101. MANDAMUS Appointive Officer. — The removal of an appointive officer by the governor will not be reviewed in mandamus to compel the officer removed to deliver to the governor the records, etc., of his office.Hunt v. Ross, Idaho, 71 Pac. Rep. 430.

102. MASTER AND SERVANT- Assumed Risk.-A member of a construction crew held not to assume the risk of the construction train being run with the headlight behind a box car, so that a hand car on the track is not seen.-Barley v. Southern Indiana Ry. Co., Ind., 66 N. E. Rep. 72.

103. MASTER AND SERVANT-Mechanic's Lien.-Mortgagees, made parties in mechanic's lien foreclosure, held not entitled to object to sale because not themselves seeking foreclosure.-Joralman v. McPhee, Colo, 71 Pac. Rep. 419.

104. MASTER AND SERVANT - Negligence.- A servant held not guilty of contributory negligence in not constantly watching certain appliance, though he knew, if it was moved, he would be injured.-Gould Steel Co. v. Richards, Ind., 66 N. E. Rep. 68.

105. MASTER AND SERVANT - Negligence. A servant does not assume the risk incurred from the negligence of his master, or from the negligence of the master combined with that of the fellow servant.-McGinn v. McCormick, La., 33 So. Rep. 382.

106. MASTER AND SERVANT - Personal Injury. A master held not liable for injuries caused by improper erection of machinery, causing an injury to employee before the erection was completed.-W. R. Trigg Co. v. Lindsay, Va., 43 S. E. Rep. 349.

108. MINES AND MINERALS "Surface." The word "surface," when specifically used as the subject of conveyance, has a definite and certain meaning, and means that portion of the land which is or may be used for agricultural purposes.-Williams v. South Penn Oil Co., Va., 43 S. F. Rep. 214.

109. MORTGAGES- Execution Sale. A purchaser of land at execution held entitled to redeem from a prior mortgage foreclosure sale, under Code Civ. Proc., § 701, subd. 1, as the successor in interest of the judgment debtor. Pollard v. Harlow, Cal., 71 Pac. Rep. 454.

110. MORTGAGES-Loss of Equity-Widow, conveying to son-in-law by deed operating a mortgage, held not to have lost equity of redemption by recognition of son-inlaw as holder of absolute title.-Tuggle v. Berkeley, Va., 43 S. E. Rep. 199.

111. MORTGAGES- - Priorities-Mortgagee, whose loan is to be applied in improvement of property,held entitled to priority over prior incumbrancer, releasing and taking subordinate incumbrance, only so far as such application was actually made.-Joralman v. McPhee, Colo., 71 Pac. Rep. 419.

112. MUNICIPAL CORPORATIONS - Acts Ultra Vires.The fact that a permit issued by a city for the erection of an obstruction in a public street was ultra vires held not to excuse the city from liability for personal injuries caused by the giving way of the structure. - City of Richmond v. Smith, Va., 43 S. E. Rep. 345.

113. MUNICIPAL CORPORATIONS-Defective Sidewalk.A city held not liable for a slight defect in a crosswalk whereby a pedestrian was injured.-Hamilton v. City of Buffalo, N. Y., 65 N. E. Rep. 944.

114. MUNICIPAL CORPORATIONS-Destruction by Mob.In an action against a city to recover for the destruction of property by a mob, a proclamation or other official acts of the mayor at the time are admissible to show a condition of riot then existing.-City of Chicago v. Pennsylvania Co., U. S. C. C. of App, Seventh Circuit, 119 Fed. Rep. 497.

117. MUNICIPAL CORPORATIONS - Private Drains. Where a city had never assumed control of a culvert on private lands, extended by the city across a street, the city was not liable for damages caused by its obstruction. Robinson v. City of Danville, Va., 43 S. E. Rep. 337.

113. MUNICIPAL CORPORATIONS-Resolution of Counsel. Where there is no notice of a resolution for improvements, as required by Rev. St., § 2304, and the resident owner has no notice thereof until the improvement is completed, the assessment on his abutting property will be enjoined.-Joyce v. Barron, Ohio, 65 N. E. Rep. 1001.

119. MUNICIPAL CORPORATIONS - Street Assessment.Under a notice of intention that granite curbs be laid where not already laid, the abutting property cannot be assessed for the cost of removing the curb and replacing it with a new curb.-City Street Imp. Co. v. Taylor, Cal., 71 Pac. Rep. 446.

120. NEGLIGENCE - Defective Bridge.. -It is not necessary, in an action against a private corporation, for injuries caused by defective bridge constructed by it, to allege that plaintiff did not have knowledge of the de fective condition of the bridge.-Indiana Natural Gas & Oil Co. v. O Brien, Ind., 65 N. E. Rep. 918.

121. NEGLIGENCE- Right of Action.-The manufacturer and seller of an article is liable for negligence in its manufacture only to the party with whom he contracts, unless it is an article in its nature dangerous and calculated to injure person or property.-Standard Oil Co. v. Murray, U. S. C. C. of App., Seventh Circuit, 119 Fed. Rep. 572.

122. NEW TRIAL-Appeal.-Where the appellee was not present when a motion for new trial was filed, he cannot be presumed to have waived his objection to appellant's failure to file the same in time by his silence.-Dugdale v. Doney, Ind., 65 N. E. Rep. 934.

123. PARTIES-Amendment.-Amendment of complaint in suit against S and B, "doing business as S Bros.," to make it against S Bros., a corporation, held not allowable.-Steiner Bros. v. Stewart, Ala., 33 So. Rep. 343. 124. PARTNERSHIP-Incoming Partner. An incoming partner held not liable for money previously advanced by testator to a member of the firm, in the absence of an agreement to assume such liability. In re Hoagland's Estate, 79 N. Y. Supp. 1080.

125. PARTNERSHIP Note.- In an action on a note against an indorser, the use of the proceeds of the note by a firm of which the indorser was a member held not to preclude him from setting up forgery.- Pettyjohn v. National Exch. Bank, Va., 43 S. E. Rep. 203.

126. PATENTS-Infringement. - Officers of a corporation are not liable in equity for infringement of a patent by the corporation, where they are not charged with having participated in the infringement otherwise than as officers of the corporation. Farmers' Mfg. Co. v. Spruks Mfg. Co., U. S. C. C., E. D., N. Car., 119 Fed. Rep. 594.

127. PRINCIPAL AND AGENT - Authority of Agent. The authority of an agent cannot be proved by his declarations, not known to or ratified by the alleged principal.-Orange Belt Ry. Co. v. Cox., Fla., 33 So. Rep. 403.

128. PRINCIPAL AND SURETY- Notice of Claim.-Notice of death of employee, given to a surety company, held not notice of a claim against the surety.- Granite Bldg. Co. v. Saville's Admr., Va., 43 S. E. Rep. 351.

130. QUIETING TITLE- Bill to Remove Cloud. A bill to remove a cloud must allege that a complainant is not only the owner, but that he is in possession, or that the land is wild and unoccupied.-Simmons v. Carlton, Fla., 33 So. Rep. 408.

131. QUIETING TITLE-Possession.- Wrongful forcible possession is not such possession as the owner must have in order to maintain a bill to remove a cloud on title.-Hughey v. Winborne, Fla., 33 So. Rep. 249.

132. RAILROADS-Constitutional Law.-Rev. St., §§ 33433346, requiring railroad companies to provide drainage ditches, etc., held unconstitutional and void for failure to provide for any notice to the railroad company of proceedings against it. Chicago & E. R. Co. v. Keith, Ohio, 65 N. E. Rep. 1020.

133. RAILROADS- Negligence.-The running of a train at 50 miles an hour through the outskirts of a city is not, of itself, evidence of wantonness. Peters v. Southern Ry. Co., Ala., 33 So. Rep. 332.

134. RECEIVERS-Parties.- Parties to an action, whose rights or liabilities were not affected by an order, held not entitled to object that the rights of third persons may be injuriously affected. La Junta & Lamar Canal Co. v. Hess, Colo., 71 Pac. Rep. 415.

135. RECORD-Arraignment.-Where there is sufficient in the record to show the presence of the accused in court during the proceedings, the omission of a formal arraignment is waived by pleading to the indictment. -Bassett v. State, Fla., 33 So. Rep. 262.

136. RECORD-Pleas in Abatement. Motion in arrest of judgment from part of the record proper, and, when evidenced to an appellate court only by bill of excep. tions, cannot be considered.- Kelly v. State, Fla., 33 So. Rep. 235.

137. REMOVAL OF CAUSES-Waiver of Right.-Where a state court has denied a motion for removal to the federal court, any error in such ruling is not waived by the moving party defending himself in such court after the denial.-Pennsylvania Co. v. Leeman, Ind., 66 N. E. Rep.

48.

138. ROBBERY-Property of Infant.-An indictment for robbery from an infant of wages paid him by his father must allege property in the infant, and not in the father. -Dorsey v. State, Ala., 33 So. Rep. 350.

139. SHERIFFS AND CONSTABLES-False Imprisonment. -In an action against a justice and constable for false imprisonment, where they answer jointly, if the warrant was issued without jurisdiction, the constable cannot claim protection thereunder. — Church v. Pearne, Conn., 53 Atl. Rep. 955.

140. STATES-Legislative Printing. Form of guaranty attached to proposal for legislative printing held to sufficiently comply with the statute. People v. McDonough, N. Y., 65 N. E. Rep. 963.

141. STATES-Removal of Officer.- Where the state engineer, an appointive officer, is removed from office, as authorized by Act March 2, 1899, it is his duty to deliver the office room and all property relating to the office to the governor.-Hunt v. Ross, Idaho, 71 Pac. Rep. 430.

142. STREET RAILROADS-Abutting Owners.-The consent of owners of abutting lots to the construction of a street railroad are rights personal to each owner of the abutting lots.-Hamilton, G. & C. Traction Co. v. Parish, Ohio, 65 N. E. Rep. 1011.

143. TAXATION - Sales. Where a tax sale certificate is ineffectual to transfer title, the sale not being absolutely void, the holder is subrogated to the state's lien for the taxes paid by the sale.-Dixon v. Eikenberry, Ind., 65 N. E. Rep. 938.

144. TAXATION-Tax Sale.-A sale by the state at public auction of property, title to which had vested in the state on a forfeiture for delinquent taxes, is not a tax sale strictly.-Leathem & Smith Lumber Co. v. Nalty, La., 33 So. Rep. 354.

145. TELEGRAPHS AND TELEPHONES - Negligence.-In an action or personal injuries by reason of the negli gence of a telephone company in allowing its wire to hang so low on a highway that a horse's feet caught therein, evidence as to the condition of the wire some months subsequent to the time of the injury is inadmissible.-Hannum v. Hill, W. Va., 43 S. E. Rep. 223.

146. TENANCY IN COMMON-Contribution. - Where remainderman in possession pays taxes for life tenant, he cannot call on other remaindermen for contribution.Downey v. Strouse, Va., 43 S. E. Rep. 348.

147. TRIAL - Affirmative Charge. The affirmative charge is not to be given where there is any material conflict in the evidence, or it authorizes a reasonable inference of facts unfavorable to recovery by the one asking it. Peters v. Southern Ry. Co., Ala., 33 So. Rep.

332.

148. TRIAL Argument of Counsel. Where argument of opposing counsel is considered improper, held the duty of counsel to call the attention of the court thereto and request it to admonish such counsel. Dimon v. New York Cent. & H. R. R. Co., N. Y., 66 N. E. Rep. 1. 149. TRIAL - Directing Verdict. Where a case is in limine, and the judge sees that a party is about to prevail who in law is not entitled to prevail, it is not only his right, but duty, of his own motion to give the case such direction as will prevent a result inconsistent with the law.-Kelly v. Strouse, Ga., 43 S. E. Rep. 280.

-

150. TRIAL - Motion to Exclude Testimony. - Where a witness testifies without a question being asked him, motion to exclude is the proper remedy. - Southern Ry Co. v. Crowder, Ala., 33 So. Rep. 335.

151. TRIAL-Question of Fact-A special finding that plaintiff was not a bona fide purchaser of a note for value out took the same subject to any defense affecting the the consideration, is one of fact and not reviewable on appeal as a conclusion of law.-American Nat. Bank v Watkins, U. S. C. C. of App., Seventh Circuit, 119 Fed. Rep 545.

152. TRIAL-Verdict. A prayer for the direction of a verdict at the close of plaintiff's case is waived by defendant's introduction of evidence on its own behalf.Western Maryland R. Co. v. State, Md., 53 Atl. Rep. 969.

153. VENDOR AND PURCHASER-Ejectment.-A vendor to recover in ejectment, the purchaser refusing to make payments because plaintiff failed to give stipulated title, held required to restore payments and pay for improvements. Crouch v. Nast. 79 N. Y. Supp. 1120.

154. WILLS-Construction.-A will naming as residuary legatees "my sister and her daughters and my brother," the sister having two daughters, construed as leaving one-fourth of the residuary estate to each.-In re Morrison's Estate, Cal., 71 Pac. Rep. 453.

155. WILLS-Lapsing Devises.-Under Rev. St., § 5971 there is no distinction as to a lapsed devise between the issue of a devisee who died before the making of a will and of one who died after it.-Shumaker v. Pearson, Ohio, 65 N. E. Rep. 1005.

156. WITNESSES - Credibility - Where accused is a witness, he may be asked, on cross examination, how many times he has been before the court,to test his credibility.-State v. Callian, La., 33 So. Rep. 863.

157. WITNESSES- Recognizance. -Under Burns' Rev St. 1901, § 504, a judge before a recognizance was forfeited held a competent witness in an action on such bond.State v. Hindman, Ind., 65 N. E. Rep. 911.

158. WITNESSES Husband and Wife. - Under V. S. 1241, where a husband and wife are both legatees in a will, and are joined as proponents on the appeal from its allowance, the fact that the husband is interested does not disqualify the wife to testify in her own behalf.—In re Hathaway's Will, Vt., 53 Atl. Rep. 996.

Central Law Journal.

ST. LOUIS, MO., MAY 22, 1903.

A CRISIS IN THE LIFE OF TRADE UNIONISM. A most foreboding aspect is presented to the growing conflict between capital and organized labor, by the serious estrangement now existing in the city of Omaha, between the Merchants' Association of that city and the labor unions, and the determination of the former to resist the further encroachments of the latter upon their right to run their business in any manner they may think best. The merchants in this struggle have, contrary to the usual custom, avoided a simple defensive attitude and become aggressive. The fight became too warm for the labor organizations, who, assuming the defensive for the first time in their history, applied to the local courts for an injunction against the Merchants' Association to prevent them from carrying out their extensive and well-laid plans to defeat the arrogant demands made by the labor organizations of Omaha. The nature of these plans is fully revealed by the remarkable "blanket" injunction issued by one of the local courts of Omaha against the merchants.

The order of the court just referred to restrains the Business Men's Association and others named as defendants, as follows: "From in any manner threatening to injure the business or person of any employer or members of cross-complainants' union or member of labor union, or any person who may employ or desire to employ such union men, or from refusing to sell commodities and supplies of merchandise to employers of such union labor, and from discriminating against such persons in the prices charged such commodities. From threatening or intimidating in any manner any person into joining the said Business Men's Association or any organizations to join labor unions. From threatening or intimidating any person who may have become a member of said association or organization, if he employs organized labor or recognizes labor unions, into discontinuing such employment. From imposing any fines upon its members or any person for violating any agreement not to employ organized labor or not to recognize a

for any

labor union. From receiving or paying out any money whatever in pursuance of any agreement to break up labor unions except attorneys in this action. From paying or offering any money to officers or members of unions, directly or indirectly, as a bribe to do or not to do any act in pursuance of any agreement or any of said defendants against such unions. From importing or engaging agents and servants to import any laborers into the city of Omaha in pursuance of any existing plan to destroy labor organizations, or under any similar or new arrangement or plan. From bringing any other injunction, suits or actions in pursuance of any general plan of prosecutions to break up labor unions or of any new or similar plans connected directly or indirectly with any existing plans."

This order of the district court is merely temporary and is returnable May 26, 1903, when undoubtedly it will at that time be greatly modified. In its preseut condition. it is sui generis; it is not supported by any authority and is clearly a gross interference with the constitutional rights of the defendants against whom it is directed. The labor unions have not been recognized in the law to such an extent as to establish any privity between them and the employers of their members as will give such unions the right to enjoin any contemplated action about to be taken by any employer in regard to any of his employees who happen to be members of the union. Indeed, any law which would attempt to deny an employer such liberty would be promptly declared unconstitutional. State v. Julow, 129 Mo. 163. A learned text-writer has said: "In consequence of the exactions of labor unions, often unjust and tyrannous, employers have frequently stipulated in the contract of hiring that the employee shall not be a member of any labor union; and that if he is a member at the time of hiring, he must sever his connection therewith, as a condition precedent to his employment. It would seem that the right to make such a stipulation was a fundamental part of the guaranteed liberty of contract; and that a state statute, which made it unlawful for an employer to refuse to employ union men, or to compel an employee to withdraw from a trade union on pain of dismissal, would be clearly unconstitutional." Tiedeman's State and Federal Control, p. 332.

It is evident from the trend of events that the labor question is fast approaching a crisis, which the decision in the famous coal strike case will not divert nor even possibly postpone. The secular press is filled with accounts of strikes all over the country, with details that invariably accompany them of serious breaches of the law and unjust infringements upon the rights of others. The state judges seem impotent or incompetent to deal with the questions which arise out of them. The reason is not difficult to discover. A local judge of St. Louis had occasion to justly denounce a labor union for an uncalled for interference with private contract and was promptly and decisively defeated for re-election by the labor unions at the next election, although recognized by members of all parties to have been the most competent nisi prius judge that had sat on the St. Louis bench for many years. It is too severe a strain on ordinary human nature to ask even a nisi prius judge to sign his own political death warrant by a decision adverse to the interests and demands of the labor unions. To only one tribunal, to that great bulwark of American constitutional rights, the federal judiciary, must we look for a complete and effective settlement of these outrageous disturbances which periodically disturb business and cause the state and its people incalculable damage. And, if necessary, which is quite probable in view of the present aspect of the situation, the strong arm of federal executive authority itself will probably find it necessary to carry out the decrees of its own courts in a manner that will undoubtedly do much to discourage such outbreaks in the future.

Public sympathy, also, which in the beginning was very strong in favor of the laboring man in his first attempt to better his condition, is rapidly shifting to the side of the merchant who, to-day, is constantly being subjected to unjust and unreasonable demands and annoyances, at the instance, not of their own employees, whom they, as a rule, are always ready to hear, but from the leaders of certain organizations styled labor unions who are utter strangers to them, and with whom they are in absolutely no privity whatever. As long as the labor unions confined. themselves exclusively to their own membership, and did not attempt to interfere with the relations existing between their members and

their employers, they were on legitimate ground; but when they assumed to go outside of their recognized sphere and attempt to interfere with business interests in which, as a union, they were in no manner rightfully interested, and, when going further, in order to carry out their demands on certain merchants, they proclaimed boycotts against them, and intimidated both customers and nonunion employees seeking to do business with them, and when going still further, they demanded of merchants who were on friendly terms with their own employees and with the labor unions themselves, that they should refuse to sell goods to any one whom the unions had boycotted on pain of having their own men called out, and their own place boycotted,―in such cases, the labor unions have exceeded all possible rights which could be even fancifully claimed for them, and have forfeited the sympathy and confidence of all fair-mind American citizens. The "boycott" and "sympathetic strike" are absolutely un-American; they are anarchistic and criminal in their tendencies, and a constant menace to good civil government. The federal courts have denounced them as heinous violations of the law, and they will, in the end, prove the death-blow to trade unionism, unless radical changes are made in the methods and management of these organizations.

NOTES OF IMPORTANT DECISIONS.

UNITED STATES- VALIDITY OF CONTRACT BY A UNITED STATES OFFICIAL TO COLLECT A CLAIM AGAINST THE GOVERNMENT. There is a federal statute, well-known to most lawyers making it an offense against the United States government punishable by fine or imprisonment for any person "holding any place of trust or profit under the government of the United States" to act as an agent or attorney for prosecuting any claim against the United States. Under this statute, the question has arisen in a recent case whether such an agreement to do what the statute forbids is itself void. Fox v. Willis, 72 S. W. Rep. 330. The decision of the Supreme Court of Kentucky in this case answers the question propounded affirmatively, the court even going to the extent of holding that under the statute to which we have referred, a person who has entered into a contract with another to assist him in prosecuting the claims of a city against the government, but who shortly afterwards accepts the post of minister to a foreign country, and holds such post during the prosecution of the claim, cannot recover any fee for the prosecution of the claim'

Under this decision an attorney who happens to have pending any claims against the United States government which may eventually prove lucrative must carefully avoid any temptation to accept any position of "trust or profit" under the federal government. If he does accept such a position his previous labor counts for nothing, and he can recover no fee in the event of a successful issue. In the case under consideration, for instance, the lawyer had worked hard in association with another attorney to obtain for his clients, the city of Louisville, the enforcement of a claim against the United States government. The two attorneys succeeded in recovering a little over $19,000, one-half of which under the contract belonged to them to be divided equally. In the meantime, however, and before the recovery of the amount referred to, the defendant intervener, one of the attorneys, was appointed United States minister to Hawaii and died before the money was paid. On his death, his widow, the administratrix of his estate, intervened in a suit by the other attorney for the whole fee, claiming onehalf of the amount of the fee on behalf of her deceased husband. The City of Louisville paid the amount of the fee into court and interpleaded the two contestants. The surviving attorney, in his reply to the representative of his deceased partner in this transaction, set up the statute already mentioned and recovered the full amount of the fee.

The whole question in this case depends upon whether there is any distinction in their application to the validity of contracts between acts mala in se and mala prohibita, the latter being such acts which are not intrinsically wrong in themselves but are prohibited by statute under penalty, and the former being against all natural and moral law. The law on this question is well stated in the Am. & Eng. Ency. (2d. Ed.), p, 939: "In some early cases a distinction was taken in reference to the validity and enforcement of contracts between acts mala prohibita and acts mala in se, but in the words of an eminent jurist this 'has long since been exploded.' It was not founded upon any sound principle, for it is equally unfit that a man should be allowed to take advantage of what the laws says he ought not to do, whether the thing be prohibited because it is against good morals, or whether it be prohibited because it is against the interest of the state. When the statute expressly provides that a violation thereof shall be a misdemeanor, it would seem clear that it was the intention of the legislature to render illegal contracts violating the statute." The same principles are stated in the case of Steele v. Curle, 4 Dana, 384. In the case of Lindsay v. Rutherford, 17 B. Mon. 247, the court said: "A contract is void if prohibited by statute, though the statute only inflicts a pen

the revenue or any other object. The question to be considered is, does the statute prohibit the contract attempted to be enforced?" In case of Ex parte Curtis, 106 U. S. 371, 27 L. Ed. 232, Chief Justice Waite characterized the legislation of congress on the subject of the disability of officers of the United States in matters of claims against the United States from the beginning of the government, and referred to section 5498 of the statutes, as prohibiting "every officer of the United States or person holding any place of trust, profit or discharging any official function under or in connection with any executive department of the government, from acting as an agent or attorney for the prosecution of any claim against the United States."

After referring to the authorities we have cited, the court in the principal case, said: "It is admitted that A. S. Willis [the deceased attorney], held the position of minister to Hawaii from this government from the last of the year 1893, until his death in 1897, and his case comes within the principles above referred to. The contract is in fact prohibited by section 5498 of the Revised Statutes of the United States, though the statutes only inflict a penalty, because the penalty implies a prohibition. If Mr. Willis, while an officer of the United States, as attorney, had prosecuted any claim against the United States, or assisted in the prosecution of such claim, he was liable to a fine of not more than $5,000 or imprisonment for not more than one year, or both; and, the penalty for doing the act being imposed, the act itself was prohibited by law. The court is of the opinion that his executrix is not entitled to recover any part of the fund as a fee for the prosecution of the claim."

LEGISLATIVE INTERFERENCE WITH TRADES AND PROFESSIONS.

Edmund Burke declared there is no such thing as liberty in the abstract, but that it is always bound up with and forms part of the customs and usages which distinguish one nation from another. The terms "liberty" and "freedom" do not occur in the body of the Federal Constitution, though the purpose of the entire instrument, as announced in the preamble, is to "secure the blessings of liberty to ourselves and our posterity." The earlier amendments, intending to insure to the inhabitants of the states those rights which they feared were endangered by the compact, referred to "the free exercise" of religion, "freedom of speech," "freedom of the press," freedom from military

tion. If the contract be illegal, it makes no difference, in point of law, whether the statute which makes it so has in view the protection o

arms and petition. These and the later amendments provided against loss of individ