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EVIDENCE-Non-Expert WitnESSES—Insanity.—Betts v. State, 89 S.W. 413 (Tex.).—Held, that it was error to permit non-experts to give their opinions that the defendant was sane, without first testifying as to the defendant's conduct and the observations from which the non-experts derived their conclusions.

This seeins to be a much mooted question and to be decided differently in the several states. Some hold that if a change has taken place in the defendant's conduct a witness, not an expert, could be permitted to testify as to the defendant's insanity provided he had noticed the change of conduct. State v. Winter, 72 Iowa 627. It is proper to permit non-expert witnesses to give their opinion of the defendant's insanity, though they may not give any particular circumstances in support of their views. Cotrell v. Commonwealth, 17 S. W. 149. The reason for this is that a witness who has had actual acquaintance with and knowledge of a person ought to know whether or not that person was insane. But Collee v. State, 75 Ind. 511; State v. Erb, 74 Mo. 199; Parsons v. State, 87 Ala. 577, suostantially hold that nonexperts may give their opinions of the defendant's insanity but that they must first state to the jury upon what facts these opinions are based. The reason for this is that the jury should know the facts in order to ascertain what weight they shall give to the testimony of the witness. This seems to be the prevailing and better rule.

EVIDENCE-UNCORROBORATED CONFESSION.-BLACKER V. STATE, 105 N. W. 302 (NEB.).—Held, that one cannot be convicted of a felony upon his own unsupported extrajudicial confession.

Whether the uncorroborated confession of an accused in a criminal cases is alone sufficient for a conviction is a question "which," says Wigmore on Evidence, Vol. III, Sec. 2070, “for more than an hundred years has been left culpably unsettled in English law." In 1784 there was a ruling that such a confession sufficed. R. v. Wheeling, I Leach C. L. 24; but this was not final authority; it remains, however, in the English and Irish courts except in cases of homicide. So in 1887 it was held R. v. Sullivan, (Ire.) 16 Cox. C. 347, that an uncorroborated confession was sufficient to sustain a conviction for larceny. Since then the United States courts have been at liberty to adopt whatever rule they saw fit. People v. Elliott, 90 Cal. 586; Cunningham v. Com., 72 Ky. 14), held that a confession of a defendant, unless made in open court, would not warrant a conviction unless accompanied by other proof that a crime had been committed. The reason why caution is necessary in these cases is that the defendant may have admitted things as true, such as in case of forgery, writing another's name to a note, when he really intended by such a confession to imply that the act was done rightfully. See also State v. Knowles, 48 Iowa 598, for the same proposition. But to the contrary State. v. Cowan, 29 N. C. 239; Stephen v. State, 11 Ga. 225, held that any person accused of an offense might be convicted upon his own voluntary confession although it was totally uncorroborated by any other proof. The best rule, and the one supported by the weight of authority in this country, is that there should be corroborating evidence. Greenleaf on Evidence, Sec. 217, says "it best accords with the humanity of the criminal code."

HIGHWAY AGENT-LIABILITY OF TOWN FOR NEGLIGENCE.-WHEELER V. Town of GilSUM, 62 ATL. 597 (N. H.).—A highway under control of defendant town was overflowed, so as to prevent travel thereon, by reason of

an ice jam on an adjoining river. Defendant's highway agent went out upon the river and attempted to break up the jam with dynamite. He did this so carelessly that the ice bore down upon plaintiff's mill, which was down the river a short distance, and completely demolished it. The dynamiting could have been done in such a manner that the ice would have passed off easily. The highway agent and other proper officers knew of the danger in time to prevent the occurrence but took no steps to do so. Plaintiff claims damages for the loss of his mill. Held, that no duty rested upon the town to act for the protection of the plaintiff and its failure merely to take action is not actionable negligence.

INFAMOUS CRIME-DEFINITION.-GARITEE v. BOND, 62 ATL. (MD.). 631.Appellant was named as executor of a will and on application to the Orphan's Court of Baltimore for letters testamentary, the appellee, claiming to be the adopted son of the testatrix, filed a petition asking that letters be refused, because appellant had been convicted of and imprisoned for an infamous crime and had been disbarred as an attorney by the Supreme Bench of Baltimore City for improper conduct involving moral turpitude. Appellant admitted that he had been indicted and convicted of violation of an act of Congress (U. S. Comp. St. 1901, p. 3231), which provided "that no attorney should take . . more than $10 for preparing, etc., . . any pension claim." It is claimed by appellant that this is not an infamous offense and that nothing alleged would justify the court in refusing to grant him letters prayed for.

Held, that the decision as to the infamy of the offense depended, not on the punishment prescribed, but in the character of the offense itself and that the statutory offense of which appellant was convicted did not involve the requisite degree of moral turpitude to make the transgression an infamous crime at common law. Appellant's contention was sustained (The opinion cites a number of cases as to whether the character or punishment of a crime is the criterion as to its infamy.)

INJUNCTIONS-Interference

WITH

V.

PATRONS-BOYCOTT.-JENSEN COOKS' AND WAITERS' UNION OF SEATTLE ET AL., 81 PAC. 1069 (WASH.).— Held, that former employees of an establishment may be restrained, by injunction, from congregating about the entrance of the place of business for the purpose of preventing, by force or pursuasion, the public from entering.

Employees who have quit their employment have no further interest in the buisness of their former employer and no lawful right to interfere with such business by attempting to induce other employees or the public from transacting business with their former employer. Rundsen v. Benn, 123 Fed. 636. If they enter upon the premises except for the bona fide purposes of trade they are trespassers. Foster v. Retail Clerks' I. P. Ass'n., 39 Misc. (N. Y.) 48. But, as a general proposition, the proprietor of a store cannot restrain sympathizers from picketing the store provided they use no violence or coercion; Union Pac. Ry. Co. v. Ruef, 120 Fed. 102; unless their interference amounts to an unlawful conspiracy. Gray v. Bldg. Trades Council, 97 N. W. 663 (Minn). Nor will an injunction be granted unless it clearly appears that there is a substantial pecuniary loss for which there is no adequate remedy at law. Atkins v. Fletcher, 55 Atl. 1074 (N. J. Eq.). The fact that their acts are punishable under the criminal law will not, however, prevent the issuing of an injunction. Union Pac. Ry. Co. v. Ruef, supra.

INTOXICATING LIQUORS-CIVIL DAMAGE LAWS-CONSTRUCTION-POSTHUMOUS CHILD-RIGHT OF ACTION.-State Ex REL. NIECE V. SALLE ET AL., 74 N. E. 1111 (IND.).—Held, that a statute, providing that any person sustaining any injury to his means of support in consequence of use of liquors unlawfully sold may sue the seller personally, gives to a child, born after its father's death resulting from use of intoxicating liquors unlawfully sold, the right to sue therefor.

Such right of action exists only by virtue of statute and not at common law. Belding v. Johnson, 11 L. R. A. 53; Woody v. Coleman, 44 Iowa 19. But the majority of the states have adopted statutes similar to the one under consideration. Mead v. Stratton, 87 N. Y. 493; Quinlan v. Welch, 23 N. Y. Supp. 963; Hocket v. Smelsey, 77 Ill. 110; Brockway v. Patterson, 72 Mich. 122; Rose v. Perkins, 9 Neb. 304; Rafferty v. Buckingham, 46 Iowa 195. It has been contended that such a statute does not include a post-humous child as the rights of the latter do not accrue until birth. Allier v. St. Luke's Hospital, 184 Ill. 359; Walker v. Railway Co., 26; N. Amer. Law Rev. 50. These cases, however, have to do with the personal rights of a child and must be distinguished from the civil or property rights, which exist from the time of the child's conception. 1 Bl. Comm. 130. The right to support from a parent is such a right as was decided in Quinlan v. Welch, supra.; The George and Richard, L. R. 3 Adm. and Ecc. 466.

NAVIGABLE WATERS-TITLE TO BED OF STREAM.-Kinkead v. TINGEON, 104 N. W. 1061 (NEB.).—Held, that the title to the bed of a navigable river is in the state, and the rights of a riparian proprietor on such streams are bounded by the banks of the river.

At common law, the title to the bed of a river in which the tide ebbs and flows was in the Crown, but above the flow of the tide, belonged to the riparian proprietors. Current law in England follows this ancient rule. Hudson v. Ashby, (1896) 2 Ch. 1. All of the American courts recognize the state ownership of the beds of tidal streams but, in regard to rivers where the tide does not flow but which are navigable in fact, there is a direct conflict. In some jurisdictions riparian proprietors own to the filum aquae. McCartney et al. v. C. & E. R. R. Co., 112 Ill. 635; Cobb v. Davenport, 32 N. J. L. 379, while in the following states ownership extends only to water line. Gilchrist's Appeal, 109 Pa. 604; Cooley v. Golden, 117 Mo. 43, but may be to low water mark. Palmer v. Williams, 122 Pa. 191. A distinction is made in some courts between public and navigable streams. Steamboat Magnolia v. Marshall, 39 Miss. 109-135. The Federal courts have refused to decide this question, leaving the state to determine as between itself and riparian proprietors. Packer v. Bird, 137 U. S. 661.

NEGLIGENCE-PROXIMATE CAUSE.-COLLINS v. W. JERSEY EXPRESS Co., 6 ATL. 675 (N. J.).—A servant of defendant while driving a wagon struck the hind wheel of a wagon standing alongside the curb, forcing the wagon against the borse attached to it. The horse took fright and ran away and after running along the same street for some distance turned up another street where plaintiff was standing near a pile of loose boards and he, to avoid being hit by the runaway, jumped aside and broke his leg over the board pile. Plaintiff sued for damages and was non-suited. Held, hat the case should be restored and intimated that plaintiff had a good case

PRINCIPAL ANd Agent-ComPENSATION OF AGENT-COMMISSIONS.—GIBSON v. BAILEY Co., 89 S. W. 597.-Held, that a general agent for the sale of goods in a certain territory, who entices away from his principal orders in that territory which the principal had previously acquired, is guilty of such misconduct as to defeat his right to commissions.

General agent is one whom man puts in his place to transact all his business of a certain kind, as to sell certain kind of ware. Walker v. Skipwith, I Meigs (Tenn.) 502. An agent must not conceal facts in dealing with a principal nor act adversely to the interests of his principal. Dennis v. McCagg, 32 Ill. 429; Hughes v. Washington, 72 Ill. 84. Good faith is the vital principle of the law of agency; without it the relations of principal and agent cannot exist, and so jealously guarded is this principle that all departures from it are esteemed frauds. Keighler v. Savage Mfg. Co., 12 Md. 383; Merryman v. David, 31 Ill. 404. For gross misconduct in the course of his agency, or intentional frauds upon his principal, he may be held to forfeit all right to compensation as respects any of the business of the principal into which such frauds or misconduct shall have entered. Porter v. Silvers, 35 Ind. 295; Prescott v. White, 18 Ill. 322. And, if he makes any profit in the course of his agency by any concealed management in selling on account of his principal, the profits will belong exclusively to the principal. Cottom v. Holliday 59 Ill. 176.

RAILROADS-CROSSING ACCIDENT-CONTRIBUTORY Negligence.-St. Louis I. M. & P. Ry. Co. v. HITT ET AL., 88 S. W. 990 (ARK.).—Held, that where a brakeman standing at a crossing which was blocked by a standing frieght train, told plaintiffs, who were waiting to drive over the crossing, that it would soon be clear, and when the train cleared the crossing the brakeman was standing nearby and in a position where he could see the tracks better than plaintiffs could, the latter could take into consideration the fact that the brakeman was in a favorable position to see any danger and would doubtless give them warning thereof. Battle and Riddicks, JJ., dissenting.

Weight of authority holds that it is the duty of a traveller approaching a ailroad crossing to make vigilant use of eyes and ears for the approach of a train before proceeding over. Davis v. Ry., 47 N. Y. 400; Ry.v. Righter 42 N. J. L. 180; Ry. v. Masely, 57 Fed. Rep. 921; Wilds v. Ry., 29 N. Y. 315; Ry. v. Beal, 73 Pa. St. 507. Exercise of some care is not sufficient. Ry. v. Burke, 57 N. Y. St. Rep. 7. This rule does not require plaintiff, if in a team, to get out and go on the track for a better view. Davis v. Ry., supra. One cannot depend upon another's senses to give warning of danger. Wiwirowski ບ. Ry., 124 N. Y. Fact that a flagman at a railroad crossing signals a person to cross does not relieve such person from duty of looking and listening for train. Ry. v. Gustavson, 21 Col. 393; Cadwallader v. Ry., 128 Ind. 518; Renner v. Ry., 46 Fed. 344. Although plaintiff has right to assume that defendant will do his duty in giving signals, yet he cannot rely on that assumption and thus relieve himself from exercising proper care. Shaw v. Jewett, 86 N. Y. 616:

Ry. v. Righter, supra; Ry. v. Masely, supra.

SALES

420.

RESCISSION BY BUYER-WAIVER OF RIGHT TO RESCIND.-WARD VMARVIN, 62 ATL. 46 (VT.).—Held, that where the buyer of a horse, after dis.

eovering fraud of the seller, and after being assured by the seller that, if the horse was not as represented, he would make it right, continues to use the horse as his own, he thereby waived his right to rescind the contract.

A purchaser, upon discovery of a fraud, may treat the contract as voidable and may rescind by returning the property purchased. State v. Hendricks, 1 Cent. Rep. (N. J.) 451. But the right to rescind must be exercised within a reasonable time after the fraud is discovered or the time when it should have been discovered. Young v. Arntze, 86 Ala. 116. The continuing dealing with the property purchased in reference to the fraudulent transaction as if the contract were subsisting and binding is evidence of a waiver of the fraud and the election to treat the contract as valid and still subsisting; Oakey v. Cook, 41 N. J. Eq. 350; unless what is done is merely for the purpose of saving the plaintiff from further loss, without any purpose to give up whatever right he may have either at law or in equity to rescind. Montgomery v. Pickering, 166 Mass. 227. And even one whose tender of chattels for the purpose of rescinding is refused, and who takes it back and uses it as his own, thereby waives the benefit of his tender, and his remedy is an action at law for damages. McCulloch v. Scott, 52 Ky. 172.

TELEGRAPHS-MESSAGES-DELAY.-HAMRICK v. Western UNION TELEGRAPH Co., 52 S. E. 232 (N. C.).—Held, that where delivery of a message informing plaintiff of the serious illness of his wife was delayed for a period of 28 hours, and plaintiff was informed of such delay before he started to his wife's bedside, it was no defense that, in view of the fact that his wife ultimately recovered, he was not damaged, but was in fact relieved of 28 hours anxiety on account of the delay.

This decision is in accord with previous decisions in same state. Thompson v. W. U. Tel. Co., 107 N. C. 449. And also in harmony with the decisions of a few other states. W. U. Tel. Co. v. Cunnir gham, 99 Ala. 314; Chapman v. W. U. Tel. Co., 90 Ky. 265. But beyond all doubt the above decisions are contrary to the weight of authority which holds that damages cannot be recovered from a telegraph company for mental suffering resulting from simple negligence in the prompt delivery of a message announcing the dangerous illness of a relation, as such damages are too uncertain and speculative. Chase v. Telegraph Co., 44 Fed. 554 The law of the state to which the message is sent will govern whether a recovery shall be had or not. Gray v. Telegraph Co., 91 Am. St. Rep. 706. These case must be distinguished from those in which an actual loss is suffered. Bodkin v. Telegraph Co., 31 Fed. 134.

TORT-DAMAGES-SPECIFIC

PROOF.-ERIE R. R. Co., 62 ATL., 482 (N. J.).-Plaintiff in a tort action in basing his claim for damages testifies that he took in $1,000 to $1,100 per annum gross. He produced no books nor any evidence as to the expenses of his business or of the proportion of the expenses to the gross income. The court left it to the jury to award damages based on the plaintiff's statement. Held, that there being no proof of loss of profits in the business of the plaintiff which the jury could, under the evidence, arrive at with reasonable certainly, it was error for the trial judge to submit the question of the class of damages to the jury, and he should have charged as requested by defendant. Fort, J., citing East Jersey Water Co. v. Bigelow 60 N. J. L. 201.

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