mortgagees jointly, debts due to them and advancements, as well as suretyship undertakings made by them, individually, come within the security.-Simms v. Ramsey, W. Va., 90 S. E. 842.

78. Municipal Corporations Contributory Negligence. - Where plaintiff was injured when driving his wagon into a hole in the street, which was of such dimensions that he could not avoid seeing it, had he used ordinary care, it being daylight, recovery will be denied on the ground of contributory negligence. - Stern V. City of Reading, Pa., 99 Atl. 367.

79. Evidence. - The fact that many persons passed over a coal hole without injury and that several testified positively that cover was not defective, did not show the testimony of plaintiff and her witnesses to be untrue, but simply made a question for jury. - Hebenheimer v. City of St. Louis, Mo., 189 S. W. 1180.

80. Notice of Defect. - Under Code, § 1273, as to the liability of a city for failure to remedy defects "in streets, alleys," etc., "after the same had been called to the attention of the council," notice to the street commissioner is notice to the municipality. - City of Birmingham v. Muller. Ala., 73 So. 30.

81. Police Power. Municipality having power to prescribe standard of quality of milk sold, Court of Appeals, without clear and convincing evidence that it is practically impossible to furnish milk of standard required by ordinance, could not invade municipality's province and hold that standard prescribed was unreasonable.-City of Owensboro v. Evans, Ky., 189 S. W. 1153.

82. Parent and Child-Proximate Cause. - A petition alleging that defendants permitted their 14-year-old boy, whom they knew to be incapable of appreciating the danger, to secure dynamite caps, shows that their negligence was the proximate cause of injury to a smaller boy to whom defendants' boy gave the caps. - Stephens v. Stephens, Ky., 189 S. W. 1143.

83. Pledges-Bona Fide Purchaser. The delivery of the pledged property to the pledgor for a mere temporary or special purpose does not defeat the pledge as against the pledgor or attaching creditors, but does against bona fide purchasers from the pledgor.-New Albany Nat. Bank v. Brown, Ind., 114 N. Ε. 486.

84. Principal and Agent Automobile. Where two corporation officers in turn drove an automobile belonging to it, which was kept in a building belonging to one officer, he was not liable for injuries to a pedestrian by the car while driven by the other between the business and the garage on the theory that the other was his agent and that he was the bailee of the car from the corporation.-Switzer v. Baker, Ia., 160 N. W. 372.

85. Evidence. - While relation of principal and agent cannot be proved by declarations of agent, it may be established by his testimony. -Daly v. Arkadelphia Milling Co., Ark., 189 S. W. 1053.

The

86. Railroads-Anticipating Injury. owner of land near a railroad right of way is not bound to anticipate that the railroad will fail to perform any of the legal duties resting on it to prevent the origin and spread of fire.Baltimore & O. R. Co. v. Peck, Ind., 114 N. Ε. 475.

87. Safety Appliance Act. - Movement of string of cars through the yards of one railroad company to those of another held not a mere switching operation, so that failure to connect power brakes on 85 per cent of the cars with engine was in violation of Safety Appliance Act March 2, 1893, as amended by Act March 2, 1903, and rule of June 6, 1910, of the Interstate Commerce Commission enacted thereunder.-United States v. Louisville & Jeffersonville Bridge Co., U. S. D. C., 236 Fed. 1001.

88. Setting Out Fire. - Where there was evidence tending to show that fire destroying plaintiff's timber land originated in accumulation of combustible material on defendant's right of way, ignited by defendant's locomotive, evidence that the locomotive was equipped with latest and most approved spark arrestor is no ground for charge exempting defendant from liability;

question being for jury.-Smith v. Delaware, L. & W. R. Co., N. J., 99 Atl. 325.

89. Sales-Passing of Title. - Where a chattel sold is not in deliverable condition, and the order is executed by manufacture and construction of the article, the buyer acquires no title till its delivery in its finished state, though he may have paid in advance.-R. H. Thomas Co. v. Lewis, Hubbard & Co., W. Va., 90 S. E. 816.

90. Specific Performance-Evidence. - Specific performance of an oral contract whereby defendant agreed to take certain land in payment for property conveyed by him will not be decreed, where the evidence does not satisfactorily show that the land he was to receive had substantial value above the incumbrances thereon. -Wolf v. Lawrence, Ill., 114 Ν. Ε. 567.

91. Third Person.- Specific performance of an agreement by a trustee to convey the title cannot be enforced, where the trustee informed the purchaser that a third person had an interest in the premises, and that person's consent was not obtained. -Conlon v. Irvine, Mich., 160 Ν. W. 411.

92. Sunday-Ratification of Contract.-A note executed on Sunday may be ratified on a week day, without any new consideration, by payment upon the obligation or any distinct recognition thereof. Gooch v. Gooch, Ia., 160 N. W. 333.

93. Telegraphs and Telephones-Delivery of Message. Where the sendee's locus is several miles from the place to which a telegraph message is addressed, the telegraph company is under no legal duty to deliver the message at such place. - Western Union Telegraph Co. v. Earnest, Ala., 73 So. 15.

94. Torts-Strike by Laborers. - While laborers, members of a union, may strike, and may picket their employer's business, the employer is entitled to free access to his place of business for himself and other employes, and such rights cannot be interfered with.-Alaska S. S. Co. v. International Longshoremen's Ass'n of Puget Sound, U. S. D. C., 236 Fed. 964.

95. Union Labor. Where a picket around an employer's place of business is established by union strikers, the picket is the agent of the union, and efforts to dissuade others from accepting employment offered by former employer should go no further than peaceable persuasions and inducements. - Alaska S. S. Co. v. International Longshoremen's Ass'n of Puget Sound, U. S. D. C., 236 Fed. 964.

96. Vendor and Purchaser-Bona Fide Purchaser. Though accompanied by possession and improvements, an unrecorded written contract of sale of land confers no equity superior to the rights of a subsequent purchaser for value without notice whose deed was recorded or an incumbrancer whose lien was docketed. Marshall v. McDermitt, W Va., 90 S. E. 830.

97. Wills- Defeasible Fee. - Under Rev. St. 1909, §§ 579, 2870, a will devising fee to a son, with condition that, if he died without leaving children surviving, it should go to his sister, gave the son a defeasible fee, with a limitation over to his sister.- Lockney v. Campbell, Mo., 189 S. W. 1174.

98. Fiduciary Relation. That a beneficiary under the will was a general assistant in a real estate office which handled testator's property does not show a fiduciary relationship between beneficiary and testator. - Prescott v. Ayers, Ill. 114 Ν. Ε. 557.

99. Fiduciary Relation. - Where an antecedent fiduciary relation exists between testator and the beneficiary, a court of equity will presume confidence placed and influence exerted, but otherwise such relation and influence must be proved by the contestant.-Rounds v. Coleman, Tex., 189 S. W. 1086.

100. Witnesses - Cross-Examination. In a prosecution for burglary and larceny, on crossexamination of a state's witness, it was proper to exclude questions whether he was in a murder case, how many times he had been arrested for murder, whether he robbed a certain place. and whether he shot a man, as being of particular offenses having no direct bearing on his veracity. State v. Bossone, N. J., 99 Atl. 310.

Central Law Journal.

ST. LOUIS, MO., MARCH 16, 1917.

JURISDICTION OF FEDERAL COURTS IN ADMINISTRATION OF ESTATES OF DE

CEDENTS.

After reading the opinion by Fifth Circuit Court of Appeals in Smith v. Jennings, 238 Fed. 48, one rises with the impression of a bold attempt on the part of a federal judge to usurp authority in a matter of purely state cognizance. We wish we could add that the Circuit Court of Appeals fully performed its duty in condemning such attempt.

The latter court, however, after laying down with much elaboration, excerpts from authority, does not take the case from the district court, but sends it back for that court to inquire whether there is any diversity of citizenship involved. It says: "Whether, even for that purpose, the bill can be maintained successfully in the absence of the permanent administrators as parties defendant to represent the estate, and, if not, whether they can be made parties to the pending bill, upon their appointment, are questions that may require consideration."

Considering the strong language of the opinion as to the utter want of jurisdiction, we think the Circuit Court of Appeals came somewhat to a lame and impotent conclusion, for it had said that not even could the district court acquire jurisdiction even in favor of non-resident parties where there was temporary administration, and it was distinctly held that there was such temporary administration. This, however, is incidental.

The facts of this case show that James M. Smith, a resident of Georgia, died De

cember 11, 1915, possessed of a considerable estate; that on the night of that day temporary letters were applied for and granted upon the applicant's giving bond of $50,000; that three days later a new bond was given in the sum of $1,000,000, because the personal property was shown to be greatly more than at first represented; that application was made for permanent letters returnable the first Monday in February, 1916; that caveats were lodged against granting the application; that hearing was postponed; that a bill was filed in the State Superior Court asking for appointment of receivers and injunction against the temporary administrators interfering with the estate and an order to that effect was made by the state court. The state court having amended its first order by a newly appointed judge, forbade the receivers from taking possession. The bill in the state court was then dismissed and complainants on March 2, 1916, filed suit in the federal district court. That court appointed receivers, enjoined the temporary administrators and proceeded to take over the whole matter of administra

tion. From these orders an appeal was allowed to the Circuit Court of Appeals and supersedeas was granted by it.

showing his neighbors that it was not necessary to burn down a house to have that succulent dish. Things in nature may merely be recondite to some and well-known to others.

COPYRIGHT INFRINGEMENT IN FREE PUBLIC PERFORMANCE OF MUSICAL COMPOSITION.-U. S. Supreme Court, taking a liberal view of our copyright statute, reverses two cases coming up from Second Circuit Court of Appeals holding that where copyrighted music was played in a hotel dining room and in a restaurant where no admission fee is charged, but the performance is to attract customers, is a free performance, and therefore not within the copyright statute against infringement in a "performance for profit." Herbert v. Shanley Co., 37 Sup. Ct. 232.

Justice Holmes said: "If the rights under the copyright law are infringed only by a performance where money is taken at the door, they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. It is true the music is not the sole object, but neither is the food, which probably could be got elsewhere cheaper. The object is a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, that give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough."

It is intimated that, if there was use for music that was copyrighted to assist in drawing attendance at a gathering, say, to collect subscriptions for an eleemosynary purpose, there would be no infringement. Would there be if a copyrighted hymn were sung in a church? Or in a meeting to arouse patriotic enthusiasm, where the choir or the band were paid performers? Success in the former might help the revenue of the church, and in the latter would swell contributions, say, for defense. If the choir or the band were professionals and

reaped fame and increased custom, might not their object be the taking of money "out of the public's pocket?" Would the general purposes of the gathering swallow up the special purpose of the performers, if they only were sued?

INTERSTATE COMMERCE IMPORTATION OF PICTURES BY MEANS OF CAMERA ON AMERICAN SOIL. The ingeniousness of an unsuccessful scheme to avoid a statute forbidding importation from a foreign country of pictures of a prize fight is shown in Pantomimic Corp. v. Malone, 238 Fed. 135, decided by Second Circuit Court of Appeals.

The scheme called for the placing on American soil of unexposed films. A moving picture camera was set up about eight inches away on the soil of the United States, with its lens directed towards Canada. A box with positive films stood in Canada. A chain connected the cameras and as the positive films were exposed in Canada they were reproduced in America.

The court said: "This transaction is plainly within the mischief of the statute, but the appellant contends that the statute only prohibits the importation of something physical or corporeal, whereas nothing but rays of light were brought in on this occasion. Generally speaking, this may be so; but we think that, when parties on each side of the boundary co-operate by means of two plants connected together to transfer a prohibited picture from Canada to New York, they are carrying on foreign commerce and do cause the picture to be brought into the United States within the meaning of the act, even though rays of light are necessary to the result. Certainly the operation resulted in producing a picture in New York of the picture in Canada."

It does not seem to us that the difficulty lies so much in saying that rays of light are not physical or corporeal, for we do think them such. The greater trouble with us is, that, if merely a negative is brought over, there is nothing harmful except after it has been developed, and that development takes place in this country. There is merely potency of harm in a negative, not harm itself.

But Justice Holmes' remark that "general propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise" (Lochner v. New York, 198 U. S. loc. 76), here may be referred to. Let us hope that, if the instant case gets to the Supreme Court, it will fall to the justice to write the opinion. His uniqueness of style would fit in most admirably.