and cites Wilson v. Adams Express Co., 27 Mo. App. 360, and Dunbar v. Boston & P. R. Co., 110 Mass. 26, 14 Am. Rep. 576, in support of its claims.

These cases, when rightly considered, are not in conflict with the rule laid down in Winslow v. Vermont & Mass. R. R. Co., supra, also cited by the defendant in this connection; besides, if they were, we should adhere to our own decisions, which we think are in line with the weight of authority in this country and in England.

Judgment reversed, and judgment for the plaintiff, and cause remanded for the assessment of damages.

NOTE. Consignee Contributing to Misdelivery of Goods.-The instant case proceeds on the theory that the obligation of the carrier to deliver goods to consignee in a bill of lading is absolute in its nature, when it seems to me that, if the consignee might be held responsible to a shipper notwithstanding the goods were never in fact delivered to him, then the carrier should be excused for the non-delivery. In such a case the failure to deliver is rather to be classed as non-delivery than misdelivery.

Winslow v. Vt. & Mass. R. Co., 42 Vt. 700, 1 Am. Rep. 365, by no means resembles the instant case in its facts. There the shipper, being induced by the representations of one Collins, shipped goods to a fictitious purchaser on credit, and they were lost to the seller by a person appearing and representing himself to be the consignee, when there was no person who was known or passed by the name assumed. The carrier, therefore, made delivery to one who failed to prove his identity. It was said that the shipper's error in directing the goods to a fictitious address "might be an important fact if it misled the carrier and occasioned it to deliver to the wrong party after it had used that care and precaution which would be reasonable in such matters. * * *It delivered the goods to an employee of a truckman upon his mere statement that Roberts sent for them. Any other man in Boston could have obtained them just as easily. The swindler Collins was not known as Roberts, and if he had been required to identify himself as Roberts, might never have attempted it, and if he had, it would have been likely to lead to the detection of the fraud." But this seemed to have been an entirely isolated transaction. It had not grown out of a condition raised up by antecedent circumstances. And the same may be said as to Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107, but even in that case it is said that: "A modification of the rule as to personal delivery is sometimes sustained upon the ground of custom or usage, but nothing of that kind enters into this case." But the facts in the instant case do show that there

was a usage recognized by the consignee to deliver goods for him to the party who received them.

Pacific Express Co. v. Shearer, 160 Ill. 215, 43 N. E. 816, 37 L. R. A. 177, was much like the Van Meter case, and the reasoning in that case shows it may be a question of fact whether the non-delivery to the real consignee was excusable or not.

In none of these cases do we find where there was any question of estoppel against the consignee, but it has been held that a consignee may estop himself, Phila. & R. Co. v. O'Donnell, 12 Pa. 213. And a consignor may also, Stimson v. Jockson, 58 N. H. 138; Lake Shore & M. S. R. Co. v. Hodapp, 83 Pa. 22.

And it is so that delivery to an agent of_the consignee is such a delivery as satisfies, So. Exp. Co. v. Everett, 37 Ga. 688. If there is delivery to an alleged agent it must be shown that he is or is held out to be a real agent. Nebenzahl v. Fargo, 15 Daly 130. Did the carrier in the instant case have to do more than show that the real owner held his former employee out as his agent or he left matters in the shape where it could be inferred, as against his former employer, that the relation still continued?

It has been held that, if a carrier receives goods billed to a consignee, it cannot be held for nondelivery where it is itself the owner, Valentine v. R. Co., 187 N. Y. 121, 79 N. E. 849. Now cannot it defend as against a consignee where it delivered to one who was apparently his agent? If so, why may it not defend against the consignor and thus pass action for recovery of the value of the goods over to consignor to sue consignee there for?

It has been held, also, that the burden is on the carrier to show that consignee is not the true owner, when it delivers to another. Graham v. N. P. Exp. Co., 89 Minn. 193, 94 N. W. 548; Atl. & B. R. Co. v. Howard Supply Co., 125 Ga. 478, 54 S. E. 530. This same rule would put on the carrier the burden of showing that delivery was made to one whom it had the right to regard as the agent of the consignee, whom also the consignor might sue consignee for goods delivered to his agent. Consignee may be estopped to deny that the party receiving the goods was his agent. At least the proof shows in the instant case that the seller was misled by an appearance of things which it was in the power of the consignee to have prevented. The seller drew his own conclusions as to the party being the consignee's agent, and it was from the seller's conclusion that the error on the carrier's part came about. Suppose consignee had brought this suit, could it not be shown that by his fault there had been no delivery?

It seems to us that in the instant case, there were questions of fact (1) whether seller's trusting to appearances was not the proximate cause of loss, and (2) whether appearances to carrier were such as justified the conclusion that the former employee of the consignee was not permitted by the latter to continue to so appear and thus make the delivery in effect to the consignee. I find, however, no case precisely on all fours with the instant case. C.

CORRESPONDENCE.

SERVICE ON AGENT OF DIRECTOR GENERAL OF RAILROADS WHO IS NOT THE AGENT OF THE RAILROAD SUED.

Editor Central Law Journal:

As a proposition for your query department, apropos the government operation of railroads: Can a party who is injured outside the state of his residence maintain an action at his place of residence and upon service had upon some local railroad agent who is under control of the Director General of Railroads but who is not and was not at any time an agent of the company owning the line on which the injury occurred, said line not operating in the jurisdiction in which the action is sought to be maintained? The Director General of Railroads, and not the company owning the line, is liable. This question is likely to be very important, especially if government control continues. Very truly yours,

WICKENS, OSBORN & HAMILTON.

Greensburg, Ind.

We forwarded this query to Mr. Henry C. Clark, Jacksonville, Fla., author of article on General Order No. 50, and received the following reply:

Editor Central Law Journal:

Your letter of the 12th inst., inclosing query from Messrs. Wickens, Osborn & Hamilton, at hand. This query would seem to be answered by the article on General Order No. 50, published in the Journal of Feruary 7, which article sets out in full General Orders Nos. 18, 18a and 50.

Specifically answering the query, however, I would say:

"Under General Orders Nos. 18 and 18a, issued by the United States Railroad Administration, a plaintiff is granted a right to sue at the place where he resided when injured, though until General Order No. 50 was issued, a means of perfecting service directly upon the Director General had not been specifically authorized. Wherever suit should be brought since the issuance of General Order No. 50, the defendant would be the same party. The United States Railroad Administration is one tremendous organization, and not a number of comparatively small organizations corresponding to the former separate railroad systems which are now consolidated into the United States Railroad Administration. Therefore it would seem that

Seth Low, former president of Columbia University, tells an amusing story of an experience while motoring through New England last summer. His car was held up at an oldfashioned toll-gate, and while he was waiting for change two elderly spinsters came along in a buggy.

"How much is the toll?" demanded one of the old ladies, glowering at the toll-gate keeper.

"Twenty-five cents for a man and a horse," said the latter.

"Get out of the way then; we're two women and a mare," shrilled one of the women. "Get up, Gladys," and giving the reins a vicious switch, the pair disappeared in a cloud of dust.

Senator Lodge, while visiting in a rural dis trict dropped in on a boyhood friend, now a justice of the peace. While chatting over old times a couple came in to get married. The justice married the pair and after accepting a moderate fee, handed the bride an umbrella. Lodge observed the proceeding in solemn silence, but after the couple had gone he asked: "Do you always do that, Arthur?" "Marry them? Oh, yes, if they have the license."

"No. I mean give the bride a present?" "A present? Why, wasn't that her umbrella?"

"No," said Lodge, peevishly, "it was mine."

1. Bailment Common Law Lien.-A repairman who repairs an automobile has a commonlaw lien thereon until charges for labor and expenses are paid.-Winton Co. v. Meister, Md., 105 Atl. 301.

-Gratuitous Bailee.-A gratuitous bailee is answerable only for gross negligence.-Altman v. Aronson, Mass., 121 N. E. 505.

3. Bankruptcy-Assignment of Wages.-If valid in its inception, assignment of wages remained in force, notwithstanding assignor's discharge in bankruptcy, until it was determined by statutory limitation of time (St. 1909, c. 514, as amended by St. 1916, c. 208), by act of the parties, or by operation of law.-Raulines v. Levi, Mass., 121 N. E. 500.

6.Preference.-Though "reasonable cause to believe" is different in meaning from "reasonable cause to suspect," trustee in bankruptcy, suing to set aside conveyance as preference, was not required to show absolute knowledge by creditor bank and its vice-president, who took conveyance for it, that transaction would effect preference, but only reasonable cause of belief. - Underwood v. Winslow, Mass., 121 N. E. 524.

7. Banks and Banking—Imputability.-Where a contracting bank is represented only by its cashier, and its president represents the other contracting party, knowledge of facts known to president, but not to cashier, is not imputable to bank.-Kipp v. Welsh, Minn., 170 N. W. 222.

8. Bills and Notes-Certificate of Deposit.— A certificate of deposit is not non-negotiable, for lacking the certainty required of commercial paper, although on its face it appears that it is subject to the rules of the savings department of the issuing bank-White v. Wadhams, Mich., 170 N. W. 60.

9.

-Failure of Consideration.-There can be no recovery on a note the consideration for which has failed.-Odlin v. Stuckey, Fla., 80 So. 291.

10. -Verbal Acceptance.-Acceptance of a draft may be verbal, and need not be in writing. Farmers' Guaranty State Bank of Jacksonville v. Burrus Mill & Elevator Co., Tex., 207 S. W. 400.

11. Cancellation of Instruments-Equity.Equity has jurisdiction of an action by heirs of the assignor to cancel an assignment of a receipt for bonds.-Lipson v. Evans, Md., 105 Atl. 312.

12. Carriers of Goods Conversion.-Where freight in railroad's possession for shipment is claimed by different parties, it must be delivered to true owner entitled thereto, and delivery to him is a complete defense to an action of conversion.-Jones V. Chicago, B. & Q. R. Co., Neb., 170 N. W. 170.

13. Carriers of Passengers-Alighting.—Carrier held not generally to assist a passenger to alight from a train, except in case of a sick, aged, or infirm passenger, as to whom it must furnish such assistance where its employes by ordinary care see that assistance is needed.Dickinson v. Tucker, 176 Pac. 949.

14. Common Carrier.-One riding on a train running over a railroad under right given the train owner by contract with the railway company, stipulating that the company was not acting therein as a common carrier, was not a passenger of the company; but his claim for injury from its negligence rests on the general right of an individual not to be injured by another's negligence.-Chicago, R. I. & P. Ry. Co. v. Maucher, U. S. S. C., 39 S. Ct. 108.

15. Chattel Mortgages-Purchase by Mortgagee. Consent to mortgagee purchasing at his own sale under chattel mortgage not being given by mortgage or otherwise, the equity of redemption is not extinguished by such sale and purchase, so mortgagor's lessees, occupying the status of second mortgagees, are entitled to the property subject to mortgagee's lien, and for their refusal to allow him to take

the property he can recover only the debt and interest.-P. R. Sinclair Coal Co. v. MissouriHydraulic Mining Co., Mo., 207 S. W. 266.

16. Security.-A conveyance of personal property which shows on its face that it is security for a debt constitutes a mortgage.-Noland v. Osborne, N. C., 97 S. E. 714.

17. Commerce- Carmack Amendment.-The Carmack Amendment deals only with shipments of property, and not with transportation of persons. Chicago, R. I. & P. Ry. Co. v. Maucher, U. S. S. C., 39 S. Ct. 108.

18. Employe.-Proof that railroad employe was injured while repairing a locomotive used in interstate commerce and taken from line tracks and placed in roundhouse was insufficient to show that rights of parties were controlled by federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665).-Chicago, R. I. & P. Ry. Co. v. Cronin, Okla., 176 Pac. 919. 19. Food and Drug Act.-The Food and Drugs Act does not affect the question when interstate commerce in an article of food satisfying that act ceases, and the article becomes subject to the laws of the state, into which it is brought, prohibiting its sale.-Weigle v. Curtice Bros. Co., U. S. S. C., 39 S. Ct. 124.

20. Indirect Effect.-Indirect effect on interstate commerce of Gen. Code Ohio, § 12725, penalizing sale of condensed milk, unless made from full cream milk, does not invalidate the act.-Hebe Co. v. Shaw, U. S. S. C., 39 S. Ct.

25. -Refusal to Perform.-Where one party to an executory contract deliberately declares that he will not perform, the other party may at his option treat the contract as terminated. Ambler v. Sinaiko, Wis., 170 N. W. 270. 26. Corporations Directors. Although directors of corporations are not expected to attend to current business, they must at their peril give such attention to and so manage the affairs of the company that they may be able at all times to know what their executive officers, agents, and fellow directors are doing, and they are liable to the corporation or its legal representative for losses occasioned by a breach of such duty.-Besselieu v. Brown, N. C., 97 S. E. 743.

27. -Executory Contract.-Under an executory contract to sell stock, binding on both purchaser and seller, wherein nothing is said about the dividends, dividends declared while the contract is executory belong to the purchaser, and not to the seller.-Bank of Waverly v. Daily, Neb., 170 N. W. 183.

to

28. Forbearance to Sue.-Forbearance sue upon and cancellation of original agreements to repurchase shares of stock was sufficient to support new agreements, wherein defendant was given extension of time.-Grassmuck v. Ehrler, Mo., 207 S. W. 287.

29. Foreign Corporation.-That a foreign corporation in a single instance acts as a trustee under a deed of trust for the holders of mortgage bonds, collects interest, takes title to property as security, and otherwise discharges the duty of a trustee, does not constitute "carrying on business" in the state within Civ. Code, § 408.-Equitable Trust Co. of New York v. Western Land & Power Co., Cal., 176 Pac. 876.

30. Foreign Corporation.-There is no presumption that a foreign corporation is doing business in the state in violation of the statutes thereof.-Campbell Electric Co. v. Christian, Minn., 170 N. W. 199.

31. Internal Management.-Suit against a foreign corporation by purchaser of its stock to enforce a transfer thereof on books does not involve internal management of or visitorial power over corporation, but simply the individual rights of purchaser cognizable by the court. Citizens' Nat. Bank of Port Allegany, Pa., v. Consolidated Glass Co., W. Va., 97 S. E. 689.

32. Notice to Agent.-A corporation is not chargeable with knowledge of facts which become known to its agent, unless the agent in the line of his duty ought and could reasonably be expected to communicate the knowledge to his principal.-Elgin, J. & E. Ry. Co. v. United States, U. S. C. C. A., 253 Fed. 907.

33. Tort.-Corporations may be held liable both for the willful and negligent torts of their agents, including slander, when the defamatory words are uttered by express authority of the company, or within the course and scope of the agent's employment.-Cotton v. Fisheries Products Co., N. C., 97 S. E. 712.

34. -Ultra Vires.-Except in cases where the rights of the public are involved, the plea of ultra vires, whether interposed for or against a corporation, will not be allowed to prevail when it will not advance justice, but will accomplish a legal wrong.-Hollis Cotton Oil, Light & Ice Co. v. Marrs & Lake, Tex., 207 S. W. 367.

35. Covenants-Eviction.-Covenants of warranty of title run with the land, and ordinarily a right of action does not arise in favor of the grantee or subsequent holder of the title until there has been an eviction under title paramount.-Quinn v. Lee Wilson & Co., Ark., 207 S. W. 211.

a

36. Criminal Law Co-Conspirator.-In prosecution for conspiracy to use the mails in furtherance of a scheme to defraud, where a conspiracy between defendants to carry out such scheme is shown, evidence of acts of one defendant in its execution is admissible against the others.-Hallowell v. United States, U. S. C. C. A., 253 Fed. 865.

37. Consolidating Indictments.-The trial court may, in its discretion, consolidate several indictments before trial, and try the same together.-Le More v. United States, U. S. C. C. A., 253 Fed. 887.

38.- -Preliminary Hearing.-While the right to a preliminary hearing is universally recognized in this country, such right is not a constitutional right, but is granted by statutes only. State v. Ross, N. D., 170 N. W. 121. 39.

Damages-Interest.-In action for injury to property, it was improper to instruct that interest must be added by jury to amount awarded by them as damages.-Ryan v. Empire Engineering Corporation, N. Y., 121 N. E. 461, 225 N. Y. 62.

40. Equity Statute of Limitations.-The statute of limitations in general applies equally in equity as at law.-International Paper Co. v. Commonwealth, Mass., 121 N. E. 510.

41. Estoppel-Waiver.-"Waiver" is the voluntary surrender of a known right, while "estoppel" is the refusal to permit the assertion of a right because of the mischief that has been done, and may arise where there is no intention to mislead.-Danville Lumber & Mfg. Co. v. Gallivan Bldg. Co., N. C., 97 S. E. 718.

42. Executors and Administrators-Executor de Son Tort.-The executor or administrator of an executor de son tort can be called to account in equity as executor or administrator of his decedent.-Safe Deposit & Trust Co. of Baltimore v. Coyle, Md., 105 Atl. 308.

43. False Imprisonment-Unreasonable Delay. Unreasonable delay in making arraignment amounts to false imprisonment.-Oxford v. Berry, Mich., 170 N. W. 83.

44. Fixtures Trade Fixtures.-"Trade fixtures" are those which a tenant places on property to promote the purpose of his occupation and which he may remove during the term.In re West, U. S. D. C., 253 Fed. 963.

and

45. Fraudulent Conveyances-Husband Wife. A husband may prefer his wife to another creditor in the payment of a debt which he owes her, provided the transaction is free from fraud, and no more property is conveyed than is reasonably necessary at its fair market value to settle the debt.-Diltz v. Dodson, Tex., 207 S. W. 356.

46. Gifts-Delivery.-It is an essential element of a gift causa mortis that the delivery must be made in expectation of death.-Funnell v. Conrad, Okla., 176 Pac. 904.

47. Highway-Governmental Power. The pow er to construct and maintain public highways is function.-Wright governmental V. House, Ind., 121 N. E. 433.

a

48. Homicide Deadly Weapon.-A killing with a deadly weapon, admitted or proved, implies malice, and, nothing else appearing, defendant is guilty of murder in the second degree, and the burden is upon him to show mitigation or excuse.-State v. Keever, N. C., 97 S. E. 727.

49. Injunction - Irreparable Injury.-"Irreparable injury," within Code Prac. art. 307, providing that if act prohibited by injunction is not such as may cause irreparable injury, judge may dissolve writ on bond, is one for which party injured cannot be compensated adequately in damages.-City of Lake Charles v. Lake Charles Ry., Light & Waterworks, La., 80 So. 260.

of

50. Insurance-Divisible Contract.-Fire inclasses of surance policy covering different property, separately valued, containing a conone class, dition or warranty relating only to and not affecting risk on the other, is a divisible Fire Ins. v. National Co. contract.-Bond Hartford, Conn., W. Va., 97 S. E. 692. in life 51.provision -Incontestability.-A policy that the contract "shall be incontestable after one year from date of its issue except for nonpayment of premiums" includes fraud of insured in obtaining the insurance, so that after one year insurer cannot plead such fraud as a defense to action on policy or cross-action to cancel and rescind it.-Metropolitan Life Ins. Co. v. Peeler, Okla., 176 Pac. 939.

52. Wagering Contract.-Parties to insurance contract may define loss to be covered, provided contract is made in good faith, and not merely to cover wager.-Empire Development Co. v. Title Guarantee & Trust Co., N. Y., 121 N. E. 468, 225 N. Y. 53.

53. Intoxicating Liquors-Inherent Rights.There is no inherent right in a citizen of the United States to manufacture or sell intoxicating liquors or to engage in the liquor traffic as the purchasing agent of another.-State v. Ross, N. D., 170 N. W. 121.

54. -Personal Use.-The "Bone Dry Law," in view of Rev. Laws 1910, § 3605, does not prohibit the bringing into the state of intoxicating intended for liquors lawfully purchased and personal use.-Crossland Okla., 176

Pac. 944.

V. State,

55. Judgment—-Term of Court.-A judgment rendered by a court of competent jurisdiction and regular on its face cannot be set aside after the adjournment of the term at which it was rendered.--Drinkard v. Jenkins, Tex., 207 S. W. 353.

56. Joint Tortfeasors.-Where two joint carriers are both sued as defendants, it does not follow that judgment acquitting one of them deprives the other of an action against the one acquitted.-Central Nat. Bank v. Pryor, Mo., 207 S. W. 298.

57. Libel and Slander Moral Turpitude.Slanderous words will be regarded as actionable per se when they impute to another the commission of a crime that involves moral turpitude. Cotton v. Fisheries Products Co., N. C., 97 S. E. 712.

58. -Special Damage.-An action for libel may be maintained by injured corporation without proof of special damage, where an individual may recover.-First Nat. Bank v. Winters, N. Y., 121 N. E. 459.

59. Limitation of Actions-Accrual of Action. The statute of limitations against a right of action for breach of contract begins to run from the time of the breach.-Boston Towboat Co. v. Medford Nat. Bank, Mass., 121 N. E. 491.

60. Malicious Prosecution-Insanity.-A complaint for malicious prosecution of proceeding in which plaintiff was charged with being an insane person was insufficient, where it did not allege that the proceeding to determine plaintiff's sanity had terminated.-Evans v. Wixom, Cal., 176 Pac. 873.

61. Master and Servant-Inexperienced Servant. A master having actual knowledge that a servant is inexperienced in work for which he is employed must use reasonable care in cautioning and instructing servant as to dangers of work and how best to discharge his duties. -Silurian Oil Co. v. Morrell, Okla., 176 Pac.

964.

62. Res Ipsa Loquitur.-The doctrine of res ipsa loquitur applies in an action by a servant for injuries occasioned by the falling of a hoist or bucket in which he was descending into a mine, where the servant had no control, management, or opportunity to know and be informed concerning the hoist.-Daugherty v. Neosho Granby Mining Co., Mo., 207 S. W. 253.

63. Sunstroke.-Where sunstroke paralyzed a definite portion of employe's brain, s0 that it no longer discharged its proper functions, and death shortly resulted in accordance with the ordinary process of such a disturbance of the brain, employe sustained a "personal inWorkmen's Compensation Act.— jury" within Ahern v. Spier, Conn., 105 Atl. 340. 64.

Mechanics' Lien-Materialmen.-Laborers and materialmen may recover on a contractor's bond, when there is an express provision to that effect, or when it appears by fair and reasonable intendment that their rights and interests were contemplated and provided for.Guilford Lumber Mfg. Co. v. Johnson, N. C., 97 S. E. 732.

65. Monopolies-Restraint of Trade.-"Restraint of trade" within Sherman Anti-Trust Act (U. S. Comp. St. § 8820 et seq.) has its common-law meaning, and embraces acts, contracts, agreements, or combinations prejudicial to public interests by unduly restricting competition or unduly obstructing due course of trade.-Pulpwood Co. v. Green Bay Paper & Fiber Co., Wis., 170 N. W. 230.

66. Mortgages--Inadequacy of Price.-Inadequacy of price for which mortgaged premises were sold on foreclosure cannot vitiate sale otherwise fair and legal.-Carlisle v. Dunlap, Mich., 169 N. W. 936.

67. Void Sale.-A sale of land without notice by a trustee under trust deed is void, and the deed can be set aside as a cloud upon the title of the owner.--Wilie v. Hays, Tex., 207 S. W. 427.

68. Waste.-Mortgagor's failure to pay interest accrued on a prior mortgage is a species of waste.-Justus v. Fagerstrom, Minn., 170 N. W. 201.