frauded parties.-Rowley 96 Atl. 374

V.

Shepardson, Vt., 67.- -Setting Aside. In a suit by the surviving children of a decedent to cancel his deeds to his daughter, not delivered until a long time after execution, when there was no fraudulent intent and no creditors to suffer thereby, it could not be set aside because of the grantor's fraudulent intent when executing the deed.-Deniston v. Phillips, Ark., 181 S. W. 911.

68. Homestead-Life Estate.-Where the testator had only a life estate in land which he and his wife occupied as a homestead, the homestead exemption ceased at his death.Berry v. Heiser, Ill., 111 N. E. 99.

69. Homicide-Verdict.-The jury have the absolute right to qualify their verdict in a homicide case by adding "without capital punishment," without disregarding their oaths, though there be no extenuating circumstances.-State v. Bacon, La., 70 So. 572.

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70. Innkeepers-Lien.-Where took his wife to a hotel and contracted for lodging there, his goods and not his wife's were subject to the lien created by Rev. St. 1909, § 8247, providing that hotel keepers shall have a lien on the baggage and other valuables of their guests brought into the hotel by the guests for proper charges due from the guests. -Mercer v. Lowery, Mo. App., 181 S. W. 1050.

71. Insurance Broker.-Under Code Pub. Civ. Laws, art. 23, § 218, defining an "insurance broker," a clerk for a firm of licensed brokers who delivered a policy effected by them and collected the premium due, which he handed over to the firm, did not act as a broker, and so committed no offense in so acting without a license.-State v. Geddes, Md., 96 Atl. 353.

72-Divisible Contract.-A contract of insurance upon a house in a certain amount, and upon household furniture in another amount,

is divisible, so that the procurement of additional insurance upon the personal property did not affect the validity of the insurance upon the house. Aetna Ins. Co. v, Dancer, Tex. Civ. App., 181 S. W. 772.

73.- Doing Business.-A corporation, which proposed by contract to care for plate glass for a fixed term for a certain consideration, and to replace the glass, if broken within the period of the contract, was attempting to do an insurance business.-People V. Standard Plate Glass & Salvage Co., N. Y. Sup., 156 N. Y. Sup. 1012.

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74.-- Estoppel.-An insurance company held bound by knowledge of its local agent that before issuance of the policy there had been change of ownership of the automobile insured against fire, and estopped to set up such change of ownership as a defense, though the policy limited the right of waiver by an agent.-Com. Union Assur. Co., Limited, of London v. Lyon & Kelly, Ga. App., 87 S. E. 761.

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75. Extended Insurance.-Evidence held to show such indebtedness of insured to company account of past premiums as to preclude extension of insurance; there being nothing to apply thereon.-Pope v. New York Life Ins. Co., Mo. App., 181 S. W. 1047.

76.- -Suspension.-Where grand lodge officers of a mutual benefit insurance association having a by-law that engagement in the retail liquor business should automatically suspend

a member retained assessments paid by a member so engaged, the order was estopped to deny its liability to the beneficiaries named in the certificate.-Peterson v. Grand Lodge, A. O. U. W. of South Dakota, S. D., 156 N. W. 70.

77. Interpleader-Equity.-Under chancery or equity rules, any party who claimed a concurrent interest, whether joint or of whatsoever nature, in the subject-matter of the action was entitled to be inpleaded as a party plaintiff, or to be brought in by the court, whether the parties to the suit desired it or not, so that all claims to the same subject-matter might be de

termined in the single action.-Sando v. Roberts County, S. D., 156 N. W. 64.

78. Judgment-Pleadings.-A judgment is not necessarily erroneous for exceeding the plaintiff's pleadings, where the matter upon which it is rendered is pleaded by the defendant, and the plaintiff's prayer for relief is sufficiently broad to cover that awarded.-Rutkoski v. Zalaski, Conn., 96 Atl. 365.

79. Jury-Record.-Where the minutes of the trial court recited that 12 jurors were sworn, but named only 11, and a second order named 12, but did not recite that they were sworn, the record sufficiently showed that 12 jurors were chosen and sworn; the errors being palpably clerical.-McFarland v. State, Miss., 70 So. 563.

80.

Landlord and Tenant-Crops.-In the absence of proof of a sale, guano furnished by a landlord to a tenant under a "standard" rental contract, to be used in cultivating a crop to be planted on the leased premises, is not subject to outstanding judgments against the tenant, where the judgment creditor did not extend credit on faith of the tenant's possession of the guano.-Rives v. Holmes, Ga. App., 87 S. E. 764. 81. Eviction.-Where the assignee of lease secured possession and moved bulky property into the building and retained the key, he could not sue for constructive eviction; there being no constructive eviction without a complete abandonment of possession.-Bowder v. Gillis, Minn., 156 N. W. 2.

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82. Rent Reserved.-Where farm land leased for five years under a contract providing that a sale should make the lease immediately void was sold during the last year, held that, while the sale avoided the lease contract, the tenant was entitled upon payment of the rent reserved to hold for that year.-Phelps v. Johnson, Tex. Civ. App., 181 S. W. 862.

83. Libel and Slander-Privileged Communication.-Petition by citizens to revoke merchant's license is privileged only in absence of malice on petitioners' part.-McKee v. Hughes, Tenn., 181 S. W. 930.

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85. Master and Servant-Dependents.-Under New Jersey Workmen's Compensation Act April 4, 1911, the administrator of a workman whose dependents are non-resident aliens cannot maintain an action for his death, either under such act or under the Death Act of 1848.De Biasi v. Normandy Water Co., U. S. D. C., 228 Fed. 234.

86.- Proximate Cause.-The use by a railway engineer of a water gauge without a guard glass instead of the gauge cocks was not the proximate cause of an injury from the bursting of the water tube, where the gauge cocks themselves are not safe because of their liability to clog.-Seaboard Air Line Ry. v. Horton, U. S. Supp., 36 Sup. Ct. 180. 87.

-Safe Appliance.-That the employer has purchased from a reputable dealer the machinery causing injury to an employe will not relieve him from liability, where he has not given the machinery reasonable tests.-Missouri, O. & G. Ry. Co. v. Davis, Okla., 154 Pac. 503. 88. Workmen's Compensation Act.-Knitting room foreman, injured when his hand touched a revolving fan in the hot-air pipe into which he was attempting to place a bottle to heat it for his lunch, was not entitled to compensation under the Workmen's Compensation Act as for an injury arising in the course of employment, though the master permitted employes to heat their bottles at the mouth of such pipe in an adjoining roof.-Mann v. Glastonbury Knitting Co., Conn., 96 Atl. 368.

agreement not to remove casing from a well upon abandonment was the value of the casing when removed.-Johnson v. Hinkel, Cal. App., 154 Pac. 487.

90. Mortgages-Equity.-Transaction whereby mortgagors executed a deed of their lands, worth $1,000 to $1,250, to the mortgagee, who had refused to renew, for his agreement in writing that they might annul such deed by the payment of $1,000 before a fixed date, the mortgagee and his heirs taking and remaining in undisturbed possession of the land thereafter for seven years, held not to constitute a mortgage in equity.-Charles v. Thacker, Ky., 181 S. W. 611.

91.

Municipal Corporations-City Attorney.A city attorney must be a licensed attorney, though the statute does not so provide nor prescribe his duties.-Baxter v. City of Venice, Ill., 111 N. E. 111.

92. -Ordinance.-Since the power of a city council to regulate buildings is impliedly to be exercised by a majority vote, an ordinance requiring a two-thirds vote for the issuance of a building permit upon which the building inspector reported adversely is void as to that requirement.-State v. Gitchell, Vt., 96 Atl. 383.

93. Sidewalk.-A resolution for the laying of concrete walks at a fixed grade must in the absence of evidence, be presumed not to have been passed with the formality which is to be observed for the passage of an ordinance.Ketchum v. City of Monett, Mo. App., 181 S. W. 1064.

94. Navigable Waters-Boundary. Where land conveyed by the acre was bounded by an object on the west bank of a river, which was made the east boundary of the land, a subsequent change in the river bank did not entitle the grantee to any land which might be added, for the original bank marked the boundary of the grant.-Powell v. City of Rochester, N. Y. Supp., 157 N. Y. Supp. 109.

95. Negligence-Child.-In passing on child's contributory negligence, held that its greater experience or familiarity with or knowledge of instrumentalities and dangers or greater capacity and intelligence than ordinary child of its age may be considered.-Thomas V. Oregon Short Line R. Co., Utah, 154 Pac. 777.

96.—Child.-Damages are recoverable from the owner of land for the death or injury of a child of tender years, even though technically a trespasser, who has been attracted to the place of the accident thereon by dangerous agency in the nature of an attractive nuisance. -Barnhart v. Chicago, M. & St. P. Ry. Co., Wash., 154 Pac. 441.

97. Warning. A servant of a terminal association, injured by defendants' automobile truck while repairing the floor of a subway in the station through which the automobile passed, will not be denied recovery under the rule that a railroad company assumes no obligation to warn section hands engaged on the tracks of approaching trains or otherwise look out for their safety.-Papic v. Freund, Mo. App., 181 S. W. 1161.

98.- -Willful Injury.-A "willful injury" is a positive act, while an "injury from negligence" is a negative act resulting from absence of such care as it was defendant's duty to use. Thayer v. Denver & R. G. R. Co., N. M., 154 Pac. 691.

99. Parent and Child Abandonment.-The mere breaking up of a home by common consent of the wife and the husband, whereby the wife took possession of all the home property, is insufficient to show abandonment of his child by the father.-State v. Neuroth, Mo. App., 181 S. W. 1061.

100. Perpetuities-Trust.-Where a declaration of trust authorized the trustee to hold possession of the property for an indeterminate period, which might last for the whole of his

life, held that the provision was bad as a perpetuity, as it might suspend alienation longer than two lives.-Allen v. Litchard, N. Y. Supp., 157 N. Y. Supp. 19.

101. Principal and Agent-Secret Instructions. Though defendant instructed his agent, who had the negotiations with plaintiff, that a check for part of the amount claimed was to be given in full payment, such instructions are not binding on plaintiff, and it may rely on the agent's statement that the check should be accepted in partial payment.-Title Guaranty Trust Co. v. Krez, Mo. App., 181 S. W. 1068.

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102. Undisclosed Principal.-When a tract is made by an agent in his own name, for an undisclosed principal, the other party may maintain a suit thereon against the principal when discovered, unless it is clearly manifest that an exclusive credit was given to the agent, and both parties intended that no resort should be had against the principal.—Anchor Warehouse Co. v. Mead, Mo. App., 181 S. W. 1057.

103. Process-Void Service. Where a resident of another state was served with summons while in the state only to attend court as a witness, such service is void.-State v. District Court of Second Judicial Dist. in and for Silver Bow County, Mont., 154 Pac. 200.

104. Railroads-Last Clear Chance. Where the engineer and fireman did everything possible to stop the train after discovering the presence of the infant on the tracks, no recovery could be had against the railroad company on the last clear chance doctrine.-McKnight's Adm'r v. Louisville & N. R. Co., Ky., 181 S. W. 947.

105. Records Registration of Title.-Defendants, interested only in lot described in amended application to register title, could not raise the question whether all the lots described in the original application were contiguous, or whether applicant had substantially the same chain of title to all of them.-Schiessle v. Glos, Ill., 111 N. E. 127.

106. Vendor and Purchaser-Notice of Interest. Where plaintiff who asserted an equitable interest in land, contended that he told defendant of his interest and warned him he was buying a lawsuit, such information is notice of plaintiff's interest.-Bell v. Bell, S. C., 87 S. E. 540.

107. -Rescission.-A purchaser of lots, after making payments of installments for several years without complaint, may not, without notice, rescind, and maintain an action, especially in equity, because improvement of streets and sidewalks, agreed to be done by the vendor, is progressing too slowly.-Brede v. Rosedale Terrace Co., N. Y., 110 N. E. 430.

108. Warehouses - Breach of Contract.Where a warehouse company breaches its agreement to insure at full value cotton stored with it, and the cotton is destroyed by fire, the company is liable, to the owner for the full value thereof, less legitimate charges.-Farmers' Ginnery & Mfg. Co. v. Thrasher, Ga., 87 S. E. 804. 109. Waters and Water Courses-Injunction. -That waste water from defendant's land flowed without interruption across the land of a third person to reach plaintiff's land, did not deprive plaintiff of his right to enjoin defendant from flowing such waste water upon his lands.-Ramelli v. Sorgi, Neb., 154 Pac. 73.

110. Irrigation.-Where an irrigation company for a whole irrigating season unwarrantably refused to deliver water to one who held stock in the company and was entitled to mandate to compel delivery, it was liable in damages for the failure.-Beatty v. Clark Colony Water Co., Cal. App., 153 Pac. 991 (1st Case).

111.- -Riparian Rights.-A riparian owner on the old bed of a stream held entitled, where he had not been guilty of laches, to a mandatory injunction requiring that a stream diverted by defendant be restored to its proper course.Aubol v. Grand Forks Lumber Co., Minn., 154 N. W. 968.

Central Law Journal.

ST. LOUIS, MO., APRIL 14, 1916.

PARTICIPATION BY GRANTEE IN INTENT OF GRANTOR TO DEFRAUD HIS CREDITORS.

The scope of the rule that a failing debtor may prefer one creditor to another has elaborate consideration in recent opinion delivered by Third Circuit Court of Appeals in the case of English v. Brown, 229 Fed. 34.

This case shows that a husband was indebted to his wife and was being sued by another creditor for a large amount. About the only property he possessed was some shares of common and preferred stock in a certain corporation. These shares were transferred to her in part payment of her debt with full knowledge by her that this transfer to her, if effectual, would deprive the other creditor of all fruit of any judgment he might obtain in his pending suit.

That this situation may appear more fully, we reproduce the finding of the trial court as follows: "Much of the money advanced by her was received by Brown when he was in failing circumstances and when Mrs. Brown knew he was so situated, and the shares were turned over to Mrs. Brown when he was without means where

with to meet the claims of the English brothers under the original agreement between himself and them, and when he and his wife both knew that the English brothers were both diligently pressing their rights and that the transfer of the stock would necessarily operate to hinder and delay the collection of the New York judgment held by the English brothers."

The Court of Appeals speaks of this finding as follows: "The substance of this

finding, as we understand it, is that although Brown was bona fide indebted to his wife and the consideration paid by her for the stock was adequate, yet her knowledge of her husband's insolvency, of his indebtedness to English brothers, and of his inability to pay the same if she acquired. the stock, disclosed the wife's complicity in her husband's fraud and made the transaction void."

This is hardly a fair summary of the finding, because it fails to take into account the fact when much of the money was loaned, and of the conclusion by the lower court, that the wife lending money "for the purpose of aiding him as well as to obtain a preference, took the shares with full knowledge of the circumstances."

The Appeals Court says the main question is whether the trial "court erred in deciding that the transfer of stock, in view of Brown's insolvency and his wife's knowledge thereof was in fraud of other creditors and therefore invalid." Though this is narrower than the question decided by the trial court, we yet venture to assert, that it should be answered in the affirmative. even under New Jersey decision, which the Appeals Court was endeavoring to apply, under the facts in this case.

Thus the Appeals Court relies upon Atlantic Refining Co. v. Stokes, 77 N. J. Eq. 119, 75 Atl. 445, which says: "There must be no combination between the preferred creditor and his debtor to hinder, delay or defraud other creditors of the debtor. It is not sufficient for the purpose of setting aside such a conveyance that the object of the grantor was fraudulent; it must be shown that the grantee participated in that intent, or had knowledge of the object of the grantee or of such facts as should have put him on inquiry as to that object."

The New Jersey case then goes on to say that if the conveyance is made to secure or discharge an antecedent debt, there must be more than knowledge by the grantee of grantor's fraudulent purpose, but there must be participation therein by making a

reservation in grantor's favor or in some other manner combining with him to enable him to defeat his creditors. Then the court goes on to distinguish between a volunteer paying a present consideration and an existing creditor endeavoring to save himself, saying the latter "may know the fraudulent purpose of the grantor, but the law sees that he has a purpose of his own and if he goes no further than it is necessary to serve that purpose, the law will not charge him with fraud by reason of such knowledge."

In this case there was a finding that the wife did go further. She advanced to her husband a large portion of the money while he was, to her, knowledge, in failing circumstances, so, presumptively, to secure an antecedent debt. Much of the money then is to be looked at as a present, and not as an antecedent, debt.

We do not, however, believe that the distinction attempted to be drawn by the New Jersey court, and very doubtfully applied by the Appeals Court, is the law in the majority of American cases. We think, that a grantee should be held to intend that which he knows, or has reasonable ground to believe, will result from his acts, and if this principle should ever be applied, it ought to be applied in a case of a confidential relation existing between grantor and grantee as was the case before the Appeals Court.

The view that the fraudulent purpose of the grantor affects even a conveyance for a pre-existing debt, where the creditor takes with knowledge of such purpose, appears to have been held in Iowa. Flood v. Bellmeier, 144 N. W. 579; in Washington, Allen v. Kane, 79 Wash. 248, 140 Pac. 534; in Michigan, Fasshender v. Donohue, 150 N. W. 335; and in North Carolina, Sanford Co. v. Eubanks, 152 N. C. 697, 68 S. E. 219.

The principle declared in the New Jersey case is also declared in Baldwin v. La Fayette Land Co., 56 So. 943, decided by Florida Supreme Court, but stress is

laid upon the fact that the only purpose of grantee must be to secure his debt. We greatly doubt whether it can be thought that any wife claiming for an antecedent debt would be presumed to be acting only for such a purpose. And this seems the rule in Missouri. Aull v. Gaffin, 136 S. W. 343.

That the Appeals Court disregarded all of the evidence to show fraud in the grantee strongly appears from its saying that English could no more complain than Mrs. Brown could have complained had Brown transferred all of that stock to English. Therein it is seen to disregard the confidential relations between the parties, the wife advancing money after notice of Brown's situation and the necessary result of the transfer to her.

NOTES OF IMPORTANT DECISIONS.

CARRIERS

WHERE DAMAGED

PRESUMPTION GOODS ARE DELIVERED IN CONDITION TO CONSIGNEE.-The rule often has been announced that where goods have been delivered to the first of several connecting carriers in good condition and by the terminal carrier in bad condition, there arises a presumption against the terminal carrier.

In St. Louis, I. M. & S. Ry. Co. v. House Oil & Mfg. Co., 183 S. W. 176, decided by Supreme Court of Arkansas, it was held that where this presumption was rebutted by the terminal carrier, then it arose against the carrier next before it, and unless it was rebutted the preceding carriers were to be held not liable.

The court does not go into any reasoning as to this principle but cites therefor two cases -Railway Co. v. Shanley, 36 Tex. Civ. App. 291, 81 S. W. 1014; Connelly v. Illinois C. R. Co., 133 Mo. App. 310, 113 S. W. 233. Why, however, should not the rule work from the initial carrier forward instead of from the terminal carrier backward? Thus it was held in Lyon v. Atlantic C. L. R. Co., 165 N. C. 143, 81 S. E. 1, that where proof is made of delivery to any carrier on the route in good condition, the burden is on him to show delivery in the same condition to the next car