RECENT CASES. ADMINISTRATORS-MISCONDUCT-COMMISSIONS.-In re GALL, 95 N. Y. SUPP. 124.-Where an administratrix has been guilty of misconduct, held, that on the settlement of her account, the surrogate may, in his discretion, deny her statutory commissions. Such is the general rule. Hall v. Wilson, 14 Ala. 295; State ex rel. Wolff v. Berning, 74 Mo. 87. Though the contrary has been held. In re Fitzgerald, 57 Wis. 508. But the misconduct must consist of fraud, gross negligence, or wilful default causing loss to the estate. Smith v. Kennard's Ex'r, 38 Ala. 695; St. Paul Trust Co. v. Kittson, 62 Minn. 408. And unwise administration unaccompanied by fraud and bad faith, where long delay in accounting was without excuse, has been held sufficient. In re Atherton's Estate, 8 Knep. 150. But, on the other hand, that unfaithful administration on the part of an executor will not deprive him of compensation for his services so far as they have been beneficial to the estate. See Jennison v Hapgood, 10 Pick. 77. ADVERSE POSSESSION-Color of Title-Tax Deeds.—Brannan v. HENRY, 39 So. 92 (Ala.).—Held, that a tax deed, though void as a muniment of title, is admissible to show color of title to support adverse possession if it sufficiently describes the land. The tendency has been to support this proposition. Some federal decisions have rejected it in the past, but the most recent cases support it where the deed is not void on its face. Truce v. Am. Ass., 122 Fed. 598, 58 C. C. A. 266; Bartlett v. Ambrose, 42 U. S. App. 381. The older cases followed it rather on the ground of the accuracy of the description of the land. Harrison v. Spencer, 90 Mich. 586; Rensens v. Lawson, 91 Va. 226; Edgerton v. Bird, 6 Wis. 527. And some even where the property was inaccurately described. Smith v. Shattock, 12 Ore. 362; Childs v. Shower, 18 Iowa 261. Contra, Berendo v. Kaiser, 66 Tex. 352. Color of title can be claimed only for as much as is described. Stevens v. Johnson, 55 N. H. 405. In the following cases claims of color of title under invalid tax deeds were not allowed. Moore v. Brown, 11 How. 424; Matterson v. Devoe, 18 Kan. 223; Brougher v. Stone, 72 Miss. 647. ATTORNEY AND CLIENT-SIGNATURE OF ATTORNEY ON BOND.-HAYES V. BRONSON, 61 Atl. 549 (Conn.).—An attorney, while acting for a firm as plaintiffs in a replevin suit, signed the replevin bond "John Doe, Attorney for Plaintiff."-Held, that he bound himself personally and not his clients. A principal cannot be charged on a bill drawn by "A. B., agent." Pentz v. Stanton, 10 Wend. 271. A Court of Equity will look beyond the form of execution, and, having ascertained the intention of the signer, will, if possible, give the effect intended. Stark v. Stark, 94 U. S. 477. An unsealed instrument signed in the name of the agent binds the principal if that intent appears on its face and the agent has authority. McDonald v. Bear River Co., 13 Cal. 220. Even if the agent sign as such and use his own seal he may not be personally bound. Delbers v. Del. & H. C. Co., 4 Wend. 285. But an agent is not personally liable on a note made by him to one who took it with knowledge of intention to act as agent. Bradley v. McKee, 5 Cranch C. C. 298. Nor will he be personally bound if contrary intention appears on the face of the instrument. Haskins v. Edwards, 1 Iowa, 246. But the attorney has a remedy over against the principal, if he has acted in good faith. Clark v. Randall, 9 Wis. 135. CONTRACTS-EXCLUSIVE CONTract for Personal Services—INJUNCTION.TAYLOR IRON & STEEL Co. v. NICHOLS ET AL., 61 ATL. 946 (N. J. Eq.).—Held, that where a contract contains an agreement that one shall devote his entire time to the service of another it does not imply a covenant not to serve a third party during the period covered by the contract. Even if employees quit under circumstances showing bad faith equity will not force them to remain in service against their will. Arthur v. Oakes, 63 Fed. 310. Employees cannot, while in service, perform some duties and refuse to perform other necessary duties. So. Cal. Ry. v. Rutherford, 62 Fed. 796. The mere fact of an employee's knowledge of the business will not justify an injunction against violation of his contract. Rogers Mfg. Co. v. Rogers, 58 Conn. 356. To justify the injunction there must be an express covenant not to enter the employ of another and also proof of special skill or expertness. Burney v. Ryle, 91 Ga. 701. Under an exclusive contract for services when the pecuniary injury would be incapable of proof an injunction would be granted even in the absence of the negative clause. Col. Club v. Reilly, 11 Ohio Dec. 272. But even under such circumstances the injury must be irreparable. Sternberg v. O'Brien, 48 N. J. Eq. 370. And not remediable at law. Hair Co. v. Huckins, 56 Fed. 366. Where performance for another would violate contract negative clause would be implied. Duff v. Russell, 133 N. Y. 678. In Hamblin v. Dunneford, 2 Edw. Ch. 529, an injunction was refused, although there was an express covenant not to perform and the breach was acknowledged. CONTRACTS-PUBLIC POLICY-LABOR UNIONS.-JACOBS V. COHEN, 34 N. Y. Law Jour. 58.-Held, that a tripartite agreement, made by an employer with a labor union and with his employees, who were members of the union, in which he contracted not to engage any person, who was not a member of the union and in good standing, and to discharge any person who should fail to keep up his standing in the union, is not an agreement in violation of any public policy. Both opinions in this case spend much time in comparing it with Curran v. Gallen, 152 N. Y. 33. That case is, however, easily distinguishable. In Curran v. Gallen, supra, the purpose of the agreement was to coerce those who were not parties to it. In this case the employers were parties to the contract. This distinction is made clear in Stevedore's Ass'n v. Walsh, 2 Daly (N. Y.) 1. But see dicta in People v. Fisher, 14 Wend. 9. This distinction is by no means uncommon. Case of the Journeymen Cordwainers of the City of New York, 1810; (People v. Treguler,) 1 Wheelers Crim. Cases, 142; Com. v. Hunt, 4 Metc. III. It is recognized by statute in England, 5 Geo. IV., c. 95, secs. II and III. Agreements between employees or between employers for their common benefit are valid, provided no unlawful means. are used to carry out their ends. Collins v. Locke, 4 App. Cas. 674; Slate v. Stewart, 59 Vt. 273; Snow v. Wheeler, 113 Mass. 179. It has been held, arising from defective construction, or from failure to keep the premises in repair, where the defect is known to the landlord, or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care. Ordinarily there is no warranty on the part of the lessor that the premises are in good condition and the rule of caveat emptor applies. Hill v. Woodman, 14 Me. 38. But by letting the premises with some latent defect in them, such as structural weakness or decay, the landlord impliedly authorizes the continuance of the nuisance and is liable. Ahern v. State, 115 N. Y. 203; Cowen v. Sunderland, 145 Mass. 363. Furthermore, the liability of the landlord extends to injuries sustained by one socially calling on the tenant as well as to the tenant himself. Henkel v. Muir, 31 Hun (N. Y.) 28. In such cases the courts have never drawn any line between a person present for business and one present for pleasure. Campbell v. Portland Sugar Co., 62 Me., 562. However, if the premises are in good repair when demised, but afterward become ruinous and dangerous, the landlord is not responsible, therefore, either to the occupant or the public. Clancy v. Byrne, 56 N. Y. 129. MUNICIPAL CORPORATIONS-Defective Sidewalk-Duties of TRAVELER.— IDLETT V. CITY of Atlanta, 51 S. E. (Ga.) 709.-Held, that ordinary diligence on the part of a person passing along a sidewalk of a public street of a municipal corporation, and ordinary diligence on the part of the corporation in constructing and repairing the sidewalk, do not imply a like degree of vigilance in foreseeing danger and guarding against it. Corporations have made strenuous efforts to establish the rule that knowledge of a defect in and subsequent user of a walk would estop a person injured from claiming damages. Jones Neg. Mun. Corp. sec. 221. But this is not the law. Ordinarily, as the laying out of the way has established its legal necessity, the mere fact that one knowing of a defect passes over it will not defeat his claim should he suffer harm. Samples v. City of Atlanta, 95 Ga. 110. A person, although knowing a walk is defective, may still use it if his act in so doing is reasonably prudent. City of Emporia v. Schmedling, 33 Kan. 485. Knowledge of danger is not negligence per se. 4 Am. & Eng. Ency. of Law, p. 35. Knowlege of the danger is never conclusive evidence of negligence, but it is a question to be submitted to the jury. Smith v. City of St. Joseph, 45 Mo. 449. However, if the danger arising from a defect in a street or highway is obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the same, or, in other words, if such attempt would of itself plainly and unequivocally amount to a want of ordinary care and diligence, the court may so instruct the jury as a matter of law. Samples v. City of Atlanta, 95 Ga. 110. NAVIGABLE WATERS-RIGHT OF UPLAND OWNER TO REACH.-CONDert et al v. Underhill et al, 95 N. Y. Supp. 134.—Held, that an owner of upland has no right to trespass on the land of another for the purpose of reaching the navigable waters beyond. Where the fee of land between high and low water mark is in the state, an erection of a wharf or pier by an upland proprietor upon this land is not a trespass and will not be disturbed except in case it become a public nuisance. Commonwealth v. Wright, 3 Am. Jurist 185. In the present case the fee of the share by an ancient grant rested in a municipal corporation. That a permanent dock erected by an upland proprietor on such land under water is a trespass. Brookhaven v. Smith, 98 App. Div. 212 N.Y. It has been held that proprietors of lands upon navigable waters are entitled to erect wharves and piers for their own and the public use in order to gain access to the navigable parts of the waters. Steamboat Co. v. Visger, 179 N. Y. 206. But there the land in question belonged to the state wherein the present case is distinguishable. NUISANCE-Prescription. —Over v. Dehue, 75 N. E. 664 (IND.).—In a suit to restrain defendant from operating his foundry, interfering with the enjoyment by plaintiff of his premises, the evidence showed that defendant had operated his foundry for twenty years and that plaintiff had occupied his property for over twenty years. Held, not sufficient to give defendant a prescriptive right to operate the foundry in manner complained of. It is a well established principle that no lapse of time can confer a right to maintain a public nuisance. Cooley on Torts, page 730 (2nd Edition); Inhabitants of Charlotte v. Iron Works, 8 L. R. A. 828. And regarding a private nnisance the mere fact that the business constituting the nuisance was in operation a few years before a party erected a dwelling is no defense to an ac. tion in the absence of a claim of prescriptive right. Fertilizer Co. v. Malone, 73 Md. 268; Mulligan v. Elias, 12 Abb. Prac. (N. S.) 259. Bringing suits for damages for such use shows sufficiently the want of acquiescence by plaintiff. Bunten v. Railway Co., 50 Mo. App. 414. Although defendant in present case operated his foundry for prescriptive period with knowledge of plaintiff and no complaint from latter, yet the peculiar manner of operating the foundry which caused the nuisance had not been in existence for the entire period. Therefore, the defendant had no right to maintain it, and decision was according to the weight of authority. Campbell v. Seaman, 63 N. Y. 568. OFFICERS-TERM OF OFFICE-TERMINATION.-Prowell v. State EX REL. HASTY ET AL.-39 So. 164 (ALA.).—Held, that the words, "until his successor is elected and qualified," as used in the Constitution and statutes relative to the terms of officers, are not intended to prolong the terms of office beyond such reasonable time after the election as will enable the newly elected officer to qualify, and after the expiration of such reasonable time, if the newly elected officer fails to qualify, the office becomes vacant. At common law there was no rule which gave an individual elected or appointed to office the right to continue in office after the expiration of the term limited by law and until a successor was chosen and qualified. People v. Tieman, 30 Barb. 193. Nevertheless, an officer had the right to continue to occupy the office as a mere locum tenens and perform the duties incident to the office. In matter of Woodworth,37 Cal. 614. Where a statute speaks of a "vacancy" in an office the word has no technical meaning. People v. Osborne, 7 Colo. 605. An office is not vacant when there is a de facto incumbent. Harrison v. Simonds, 44 Conn. 318. The length of time which will be allowed the officer to quailfy depends upon the statutes creating the office. People v. Perkins, 26 Pac. 245. Apparently the principal case is one of first impression, there being no decision on facts that are precisely similar. PLEADING-PArties-Misnomer-Mode of OBJECTION.-MCINTOSH COUNTY COM'RS V. AIKEN, 51 S. E. (Ga.) 585.—Held, that where, in a civil case, the party proceeded against is designated and described by a wrong name, the objection of misnomer should be taken by a plea in abatement, and not by a motion to dismiss. arising from defective construction, or from failure to keep the premises in repair, where the defect is known to the landlord, or in the exercise of reasonable diligence could have been known, and the injured person was himself in the exercise of due care. Ordinarily there is no warranty on the part of the lessor that the premises are in good condition and the rule of caveat emptor applies. Hill v. Woodman, 14 Me. 38. But by letting the premises with some latent defect in them, such as structural weakness or decay, the landlord impliedly authorizes the continuance of the nuisance and is liable. Ahern v. State, 115 N. Y. 203; Cowen v. Sunderland, 145 Mass. 363. Furthermore, the liability of the landlord extends to injuries sustained by one socially calling on the tenant as well as to the tenant himself. Henkel v. Muir, 31 Hun (N. Y.) 28. In such cases the courts have never drawn any line between a person present for business and one present for pleasure. Campbell v. Portland Sugar Co., 62 Me., 562. However, if the premises are in good repair when demised, but afterward become ruinous and dangerous, the landlord is not responsible, therefore, either to the occupant or the public. Clancy v. Byrne, 56 N. Y. 129. MUNICIPAL CORporations-Defective Sidewalk-Duties of Traveler.— IDLETT V. CITY OF ATLANTA, 51 S. E. (GA.) 709.—Held, that ordinary diligence on the part of a person passing along a sidewalk of a public street of a municipal corporation, and ordinary diligence on the part of the corporation in constructing and repairing the sidewalk, do not imply a like degree of vigilance in foreseeing danger and guarding against it. Corporations have made strenuous efforts to establish the rule that knowledge of a defect in and subsequent user of a walk would estop a person injured from claiming damages. Jones Neg. Mun. Corp. sec. 221. But this is not the law. Ordinarily, as the laying out of the way has established its legal necessity, the mere fact that one knowing of a defect passes over it will not defeat his claim should he suffer harm. Samples v. City of Atlanta, 95 Ga. IIO. A person, although knowing a walk is defective, may still use it if his act in so doing is reasonably prudent. City of Emporia v. Schmedling, 33 Kan. 485. Knowledge of danger is not negligence per se. 4 Am. & Eng. Ency. of Law, p. 35. Knowlege of the danger is never conclusive evidence of negligence, but it is a question to be submitted to the jury. Smith v. City of St. Joseph, 45 Mo. 449. However, if the danger arising from a defect in a street or highway is obviously of such a character that no person in the exercise of ordinary prudence would attempt to pass over the same, or, in other words, if such attempt would of itself plainly and unequivocally amount to a want of ordinary care and diligence, the court may so instruct the jury as a matter of law. Samples v. City of Atlanta, 95 Ga. 110. NAVIGABLE WATERS-RIGHT OF UPLAND OWNER TO REACH.-CONDERT ET AL V. UNDERHILL ET AL, 95 N. Y. SUPP. 134.-Held, that an owner of upland has no right to trespass on the land of another for the purpose of reaching the navigable waters beyond. Where the fee of land between high and low water mark is in the state, an erection of a wharf or pier by an upland proprietor upon this land is not a trespass and will not be disturbed except in case it become a public nuisance. Commonwealth v. Wright, 3 Am. Jurist 185. In the present case the fee of the share by an ancient grant rested in a municipal corporation. That a permanent dock erected by an upland proprietor on such land under water is a |