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other railroad company having no connection with the employment, under the Employers' Liability Act, is demurrable for misjoinder of parties defendant.-Western & A. R. Co. v. Smith, Ga., 87 S. E. 1082.

36. Deeds-Description.-Where there was an inconsistency in a deed, in that the boundaries of the land included a greater acreage than the deed recited was intended to be conveyed, the trial court, having found the fact, could treat the statement of the quantity as false; the description being sufficient without it.-Standfer v. Miller, Tex. Civ. App., 182 S. W. 1149.

37. Divorce-Desertion.-Willful desercion for more than one year cannot exist as ground for divorce, where there is a justification for the separation in the consent of the alleged wronged party, given in a formal agreement of separation executed and acknowledged by him.Walker v. Walker, Colo., 155 Pac. 332.

38. Evidence.-There is no warrant in law for the introduction of an affidavit in evidence to establish ground for divorce.-Johnson v. Johnson, Ark., 182 S. W. 897.

39. -Jurisdiction.-That defendant has never resided in the state, and the cruel treatment relied on occurred outside the state, and the parties were not living together as husband and wife at the time thereof, will not prevent the courts of Minnesota from having jurisdiction to decree a divorce.-Rose v. Rose, Minn., 156 N. W. 664.

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40. Election of Remedies-Pleading Practice. Where insurer refused to pay the loss to the mortgagee and denied liability to the mortgagor, and the mortgagee was forced to resort to litigation to establish liability, the insurer could not after jurgment reverse its attitude and demand that the judgment be taken out of plaintiff's security.-Merriam Mortgage Co. v. St. Paul Fire & Marine Ins. Co., Kan., 155 Pac. 17

41. Eminent Domain-Abutting Owner.-In abutting owner's action against city for damages from regrading of street, the measure was the difference between the market value of the property just before it became known that the regrading was to be done and its market value after the work had been done.-City of Dayton v. Rewald, Ky., 182 S. W. 931.

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42. Taking of Property.-Where connection between switchboards of competing telephone companies was directed and patrons of one company using the line of the other were required to make compensation, neither company can be said to have taken the property of the other without compensation.-Wisconsin Telephone Co. v. Railroad Commission of Wisconsin, N. D., 156 N. W. 614.

43. Equity-Adequate Remedy.-Where mandamus affords full relief in compelling affirmative action sought by injunction, there is adequate remedy at law within principle that equity will not interfere where such remedy exists.Southern Leasing Co. v. Ludwig, N. Y., 111 N. E. 470.

44. Estoppel-Elements of. There is no estoppel unless the person claiming it relies on the conduct and will be prejudiced if the other party is permitted to assert his legal right.— Stevens v. Blood, Vt., 96 Atl. 697.

45. Executors and Administrators-Claim.In an action against an administrator, plaintiff was not confined to bare fact that stock was delivered to her as a gift, but was entitled to show corroborating circumstances as affecting the probability of her claim.-Gilfillan's Estate, Vt., 96 Atl. 704.

46. Principal and Agent.-Neither the surviving husband as sole heir, nor the administrator, if any, could legally bind the estate as to creditors by agreement to settle a claim against the estate by promising to pay a stipulated amount from the estate on condition that the personal property should be valued at a certain amount.-Dunn v. Wallingford, Utah, 155 Pac.

347.

47. False Pretense-Remoteness.-In a prosecution for larceny by false pretense whereby defendants received money paid as a commission by the person defrauded, false pretenses inducing such payments held not too remote to be a

ground of criminal liability.-Commonwealth v. Quinn, Mass., 111 N. E. 405.

48. Fixtures-Trade Fixtures.-Heating piant and area railing of hotel and saloon building held not trade fixtures.-Levenson Wrecking Co. v. Hillebrand, N. Y. Sup. Ct., 157 N. Y. Sup. 515. 49. Frauds, Statute of-Lease.-Under the statute of frauds, a written authorization to an agent to execute a lease must express within its terms the intention of the owner to confer complete authority upon the agent.-Salted v. Ives, Cal., 155 Pac. 84.

50. Guaranty-School District.-Trustees of a school district were not liable to the assignee of the contractor for a school building, who ɑefaulted before completion, for the assigned amount of the contract price of the building, though they executed a guaranty that the amount advanced by the assignee for labor and materials should be repaid upon completion of the building out of the percentage of the contract price retained by them.-Lynip v. Alturas School Dist. of Modoc County, Cal. App., 155 Fac. 109.

51. Husband and Wife-Suit by Wife.-A married woman cannot sue in her own name without joining her husband to recover community property, unless she has been abandoned by the husband.-Hamlett v. Coates, Tex. Civ. App., 182 S. W. 1144.

52. Injunction-Action on Bond.-To authorize recovery on an injunction bond for expenses and attorney's fees in procuring dissolution of injunction, where payment is not shown, it must be shown that plaintiffs have incurred a fixed liability to pay.-Felkner v. Winningham, Okla.,

155 Pac. 248.

53.

Insurance-Burden of Proof.-Where execution and delivery of the accident policy were admitted, the burden was on defendant to sustain its contention that statements made by insured by way of warranty were false.-McEwen v. Occidental Life Ins. Co., Cal., 155 Pac. 86.

54.- -Condition Precedent.-A provision of a policy that the loss "shall" be ascertained by appraisers held not to make an appraisement a condition precedent to a recovery, in the absence of a demand for appraisement, or to make it insured's duty to seek an appraisement.Goldberg v. Provident Washington Ins. Co., Ga., 87 S. E. 1077.

55. Ultra Vires.-Where a fraternal association issued an insurance certificate payable to the fiancee of a member, although the purpose of insurance was to furnish protection for widow and orphans of members, association, having received the premiums, cannot avoid payment on the ground that it was ultra vires.-Christenson v. El Riad Temple, Ancient Arabic Order Nobles of Mystic Shrine of Sioux Falls, S. D., 156 N. W. 581.

56. Intoxicating Liquors-Action by Wife.Where a wife who supported her minor children died from an assault committed by her husband while drunk, held, that a child born after the assault could, after death of the mother, recover under Rev. St. 1913, § 3859, on liquor dealer's bond, for loss of means of support.Phair v. Dumond, Neb., 156 N. W. 637.

57. Landlord and Tenant-Waiver.-Where a landlord gave his tenant the right to sell a portion of the crop and collect the price, he waived his lien for rent, though the purchaser knew nothing of the arrangement.-Norrid v. Garner, Mo. App., 182 S. W. 1025.

58. Libel and Slander-Candidate for Office.Where a voter acts in good faith in stating to other voters his belief as to the fitness of a candidate for office, he is not liable in damages for expressing to the voters such belief.-Estelle v. Daily News Pub. Co., Neb., 156 N. W. 645.

59.

Licenses-Jitneys.-An ordinance held not invalid on the ground that it imposed on persons operating jitney busses a much larger license fee than imposed on persons operating taxicabs.-Hazleton v. City of Atlanta, Ga., 87 S. E. 1043.

60. Limitation of Actions-Tolling Statute.Where plaintiff, indebted to defendant for merchandise, asked defendant to sell goods to a third person and charge the same to plaintiff, payment by the third person did not stop the

running of limitations on the account against plaintiff.-Earls v. Earls, Mo. App., 182 S. W.

1018.

61. Livery Stable and Garage Keeper-Estoppel. The liability of defendant, with whom automobile was left for repairs as bailee for hire, is not affected by owner's knowledge as to manner in which or place where property was kept. -Stevens v. Stewart-Warner Speedometer Corp., Mass., 111 N. E. 771.

62 Malicious Prosecution-Probable Cause.That one causing another's arrest believed that probable cause existed, does not necessarily exempt him from liability for malicious prosecution.-Tucker v. Bartlett, Kan., 155 Pac. 1.

63. Marriage-Duress.-A marriage taking place through fear of, or to stop, a prosecution for seduction, will not be set aside for duress.— Gass v. Gass, Tex. Civ. App., 182 S. W. 1195. 64. Master and Servant-Assumption of Risk. -The mere failure of a section man to inspect a hand car before using it does not as a matter of law establish assumption of risk by reason of defects in the car.-Vandalia R. Co. v. Parker, Ind. App., 111 N. E. 637.

65. Directory Statute.-Act April 1, 1913 (P. L. 302), providing that the determination in workmen's compensation cases should be filed within 30 days after the final hearing, is directory only.-Diskon v. Bubb, N. J. Sup. Ct., 96 Atl. 669.

66. -Disease. Where an employe, after an injury received in the course of his employment, developed paralysis, paresis, and insanity, he was entitled to compensation, though previous to the injury the diseases had been present, but latent, and did not impair his ability to work.Crowley v. City of Lowell, Mass., 111 N. E. 786.

67. Pleading.-A complaint, though stating cause of action under the Federal Employers' Liability Act, § 4, held insufficient in not negativing assumption of risk.-Cincinnati, H. & D. Ry. Co. v. Gross, Ind. App., 111 N. E. 653.

68.--Workmen's Compensation

Act.-Under

the Workmen's Compensation Act, § 18, providing that want of notice shall not bar proceedings if the subscriber had knowledge of the injury, where an injured employe gave notice to his foreman, and a report of the injury was filed by the subscriber, the proceedings of the employe for compensation were not barred by his failure to notify the employer.-In re McLean, Mass., 11 N. E. 783.

69. Workmen's Compensation Act.-Under Workmen's Compensation Law providing compensation for injuries by employes in hazardous employments, specifying as such the operation of horse-drawn vehicles, a stable employe, injured when a horse which he was removing from its stall fell on him, was entitled to compensation. Costello v. Taylor, N. Y., 111 N. E. 755, 217 N. Y. 179.

70. Mortgages-Marital Rights. Where in suit to foreclose mortgage made by a wife, the husband entered plea disclaiming interest in the real estate, he renounced marital rights in property, rendering transaction an equitable mortgage by the wife.-Osha v. Higgins, Vt., 96 Atl. 700.

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71. Municipal Corporations Highways. Cities or towns are liable for defects in highways, though not expressly made so by statute. -City of Montgomery v. Ross, Ala., 70 So. 634.

72.-Liens.-That a municipal lien includes railroad property not lienable does not invalidate it as to lienable property.-South Fork Borough v. Pennsylvania R. Co., Pa., 96 Atl. 710.

73. Nótice of Defect.-Where a street is being repaired and open for travel and the placing of a grading pin therein was under the direction of the town officials in charge, the question of notice of the defect does not arise.-McCarthy v. Inhabitants of Town of Stoneham, Mass., 111 N. E. 698.

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74. Navigable Waters-Riparian riparian owner may acquire title by accretion, though the accretion is influenced by artificial causes in which he had no part.-Adams v. Roberson, Kan., 155 Pac. 22.

75. Negligence-Elements of.-Negligence in the operation of a steam shovel resulting in

burning property may consist in the use of one improperly constructed or not in good order, or not supplied with suitable fixtures to prevent fire, or in failure to exercise the care of skillful, prudent and discreet persons under like circumstances, due care depending in every case on the surrounding circumstances.-American Paving & Contracting Co. v. Davis, Md., 96 Atl. 623.

76.- -Wantonness and Recklessness.-A complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence.-Freeman v. United Fruit Co., Mass., 111 N. E. 789.

77. Pardon-Recovery of Fine Paid.-When pardon issues to one convicted of a crime, after the fine has been paid to the treasurer of the board of education, as required by statute, the amount paid cannot be recovered.-Byrum v. Turner, N. C., 87 S. E. 975.

78.

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Partnership Elements of. Agreement between plaintiff and defendant, as to business in which they were about to engage, to share equally as to ownership, profits, and expenses and to organize a company to carry on the business, held to create a partnership.-Arnold v. Maxwell, Mass., 111 N. E. 687.

79. Surviving Partner.-A surviving partner is entitled to the exclusive possession and control of the partnership property, with the right to sell and dispose of it as far as is necessary and proper to close up the partnership business and discharge the claims of partnership creditors.-Lewis V Lewis, Iowa, 156 N. W.

332.

80.

Patents-Ex Parte Application.-As patents are procured ex parte, the public is not bound by them, but the patentees are.-Thacher v. Transit Const. Co., U. S. D. C., 228 Fed, 905.

81. -Patentability.-A change in an old machine or instrument, which so affects its operation and construction as to adapt it to a new use, is patentable.-Tate v. Baltimore & O. R. Co., U. S. C. C. A., 229 Fed. 141.

82. Principal and Agent Implied Power.An agent authorized to conduct a business involving the making of working contracts has implied power to promise to pay for supplies furnished by a stranger to contractors for the work and necessary thereto.-Channell Bros. v. West Virginia Pulp & Paper Co., W. Va., 87 S. E. 876.

83. -Scope of Agency.-The words "we hereby authorize you to negotiate a lease" did not authorize an agent to execute a lease in the owner's name.-Salter v. Ives, Cal., 155 Pac. 84.

84. Scope of Agency.-Ordinarily the power to sell property includes the right to receive payments.-Norrid v. Garner, Mo. App., 182 S. WV. 1025.

85. Principal and Surety-Contract of Suretyship. Where one agrees to become another's agent to take from him and pay for certain goods at a certain price, and simultaneously a third person signs an agreement annexed to the contract assuming responsibility for any debt incurred by the agent to the principal, the third person's liability is that of surety,-McClain v. Georgian Co., Ga. App., 87 S. E. 1090.

86. Railroads—Mandamus.-An order of the railroad commissioners requiring the construction of a depot of wood will not be enforced by mandamus, where it appears that the effect of an ordinance prohibiting the erection of structures except from fireproof material was not considered by the commissioners.-State v. Atlantic Coast Line R. Co., Fla., 70 So. 941.

87. Receivers Appointment.-Rights of receiver become fixed at date of appointment, and liens and priorities acquired before appointment will not be disturbed.-P. E. Payne Hardware Co. v. International Harvester Co., Miss., 70 So. 892.

88. Removal of Causes-Federal Employers' Liability Act.-Under the Federal Employers' Liability Act (Act April 22, 1908, § 6, as amended by Act April 5, 1910, § 1), prohibiting removal of causes under the act, where defendant railroad's petition for removal alleged that the allegation in its employe's petition of his engagement in interstate commerce when injured was fraudulently made, the case did not stand re

could try the question of fraudulent allegation of jurisdictional facts.-Chesapeake & O. Ry. Co. v. Shaw, Ky., 182 S. W. 653.

89.-Removability.-A suit arising under a law of the United States is no less removable because the law involved has already been decided, construed, and settled.-Alabama Great Southern Ry. Co. v. American Cotton Oil Co., U. S. C. C. A., 229 Fed. 11.

90. -Removability.-Where counts for same injury were alleged under Federal Employers' Liability Act and under common law and state statutes, action held removable, notwithstanding Employers' Liability Act, § 6.-Flas v. Illinois Cent. R. Co., U. S. D. C., 229 Fed. 319.

91. Sales-Contract.-Defendants' bill of sale to 175 head of horses, described as being from three to eight years old, weighing 900 pounds and up, sound and free from blemishes and diseases of all kinds, was not merely a sale to plaintiffs or defendants' claim to horses running wild on the. range, but purported to be a sale of the horses themselves.-Lindsey v. Ritchey, Ark., 182 S. W. 901.

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92.- -Contract.-Where seller by letter fered fine stock cabbages, and by telegram Danish cabbages, and acceptance referred to letter, the contract was for fine stock cabbages.Paddleford v. Lane & Co., Mass., 111 N. E. 769. 93. Contract.-Where a contract for the sale of potatoes required their delivery in sacks, the sacks to be furnished by the buyer, and he failed to furnish them, he could not thereafter recover for breach of contract when the seller sold the potatoes to another party.-Wm. B. Hughes Produce Co. v. Pulley, Utah, 155 Pac. 337.

94.- -Rescission.-Where the buyer rescinds for fraud and offers to return the property, he need not, on the seller's refusal to receive the property, keep it until termination of the controversy, but may either retain it as the seller's agent or, after notice, sell it for his account.Houze v. Blackwell, Ga., 87 S. E. 1054.

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95. Statutes-Construction.-The term "workmen' in the title to Workmen's Compensation Law was used in its generic sense, and included employes in the county as well as individuals.Lewis and Clark County v. Industrial Acc. Board of Montana, Mont., 155 Pac. 268.

96. Street Railroads-Pleading.-Petition in action against street railway company for damages to automobile in collision, which alleges that street railway company improperly and unskillfully handled car, raises question of failure to keep lookout.-Ohio Valley Mills v. Louisville Ry. Co., Ky., 182 S. W. 955.

97.- -Pedestrian.-A pedestrian, who is deaf, must, when on a street on which cars are operated, use her sense of sight to a greater extent than if her hearing were good to protect herself from injury.-Brereton v. Milford & U. St. Ry. Co., Mass., 111 N. E. 715.

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98. Sunday Statutory Violation.-Defendant, who gave his moving picture show on Sunday without charging admission, but invited patrons to pay what they wished, and who deducted hs day's expenses from the receipts and turned over the balance to charity as advertised, held to violate the Sunday statute.-Spooner v. State, Tex. Cr. App., 182 S. W. 1121.

99. Telegraphs and Telephones-Delivery of Message. It is the duty of a telegraph company, receiving a message at a terminal office and being unable to find the sendee after diligent search, to notify the sender to furnish a better address.-Johnson v. Western Union Telegraph Co., N. C., 87 S. W. 993.

100. Measure of Damages.-Vendor's measure of damages for telegraph company's wrong transmission of price quotation, where accepted by buyer, with nothing to show that he would have accepted at correct price, is difference between correct price and what seller might elsewhere obtain, by reasonable prudence and diligence, not exceeding difference between correct and incorrect price.-Western Union Telegraph Co. v. Victor G. Bloede Co., Md., 96 Atl. 685. 101. Trade-Marks and Trade Names—Unfair Competition.-Party selling name of plaintiff's product and using plaintiff's beverage under labels, etc., held guilty of unfair competition, and to be enjoined, though using syrup manu

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Trusts-Dry Trust.-A deed conveying certain realty to C as guardian of minors, of a certain county, naming them, created a dry or passive trust, which would be executed as the minors respectively reached majority.-Fleck v. Ellis, Ga., 87 S. E. 1055.

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103.- Garnishment.-Where a will property in trust for one for life expressly declared that the income should not be subject to his debts, such income cannot be garnished by the beneficiary's creditors.-Safe Deposit & Trust Co. of Baltimore v. Independent Brewing Ass'n, Md., 96 Atl. 617.

104. Vendor and Purchaser-Rescission.Where defendants rescinded a contract for the exchange of lands and personalty on the ground of plaintiff's delay in performance, their right to rescind is not affected because it was agreed that defendants should pay plaintiff a small sum of money in respect to some of the personal property.-Rector v. Lewis, Cal., 155 Pac. 75.

105.- -Sale in Gross.-Where å tract of land was sold by the acre, the purchaser is liable to pay for land included in a highway, as he would own the fee, and the highway was not an incumbrance.-Manlove v. Lemmon, Ill., 111 N. E.

739.

106. Waters and Water Courses-Act of God. A flood, due to a rain no greater than had fallen "many a time before" within a experience, is not such an act of God as will man's excuse one who has changed the natural course of a stream into a new channel which is inadequate to carry off its waters, as an "act of God" is an irresistible superhuman cause to be anticipated.-Garrett v. Beers, Kan., 155 not Pac. 2.

107. -Surface Waters.-Though waters overflowing the bank of a stream are to be considered as surface waters, yet if such overflow is caused by one who negligently obstructs the natural course of the stream he is liable for any loss that ensues.-Hoelscher v. Missouri, K. & T. Ry. Co., Mo. App., 182 S. W. 1078.

108. Wills-Construction.-Where property is devised to one for life with remainder to another, and, if the remainderman die without issue, then to a third person, the limitation as to dying without issue is restricted to the death of the remainderman before termination of life estate-White v. White's Guardian, Ky., 182 S. W. 942.

109.- -Execution.-Any acknowledgment by testator of his signature in the presence of witnesses is suffic'ent; it not being essential that formula, but being permissible to infer an acthe acknowledgment be in any particular verbal knowledgment from conduct, though the witnesses did not see the signature.-Shewmake v. Shewmake, Ga., 87 S. E. 1046.

110.- Fraud.-The existence of a fiduciary relation on the part of those securing probate of a will is not essential to the making of a sufficient case of extrinsic fraud to warrant a court in equity in charging the executors, etc., with a trust in favor of the defrauded parties and setting aside the judgment of probate.— I Nicholson v. Leatham, Cal., 155 Pac. 98.

111.- -Holographic.-Paper purporting to be will of husband and wife, in handwriting of husband except the wife's signature, dated, and showing the place where made, found after the death of the husband without issue, leaving wife surviving, among his valued papers. held entitled to probate as his "holographic will."— In re Cole's Will, N. C., 87 S. E. 962.

112. Next of Kin.-"Next to kin," in the legal and common meaning of the words as used in wills means nearest of blood relations, and does not include a brother's wife.-Bailey v. Smith, Mass., 111 N. E. 684.

113. Power of Appointment.-Where testator left his property to his wife for life, with full power of disposition during her life, the widow could not defeat the right of the remaindermen by selling the devised property and investing the proceeds in other property, whether intentionally or through misinterpretation of the will.-Rives v. Burrage, Miss., 70 So. 893.

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Central Law Journal.

ST. LOUIS, MO., MAY 19, 1916.

EXERCISE OF RIGHT OF EMINENT DOMAIN OVER PUBLIC LANDS OF THE UNITED STATES.

In Utah Power & Light Co. v. United States, 230 Fed. 328, decided by Eighth Circuit Court of Appeals, there is incidental, if not necessary, discussion of the question, whether under a State statute, generally speaking, any part of the land of the United States in its public lands is subject to the power of eminent domain, and, particularly, whether provisions of the enabling act of a State disclaiming for its people all right or title in such land avoids the exercise of such right, if it otherwise exists.

Van Valkenburg, D. J., says: "It is true that in some of the earlier decisions the validity of the exercise of the right of eminent domain by a State over the lands of the United States has received apparent recognition." Citation of these earlier decisions shows many circuit court cases and one Supreme Court case.

Proceeding, he says: "This view is predicated upon the assumption that while the government lands are not held or reserved for specified national purposes, the United States occupies the position of a mere individual proprietor with rights and remedies neither less nor greater. An examination of the cases cited, however, discloses that the peculiar facts with which they dealt, and the later cases leave little doubt that the Supreme Court has not recognized and will not recognize, the limited control of Congress over the territory and property belonging to the United States, for which defendant contends. The public lands of the United States are held by it, not as an ordinary individual proprietor, but in trust for all the people of all the States, to pay debts and provide for the common defense and general welfare under the express term of the Constitution itself. *** Congress has the exclusive right to control and dispose of them, and no State can interfere with this right or embarass its exercise." Here are cited several Supreme Court cases.

This reasoning, based on "the express terms of the Constitution," it is apparent, could have been as effectually employed when these early decisions were rendered

as at this date, and it would have been greatly more illuminating to look to the peculiar facts one, at least, of these decisions took into consideration than to cite later cases in which there only could be claimed an argumentative inconsistency.

For example, it is said the United States "does not and cannot hold property as a monarch may, for private or personal uses, and it can prohibit absolutely or fix the terms on which its property may be used, and it holds land in trust," etc., etc., for all of which appropriate decision is cited. But to what do all of these comprehensive general statements come, if a single instance, no matter what were the peculiar facts connected with it, the exercise of the right of eminent domain over such property has been recognized by our Supreme Court? The only peculiar facts that could exist are subordinate to the all-embracing power of the United States.

If that power recognizes in a single instance the right by the state to condemn land owned by itself, it recognizes permissive domination by the state, so far as public uses are concerned.

Furthermore, what has the holding in trust to do with this question? If not to hold in trust subjects the property to exercise of the right of eminent domain, surely what is held for one cestui que trust does not escape this power.

It may be said this holding in trust is for a public purpose. In other words, holding for some of the people as cestuis is not for a public purpose, but holding for such of all of them as wish to acquire the land is a holding for a public purpose. We do not believe this to be true, because, if each one after he acquires a portion of such land makes it subject to the exercise of the right of eminent domain, his right to acquire ought likewise to be so subject. This is but a sort of franchise in each one of us in land and it has long been held that a franchise in land is as subject to the right of eminent domain as is the land in which it exists.

As to the other branch of the query suggested, we think it apparent that provisions

of enabling acts of the character suggested cannot fairly be construed as meaning, that any different rule could have been contemplated in states with such acts than obtains in other states. The fact that the government holds title to such lands in trust not for residents of a particular state but for those of all the states, shows this to be true.

The learned judge held, however, that both generally and in Utah particularly, public land is not subject to be taken under the right of eminent domain under a State statute.

NOTES OF IMPORTANT DECISIONS.

DIVORCE-GRANTABLE

WHERE MARRIAGE WAS ENTERED INTO FOR CONVENIENCE.-In Spady v. Spady, 155 Pac. 169, decided by Oregon Supreme Court, the husband brought suit and there was crimination and recrimination, the wife filing a cross-bill of which the court observes that "the most important part is her allegation about his realty and personal property and her demand for alimony."

The court then goes on to say: "It is of no moment that we recite the testimony, although it has been carefully read. It is enough to say that it is apparent that the plaintiff wanted a housekeeper and that defendant wanted not only a home, but a considerable part of the plaintiff's property. This, taken together with the friction between the defendant and the children constitutes the real essence of the case. Neither party is without fault. The case presents no equitable aspect. The marriage contract ought not to be degraded to the level of a mere barter nor rescinded as one would a sharp trade of scrub horses. The proper solution of the case is that neither party is entitled to relief."

How greatly could not such a remark about degradation of the marriage contract find occasion for application in suits for divorce that come before the court? Ought not all "trial marriages" receive the sort of disposition this case received? And when we reach this point ought not the principle to be extended so that the same inviolability should be fastened on marriage, in the interest of society, where it is deliberately entered into? Especially is this not true when children come into the relation and have rights, which civilization

should protect notwithstanding the inconvenience, disappointment or even abject misery of the principals to the contract? Ought not a married couple seeking a divorce be required to show and by other testimony than their own, as a condition of a decree for divorce being granted, that this looks to the interest and not to the detriment of offspring?

BANKRUPTCY-DAMAGES FROM ANTICIPATORY BREACH OF CONTRACT PROVABLE AGAINST BANKRUPT.-In Central Trust Co. v. Chicago Auditorium Co., 36 Sup. Ct. 412, it is said: "Whether the intervention of bankruptcy constitutes such a (anticipatory) breach (of a contract) and gives rise to a claim provable in *** bankruptcy proceedings is a question not covered by any previous decision of this court and upon which the other Federal courts are in conflict."

In answer to the contention that such a breach must "result from the voluntary act of one of the parties and that the filing of an involuntary petition in bankruptcy, with an adjudication thereon, is but the act of the law resulting from an adverse proceeding insti tuted by creditors," the court said: "Commercial credits are, to a large extent, based upon the reasonable expectation that pending contracts of acknowledged validity will be performed in due course; and the same principle that entitles the promisee to continued willingness entitles him to continued ability on the part of the promisor. In short, it must be deemed an implied term of every contract that the promisor will not permit himself, through insolvency or acts of bankruptcy, to be disabled from making performance; and, in this view, bankruptcy proceedings are but the natural and legal consequence of something done or omitted to be done, in violation of his engagement. It is the purpose of the bankruptcy act, generally speaking, to permit all creditors to share in the distribution of the assets of the bankrupt, and to leave the honest debtor thereafter free from liability upon previous obligations."

This last clause implies that, if assets in bankruptcy are not subject to damages from anticipatory breach of contract, the bankrupt then would be liable to suit notwithstanding his discharge in bankruptcy. The exceptions provided for do not, as to all of them, at least, prohibit sharing in such assets. They give the creditor an election. We confess, however, that it is not clear why the court theorizes about expectation in "commercial credits," when if the principle decided is sound at all, it ought to apply to other credits as well.

The court continues thus: "Executory agree

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