without trial, no action for malicious prosecution thereof would lie.-Hurgren v. Mutual Life Ins. Co., Cal., 69 Pac. Rep. 615.

111. MALICIOUS PROSECUTION-Compromise -Where a criminal case is dismissed pursuant to a written agreement between defendant and prosecutor, defendant cannot thereafter sue prosecutor for malicious prosecution.Russell v. Morgan, R. I., 52 Atl. Rep. 809.

112, MANDAMUS-Duty of Official Stenographer. -Mandamus may lie to the official stenographer of a court to do an official act; it not being necessary that it be to the court to compel him to do it. — Keady v. Owers, Colo., 69 Pac. Rep. 509.

113. MANDAMUS

Private Action. A private citizen, where the attorney general has not become such, may be a relator in mandamus to enforce a public duty.- State v. Nash, Ohio, 64 N. E. Rep. 558.

114. MARRIAGE-"Celestial Marriage." - Judicial notice will be taken of the creed and general doctrine of the Mormon Church, and of the principles of "celestial mar. riage," peculiar to such church. Hilton v. Roylance, Utah, 69 Pac. Rep. 660.

115. MARRIAGE-Mormon Church. The sealing ceremony of the Mormon Church, when in good faith participated in by parties believing therein, creates a valid common-law marriage; the part of such ceremony relating to marriage in eternity being mere surplusage. Hilton v. Roylance, Utah, 69 Pac. Rep. 660.

The

117. MASTER AND SERVANT-Assumption of Risk. risk of injury from a defective roadbed held not among the risks assumed by a trainman, unless it becomes known to him or he could have observed it. - Smith v. Erie R. Co., N. J., 52 Atl. Rep. 634.

118. MASTER AND SERVANT-Contributory Negligence.Where a servant is killed while attempting to operate an elevator, he knowing the danger and having been warned thereof, his contributory negligence precludes recovery. -Hyde v. Mendel, Conn., 52 Atl. Rep. 744.

119. MASTER AND SERVANT-Fellow-Servant.- Where a servant is injured by a fellow-servant's negligent performance of some of the master's duties intrusted to him by the master, the master is liable Hough v. Grants Pass Power Co., Oreg., 69 Pac. Rep. 655.

121. MASTER AND SERVANT-Fellow-Servants.-Servants employed to inspect track held not fellow-servants with trainmen.-Smith v. Erie R. Co. N. J., 52 Atl. Rep. 634.

122. MASTER AND SERVANT — Fellow-Servants.-A servant working at the bottom of a mining shaft, operated to hoist ore from the mine for lessees of the levels, and an employee of a lessee allowing ore to fall and injure the former, are not fellow-servants. Union Gold Min. Co. v. Crawford, Colo., 69 Pac. Rep 600.

123. MASTER AND SERVANT-Negligence.-Where a railroad intrusted the switching of its coaches at a certain point to the yard crew of another road, it was liable for the negligence of such crew in the performance of that duty. — Gulf, C. & S. F. Ry. Co. v. Shelton, Tex, 69 S, W. Rep. 653.

124. MASTER AND SERVANT- Section Foreman.-A section foreman, while transporting his men on hand cars to a place where they are to work, does not act as a viceprincipal in giving an order to stop. Thacker v. Chicago,

I. & L. Ry. Co., Ind., 64 N. E. Rep. 605.

125. MECHANICS' LIENS Waiver. A party may waive in advance the benefits of the mechanics' lien law. — Keller v. Home Life Ins. Co., Mo., 69 S. W. Rep. 612.

126. MORTGAGES- · Assignment. · -The purchaser of an equity of redemption cannot require the mortgagee to assign the mortgage upon being tendered the amount thereof.-Lumsden v. Manson, Me., 52 Atl. Rep. 783.

127. MORTGAGES Assignment of Bonds. Where a trustee in a mortgage to secure bonds buys some of the bonds with money deposited with him by the mortgagor as further security for the bondholders, the mortgagor may assign the bonds so purchased, subject to the equities of the other bondholders. - Moses v. Philadelphia Mortgage & Trust Co., Ala., 32 So. Rep. 612.

128. MORTGAGES - Conveyance to Mortgagee.-The ac. ceptance of a conveyance of mortgaged property by the mortgagor held not a merger of the mortgage, giving priority to a judgment lien on the land. Woodhurst v. Cramer, Wash., 69 Pac. Rep. 501.

129. MUNICIPAL CORPORATIONS-Street Improvements. -Assessment for street improvements, under ordinance providing for it without regard to benefits, held void -City Council of Montgomery v. Foster, Ala., 32 So. Rep. 610.

130. MUNICIPAL CORPORATIONS- Taxing Shares of Corporate Stock.-A municipality has no power to assess for taxes the capital stock of a corporation or to increase an assessment thereon once made. - James Clark Distilling Co., v. City of Cumberland, Md., 52 Atl. Rep. 661.

131. NEGLIGENCE - Death of Child. A railroad company which allowed a circus to show on part of its yard unoccupied by tracks, held not liable for death of a child while making short cut to circus over switch tracks Clark v. Northern Pac. Ry. Co., Wash., 69 Pac. Rep. 636. 132. NEGLIGENCE Discovered Peril.-Doctrine of discovered peril held to apply, where the peril was not actually discovered, but might have been by the exercise of ordinary care. - Denver & R. G. R. Co. v. Buffehr, Colo., 69 Pac. Rep. 582.

137. OFFICERS — Laches. The right of the state to recover on an official bond money for which a state officer fails to account cannot be lost by laches. — Ramsay's Estate v. People, Ill., 64 N. E. Rep. 549.

138. PARTNERSHIP-Duty of Retiring Member -It is the duty of a retiring member of a partnership to notify all those with whom the firm has had dealings of the change in its membership, if he would avoid liability for debts subsequently contracted; and the burden rests upon him to prove such notice.- Neal v. M. E. Smith & Co., U. S. C. C. of App., Eighth Circuit, 116 Fed. Rep. 20.

139. PARTY WALLS-Destruction of Servient Estate.The right to use a party wall which does not involve any interest in the soil apart from the building is extinguished by the destruction of the building.-Bonney v. Greenwood, Me., 52 Atl. Rep. 786.

140. PLEADING-Negative Pregnant.-A negative preg. nant allegation in an answer, admitting by implication a material fact alleged in the complaint, does not operate to

preclude an express denial of such fact from putting it in issue. Kennedy v. Dickie, Mont., 69 Pac. Rep. 672.

141. PRINCIPAL AND SURETY - Finance Committee Members of finance committee of a corporation, who signed notes for money borrowed for corporate purposes. held to be sureties, and the corporation to be the principal debtor.-Hughes v. Ladd, Oreg., 69 Pac. Rep. 568. 142. PRISONS-Sheriffs.-The sheriff of a county is en. titled to the charge and custody of the county jail.-Sturr v. Buckley, N. J., 52 Atl. Rep. 692.

143. PUBLIC LANDS - Fraud Between Applicants.-No one except the state can raise the question of fraud and collusion between applicants for the purchase of state public lands.-Thomson v. Hubbard, Tex, 69 S. W. Rep. 649.

144. QUO WARRANTO-Burden of Proof.-In quo warranto by the state, the burden of proof is on defendant to establish his right to hold the office in controversy -People v. Owers, Colo., 69 Pac. Rep. 515.

145. RAILROADS-Injury to Licensee.-An employee of a railroad company, going on the main track with a hand car without any invitation on the part of the company, held a mere licensee, and subject to all the risks incident to the use of the track by the company.-Cleveland, A. & C. Ry. Co. v. Workman, Ohio, 64 N. E. Rep. 582.

146. RAILROADS - Negligence. Where the evidence only shows that a traveler, with a team approaching a railroad crossing, stopped momentarily a few rods from the crossing, and then drove upon it, there is not sufficient evidence of due care on his part.-Day v. Boston & M. R. R., Me., 52 Atl. Rep. 771.

147. RAILROADS-Trespasser on Track.-Continued use of a railroad track as a footway does not make the users licensees, where repeated protests and warnings against such use are given.-Denver & R. G. R. Co. v. Buffehr, Colo., 69 Pac. Rep. 582.

148. RECEIVERS-Judgment.-Where a receiver is appointed, a judgment in the suit directing the payment of a certain sum to the receiver is not open to the objection that it is in favor of a person not a party to the suit.Bredell v. Fair Grounds Real Estate Co., Mo., 69 S. W. Rep. 635.

149. RECORDS-Torrens Land Titles -Under Act May 1, 1897, establishing the Torrens system of land title, an ap plication in the prescribed form held sufficient to put in issue validity of adverse title.-Gage v. Consumers Electric Light Co., Ill., 64 N. E. Rep. 653.

150. SALES-Breach of Contract.-In an action for failure to deliver cotton under a contract of sale, it was error to direct a verdict for plaintiff, in the absence of proof of an allegation that the price was tendered defendant. Sivell v. Hogan, Ga., 42 S. E. Rep. 151.

151. SALES-Failure to Record.-Where ewes were sold, to remain the property of the vendor until paid for, and the vendee gave his note for the price, the transaction was an absolute sale, and the contract a chattel mortgage, void as to third parties if not recorded -Clark v. Baker, Colo., 69 Pac. Rep. 506.

152. SEALS-Scroll.-Under Gen. St., ch. 22, § 14, the addition to the signature of an instrument of a scroll, with the word "Seal," does not make it an instrument under seal.-Providence Tel. Pub. Co. v Crahan Engraving Co., R. I., 52 Atl. Rep. 804.

153. SET-OFF AND COUNTERCLAIM-Mortgage.--A counterclaim may be based on a breach of the contract sued on, though the breach amount to a tort.-Le Clare v. Thibault, Oreg., 69 Pac. Rep. 552.

154. SHERIFFS AND CONSTABLES-Illegal Arrest.-Where a tax collector issued an illegal distress warrant which was void on its face, both the collector and the deputy sheriff serving the writ were liable for the illegal arrest. -Jacques v. Parks, Me., 52 Atl. Rep. 6.3.

155. SHIPPING-Implied Warranty of Fitness of Ship.In the absence of express contract, there is an implied warranty ou the part of the shipowner, in every contract for the carriage of goods by sea, not only that the ship

is seaworthy in a general sense at the beginning of the voyage, but that she is seaworthy for the particular voy. age and cargo.-The Nellie Floyd, U. S. D. C., E. D. N. Car., 116 Fed. Rep. 80.

156. STATES-Sovereign Powers. -The state is a sovereignty, with sovereign powers, except as limited by the constitution of the United States.- Southern Gum Co. v. Laylin, Ohio, 64 N. E. Rep. 564.

157. STATUTES-Construction.-In construing a statute, if the words used are free from ambiguity and clearly express the sense of the legislature, there is no occasion to resort to other means of interpretation. Slingluff v. Weaver, Ohio, 64 N. E. Rep. 574.

--

158. SUNDAY-Overdriving Horse. In an action to recover damages for the overdriving of a horse, the fact that defendant hired him on a Sunday in violation of Gen St., p. 3707, constitutes no defense. Newbury v. Luke, N. J., 52 Atl. Rep. 625.

153. TAXATION- Parochial School. A chapel, used in part for religious worship and in part for the residence of teachers in a parochial school, is not exempt from taxation, under Gen. Laws, ch. 44, § 2.—In re City of Pawtucket, R. I., 52 Atl. Rep. 679.

160. TAXATION-Privileges and Franchises.- A tax on privileges and franchises cannot exceed the reasonable value of the privilege or franchise originally conferred or its continued annual value hereafter. - Southern Gum Co. v. Laylin, Ohio, 64 N. E. Rep. 564.

161 TRESPASS-Pleading.-In an action for trespass quare clausum fregit possession of the locus in quo and liberum tenementum may be proved under the general issue. Louisville & N. R. Co. v. Hall, Ala., 32 So. Rep. 603.

165. WATERS AND WATER COURSES Natural Flowage. -The owners of an upper estate cannot be enjoined from permitting waters from their lands to flow their natural way, though a lower estate be thereby injured.Schwartz v. Nie, Ind., 64 N. E. Rep. 619.

166. WATERS AND WATER COURSES-Riparian Owner Damage to a riparian owner from the diminution of the flow of water incidental to the cutting of trees by an owner higher up the stream, thus causing an increase of evaporation, is damnum absque injuria. Fisher v. Feige, Cal., 69 Pac. Rep. 618.

167. WILLS-Construction. The word "also," as used in a will after a clause granting a life interest in certain property, construed to mean "in like manner," and not "in addition to."- Morrison v. Schorr, Ill., 64 N. E. Rep. 545.

168. WILLS-Incapacity to Make.-Where evidence that at times prior to the executing of the will testator had been stupefled with morphine and whisky, held not to necessarily indicate incapacity. In re Gilham's Will, N. J., 52 Atl. Rep. 693.

169. WILLS-Specific Legacies.-Where a part of a specific legacy has been parted with by a testator, the legacy is adeemed pro tanto only, and the remainder passes to the legatee.-New Albany Trust Co. v. Powell, Ind., 64 N. E. Rep. 640.

170. WITNESSES-Leading Interrogatories. - A interrogatory asking the witness whether defendant had been asked in his presence to deliver certain cotton, and whether the defendant refused to deliver it, held leading. Sivell v. Hogan, Ga., 42 S. E. Rep. 151.

Central Law Journal.

ST. LOUIS, MO., JAN. 9, 1903.

RIGHT OF THE POSTMASTER GENERAL OR ANY OF THE OTHER SECRETARIES OF THE FEDERAL GOVERNMENT TO MAKE REGULATIONS FOR THEIR RESPECTIVE DEPARTMENTS.

In last week's issue of the CENTRAL LAW JOURNAL, we called attention to the recent case of American School of Magnetic Healing v. McAnulty, 23 Sup. Ct. Rep. 33, in which it was held that the postmaster general had no authority to exclude from the mails letters addressed to a firm exploiting the system of mental or magnetic healing, on the ground that he believed it to be a fraudulent scheme to obtain money. (56 Cent. L. J. 1.) This week we call attention to a decision along the same line and equally important, that of Payne v. United States, handed down December 3, 1902, by the Court of Appeals of the District of Columbia and reported in 30 Wash. L. Rep. 791. In this case it was held that the postmaster general had no discretion in respect to the admission of a publication to the mails at second-class rates beyond deciding the question whether such publication is one included in the category prescribed by Congress; and it is not competent for them to impose additional requirements beyond those specified in the statute.

On July 17, 1901, the postmaster, by special regulation, sought to limit the class of publications entitled to second-class rates on the ground that the privilege was being abused and that the government was thereby losing thousands of dollars annually. The provisions of the act of Congress were considered loose and defective and not to sufficiently evidence the intent of Congress. The act of Congress referred to is that of March 3, 1879 (20 Stat. 355), providing "that second-class matter must be originated and published for the dissemination of information of a public character, or devoted to literature, sciences, arts, or some special industry, and having a legitimate list of subscribers: Provided, however, that nothing herein contained shall be so construed as to admit to the second-class rate regular publications de

the

signed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates." The regulation of the postal authorities which was expected to make clear the intent of Congress and to exclude much undesirable and unprofitable matter from the privilege of second-class rates, was section 276 of the postal regulations. In referring to the characteristics of second-class matter, the regulation provides: "Periodical publications

herein referred to are held not to include those having the characteristics of books, but only such as consist of current news or miscellaneous literary matter, or both (not including advertising), and conform to the statutory characteristics of second-class matter."

This regulation, when first announced, created consternation all over the country. Scientific and trade journals were thrown into great anxiety and the third assistant postmaster general who has charge of second-class matter, and who was thought to be responsible for the regulation referred to was execrated and condemned by the press everywhere for what was considered an arbitrary ruling. It seems, however, that the regulation was not aimed at scientific or trade journals, but at certain publications in book form used for reference purposes and which were carried at great loss to the department. The first case under this regulation,-the one to which we have directed attention-was the result of the attempt to exclude from the mails the wellknown railway guide, known as the "Travelers' Official Guide" issued quarterly in large volumes and bound in paper covers. The proprietors of this publication, failing to dissuade the postmaster general from his refusal to permit the "Guide" to be mailed at second-class rates, instituted mandamus proceedings in the Supreme Court of the District of Columbia. This court granted the prayer of the relator and ordered the postmaster general to receive and transmit the Guide at second-class rates. From this decision the postmaster general took the case up to the court of appeals. In affirming the decision of the lower court the appellate court said:

"It is very clear that the Congress of the United States has not committed to the postmaster general, or to anyone else, the matter of determining what should be carried in the mails as second-class matter, and what as matter of the third class. It has reserved

the power exclusive to itself. It has itself made the classification; and it is not competent for the postmaster general to add anything to the statute or to take anything from it. It may be that the classification has not been made with all the definiteness that is desirable. It may be, even, that the privilege of the mails has been grossly abused by the introduction into them of mail matter of the second class which was never anticipated by Congress. If, as alleged in the pleadings, the cost of transmission of the relator's periodical through the mails as second-class matter has been only forty cents per number a year, and the cost of such transmission to the government has been two dollars a year, while the cost of its transmission as thirdclass matter is the sum of three dollars and twelve cents a year, there would seem to be some inequality with which Congress should deal; yet it is not the province of the postmaster general to remedy the evil, if evil there is, by a postal regulation, or by unwarranted interpretation of the law. The citizen who desires to have his publication carried in the mails of the United States as secondclass mail matter, and who has fully and fairly complied with all the requirements of the statute in regard thereto, has acquired a positive legal right to have it so carried; and his right will be enforced by the writ of mandamus, if the postmaster general arbitrarily or without valid legal reason refuses to receive and transmit such publication. Of course the postmaster general and his subordinates are required to use judgment and discretion, and it may sometimes be a matter of much difficulty to identify a publication as one included in the category prescribed by Congress. But their discretion is limited to this question of identification; and it is not competent for them to impose additional requirements beyond those specified in the statute."

In speaking of the particular regulation under authority of which the postmaster general had sought to exclude the publication involved in this case, the court said: "The regulation restricts publications entitled to second-class rates to 'such as consist of current news or miscellaneous literary matter.'

It wholly omits and excludes periodicals devoted to the sciences, arts, or some special industry. Now, it may be that the words 'miscellaneous literary matter' might

be construed to mean the same thing as 'periodicals devoted to literature;' but certainly ‘current news' is not the equivalent of 'information of a public character.' The regulation would restrict the second-class mail matter to the daily and weekly papers which disseminate 'current news;' but undoubtedly the information conveyed by the relator's Guide, a copy of which has been filed in the proceedings as an exhibit, is information of a public character, most useful not only to those immediately connected with the railroad and steamboat transportation of the country, but likewise to the traveling public. And yet this is excluded by the regulation. It is true that the regulation also provides that the publication to be admitted as second-class mail matter shall 'conform to the statutory characteristics of second-class mail matter.' But if the regulation means anything at all, or is intended to have any meaning, it is to superadd to the statutory characteristics another or other requirements not prescribed by the statute. This cannot lawfully be done."

This same rule is applicable to other departments of the government. Thus, in the case of Morrell v. Jones, 106 U. S. 466, it appeared that an act of Congress authorized the importation into the United States, free of duty, of "animals alive, specially imported for breeding purposes from beyond the seas;" and that the secretary of the treasury, construing the act for himself, published a treasury regulation whereby he instructed collectors, that before admitting such animals from abroad, they should be satisfied that the animals were of a superior stock, and adapted to improve the breed in this country. The supreme court said, in regard to this regulation: "The secretary of the treasury cannot, by his regulation, alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what Congress has enacted. In the present case we are entirely satisfied that the regulation acted upon by the collector was in excess of the power of the secretary. The statute clearly includes animals of all classes. The regulation seeks to confine its operation to animals of 'superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe. Congress

was willing to admit, duty free, all animals specially imported for breeding purposes; the secretary thought this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. In our opinion, the object of the secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation."

We are inclined, from a careful consideration of these authorities, to the opinion that the authority of the several secretaries of the federal government to make regulations for their respective departments is limited to the plain and literal terms of the acts of Congress applicable thereto. It is, of course, not impossible that the department officers in discharging their duties will discover many improvements to the provisions made by Congress and find many points at which the latter are sorely defective and in need of amendment. Under such circumstances, however, it would be the safer policy, we think, for the heads of the several departments to suggest such improvements or need of amendments to Congress, rather than to attempt to effectuate them by constructive and arbitrary regulation. Such, also, we believe to be the law.

NOTES OF IMPORTANT DECISIONS.

VORCE.

MARRIAGE - EXTRA-TERRITORIAL FORCE OF STATUTES PROHIBITING A RE-MARRIAGE FOR A DEFINITE PERIOD AFTER A DECREE OF DILaws prohibiting the marriage of divorced persons for a definite period after divorce have been the subject of much controversy. In the recent case of In re Wood's Estate, 69 Pac. Rep. 900, the question before the Supreme Court of California was as to the extra-territorial validity of a statute providing that the marriage of a divorced person within one year after the rendition of the decree was absolutely void, unless the subsequent marriage was with the former spouse. In this case, a woman, divorced in California, married in Nevada within five months after her divorce. The question was as to the validity of this subsequent marriage. The court was divided four to three. The minority held the marriage void on the ground that the statute referred to, was included in the decree, and, as a part of the judgment, applied with equal force without or within the jurisdiction. The majority held the marriage good on the ground that the statute was not a part of the decree, which in words rendered the divorce absolute, but that it was merely a penal statute applicable to divorced persons, and,

as such, had no extra-territorial force. On this latter point the majority of the court say:

"Let us make a close examination of this section. It says, in substance, that after the marriage is dissolved the former husband and wife may contract a subsequent marriage with each other immediately. Thus the section itself recognizes that the first marriage is dissolved by the decree; for, if not dissolved by the decree when rendered, how could these two people intermarry again? If the decree, when rendered, is but an interlocutory or nisi decree, that is, a decree which does not take effect until one year after its rendition. then the former husband and wife could not intermarry within that period. In answer to this legal dilemma it is said, in substance, that the decree dissolving the marriage is complete as to the husband and wife, but not full and complete as to any other person. This presents another dilemma, for it would be inconsistent to hold that these two people were entirely and completely divorced as to each other, but not divorced to the extent that either could marry a third person. Surely, if they are completely divorced as to each other by the decree, then by all. law they are completely divorced as to the whole world. This must be so, for the decree is inter parts. and, as far as its binding effect is concerned, the world at large has nothing to do with it."

Further on, in arguing as to the extra-territorial force of these statutes, the court cites the case of State v. Shattuck, 69 Vt. 403, 38 Atl. Rep. 81, 60 Am. St. Rep. 936. In this case, the court says: "If a statute, silent as to marriages abroad, as ours is, prohibits classes of persons from marrying generally, or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into out of the state. Those marriages are to be judged of by the courts of such state, just as though the statute did not exist." Bishop on Marriage and Divorce (section 867) declares the same rule. Therefore, when section 61 uses the language "a subsequent marriage contracted by any person," etc.. it only refers to a subsequent marriage contracted in the state of California by any person, and the section should be read as though the words "in the state of California" followed the word "contracted." "It cannot be possible that the legislature by this section attempted to declare what particular marriages contracted in the state of Nevada, or any other place in the whole world, would be invalid and void."

In answering the argument of the majority of the court, Temple, J., speaking for the dissenting minority, said: "It is admitted that the statute renders the parties incapable of marrying, during the period, within this state. If that be so, the provision has the precise effect in this state as though it were a valid clause in the decree; in other words, as to this state it is to be deemed a part of every decree of divorce. There is no au