No. 1. Specific Performance of Building Contracts. By A. S. Thompson, 4.

No. 2. Is a Fire Policy a Promissory Note, Payable 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 Shareholders. By Seymour D. Thompson, 64. No. 5. Competency of Evidence Relating to Physical Condition. By Glenda Burke Slaymaker, 83.

No. 6. Temporary Emotional Insanity as a Defense 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 Kendall, 144.

No. 9. Amendments to the Bankrupt Law of 1898.

No. 10. The Non-Liability of Railroad Companies Maintaining Hospitals, for the Malpractice of Surgeons and the Negligence of Nurses Therein. By Wm. B. Morris, 184. No. 11. Stipulations Against Liability for Negligence in Gratuitous Passes. By Lewis B. Ewbank, 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. Collier, 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 Persons 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 Public 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 Office 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, 403. No. 22. The Doctrine of Equitable Estoppel as Applied to Opinions and Statements of Intention. 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 Highways.
By Henry M. Dowling, 485.

Central Law Journal.

ST. LOUIS, MO., JAN. 2, 1903.

TWENTY-FIFTH ANNIVERSARY OF JUSTICE HARLAN'S APPOINTMENT TO THE SUPREME COURT.

A few weeks ago the bar of the Supreme Court of the United States entertained Mr. Justice Harlan at dinner in commemoration of the completion of his quarter of a century's service as a justice of that august tribunal. On this occasion, Justice Harlan gave expression to his opinion as to the commanding position of the supreme court in shaping the destinies of this republic. There has been much discussion on this point, some contending that the supreme court is the final arbiter of every question that touches the constitution, whether involving the policy of executive or legislative action or not, others arguing that it was not intended that this court should have anything to do with shaping political destinies of the government. Justice Harlan inclines toward the former view. He said: "Permit me to say that there has been no moment during my term of service when I have not been deeply sensible of the awful responsibility resting upon every member of that court. The power of the supreme court for good, as well as for evil, can scarcely be exaggerated. If it cannot actually shape the destiny of our country, it can exert a commanding influence in that direction. It can by its judgments strengthen our institutions in the confidence and affections of the people, or, more easily than any other department of the government, it can undermine the foundations of our governmental system. It can undo the work of the fathers by abrogating old canons of constitutional construction that have helped to make this the foremost nation of the earth. It can-to use the words of Chief Justice Marshall-'explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use.'"' Further on, pursuing the same idea, Justice Harlan says: "In the early history of our country it was the fear of some that the supreme court, exerting the enormous power conferred upon it, might ultimately so change our form of government as to destroy or en

danger the essential rights of the states and imperil those fundamental rights of life, liberty and property, which belong to free men. But few, if any, now entertain such apprehensions, and there is practical unanimity amor.g statesmen, jurists and the people, as to the essential nature of our institutions. Νο American lawyer now questions the supremacy of the constitution in respect of every subject entrusted to that government, or the wisdom of the provision made for its final interpretation."

We concur most heartily in these expressions of opinion on this subject by Justice Harlan and can conceive of no reasonable grounds on which the opponents of this view can stand. And yet in reputable law journals and in speeches by great (?) lawyers, sharp and unbridled criticism upon the extent of authority thus assumed by the United States Supreme Court has been indulged and even applauded. So long as that court maintains the high standard of character and intelligence represented by such men as Marshall, Story, Miller, Field and Harlan, there will be no need to fear any untoward or dangerous exercise of the exalted power conferred upon this tribunal.

MENTAL OR MAGNETIC HEALING AS A FRAUDULENT SCHEME TO BE EXCLUDED FROM THE MAILS.

Some time ago we took a firm position against arbitrary enactments under the police power prohibiting the practicing of certain schools of medicine which the majority of people might think ineffective, such as magnetic healing, Christian science, osteopathy, etc. (53 Cent. L. J. 361, 459; 54 Cent. L. J. 122.) Another phase of this question has just been discussed by the United States Supreme Court in the recent case of American School of Magnetic Healing v. McAnnulty, 23 Sup. Ct. Rep. 33. In that case the Postmaster General by special order prohibited the delivery of letters addressed to the plaintiff corporation under the provision of the federal statutes authorizing the retention of letters directed to any person obtaining money through the mails by false pretenses. It seems that the plaintiff corporation was advertising and practicing directly and by correspondence the system known as magnetic healing, a system which assumes to heal disease

through the influence of the mind over the body. The supreme court in denying the right to the postmaster to set in judgment on the effectiveness or non-effectiveness of the various schools of medicine, gives expression to some very interesting and liberal views as to the legal status of the various schools of medicine. The court says: "The bill in this case avers that those who have business with complainants are satisfied with their method of treatment, and are entirely willing that the money they sent should be delivered to the complainants. In other words, they seem to have faith in the complainant's treatment, and in their ability to heal as claimed by them. If they fail, the answer might be that all human means of treatment are also liable to fail, and will necessarily fail when the appointed time arrives. There is no claim that the treatment by the complainants will always succeed. As the effectiveness of almost any particular method of treatment of discase is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud.

Vaccination is believed by many to be a preventive of smallpox, while others regard it as unavailing for that purpose. Under these statutes could the Postmaster General, upon evidence satisfactory to him, decide that it was not a preventive, and exclude from the mails all letters to one who practiced it and advertised it as a method of prevention, on the ground that the moneys he received through the mails were procured by false pretenses?

writers of the letters? And, turning the question around, can physicians of what is called the "old school" be thus proceeded against? Both of these different schools of medicine have their followers, and many who believe in the one will pronounce the other wholly devoid of merit. But there is no precise standard by which to measure the claims of either, for people do recover who are treated according to the one or the other school. And so, it is said, do people recover who are treated under this mental theory. By reason of it? That cannot be averred as matter of fact. Many think they do. Others are of the contrary opinion. Is the Postmaster General to decide the question under these statutes?

It may, perhaps, be urged that the instances above cited by way of illustration do not fairly represent the case now before us, but the difference is one of degree only. It is a question of opinion in all the cases, and although we may think the opinion may be better founded and based upon a more intelligent and a longer experience in some cases than in others, yet after all, it is, in each case, opinion only, and not existing facts with which these cases deal. There are, as the bill herein shows, many believers in the truth of the claims set forth by complainants, and it is not possible to determine as a fact that those claims are so far unfounded as to justify a determination that those who maintain them and pratice upon that basis obtain their money by false pretenses within the meaning of these statutes."

NOTES OF IMPORTANT DECISIONS

RES ADJUDICATA-WHAT ARE THE NECESSARY POINTS OF CONTROVERSY OF A CASE INVOLVED IN A JUDGMENT THEREIN, WHERE THERE ARE SEVERAL DEFENSES. - Few questions occasion the difficulty equal to those so often arising in applying the now well-settled rules of law relating to the subject of res adjudicata. In the case of Mitchell v. La Follett, 38 Oreg. 178, 63 Pac. Rep. 54, a buyer of produce brought an action

under these statutes, and liable, at the discretion of the Postmaster General upon evidence satisfactory to him, to be found guilty of obtaining money under false pretenses, and their letters stamped as fraudulent and the money contained therein as payment for their professional services sent back to the

ant, in addition to a general denial, offered an affirmative defense, based on a breach by plaintiff in refusing to receive the produce. There was a judgment in defendant's favor for costs and disbursements. In the subsequent and recent case of La Follett v. Mitchell, 69 Pac. Rep. 916, the question before the court was whether the defendant in the former suit could in a subsequent action again bring up the matter alleged in his

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 N. 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.) §§ 227, 228. And as said by Mr. Justice Field in Cromwell v. Sac Co., supra: It is not

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 judgment 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."

INSURANCE-PAROL WAIVER OF CONDITIONS OF POLICY WITH OR WITHOUT AUTHORITY OF AGENTS OR OFFICERS.-A full and valuable discussion of the very important and often litigated question stated as 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., Insurance 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. Ct. 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 exhaustively 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