tion of a share of the fees is void, as against public policy.-Chreste V. Louisville Ry. Co., Ky., 180 S. W. 49.

22. Chattel Mortgages-Conversion.—Where the proceeds of that part of cotton which defendant directed the grower to sell and bring to him went in satisfaction of a landlord's lien superior to plaintiff's mortgage, defendant is not liable for a conversion.-Dixie Fertilizer Co. v. Teasley, Ala. App., 69 So. 988.

23. Priority. A purchase-money mortgage given simultaneously with moving goods upon premises held to be a lien prior to landlord's lien for rent.-Ancient Order of United Workmen v. Martin, Iowa, 154 N. W. 913.

24. Commerce Employe.-Railroad employe who had directed other employes in unloading barrels of paint from a car in the yard and was fatally injured by a barrel sliding from skid and striking him after he had turned away and was talking about another part of his duty, held engaged in superintendence of the work so far as that was interstate commerce. -Salmon v. Southern Ry. Co., Tenn., 180 S. W. 165.

engaged

in

25. Employes.-Employes transporting a new outhouse to a depot used for interstate traffic, to install same in place of an old one previously erected, held within the protection of the Federal Employers' Liability Act.-Nash v. Minneapolis & St. L. R. Co., Minn., 154 N. W. 957.

26. Employes.-Federal Employers' Liability Act does not prevent recovery under Workmen's Compensation Act of 1911 for death of railroad employe in New Jersey while engaged in interstate commerce.-West Jersey Trust Co. v. Philadelphia & R. Ry. Co., N. J. Sup., 95 Atl. 753.

27. Employes.-One who shovelled coal into containers carrying it to bins whence part of it was used to coal interstate commerce locomotives, held not engaged in interstate commerce.-Zavitowsky v. Chicago, M. & St. P. Ry. Co., Wis., 154 N. W. 974.

28. Federal Employers' Liability Act.Where an employe was killed by negligence of an interstate carrier, his recovery cannot be limited by the state Workmen's Compensation Act, for the Federal Employers' Liability act of 1908 superseded all state laws on the subject.-Grybowski v. Erie R. Co., N. J. Sup., 95 Atl. 764.

23. Foreign Corporation. The provisions of the state statutes and Constitution, regulating foreign corporations doing business in the state, relate only to intrastate business, as if extended to interstate business, they would violate the commerce clause of the federal Constitution. Fifth Ave. Library Society v. Rhodes, Ala., 69 So. 918.

30. Constitutional Law-Amendment. - An amendment of a state Constitution which diminishes rather than increases the police powers of the Legislature cannot be said to be contrary to any of the provisions of the federal Constitution.-Hockett v. State Liquor Licensing Board, Ohio, 110 N. E. 485.

31. Due Process of Law.-Where the Constitution expressly grants to a city the right to construct and operate a public utility in another city, its impairment of the value of the property of a private corporation operating similar plant was not a taking of its property without due process.-City and County of San Francisco v. McGovern, Cal. App., 152 Pac. 980.

the

32. 14th Amendment.-Laws Or. 1915, C. 228, imposing an excise tax of 5 per cent on the gross receipts of users and furnishers of trading stamps, held to violate the equality clause of the to fourteenth amendment federal Constitution.-Cottrell V. Sperry & Hutchinson Co., U. S. D. C., 227 Fed. 256. 33. Corporations-Lawful Combination. It is legitimate for the owners of a majority of the stock of a corporation to combine for the purpose of controlling it.-Luthy v. Ream, Ill., 110 N. E. 373.

--

though they are the majority stockholders.Ames v. Goldfield Merger Mines Co., U. S. D. C., 227 Fed. 292.

35.- -Stockholders.-A stockholder, though it is expressly agreed it shall be irrevocable, may withdraw from a combination to control the majority of the stock of the corporation. -Luthy v. Ream, Ill., 110 N. E. 373.

36. Courts-Comity.-"Comity" is a doctrine founded in necessity, meaning the rule under which one authority gives way to another, and has no application where what is done by one court is with concurrence of the other. It answers with courts and cabinets, in law and diplomacy, substantially the same purpose which personal courtesies serve in the social relations. One principle is that the court which first asserts jurisdiction may continue its assertion without interference from the other. -United States v. Marrin, U. S. D. C., 227 Fed. 314.

37. Damages-Liquidated.-A stipulation in a contract fixing the same sum as liquidated damages for breach of several undertakings of different importance will be treated as penalty. Elzey v. City of Winterset, Iowa, 154 N. W. 901.

38. -Measure of.-Under Rev. Laws 1910 § 2872, a passenger suing for personal injuries is entitled to show the profits of his business which depended on his personal exertions, for the purpose of assessment of his damages, though the business required the investment of a small capital.-Muskogee Electric Traction Co. v. Eaton, Okl., 152 Pac. 1109.

40.

-Revocation.-Where the owner of land filed a map evincing an intention to dedicate land as a highway, his successor in title could revoke such offer by filing another map showing a contrary intention before acceptance by the public.-Eltinge v. Santos, Cal., 152 Pac. 915.

41. Deeds-Construction. Deed, whereby grantee was to build a one-story structure and the grantor was to build a hotel above it, held valid, since the grantor had the right to divide his holdings by lateral lines.-Pearson v. Matheson, S. C., 86 S. E. 1063.

telegraph

42. Easements-Prescription.-A company, which built its line over the right of way of a railroad company under a parol license, by maintaining the same for more than 20 years under claim of right, held to have acUnion quired prescriptive right-Western a Telegraph Co. v. Georgia R. & Banking Co., U. S. D. C., 227 Fed. 276.

43. Quality of Interest.-An easement, such as for construction and maintenance of a telegraph line on a railroad right of way, as distinguished from a pure or technical easement, is an interest in land, which confers upon its owner some right, benefit, dominion, or lawful use out of or over the estate of another, and is a species of incorporeal hereditament.-Western Union Telegraph Co. v. Georgia R. & Banking Co., U. S. D. C., 227 Fed. 276.

Eminent Domain-Special Benefits.-The such term "special benefits" implies benefits as are conferred specially on private property, benefits, termed distinguished from such "general benefits," as the general public is entitled to receive therefrom.-Stocker v. Nemaha Valley Drainage Dist. No. 2, Nemaha County, Neb., 154. N. W. 862.

Poravcu, LL LUC purpose ve to supply the pub11c in une territory where under is charter nas the right to transact its corporate DUSIness. Kider v. York Haven Water Power & Co., Pa., 95 Atl. 803.

47. Estoppel-Partition.-Estate sought to be parutioned or sold neld conclusively presumed an estate in ree simpie, wnere complainant derived his interest under a warranty deed Irom responuent purporting to convey fee simple.-Harper v. Martin, Ala., 69 So. 930.

a

48. Evidence-Burden of Proof. Where there was nothing in or on notes sued on indicating that the defendant, WHO nad written his name across the back, intended to be charged other than as indorser, ne might show that it was an accommodation indorsement, or the relation of the indorsers as between themselves. Myers Co. V. Battie, N. C., 86 D. E. 1034.

49. Executors and Administrators-Evidence. -where, in an action for services performed by pamitin as a member of another's family, plaintiff relies on an express contract made with a living person, defendant in the suit and competent to testify, plainu need prove the contract only by a preponderance of the evidence. Merrick v. Ditzler, Onio, 110 N. E. 493. 50. Services.-Where, in an action for services rendered by plaintiff as a member of the family or a deceased person, defense is made by personal representatives of Ine deceased, painti must by Crear anu convincing proor show an express contract to pay for such services. Merrick v. Ditzler, Onio, 110 N. E. 493.

51. Fraud-Fraudulent Representation.-In an action 1or fraudulent representations in the sale of defendant's business as to the amount of business done per day, that the plaintiffs did not ao as much business in the store as the defendant claimed to have done was not evidence of fraud.-Anastas v. Koliopoulos, Mass., 110 N. E. 292.

52. Frauds, Statute of—Stipulation by Attorney. An attorney in a divorce suit without written authority to stipulate for une conveyance of his client's land cannot bind his client by a stipulation not signed by the client, contemplating a conveyance of land by his client to ine auverse party.-Woerner V. Woerner, Cal., 152 Pac. 919.

53. Fraudulent Conveyances-Consideration. -Payments to the wire of the seller of a stock of goods are an insufficient consideration to protect the puyer as a purchaser in good faith against the creditors of the seler, in the absence of any proof that the seller was left solafter vent transaction.-Keet-Rountree the Dry Goods Co. v. Hodges, Mo. App., 180 S. W. 24.

54. -Parties.-Creditors of an old firm, who were not creditors of a new firm formed after sale by a retiring partner in violation of Bulk Sales Act, § 1, cannot question the validity of a chattle mortgage given by the new firm on the ground that it was in violation of the act.Markarian v. Whitmarsh, N. H., 95 Atl. 788.

55.

Gifts-Delivery.-Where a prospective husband sought to make a parol gift of corporate stock to his bride, which was never consummated by delivery of the stock, the gift was inoperative.-Cannon v. Birmingham Trust & Savings Co., Ala., 69 So. 934.

56. Homestead-Collateral Attack.-A decree allotting homestead to a widow cannot be collaterally impeached, on issues of whether the property was actually the homestead or whether decedent in fact owned other property, and, where no fraud in procurement of the decree is charged or proved, the decree is final.-Miller v. First Nat. Bank of Birmingham, Ala., 69 So. 916.

57. Homicide-Duty of Retreat.-Rule that person assailed need not retreat from his dwelling house, though extending to person's place of business, held not to extend to an illicit distillery maintained at a place other than the

person's dwelling house. Hill v. State, Ala., 69 So. 941.

no

58. Evidence.-There was error in allowing the state to prove that a pistol was found in the woods near the scene of the shooting, or in allowing a witness to describe it, and to testify that one chamber was empty. -Burton v. State, Ala., 69 So. 913.

59. Self-Defense.-To justify self-defense, the circumstances must be such as to induce reasonable belief, and must actually induce belief, that there is imminent peril and that retreat cannot be resorted to without increasing the peril.-Hill v. State, Ala., 69 So. 941. 60. Husband and Wife Gift.-Where land purchased with community funds is conveyed to the wife, the presumption arises that the husband intended a gift of the land to her as her separate property.-Hitchcock v. Rooney, Cal., 152 Pac. 913.

61. Infants Next Friend.-Where a bill was brought for a minor by his next friend, and, on the complainant's majority the agency of the next friend automatically ceased, there was no change of parties, for a "next friend" is not regarded as a party for any purpose.-Slafter v. Savage, Vt., 95 Atl. 790.

62.

Innkeepers-Boarding House.-A private housekeeper entertaining a boarder in a single instance held not keeping of a "boarding house," within Revisal 1908, § 3434a, as to obtaining entertainment with intent to defraud. State v. McRae, N. C., 86 S. E. 1039.

63. Intent to Defraud.-Failure to pay is not sufficient evidence of intent to defraud within Revisal 1908, § 3434a, making it an offense to obtain entertainment at an inn or boarding house without paying therefor with intent to defraud.-State v. McRae, N. C., 86 S. E. 1039.

64. Insurance— Accident. Where insured suffered from dilation of the. heart following the voluntary taking of a cold bath, held, that the injury was not the result of an accident within a policy indemnifying him against injuries effected solely by accidental means.New Amsterdam Casualty Co. v. Johnson, Ohio, 110 N. E. 475.

65. Sole Ownership.-Where plaintiff, in an action on a fire policy, was equitably entitled to immediate and absolute legal ownership, he was vested with "unconditional and sole" ownership within the policy.-Exchange Underwriters' Agency of Royal Exchange Assur. of London, England, v. Bates, Ala., 69 So. 956.

66. Intoxicating Liquors Seizure.-Seizure by sheriff under writ of law and equity court of a county of whisky in transit to another county in such other county held illegal.Brown & Hagin Co. v. McCullough, Ala., So. 924.

69

71.

Licenses-Exemption.-Defendant raising chickens by incubator and selling them is not liable for license tax to a town whose charter exempts one who sells articles "produced" on his farm.-Bacon v. Cannady, Ga., 86 S. E. 1083.

72.- -Jitney Busses.-A city ordinance licensing jitney busses and regulating the tax according to the seating capacity was not invalid as failing to comply with the charter provision that all licenses should be graduated according to the amount of business done.-Ex parte Counts, Nev., 153 Pac. 93.

73. Limitation of Actions-Account Stated. -An account stated and mutually accepted by the parties gives rise to a new cause of action, and, though it does not create a written contract, limitations on the action do not begin to run until the time when the account was stated. Cowell v. Snyder, Cal., 152 Pac. 920. 74. Malicious Prosecution-Advice of Attorney. That defendant had made to prosecuting attorney a full and true statement of all facts his knowledge, concerning the crime within

and acted upon advice that a prosecution be instituted, constituted a good defense.-Hightower v. Union Savings & Trust Co., Wash., 152 Pac. 1015.

75.

Probable Cause.-The want of probable cause cannot be inferred from the existence of malice, but must be expressly shown.Hightower v. Union Savings & Trust Co., Wash., 152 Pac. 1015.

76. Mandamus-Reclamation

District.-Un

der Pol. Code, § 3466, as amended by St. 1911, p. 645, mandamus would issue to force reclamation trustees to call in enough of an assessment to meet warrants held by contractors with whom the trustees had agreed to pay such warrants within two years, though the contractors knew at the time that an election would determine the question of paying for the work by sale of a bond issue.-Moreing v. Shields, Cal. App., 152 Pac. 964.

77. Master and Servant-Assumption of Risk. -Risk from violent, unusual, and unnecessary contact of a motor with a flat car propelled thereby is not one assumed by employes on the car. Nebo Coal Co. v. Barnett, Ky., 180 S. W. 79.

78. -Assumption of Risk.-A servant cannot be held to have assumed the risk attendant upon a key and set screw projecting from revolving shaft, where, when the shaft was revolving the screw and key were not visible and the servant had had no opportunity to observe the shaft when not in motion.-Olson v. Seldovia Salmon Co., Wash., 152 Pac. 1033.

79. Delegable Duty. Negligence in the maintenance of the safety of roof in a mine, being a delegable duty, creates liability on the part of master for injury, where the duty was delegated.-Standard Steel Co. v. Clifton, Ala., 69 So. 937.

80.-Employment.-Where an employe continues after expiration of his contract for employment to render the same services as before, the master is liable for the services, and, in the absence of other evidence, the price named in the written contract is the measure of recovery.-Curtis v. Dodd & Struthers, Iowa, 154 N. W. 872.

81. Federal Employers' Liability Act.-To authorize recovery under the federal Employers' Liability Act, defendant must be a common carrier by railroad engaged in interstate commerce; plaintiff must be employed by it in such commerce; and the injury must result from the carrier's negligence while he was so employed.-Lewis v. Denver & R. G. R. Co., Minn., 154 N. W. 945.

82.- -Warning.-The master is not free from negligence in ordering a servant, without warning of the danger, to paint the inside of a battery well, because ignorant of the danger from its fumes, where by use of ordinary care it would have discovered it.-Schaffner v. C. F. Massey Co., Ill., 110 N. E. 381.

83. Workmen's Compensation Act.-Workmen's Compensation Act of 1911 permits a recovery for death of an employe in New Jersey,

though contract of employment was made elsewhere.-West Jersey Trust Co. v. Philadelphia & R. Ry. Co., N. J. Sup., 95 Atl. 753.

84. Mines and Minerals Invitee.-Where a mineowner invites another to work in the mine, he is liable for injuries received by such person only if such person was authorized to occupy the place where injured, and the danger was such that the defendant could have foreseen the accident.-Patterson V. Alabama Fuel & Iron Co., Ala., 69 So. 952.

85. Municipal Corporations-Barriers Against Danger. The object of a barrier is to give warning of danger, but where the condition of the street, such as a building being moved and standing in the street upon cribbing four or five feet high, is itself a danger signal, the necessity of a barrier is removed.-Lombardi v. Bates & Rogers Const. Co., Wash., 152 Pac. 1025.

86.

Grade.-Where a grade was established when only a portion of a street was excavated, the city, upon the excavation of the remainder of the street, is bound to maintain it at the original grade fixed.-Hollenbeck v. City of Seattle, Wash., 153 Pac. 18.

87. Negligence.-The unexplained presence of defendant's unattended horse, harnessed to a wagon, running away and on the sidewalk, breaking through plaintiff's show window, held to create a presumption of negligence of defendant. Tietje & Christ V. Catalona, N. J. Sup., 95 Atl. 733.

88. Pedestrians.-While the law does not say how often a pedestrian must look, nor how far, nor when nor from where, if he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. Knapp v. Barrett, N. Y., 110 N. E. 428.

89.- Public Health.-An action for damages for negligence in the construction and maintenance of a drain by the city cannot be defeated on the ground that it was for the benefit of the public health.-City of Montgomeyr v. Stephens, Ala. App., 69 So. 970.

90. Repair Work.-Work of improving park boulevard was not repair work, because park commissioners proposed to use base of old pavement as base of new, but was such a first improvement as the commissioners were authorized to make by special assessment, under Act June 16, 1871 (Laws 1871-72, p. 579) and Act June 21, 1895 (Laws 1895, p. 290).South Park Com'rs v. Wood, II., 110 N. E. 349.

91. -Special Benefits.-Special benefits from a street improvement cannot be assessed in gross on several tracts to their single owner, but, where several lots are owned and improved as one, special benefits from a street improvement may be assessed on them to their single owner in gross.-Village of Des Plaines v. Winkelman, Ill., 110 N. E. 417.

92. Nuisance Cemetery.-A cemetery is not a nuisance per se and cannot be enjoined because offensive to the esthetic sense of an adjacent proprietor.-Sutton v. Findlay Cemetery Ass'n, Ill., 110 N. E. 315.

93. Injunction.-Ink factory emitting noxious and unwholesome fumes destructive to health, and rendering living in the vicinity unbearable in respect to physical comfort, will be enjoined as a nuisance.-Harrigan v. Sinclair & Valentine Co., N. J. Ch., 95 Atl. 738.

94. Partnership-Action.-Where one suing a partnership desires to subject individual as well as firm property, the suit should be against the partners by name described as partners under the firm name or against the firm by name described as a partnership composed of the partners, and such partners by name.-Weinstein Bros. v. Citizens' Bank, Ala. App., 69 So. 972.

95. Payment Application. -A debtor is bound by the application of a payment to unsecured instead of secured claims, although contrary to his directions when the payment was made, where on notice he assented to the application as made.-The Quickstep, U. S. D. C., 227 Fed. 255.

96. Application.-In the absence of an agreement providing otherwise, payment upon a debt consisting of principal and interest, not actually applied by the debtor or creditor is first applicable to the interest due and then to the principal.-Shepard v. City of New York, N. Y., 110 N. E. 435.

97. -Mistake.-Payments made under a mistake of fact cannot be recovered back if the person paying has contributed to the mistake by his own negligence.-Rosenfeld v. Boston Mut. Life Ins. Co., Mass., 110 N. E. 304.

98. Physicians and Surgeons-Evidence.Where defendant, a surgeon, removed plaintiff's adenoids successfully, but in doing so cut her tongue, such fact, together with other facts having a tendency to show negligence, took the question of his negligence to the jury.-Evans v. Roberts, Iowa, 154 N. W. 923.

99. Principal and Surety-Diligence.-Sureties, guaranteeing performance of contract, held bound to inquire and ascertain whether the obligations arising under the contract had been discharged by their principal.-Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., Ala., 69 So. 931.

a

101. Railroads - Acquiescence. -Where footpath across and along a railroad track has been habitually used by the public for many years, it is a question of fact whether the railroad company has not acquiesced in such use. -Wilhelm v. Missouri, O. & G. Ry. Co., Okl., 152 Pac. 1088.

102.- -Negligence.-A person who attempts to pass between coupled freight cars obstructing a street crossing and attached to a locomotive is guilty of negligence barring his right to recover for resulting injuries, unless the trainmen knew of his presence.-Reno v. Yazoo & M. V. R. Co., La., 70 So. 43.

103.- -Trespasser on Tracks.-Where a deaf trespasser walking on the track fails to use his sense of sight and is struck by a train, the company is not liable unless the engineer carelessly ran him down.-Hooker v. Wabash R. Co., Neb., 154 N. W. 855.

104.- -Willful Negligence.-The death of plaintiff's son from an explosion of the fire box while he was riding on defendant's engine as trespasser would not entitle plaintiffs to recover, in the absence of "willful negligence." -Spencer v. Chicago, M. & St. P. Ry. Co., Wis., 154 N. W. 979.

105. Receivers Ministerial Duty.-A receiver being a ministerial officer, his sale of mortgage personalty must be confirmed by the court in order to be valid.-Northern Brewery Co. v. Princess Hotel, Or., 153 Pac. 37.

106. Sales-Proposal and Acceptance.-Delivery of an order to a salesman of plaintiff's selling agent, which was by him transmitted by mail to plaintiff, held not to constitute an acceptance by the plaintiff thereof so as to form a contract of sale.-Money weight Scale Co. v. Gordon Mercantile Co., S. C., 86 S. E. 1060.

107. -Repudiation of Contract. Where a buyer of goods in course of manufacture for him repudiates the contract, the seller need not complete the manufacture, but may sue at once.-Crandall Pettee Co. v. Jebeles & Colias Confectionery Co., Ala., 69 So. 964.

108. Separable Contract.--Where defendant bought a quantity of bricks to be delivered in installments, the contract was entire, and subsidiary stipulations as to partial delivery and payment did not divide the contract.-Seibert v. Dunn, N. Y., 110 N. E. 447.

109. Schools and School Districts-Negligence. The question of negligence of a school district in leaving accessible to small pupils a horizontal ladder seven feet above the con

crete floor, unprotected by mats, held, under the evidence, for the jury.-Howard v. Tacoma School Dist. No. 10, Pierce County, Wash., 152 Pac. 1004. 110.

Street Railroads-Last Clear Chance.If a motorman, after discovering perilous condition of a truck, did not have his car under control, or was negligent in not stopping it, contributory negligence held not to excuse railway company.-Hutchinson Purity Ice Cream Co. v. Des Moines City Ry. Co., Iowa, 154 N. W. 890.

111.

-Transfers.-Condition of ordinance of city of Chicago prohibiting street railway from accepting transfers from without city, thus abrogating previous contract between the railway and a village for a five-cent fare to a point within Chicago, held valid.-People V. Chicago Rys. Co., Ill., 110 N. E. 394.

112. Taxation-Tangible Property.-No state has power to tax tangible property located beyond its jurisdiction, no matter under what guise it may undertake to do it. Commonwealth v. Westinghouse Air Brake Co., Pa., 95 Atl. 807.

113. Telegraphs and Telephones-Corporation. That a telephone association is about to erect poles and wires under license from a village does not fix its character as a public corporation.-State Public Utilities Commission v. Bethany Mut. Telephone Ass'n, Ill., 110 N. E. 334.

114. -Non-Delivery of Telegram.-Where plaintiff, sick and contemplating return home. wired his son to meet him on train 44, and failed to take it, the telegraph company was not liable for non-delivery of the message, unless the son, had he received it, would have met the train plaintiff actually took. Western Union Tel. Co. v. Kyle, Ark., 180 S. W. 208.

115.- -Public Utilities Commission.-The Public Utilities Commission has no jurisdiction over private telephone company because of diversion of streets and alleys from legitimate used by erection of poles and wires.-State Public Utilities Commission v. Bethany Mut. Telephone Ass'n, Ill., 110 N. E. 334.

116. Trade-Marks and Trade-Names-Unfair Competition.-Courts do not decide misleading markings on manufactured goods, the patent on which has expired, by the caveat emptor rule of buyer and seller, but on the theory that a buyer who has become accustomed to a particular article is entitled to be unmistakably informed that a person other than the former maker is manufacturing the same: the rights of the rival makers not being the only thing to be considered.-Jenkins Bros. v. Kelly & Jones Co., U. S. C. C. A., 227 Fed. 211.

117. Vendor and Purchaser-Condition Precedent.-Demand for performance by the vendor of a contract to sell real estate is not a prerequisite to recover for breach of contract. where it is not within the power of the vendor to comply therewith.-Young v. Brady, Pa., 95 Atl. 802.

118.- -Constructive Notice. Actual possession of land under an unrecorded deed is constructive notice of the legal and equitable rights of the possessor, and his possession by a tenant is the same in all respects as his own possession.-Wilson v. Kruse, Ill., 110 N. E. 359.

119. Notice from Possession.-The rule that open, notorious possession of realty under an apparent claim of ownership is notice of the possessor's claim, does not apply to a vendor remaining in possession so as to require a purchaser from his grantee to inquire whether he had any interest in the land conveyed, provided the purchaser is an innocent purchaser free from any fraud on the vendor. -Hass v. Gregg, Okl., 152 Pac. 1126.

120. Prior Deed.-In the absence of notice, a purchaser for value, who has acquired the legal title by conveyance recorded or lodged for record, has a claim superior to that of a purchaser under a prior deed, never recorded, and claimed to be lost.-Salyer v. Elkhorn Land & & Improvement Co., Ky., 180 S. W. 38.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 18, 1916.

STOCK DIVIDENDS AS GOING TO REMAINDERMAN OR LIFE TENANT.

Vermont Supreme Court discourses very instructively about the differing rules in American decision in regard to the question of what becomes of a stock dividend, that is to say, whether it constitutes income of a trust fund or is added to the corpus. In re Heaton's Estate, 96 Atl. 21.

It is pointed out that "the early English rule adopted in 1799 gave all extraordinary or unusual dividends declared during the life estate, whether in stock or cash, to the corpus and not to the income;" but the modern English rule is like the Massachusetts rule which "regards all cash dividends, however large, as income, and stock dividends, however small, as capital." In either way of looking at the matter, the interest life tenants or remaindermen may have in a trust fund would not seem to depend so much on the intent of a trustor as upon the discretion of directors of a corporation. The Vermont court seems to think that intention in the creation of the trust fund ought to control, but it finds nothing in the instrument before it for construction to guide it as to intention.

There is shown to be three ways among American courts of looking at this matter; one the Massachusetts way, which has prevailed for a number of years; another disregards the manner in which the dividend is declared and makes it apportionable to capital and income accordingly as it has accumulated before and since stock has been made a part of a trust estate, and the third rule regards all dividends, whether in stock or cash, as belonging to the life tenant.

Each of these three rules is followed by a number of the states. As supporting the the first rule there are Massachusetts, Connecticut, Rhode Island, Illinois, and ap

parently Ohio. A great many states follow the second rule, either with or without the apportionment feature. One of the states, New York, formerly applied the apportionment principle, but later receded from that and followed the ruling in Kentucky, in whose court the third rule was evolved.

In discussing these rules the Vermont court criticises courts adhering to the first. It admits it "is calculated to relieve the courts, as well as trustees, of much trouble," but says "it does not commend itself for its justice and equity." If this be true, it is a strong indictment of courts, the very reason of whose existence is to do justice, and so far as trustees are concerned, they are in office to execute trusts as they are intended to be executed or they should give way to those willing to take the trouble to do this. Courts and trustees are merely instruments of justice and equity.

To us the second rule seems the only fair one to apply. It puts trouble on no one but a corporation that has accumulated a surplus, which is to be apportioned. Even then the life tenant is more than apt to have injustice done him than remainderman, the corporation in discretion not distributing the entire surplus to stock or cash. dividends.

But the third rule has injustice in it, working to the opposite extreme of the first rule. It takes something, or may so do, from corpus that has become a part thereof, where we admit that, if a corporation fails to declare any dividend at all, surplus earnings are part of the capital. If there is apportionment of this surplus according to the second plan, no one gets what he is not entitled to, and the only way a life tenant may be injured is reservation of an unnecessary fund for fair operation. of a corporation. This chance all stockholders take as to the interests they hold in stock.

When you make an arbitrary rule, either according to the first or third plan, the personal interests of stockholders enter in