essarily guilty of negligence, though a distinction is to be drawn between its use for lighting a new fire and its use for reviving one partially extinct.-Farrell v. G. O. Miller Co., Minn., 179 N. W. 566.

36.

Fixtures-Severance.-The rule for determining what is a fixture is always construed strongly against vendor, and whatever is essential to the purpose for which a building is used will be considered a fixture, although the connection may be severed without physical or lasting injury to either.-Stone v. Suckle, Ark., 224 S. W. 735.

37. Forgery-Essential Element.--Under Ky. St. § 1189, knowledge of the forgery is an essential element of the crime of uttering a forged check.-Montgomery v. Commonwealth, Ky., 224 S. W. 878.

38. Frauds, Statute of

Memorandum of Sale. A memorandum of a sale of a carload of potatoes, copies being delivered to both the buyer and seller, was sufficient evidence of the sale to take the transaction out of the statute. -Fort v. Cummins, Ind., 128 N. E. 624.

39. Oral Sale.-Where a purchaser of personalty under an oral sale was in possession, delivery, taking the contract out of the statute, may be shown by acts of dominion and control by the purchaser inconsistent with the facts on which his prior possession was based.-Deitrick v. Sennott, Iowa, 179 N. W. 424.

40. Performance Within Year.-Exercise of the option in a lease for renewal for two years is not within the prohibition of the statute of frauds as to contract for creation of an interest in lands other than by a lease for not over a year.-Marckres Bros. v. Perry Gas Works, Iowa. 179 N. W. 538.

41. Performance Within Year.-If performance of a contract depends on a contingency which may happen within a year, it is not within the statute, though that contingency may not in the fact happen until after expiration of year, and though the parties may not have expected that it would occur within that period. Fearon Lumber & Veneer Co. V. Lawson's Adm'r., Ky., 224 S. W. 882.

42. Highways-Equal Rights.-An owner of cows has an equal right to drive them along the highway as an automobile owner has to drive his machine over it, and each of the parties owes the other the duty of exercising his right so as not to interfere with the rights of the other, and the fact that it was night-time and the peculiar characteristics of the cows and the machine affect the rights only as they bear o. the degree of vigilance each was bound t exercise.-Bombard v. Newton, Vt., 111 Atl. 510. 43. Husband and Wife Ratification. The ratification by a woman, after the death of her husband, of her indorsement of a note prior to his death, by making a partial payment thereon and promising to pay the balance, is void, unless supported by a new consideration, and does not obligate her to pay the note.-Elliott v. McMillan, N. C., 104 S. E. 459.

44. Injunction-Possession and Improvement. A purchaser in actual possession of the premises, and who has made valuable improvements thereon, and who has paid the purchase money in full, is clothed with a perfect equity equivalent to a legal title, as respects right to have trespass enjoined.-Bass v. African Methodist Episcopal Church, Ga., 104 S. E. 437.

is "acci

45. Insurance Accident. Death dental," within the meaning of an accident insurance policy, when it is the result of injuries inflicted by a third person without the fault of the person injured, but is probably not so where the altercation causing the injury is provoked by the insured.-Buckley v. Massachusetts Bonding & Ins. Co., Wash., 192 Pac. 924.

46. Reforming Policy.-Where plaintiff intended his fire policy should cover and insure his entire stock of merchandise, but by mistake of the agent the stock was erroneously described as to the building in which it was located, which plaintiff insured did not know until after fire, he having directed the agent to insure his entire stock, equity can reform the policy and correct

the mistake.-Newark Fire Ins. Co. v. Martinsville Harness Co., Ind., 128 N. E. 616.

47. Reinstatement.-If upon receipt of such a notice, the delinquent member, after forfeiture, remits the amount of such delinquency. and with his remittance gives notice of his bad condition of health, and the insurer promptly declines the offer, such remittance does not reinstate the delinquent nor bind the insurer to an unconditional waiver of the forfeiture.-Cummings et al. v. Masonic Protective Assn., W. Va., 104 S. E. 494.

48. Intoxicating Liquors Transportation.Volstead Act, tit. 2, § 3, forbidding the transportation of liquor for beverage purposes, is valid under Const. Amend. 18, which forbids the manufacture, sale, or transportation of such liquor for beverage purposes.-Corneli v. Moore. U. S. D. C., 267 Fed. 456.

49.- -Volstead Act. The purpose of Volstead Act, tit. II, was to enforce the Eighteenth Amendment to the Constitution, section 1 of which prohibits the manufacture, sale, and transportation of intoxicating liquors for beverage purposes, but not to confiscate liquors lawfully owned at the time the amendment became effective, and which the owner intended to use in a lawful manner, and such purpose is of importance in determining the meaning of the act.-Street v. Lincoln Safe Deposit Co. et al., U. S. S. C., 41 Sup. Ct.

51.

Landlord and Tenant-Guest of Tenant. -A guest of a lessee, injured by reason of a defect in a step. stands in the shoes of the lessee. Thomson v. Cooke, La., 86 So. 332.

52. Holding Over.-A tenant in possession under a lease from year to year holds over for another year unless he receives 60 days' notice of the intention of his landlord to terminate the lease. Willhite v. Schurtz, Ill., 128 N. E. 551.

53. Privity.-Liability for rent is based on privity of contract or privity of estate; and. where there is an express covenant to pay, the lessee is held in privity of contract, and, in the absence of express covenant, the liability arises on an implied obligation whereby he is held in privity of estate.-Cauble v. Hanson, Tex.. 224 S. W. 922.

54. Licenses-Regulation.-A state cannot require the driver of a government motor truck carrying the mails over its post roads to procure a license after satisfying its official of his competence and paying a fee therefor, though it could hold him responsible for violation of its general laws including perhaps its laws of the road, since the requirement of a license is an attempt to regulate the doing of the act he was employed by the government to do, which is beyond the power of the state.-Johnson v. State of Maryland, U. S. S. C., 41 Sup. Ct. 16.

55. Limitation of Actions-Lex Fori.-Where parties residing in another state make a contract to be performed there, and such contract is breached in such state, and none of said parties have ever lived in Mississippi, the right of action for damages for such breach is barred by the Mississippi statute of limitations, where the suit is brought in the courts of this state.Fisher v. Burk, Miss., 86 So. 300.

56. Mechanics' Liens-Competing Claimants. In a suit by chief building contractor against owner, sublienors should be brought in. so that such dependent or competing claims shall be heard together and finally adjudicated.-Morgan v. Sagamore Development Co., N. Y., 184 N. Y. S. 311.

57. Mines and Minerals-Joint Lease.--An oil lease made to a company by two. described as husband and wife and designated as the first

party, describing the lands by boundaries and as containing a certain number of acres, and making no reference to separate ownership, and providing as consideration $1 and the delivery to the first party of a certain part of all oil produced, and requiring the completion by the second party of "a well on said lands" within a certain time, is a joint lease, satisfied by a single well, though the husband owns two tracts, separate, but in the same section, and the wife one tract, contiguous to one of the others.-Ohio Oil Co. v. Fowler, Ind., 128 N. E. 626.

58. Reservation.-A reservation in a deed of "all the minerals in, on, or under" the land conveyed held to include oil under the surface. -Lovelace et al. v. Southwestern Petroleum Co. et al., U. S. D. C., 267 Fed. 504.

59. Mortgages-Reconveyance. - Where the conveyance purports on its face to be made as security and contains a defeasance divesting the legal title on performance of the condition, no reconveyance is necessary to revest the legal title in the grantor, where it appears that the condition has been performed.-McGehee v. Garringer, Mo., 224 S. W. 828.

60. Negligence-Invitee. The proprietor of a store is under duty of ordinary care to prevent injury to one there by invitation, which includes enticement, allurement, and inducement, but owes no such duty to a licensee, one there by mere permission or acquiescence.-Thistlethwaite v. Heck, Ind., 128 N. E. 611.

61. Proximate Cause.-Proximate cause is ordinarily a question of fact, which may be established by circumstantial evidence.-Colorado & S. Ry. Co. v. Rowe, Tex., 224 S. W. 928.

62.

Patents Benefits.-A patentee is entitled to all of the benefit that he claimed for his device or that can be given to it by formal changes.-New York Scaffolding Co. V. Chain Belt Co., U. S. S. C., 41 Sup. Ct. 21.

63. Invention.-The fact that other inventors working in the same art would have been able to make the combination made by patentee does not disprove invention, if the ordinary journeyman in the art could not have made such combination.-Juengst v. Hill Pub. Co., U. S. D. C.. 267 Fed. 428.

by will of property in perpetuity, except for charitable uses, are void, as against public policy.Smith v. Heyward, S. C., 104 S. E. 473.

65. Principal and Agent-Proof of Agency.Acts and declarations of an agent are not generally admissible to prove his agency.-Dolan v. Keppel, Iowa, 179 N. W. 515.

66. Principal and Surety Exoneration of surety. Where property of the principal debtor is appropriated under chattel mortgage by the creditor, the debtor's surety and the land of the surety on which the creditor holds mortgage are exonerated to such extent.-Kennedy v. Atlantic Trust & Banking Co., N. C., 104 S. E. 464. 67. Release of Surety.-Sureties on bond of contractor to build church held released from liability on his bond by reason of the conduct of the principals in the bond, the building committee of the church, in failing to retain 20 per cent of the contract price until 30 days after completion and acceptance of the building, as provided in the contract.-Burton Lingo Co. v. First Baptist Church, Tex., 224 S. W. 913.

68. Railroads-Special Danger. A railroad company is not negligent in failing to maintain gates or a watchman at an ordinary crossing in a residence neighborhood, where there is no special danger by reason of conditions existing. -Opp v. Pryor, Ill., 128 N. E. 580.

69. Release-Joint Tortfeasors.-In action for damages for conspiracy to defraud in connection with the sale of corporate stock to plaintiff, the release of one of the defendants from liability on account of the sale of such stock held to release the other defendants.-Betcher v. Kunz, Wash., 192 Pac. 955.

70.-Joint Tort-feasor.-The release of one joint tort-feasor, being valid. operates as a release of the others.-Kirkland v. Ensign-Bickford Co., U. S. D. C., 267 Fed. 472.

71.

Sales-Delivery.-Where buyers, who had ordered a new machine, agreed to take a used machine, admittedly out of repair, and gave their notes for the price, the first of which was to be paid when the machine was satisfactorily repaired, and the sellers' expert, after attempting for 12 days to put the machine in order, confessed his inability to do so, and directed its return to the sellers, there was no delivery of the machine to the buyers, and the consideration for their notes had failed.-Gwinn v. Heydon, Wash., 192 Pac. 914.

72. Measure of Damage.-Where goods of a certain quality are ordered on contract for future delivery, and goods of an inferior quality are delivered, the measure of damages is the difference between the market value of the goods delivered, at the time and place of delivery. and the value of goods of the character ordered, at the time and place of delivery.-Atlanta Milling Co. v. Acme Mfg. Co., Ga., 104 S. E. 457.

73. Seduction-Chastity.-In prosecution for seduction, defendant cannot overcome the presumption of chastity by proof of general reputation as to chastity, proof of specific acts of intercourse being necessary, since defendant is required to prove actual unchastity, and not merely a reputation for unchastity, chastity being an existing personal virtue, and not a reputation.-State v. Storrs, Wash., 192 Pac. 984. 74. States-Negligence. The state is not liable for the negligence of its representatives, in the absence of a statute specifically waiving its exemption from and assuming liability.Learn v. State, N. Y., 184 N. Y. S. 281.

75. Taxation-Legal Title. The person in possession of land claiming ownership and receiving the rents and profits thereon is primarily liable for the payment of taxes whether he holds the legal title or only an equitable title.Mitchell v. Mutch, Iowa, 179 N. W. 440.

76. Tenancy in Common Purchase by Tenant.-A tenant in common cannot add to or strengthen his title by purchasing title to the entire property at a tax sale, or by purchasing it from a stranger who has purchased at such sale. Sanders v. Sanders, Ark., 224 S. W. 732. 77. Vendor and Purchaser-Constructive Notice. Where a title to real estate, valid upon its face, has stood unchallenged upon the public record for many years, one who purchases the property is presumed to do so upon the faith of such record, and is thereby protected against attacks by the heirs of the former owner, charging fraud and simulation in a conveyance from him, unless it be alleged and proved that such purchaser participated therein. Jackson Creswell, La., 86 So. 329.

78. Wills-Issue. The word "issue" in a legal sense means descendants, and includes the whole line of lineal descendants, but in a popular sense it may mean child or children, and may be used in that sense in a will.-Beaty v. Calliss, Ill., 128 N. E. 547.

79.- Signature.-Unsigned statement of son. in nature of postscript to a letter written to his father, that if he died for his country he wanted the father to receive his insurance money, held not a valid holographic will, which, under Kirby's Digest, § 8012, must be signed at the end.Borchers v. Borchers, Ark., 224 S. W. 729.

In

8

80.-Trusts.-A trust is not created where a clear direction or choice is given to act or not to act, especially where the prior dispositions import an absolute or uncontrollable ownership. Harvey v. Griggs, Del., 111 Atl. 437. 81. Witnesses-Cross-Examination. prosecution for burglary, where keys were found in defendant's suitcase, and he was asked by the county attorney what he was dong with them, the court's ruling that, where defendant denied a thing, he could be quizzed about any thing that would help to determine it, held not subject to the objection that defendant was cross-examined to greater extent than direct examination and upon new matter; skeleton keys being useful to persons of a burglarious turn of mind.-Cline v. State, Ariz., 192 Pac. 1071.

Central Law Journal.

ST. LOUIS, MO., JANUARY 14, 1921 ON THE SMASHING OF A PRECEDENT.

In the normal course of events, every now and then, some supreme appellate court breaks away from the hard packed path of precedent and carves out a new trail into which it directs the energies of those citizens residing within its jurisdiction, and whose confidence gave them the power to make new law. And, incidentally, ancient landmarks are destroyed.

We are apt to designate such a course accordingly as it suits one's view of what the law ought to be. Compliments under such circumstances are more an expression of personal satisfaction than one of disinterested approval of a material public policy fixing titles to property and the conduct of a people. If every such departure be viewed as an earnest effort at a greater certainty in the administration of justice, the result will have a wider significance.

The Pennsylvania Court in the first American and leading mining case of Lillibridge v. Lackawanna Co. (143 Pa. St. 293, 24 Am. St. Rep. 544) permitted free transportation of coal from adjoining tracts over and through worked out veins of coal on an adjoining tract held under a separate deed from another vendor, on the theory that the ownership of the coal carried with it title to "the space which it occupies" under the surface even after the coal had been removed from the tract and, therefore, the owner of the coal could continue to use the "space" as a highway, certainly as long as any coal remained in the adjoining tract. The Virginia Supreme Court of Appeals wholly repudiated this ancient doctrine in an opinion by President Kelly that is likely to command attention and longevity for more reasons than the mere upsetting of fixed mining customs, rights and titles. (Clayborn v. Cammella, etc., Co., 21 Va., Apps. 304, Nov. 18, 1920.)

The question desired to be brought home to all appellate judges, by directing attention to this decision, is this: Is there a sufficiency of independent thought on the Bench and is there a disposition to follow unanalyzed precedents? The Virginia

Court laid a foundation as follows: "It would seem sufficient to say of them (see the decided cases) in general that they are right if the first and leading American case was right, and that they are wrong if that case was wrong because, in the main, all the others have simply followed with more or less elaboration the principles laid down in that case." It then proceeded to show why the Pennsylvania case was wrong, in the result of which we are not now interested.

Certainly the Virginia Court (Prentis J. dissenting) was justified in concluding that it was "unable to follow to their full extent the authorities upon the question, notwithstanding their high source and formidable array," if as is stated, "they seem unsatisfactory and illogical in themselves and at variance with fundamental legal principles." Entertaining the views very forcibly and lucidly set forth, the Virginia Court would have prostituted its high office and stultified itself had it found otherwise than it did regardless of precedents and the necessity for uniformity of decision. Manifestly the amenities permitted, if they did not demand, expressions of regret in so extreme a challenge and it was gracefully done. "In taking this position," said Judge Kelly, "we are not unmindful of the credit which ought to be given to a long line of judicial precedent and we have broken away from it in this case with reluctance and after much deliberation."

We have not set out to criticise or to approve of the law of the case, however much it appeals, but to approve of the frank. method of dealing with a delicate situation in the process of making law, mindful that the body of the great common law is made of such episodes. The Court must have been conscious of its self-imposed difficult.

contract of convincing a greater majority of their brethren upon the Appellate bench of their error. In this the splendid effort deserves success.

The appealing merit of the opinion is its minute analysis of every element involved, the painstaking presentation of the error and the implied criticism of a disposition to blindly follow undeserving precedents. Nothing is left but to agree or disagree. Other courts will have no difficulty in selecting between the two views of the law and at the first opportunity it should be done.

The Virginia Court is not without precedent in discarding what it believes to be wrong and in selecting what it believes to be right and best for the public good, regardless of consequences. The law of parol agreements had been laid down in Wolverton v. Davis (85 Va. 64, 6 S. E. 619), as that expounded in the English case of Green v. Cresswell (10 Adol & E. 453). In 1913 the Court, in Alphin v. Lowman (115 Va. 441, 79 S. E. 1029), completely reversed the law and announced the intention to follow Thomas v. Cook, 8 Barn, etc., 728, which had been overruled in Green v. Cresswell, supra, saying that the greater number of American cases followed Green v. Cresswell but, "the most discordant reasons are given reasons as irreconcilable among themselves as they are to those given in the cases which adopt the opposite conclusion." One must be mindful that the Court was reversing a long standing opinion of its own.

While uncertainty of law, occasioned by diverse or unsettled judicial opinion, or repeated Legislative muddling is to be deplored, a greater certainty of justice sometimes demands it and it is reasonable to say, will continue to require it until there. be a greater exchange of views amongst courts. The situation finds an analogy in surgery. Every now and then some inquisitive doctor of the law with the assistance of the Roentgen ray of discrimination finds a festering sore of injustice and applies the knife. There is a shock and a new adjust

ment and fresh alignment of human endeavor. But when the decision is right there also is approval. Interpreted, it means a steady advance in jurisprudence and such. things should be applauded. It means walking in the light of reason and not stumbling in the shadow of the precedent. It translates an independence and fearlessness of thought and a display of vision that made John Marshall the most hated man by the majority of his contemporaries and the most respected by their descendants. Great souls live and suffer in the present, but for both the present and the future, Judges are daily spreading the photographs of their souls and spirits upon permanent parchment as an offering upon the altar of government. It is well that contemporary impressions shall likewise be writ in every wide departure from the landmarks that have commanded a half century of respect. Such conduct should be acclaimed or condemned, as the case may be, in the interest of the science of the law.

THOMAS W. SHELTON.

NOTES OF IMPORTANT DECISIONS.

DOES A RESERVATION IN A DEED OF ALL "MINERALS" INCLUDE OIL AND GAS. -There has been much controversy, scientific and legal over the question: Are oil and gas minerals? In the early cases the courts held they were not while the scientists held they were. Dunham V. Kirkpatrick (1882), 101 Pa. 36, 47 Am. Rep. 696; Detlor v. Holland, (1898), 57 Ok. St. 492, 49 N. E. 690, 40 L. R. A. 266; McKinneys' Heirs v. Central Ky. Natural Gas Co., 134 Ky. 239, 120 S. W. 314, 20 Ann. Cas. 934. In the later cases the courts now hold that they are minerals while the best geologists now contend that they are the result of the decay of organic matter trapped in the soil. Burke v. Southern-Pacific Co., 234 U. S. 669, 34 Sup. Ct. 907; Isom v. Rex Crude Oil Co. (1905), 147 Cal. 659, 82 Pac. 317; People v. Bell (1908), 237 III. 332, 86 N. E. 593, 19 L. R. A. (N. S.) 746; Barker v. Campbell (Okla., 1917), 167 Pac. 468, L. R. A., 1918A, 487.

The Supreme Court of Kentucky now swings into line in a recent case, and after practically overruling the McKinney case cited above holds

that a reservation of "all minerals in or under the land" includes subsequently discovered oil and gas. Hudson & Collins v. McGuire, 223 S. W. 1101. The McKinney decision by the same Court had held a conveyance of "all the mineral and coal on the above described boundary" did not include natural gas for the peculiar reason that "natural gas had no marketable value in Kentucky, and that the easements granted in connection with the mineral rights conveyed are not applicable to the production of natural gas, which shows that it was not intended that gas was to be included in the conveyance." This was indeed very strange reasoning as the usual rule of construction of general terms in an instrument is to give them their natural all-inclusive meaning unless it is shown by something within the four corners of the instrument that some particular thing is excepted. The ridiculous character of any other rule was illustrated by a later Kentucky case, known as the Kentucky Diamond Case. Development Co. v. Transvaal Diamond Co., 141 Ky. 97, 132 S. W. 397. In this case the question was whether "diamonds" were included in a conveyance of "all the minerals and timber on the following described tract of land." The Court held they were included and refused to follow the rule in the McKinney case and held that the fact that diamonds were not known to be on the land at the time of the conveyance did not indicate that it was not the intention of the parties to convey them by their deed.

The word "mineral" is a broad word with a wide popular significance and includes everything under the soil except pure waters which are practically subterranean rivers. Whether oil is organic or inorganic in its origin it is nevertheless a deposit in the soil co-incident with other geological processes which combined to form the crust of the earth. So that sandstone which is a deposit of prehistoric seas, coal which is a product of decayed vegetation, granite which is of plutonic origin, oil which it is claimed is the result of decayed animal matter, are all nevertheless part .of the substance of which the earth is composed and in some cases the strata are conglomerates of vegetable and animal deposits with petrifications of the vegetation of

"whether metallic or non-metallic." Northern Pac. Ry. Co. v. Soderberg, 188 U. S. 526, 23 Sup. Ct. 368.

One important rule which a conveyancer should be careful to observe in this connection is not to qualify his general words by words which tend to contract the full extent of their meaning. Thus in the Detler case, supra, the phrase "all minerals" was qualified by provisions for certain easements which made it appear that the parties had in view coal or stone only. The provision for easements should be as broad as the grant.

ILLEGALITY UNDER THE NEGOTIABLE INSTRUMENTS LAW.

Since the Negotiable Instruments Law has now been adopted practically throughout the United States and its dependencies, and since the decisions of the courts are not entirely harmonious as to its effect upon the defense of illegality, when sought to be interposed in an action upon negotiable paper, it may not be without profit to examine somewhat the questions involved in the

matter.

It should be understood at the outset, that by a "real," or "absolute," or "downright" defense, is meant one which attaches to or inheres in the instrument itself, though not appearing on its face, and which can, therefore, be interposed, even against a holder in due course, as defined in the law. Consequently, all cases in which the holder does not enjoy such status, particularly those in which it appears that he is actually chargeable with knowledge or notice, have no application in this discussion. This meaning must be kept clearly in mind, also, in order to distinguish the case from those in which some phase of estoppel is sought to be in

animals so that it would be impossible to distinguish them as animal, vegetable or metalliferous. The Supreme Court of the United States has taken this broad view in the construction of the words "valuable mineral deposits" when used in public land laws and declares that it should be construed as including all substances contained in the earth's crust

defense. To this some consideration will be given later in this article.

At common law a defense was said to be "real" or "absolute," if the particular action involved was prohibited by the principles of that law, or was construed as being against public policy, as well as when