to give a note to a sub-contiractor, whowas aware that the trustees were not actingas individuals but in behalf of cre'ditors.The note was signed

"Andrew Ruegamer, Jr.,Daniel Moore,Leon Raunheim,

As Trustees, etc."

There was also evidence that the trus-tees informed the plaintiff, the sub-contract-or, that they would not be liable individual-ly, but only to the extent of the propertyof the owner in their hands.

The plaintiff tried to hold the trustees in-dividually, and the argument was made thatthere was nothing on the face of the notethat showed that its consideration was forthe benefit of the creditors of the owner orthat the note was given by the defendants

as the trustees for such creditors. The courtheld that the fact plaintiff knew that thetrustees signed the note as trustees andnot as individuals made such statement inthe note unnecessary. The court saying,the purpose of the statute is limited to put-ting the payee of such a note in possessionof the knowledge that in its execution anddelivery no personal liability was intended tobe assumed by the makers, and where, asin this case, the payee knows that the mak-ers are trustees, and the object and pur-poses of their trust, as well as their powersthereunder, has contracted with them intheir representative capacity, and furnishedcertain property to be used, in furtheranceof their trust duties, and requests a noteas evidence of the indebtedness so created,it is not necessary, as to him, and the mak-ers are not required, to relieve themselvesfrom personal liability on such note, to re-peat to him in writing upon the face of theinstrument, or orally, information that healready possesses. If it be held that sucha requirement was necessary, the evidence

502

THE LAW

of Raunheim establishes that when the notewas given the plaintiff was informed sub-stantially that the defendants would notincur personal liability, and would not givetheir individual notes or indorsements be-cause they were acting as trustees only,which brings the case within the decision

of First National Bank v. Wallis, 150 N. Y.445. These facts furnish a complete de-fense to plaintiff's claim of individual lia-bility, and, abundantly satisfy the require-ments of the negotiable instruments law.

Kerby v. Ruegamer, 95 N. Y. S. 408.

ACCOUNTS, CREDITS AND COLLECTIONS.By EDWARD S. MURPHY, Esq.

This department of THE LAW will be maintained in such a manner as to keep the busylawyer and business man up to date in the current law pertaining to the business interests ofthis country, as handed down in the late decisions.

Contract of Guaranty (Continued).-Con-tinuing the subject of guaranty from lastweek's issue wherein we discussed the con-tract with reference to the statute of fraudsand as to requisites and consideration, weshall, in this issue, give attention to itsconstruction and operation.

As we have noted-, no special form or wordsare necessary; an'd to be construed to be aguaranty, any writing claimed to be such,must show plainly such intention. Whenfound to be a guaranty at all, the contractis interpreted liberally as to the meaningof its express terms, keeping in view thecircumstances surrounding the parties, theirevident intention, and the known usages oftrade. In a word, it is generally to be con-strued as are other contracts, but its pro-visions cannot be extended by implication;the guarantor cannot be held liable exceptas per the express terms of his contract, anda 'deviation from the express terms on thepart of the guarantee may release the guar-antor entirely. It is a contract "strictissimijuris, i. e., to be applied most strictly. Andthis is the point most to be emphasized. Aguarantor can only be charged when thecase comes within the precise terms of hiscontract. A guaranty covering advancesmade to a firm has been held not to coveradvances made to the individuals composingthe partnership. Where the guarantee wasa corporation known as C. Bros. the guar-antor was held no longer liable, after thename of 'the corporation was changed to C.Company. And' in a New York case (Lansing, 181) it was held that a guarantyto be responsible for "chamber suits" doesnot apply to isolated articles of chamberfurniture, merely because these were capa-ble of being made up into suits.

Unless a letter of guaranty is general-that is, not addressed to any particular per-

son-the guarantor can only be held by itsbeing accepted and acted upon by the par-ticular person to whom it was addressed.A letter of guaranty addressed to two per-sons, but delivered -to and acted upon by butone of them, does not bind the guarantor.

In general the guarantee must use duediligence and all the means within his power-to recover the 'debt from the principal debtorbefore he can resort to the guarantor. Butthe intention of the parties, as evidenced bythe express terms of the contract, must gov-ern. For instance, the guarantor may ex-pressly waive anything more than a de-mand upon the principal debtor by theguarantee.

Unless the principal is insolvent when thedebt falls due, notice of default on his partmust be given the guarantor with reason-able promptness. But when it can be proventhat the guarantor had actual knowledge ofdefault of principal, formal notice is unnec-essary.

Decisions.-A guarantor, like a surety, isbound only by the strict letter and preciseterms of his contract.

McAfee v. Wykoff, 44 Misc. 380.

A guarantor in a written guaranty Is notrendered liable by mere ratification or ac-quiescence for matteris or items not fallingwithin the express terms of the guaranty.

Shine's Admr. v. Bank, 70 Mo. 524.

A guaranty addressed to a particular per-son cannot be acted upon by another so asto hold the guarantor.

McCollum v. Cushing, 22 Ark. 540.Edmonston v. Drake, 5 Peters, 624;Birkhead v. Brown, 5 Hill, 634;Taylor v. Wetmore, 10 Ohio, 490.

A guarantor, agreeing, at the time of a

THE LAW

sale, to be responsible for the price, is liablefor interest on the price, if not paid by theprincipal when due.

Rubber Co. v. Benedict, 5 Jones & S.430.

Looney v. LeGeirse, 2 Wilson, 534.

It is not a breach of the terms of a guar-anty for a specified amount that credit was

extended to the principal for more than thatamount. Fish v. Stone, 50 N. W. 125. Butwhere, in a contract of guaranty, the guar-antor stipulates that consignments are notto exceed a certain sum at any one time, thisis a condition of his liability, and if creditsexceed that sum at any time he will be re-leased.

Brez v. Warner, 1 Ky. Law Rep. 226.

PATENTS, TRADE MARKS AND COPYRIGHTS.By-EDWARD E. LONGAN, Esq.

Respective Rights of Employer and Em-ployes in Inventions. (Continued.)-A re-cent case relating to this subject is the caseof the Pressed Steel Car Co. v. Hansen, de-cided by the Circuit Court of Appeals, ThirdCircuit, reported in the "Federal Reporter,"Vol. 137, pages 403 to 418.

In this case, Hansen was employed by thecomplainant company as chief engineer, "un-der an agreement and understanding to de-vote his entire time, ability and skill to yourorator's business and its advancement, andthat all inventions and improvements thathe might make during the period of his em-ployment, and all letters patent that mightbe obtained therefor, should be the sole prop-erty of your orator."

There was no written contract betweenHansen and the Pressed Steel Car Co., butit was attempted to prove the above allega-tion on the part of the complainant by oraltestimony.

Hansen denied the existence of any suchagreement, "and positively asserted that nocontract of any kind existed between com-plainant and himself by which he was to

assign to the complainant letters patent inquestion."

In the above decision the Circuit Court ofAppeals reviews prior decisions relating tothis subject matter:

The case of Gill v. United States, 160 U.S. 426.

Hapgood v. Hewitt, 119 U. S. 226.Solomons v. United States, 137 U. S.

342, and decides as follows,:

"We have been referred to no case, norhave we been able to discover one in whichapart from express contract or agreement,and upon the mere general relation of em-ployer and employe and of the facts and cir-cumstances attending it, the employer hasbeen vested with the entire property right inthe invention and patent monopoly of theemploye, or with anything other than ashop right, or irrevocable license, to use thepatented invention." Such a right' in theemployer, the employe may be estopped todeny, by the fact of his employment and hisconduct in relation to the use of his inven-tions by his employer, and to that extentand no further have the cases gone."

THE LAW

WILLS.By GEORGE T. DESLOGE, Esq.

Effect of Probate of WilI.-A decree ad-mitting a will to probate is not an adjudica-tion of the effect or construction of any pro-vision of the will, but only that the will wasexecuted by the person whose will it pur-ports to be, and that such person was com-petent to make a will.

Greenwood v. Murray, 26 Minn. 259.

Though under Rev. Stat. of Wisconsin,See. 2294, the probate of the will is "con-culsive as to its due execution," it calls forno construction of the provisions of the will,at least no such construction as will bindthe rights of parties under the will.

Jones v. Roberts, 84 Wis. 465.

Although under the statute a will does notbecome effectual until proved, yet, whenproved, it takes effect by way of relation soas to vest the title of property *devised byit in .the devisees Immediately upon thedeath of the testator.

Graves v. Mitchell, 90 Wis. 306.

The subsequent probate of a will givesvitality to a previous conveyance of prop-erty passing under it, executed by a devisee,so far as that devisee is concerned.

Ryan v. Texas & P. R. R., 64 Tex. 239.

A paper purporting to be the will, underwhich the devisees claimed, but having noentry of record or probate thereon, thoughcoming from the ordinary's office, into whosehands it was shown that it went at the deathof the testator, is not sufficient proof of theprobate and record of the instrument tomaintain a bill in equity by the deviseesthereunder.

Rogers v. Rogers, 78 Ga. 688.

Effects of Proof of Testator's Signature.-Proof of the testator's signature to a will isprima facie evidence of his having under-standingly executed the same. A will pre-pared at the request of a testator, even un-der general directions and afterward, exe-cuted in the manner provided by law, shouldnot be set aside on the ground that he didnot understan'l what it contained, exceptupon clear and satisfactory proof of thatfact. The rule of law is. "where the tes-tator is shown to have executed an instru-ment as his will, being in his right mind,

and there is nothing of fraud or imposition,it will be presumed that he was aware of itscontents."

Sheer v. Sheer, 159 Ills. 591.

Construction of Will.-A will providedthat: "To provide to the extent of my abil-ity for the support and education of such ofmy children as shall be unmarried andminors, and such of the married or adultones as may, by innocent misfortune, becomereally needy, I give and bequeath to my be-loved husband all my property, that he mayuse the same for the maintenance and e'du-cation of my said children, and that he may,from time to time, advance to each of themas he may deem best to start them in life."The husband was appointed "executor, withfull power to control, manage, use, convey,sell and dispose of said property as his ownabsolute property, without being required tofile or ren'der any account, or give any bill."Held, that the husband took an absolutetitle free from any trust.

Randall v. Randall, 135 Ills. 398.

Codicil-Description of Property-WillNot Sufficiently Identified.-Testatrix direct-ed by her will the appraisement of a "dwell-ing house, lot, and appurtenances," and pro-vided that a son should have the option totake it at the appraised value, and that onhis declining to do so the option should beextended to the other children in order oftheir ages. After the will, and shortly be-fore her death, she signed a paper, a'd-dressedto such -son, stating that she had bequeathedto him "the house I now live in for $1,000,as expressed in my will, written by JudgeM," which paper the register admitted toprobate as a codicil. On appeal to the or-phans.' court it was held that there was noth-ing in the unattached writing to identify thedwelling house, lot, and appurtenancesnamed in the will as the house named in theunattached writing, and that the referenceto "my will written by Judge M.," withoutother evidence, was not a sufficient identi-fication of the will offered as the will re-ferred to in the alleged codicil.

(Supreme Ct. of Pa. 1905.) In reBright's Estate, 61 A. Rep. 941.

Cy. Pres. Doctrine Held Not to Apply.-Testatrix bequeathed the surplus of her

THE LAWestate to "the hospital fund for sick 'seamenat navy yard, Brooklyn, N. Y., care of W.,chaplain." W. was not chaplain of the navyyard and died before testatrix, and therewas no fund maintained for the benefit ofsuch seamen. Held, that the court ofchancery, under the cy. pres. doctrine, couldnot decree such bequest to another institu-

tion conducting religious and charitablework among the sailors of larger scope thanthat conducted by W., but that the bequestlapsed and passed, to the testatrix's next ofkin.

Brown v. Condit (N. J. 1905), 61 A. Rep.1055.

U. S. TREASURY DECISIONS.By WM. H. O'BRIEN, Esq.

In this department will be noted Important decisions of the Board of General Ap-praisers, Internal Revenue Department, affecting exporters and importers, under ourtariff laws.Eggs of Fish-Cod Roe.-Cod roe preserv-

ed by salting or brining was classified assalted fish under the provisions of paragraph261, tariff act of 1897; held, that the mer-chandise being unfit for use as food for hu-man beings, is entitled to free entry underthe provisions of paragraph 549.

Stuffed Olives.-Stuffed olives are dutiableunder ,the provision for "olives, green or pre-pared," in paragraph 264, tariff act of 1897,and not under that for "all vegetables pre-pared or preserved, including pickles andsauces of all kinds, not specially providedfor in this act," in paragraph 241.

Imitation Parchment 'Paper not PrintingPaper.-Imitation parchment grease-proofpaper held to be dutiable as paper not spe-cially provided for under the provisions ofparagraph 402, tariff act of 1897.-GermaniaImporting Company v. United States (T. D.26876), affirming G. A. 6060 (T. D. 26442),cited and followed.

Brooches, Enameled and Plated-Jewelry.-Enameled, brooches, plated with gold orsilver, indicative of membership in an organ-ization, and designed to be worn in an ex-posed manner for personal adornment, arecommonly known as jewelry and are dutia-ble as such at the rate of 60 per cent advalorem under paragraph 434, tariff act of1897, and not at 45 per cent ad valoremunder the provision of paragraph 193 of saidact for the manufactures of metal.

Reflectors for Lamps-Manufactures ofGlass and Metal.-Reflectors for lamps man-ufactured from glass, polished, beveled, sil-vered, and backed with a heavy plating ofcopper, are dutiable at the rate of 45 percent ad valorem under paragraph 112, tariffact of 1897, and not at 1% cents per poundunder paragraph 101, 11 cents per square

foot under paragraph 105, nor under one ofthe above paragraphs, in conjunction withparagraph 107, at the appropriate rate orrates provided by the latter paragraph ofsaid act.

Scrap Iron-Old and Worn-out Iron Chains.-Old, worn-out iron chains, fit only for re-manufacture, are dutiable as scrap iron un-der the provisions of paragraph 122, tariffact of 1897. The claim that said paragraphcovers only waste or refuse of new iron, andthat waste or refuse of old iron is free asjunk, held unwarranted either in law or infact.-Schlesinger v. Beard (120 U. S. 264),Dwight v. Merritt (140 U. S. 213), In re Sol-omon (47 Fed. Rep. 711), Train v. UnitedStates (113 Fed. Rep. 1020), Carberry v.United States (116 Fed. Rep. 773), Robert-son v. Edelhoff (132 U. S. 614), and Ingersollv. Magone (53 Fed. Rep. 1008), cited andfollowed.

Imitation Coral Made of Glass or Paste-Imitation Precious Stones.-Manufactures ofglass or paste made to imitate coral, de-signed for use in the construction of cheapjewelry and belonging to a class of merchan.dise commercially known as imitations ofprecious stones, held dutiable at 20 per centad valorem under paragraph 435, tariff actof 1897, and not at 45 per cent ad valoremunder the provision of paragraph 112 of saidact for manufactures of glass or paste.-United States v. Weinberg (139 Fed. Rep.1006; T. D. 26483) and United States v. Gold-berg (139 Fed. Rep. 706; T. D. 25919) cited.

Commissions-Entered Value-Duress.-Nonduttable items of commissions, If volun-tarily added to the value of the merchandiseby the Importer in making his entry, becomepart of the 'dutiable value, under section 7of the customs administrative act of June 10,

THE LAW

1890, requiring that "duty shall not * * *be assessed in any case upon -an amount lessthan the invoice or entered value." It doesnot render such an addition less binding thatthe right of the customs officers to assessduties on such charges was disputed and inlitigation when, the entry was made, at leastwhere the addition of the charge would notrelieve the importer from any unlawful ex-action-. The mere apprehension on the partof importers of incurring additional or penalduties does not make such an addition inthe entry coercive, where slight investiga-tion would have shown that it was not thepractice of the customs officers to imposeadditional duties in such cases. Whetherthe addition of a nondutiable charge in theentry would be conclusive upon importerswhere it was induced by a known and set-tled practice of the customs officials to im-pose penalties or additional duties wheresuch charge was not added, query.

Collector of Customs-Power to Reliqul.date.-The collector's power to make a re-liquidation, which will amount to a new de-cision respecting any merchandise coveredby a protest, is suspended while the pro-test is pending, except in so far as the col-lector may exercise that power to complywith the demands of the protest while it isstill in his hands.

Books for a Law Library Other than Public.-A law library association which exten'dsprivileges only to certain classes of people,and the terms of whose constitution neces-sarily limits the membership, Is not a publiclibrary within the meaning of paragraph 503,tariff act of 1897, and law books imported forsuch library are properly dutiable underparagraph 403 of said act, as books 'spe-cially provided for.

The Cleveland Law Library Association,a coiporation constituted un'dvr the laws ofOhio, which provides in its constitution ihatthe capital stock of the association shallbe $20,000, to be divided into shares of $25each, and that any person may become amember by becoming the owner of twoshares of stock, necessarily limits Its mem-bership and becomes a private library. Thefact that it is supported in part out of publicfunds does not change its character In thisrespect.

The use of a public library must not beconfined to privileged individuals, but mustbe open to the enjoyment of the indefinitepublic, in order to give the library a publiccharacter. Whether compensation is