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No. 1. Specific Performance of Building Con

tracts. By A. S. Thompson, 4. No. 2. Is a Fire Policy a Promissory Note, Pay

able in Event of Fire? By Ralph W. Breckenridge, 24.

Various Forms of Mental Alienation in their Relation to Crime. By Lewis Hochheimer, 28. No. 3. Relevancy of Evidence of Price Paid for

Similar Land in Vicinity to Show Land Value.

By Charles L. Bartlett, 45. No. 4. Rights and Remedies of Preferred Share

holders. By Seymour D. Thompson, 64. No. 5. Competency of Evidence Relating to

Physical Condition. By Glenda Burke Slay

maker, 83. No. 6. Temporary Emotional Insanity as a De

fense Against-a Charge of Crime. By Linton

D. Landrum, 104. No. 7. Municipal Regulation and Control of Telephone and Telegraph Companies. By G.

C. Hamilton, 125. No. 8. Can Authority be Delegated to Notaries

Public to Punish for Contempt. By Ben Ken

dall, 144. No. 9. Amendments to the Bankrupt Law of

1898. No. 10. The Non-Liability of Railroad Com

panies Maintaining Hospitals, for the Malpractice of Surgeons and the Negligence of

Nurses Therein. By Wm. B. Morris, 184. No. 11. Stipulations Against Liability for Negli

gence in Gratuitous Passes. By Lewis B. Ew

bank, 204. No. 12. Whether a Sale Attacked for Fraud of

Vendor, will be Set Aside for Inadequacy of Price only, where the Consideration was a Small Debt of the Vendee and His Verbal Promise made to the Vendor alone to pay certain Other Debts of the Vendor, for which the Vendee was Liable as Surety, at the Time of the Purchase. By W. H. Clifton, 225.

Liability of Landlords for Dangerous Condition of Leased Premises. By Henry M. Dowling, 226.

No. 13. The Initiative and Referendum under

the United States Constitution. By T. A.

Sherwood, 247. No. 14. “Identification” and “Appropriation"

is necessary to Pass Title in a Bargain and Sale. By J. C. McMath, 263.

Foreign Divorces and their Effect on Status and Property Rights. By Needham C. Col

lier, 266. No. 15. The Insurable Interest of a Stockholder

in Corporate Property. By Glenda Burke

Slaymaker, 284. No. 16. Extent of Right to Search and Bind Per

sons when Arrested. By Lewis B. Ewbank,

303. No. 17. Acceptance of the Risk by the Servant.

By Seymour D. Thompson, 323. No. 18. The Application of the Common Law to

Lands held by the United States in the Former Territory of the United States Northwest of the River Ohio, and Especially in Respec to Private Waters as Distinguished from Pub

lic Waters. By Thomas Dent, 344. No. 19. Life Insurance Policies as Assets to Pass

to Trustee for Bankrupt Estate. By Alonzo

Hoff, 364. No. 20. The Oflice Work of an Attorney. By Henry M. Dowling, 384.

Habeas Corpus Proceedings for the Release of Infants. By W. L. Hand, 385. No. 21. Legislative Interference with Trades

and Professions. By Henry M. Dowling, 103. No. 22. The Doctrine of Equitable Estoppel as

Applied to Opinions and Statements of Inten

tion. By Colin P. Campbell, 424. No. 23. Initiative and Referendum under the

Federal Constitution. By Henry W. Bond, 444.

Governmental Control of the Liquor Traffic. By Glenda Burke Slaymaker, 444. No. 24. Pleading and Proof of Insanity in Crim

inal Cases. By Linton D. Landrum, 466. No. 25. Injuries from Electricity in Ilighways.

By Henry M. Dowling, 485.





Central Law Journal.

danger the essential rights of the states and imperil those fundamental rights of life, lib

erty and property, which belong to free men. ST. LOUIS, MO., JAN. 2, 1903.

But few, if any, now entertain such apprehensions, and there is practical unanimity among

statesmen, jurists and the people, as to the TWENTY-FIFTH ANNIVERSARY OF JUSTICE essential nature of our institutions. No HARLAN'S APPOINTMENT TO THE SUPREME

American lawyer now questions the supremacy COURT.

of the constitution in respect of every subject A few weeks ago the bar of the Supreme entrusted to that government, or the wisdom Court of the United States entertained Mr. of the provision made for its final interpretaJustice Harlan at dinner in commemoration tion.” of the completion of his quarter of a century's We concur most heartily in these expresservice as a justice of that august tribunal. sions of opinion this subject by On this occasion, Justice Harlan gave ex- Justice Ilarlan and

conceive of pression to his opinion as to the commanding reasonable grounds which the position of the supreme court in shaping the opponents of this view can stand. And destinies of this republic. There has been much yet in reputable law journals and in speeches discussion on this point, some contending that by great (?) lawyers, sharp and unbridled the supreme court is the final arbiter of every criticism upon the extent of authority thus question that touches the constitution, whether assumed by the United States Supreme Court involving the policy of executive or legislative has been indulged and even applauded. So action or not, others arguing that it was not in- long as that court maintains the high standard tended that this court should have anything of character and intelligence represented by to do with shaping political destinies of the such men as Marshall, Story, Miller, Field government. Justice Harlan inclines toward and Harlan, there will be no need to fear any the former view. Ile said: "Permit me to untoward or dangerous exercise of the exaltecl say that there has been no moment during my power conferred upon this tribunal. term of service when I have not been deeply sensible of the awful responsibility resting MENTAL OR MAGNETIC HEALING AS A upon every member of that court. The FRAUDULENT SCHEME TO BE EXCLUDED power of the supreme court for good, as well

FROM TIIE MAILS. as for evil, can scarcely be exaggerated. If Some time ago we took a firm position it cannot actually shape the destiny of our against arbitrary enactments under the police country, it can

can exert a commanding in- power prohibiting the practicing of certain fluence in that direction. It can by its judg- schools of medicine which the majority of ments strengthen our institutions in the con- people might think ineffective, such as magfidence and affections of the people, or, more netic healing, Christian science, osteopathy, easily than any other department of the gov- etc. (53 Cent. L. J. 361, 459; 54 Cent. L. J. ernment, it can undermine the foundations of

122.) Another phase of this question has our governmental system. It can undo the work

just been discussed by the United States Suof the fathers by abrogating old canons of con- preme Court in the recent case of American stitutional construction that have helped to School of Magnetic Healing v. McAnnulty, make this the foremost nation of the earth. It

23 Sup. Ct. Rep. 33. In that case the Postcan-to use the words of Chief Justice Mar- master General hy special order prohibited shall—explain away the constitution of our the delivery of letters addressed to the plaintcountry, and leave it, a magnificent structure, iff corporation under the provision of the fedindeed, to look at, but totally unfit for use.'” eral statutes authorizing the retention of letFurther on, pursuing the same idea, Justice ters directed to any person obtaining money

"In the early history of our through the mails by false pretenses. It seems country it was the fear of some that the su- that the plaintiff corporation was advertising preme court, exerting the enormous power and practicing directly and by correspondconferred upon it, might ultimately so change ence the system known as magnetic healing, our form of government as to destroy or en

a system which assumes to heal disease

Harlan says:


thronglı the influence of the mind over the writers of the letters? And, turning the quesbody. The supreme court in denying the tion around, can physicians of what is called right to the postmaster to set in judgment on the "old school" be thus proceeded against? the effectiveness or non-effectiveness of the Both of these different schools of medicine various schools of medicine, gives expression have their followers, and many who believe in to some very interesting and liberal views the one will pronounce the other wholly devoid as to the legal status of the various schools of of merit. But there is no precise standard medicine. The court says:

by which to measure the claims of either, for 6.The bill in this case avers that those people do recover who are treated according who have business with complainants are to the one or the other school. And so, it is satisfied with their method of treatment, and said, do people recover who are treated under are entirely willing that the money they sent this mental theory. By reason of it? That should be delivered to the complainants. In cannot be averred as matter of fact. Many other words, they seem to have faith in the think they do. Others are of the contrary complainant's treatment, and in their ability opinion. Is the Postmaster General to decide to heal as claimed by them. If they fail, the the question under these statutes ? answer might be that all human means of It may, perhaps, be urged that the intreatment are also liable to fail, and will stances above cited by way of illustration do necessarily fail when the appointed time not fairly represent the case now before us, arrives. There is no claim that the treatment but the difference is one of degree only. It by the complainants will always succeed. As is a question of opinion in all the cases, and the effectiveness of almost any particu- although we may think the opinion may be lar method of treatment of disease is, to a better founded and based upon a more inmore or less extent, a fruitful source of differ- telligent and a longer experience in ence of opinion, even though the great major- cases than in others, yet after all, it is, in ity may be of one way of thinking, the efficacy each case, opinion only, and not existing facts of any special method is certainly not a matter with which these cases deal. There are, as the for the decision of the Postmaster General bill herein shows, many believers in the truth within these statutes relative to fraud.

of the claims set forth by complainants, and Vaccination is believed by many to be a it is not possible to determine as a fact that preventive of smallpox, while others regard it those claims are so far unfounded as to justify as unavailing for that purpose. Under these a determination that those who maintain them statutes could the Postmaster General, upon and pratice upon that basis obtain their money evidence satisfactory to him, decide that it by false pretenses within the meaning of these was not a preventive, and exclude from the statutes." mails all letters to one who practiced it and advertised it as a method of prevention, on

NOTES OF IMPORTANT DECISIONSthe ground that the moneys he received through the mails were procured by false pre- RES ADJUDICATA- WHAT ARE THE NECESSARY tenses?

POINTS OF CONTROVERSY OF A CASE INVOLVED Again, there are many persons who do not

IN A JUDGMENT THEREIN, WHERE THERE ARE believe in the homeopathic school of medicine,

SEVERAL DEFENSES. Few questions occasion

the difficulty equal to those so often arising in and who think that such doctrine, if prac

applying the now well-settled rules of law relatticed precisely upon the lines set forth by its ing to the subject of res adjudicata. In the case originator, is absolutely inellicacious in the of Mitchell v. La Follett, 38 Oreg. 178, 63 Pac. treatment of diseases. Are homeopathic

Rep. 54, a buyer of produce brought an action physicians subject to be proceciled against

against the seller for failure to deliver. Defendunder these statutes, and liable, at the dis

ant, in addition to a general denial, offered an af

firmative defense, based on a breach by plaintiff cretion of the Postmaster Gener:l upon evi- in refusing to receive the produce. There was a dence satisfactory to him, to be found guilty judgment in defendant's favor for costs and disof obtaining money under false pretenses,

bursements. In the subsequent and recent case and their letters stampell as fraudulent and

of La Follett v. Mitchell, 69 Pac. Rep. 916, the the money contained therein as payment for

question before the court was whether the de

fendant in the former suit could in a subsequent their professional services sont back to the

action again bring up the matter alleged in his

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believed that there are any cases going to the extent that, because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action.' So we conclude that the judginent in the former action between the same parties to this record is in no way a bar to this, because the point now in controversy was neither involved nor litigated there."



affirmative defense in the former action, i. e. could the defendant in a subsequent action sue the plaintiff in the former action for refusal to receive the goods. The court said he could. Bean, J., in speaking for the Supreme Court of Oregon, says:

“There is no dispute under the authorities as to the rule of law that an issue once determined in a court of competent jurisdiction cannot be again litigated between the same parties. But there is a difference, sometimes overlooked, between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or demand. In the former case the judgment, if upon the merits, is an absolute bar, and concludes the parties and their privies, not only as to every matter that was actually litigated, but as to any other that might have been litigated. Where, however, the action, although between the same parties, is upon a different claim or demand, the judgment in the prior action operates as a bar or estoppel only as to those matters directly in issue, and not those collaterally litigated. This distinction is pointed out by Mr. Justice Field, with his usual clearness, in Cromwell v. Sac Co., 94 U. S. 351, 24 L. Ed. 195, and was applied by this court in Glenn v. Savage, 14 Oreg. 567, 13 Pac. Rep. 442, and Applegate v. Dowell, 15 Oreg. 513, 522, 16 Pac. Rep. 651. Before, therefore, the judgment in Mitchell v. La Follett, supra, can be invoked as a bar to this action, it must appear that the question now in issue was directly involved in that case and determined therein. Within the meaning of the rule relied upon, a fact or a matter in issue is said to be that upon which the plaintiff proceeds by his action and which the defendant controverts in his pleadings.' Garwood v. Garwood, 29 Cal. 514; King v. Chase, 15 X. H. 9, 41 Am. Dec. 675. Now, in the former action, Mitchell proceeded and based his right to recover upon an alleged breach of the contract by La Follett on the 27th of May. That was the material allegation in the complaint, which the latter controverted by his answer, and was the subject of inquiry before the court and jury. If the finding and judgment had been in favor of Mitchell, La Follett would be estopped from alleging in this action anything to the contrary; but, as the as the action resulted in a final judgment in favor of La Follett, it constituted an adjudication that there had been no breach of the contract on his part, but did not determine that Mitchell himself had not violated the terms and conditions thereof. That question was not involved in the former controversy, and the judgment therein is no bar to this action. The plaintiff was not obliged to set up in the former action a breach of the contract by the defendant for the purpose of recovering damages therefor. Freem. Judgm. (3d Ed.) $8 227, 228. And as said by Mr. Justice Field in Cromwell v. Sac Co., supra: It is not


very important and often litigated question stated the subject of this note is to be found in the opinion of Hainer, J., speaking for the Supreme Court of Oklahoma in the case of Liverpool, etc., Instirance Co. v. Lumber Co., 69 Pac. Rep. 938. This case was originally decided in 69 Pac. Rep. 936, but on a rehearing, the former opinion was set aside. It seems that what most influenced the mind of the court in receding from its former opinion was the masterly opinion of Shiras, J., in the recent case of Northern Assurance Co. v. Bldg. Assn., 183 U. S. 308, 22 Sup. C't. Rep. 133. Justice Hainer sets out almost in full the opinion of Justice Shiras in this last mentioned case and comments upon it very freely. He also exhanstively reviews the authorities in conflict with this opinion and in concluding lays down the following general rules:

1. It is a fundamental rule of law that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.

2. When parties have deliberately entered into a written contract in such terms as import a legal obligation, without any uncertainty as to the object or intent of such transaction, it is conclusively presumed that the whole transaction of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of previous negotiations or statements between the parties, or contemporaneous therewith, are merged in the written instrument, in the absence of fraud or mutual mistake of the parties.

3. A contract in writing, if its terms are free from doubt or ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts; and this principle is applicable to contracts of insurance.

4. A stipulation in an insurance policy which reads, Warranted by the assured that a clear space of 200 feet, tramways excepted, shall al

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