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appeal. Pending the appeal it continued to make and sell the article. Held, that plaintiff was entitled to recover the royalties specified in the contract on the articles made pending the appeal; his failure to procure an injunction restraining the manufacture and sale pending the appeal not procluding a recovery on the contract. Spring and Hiscock, JJ., dissenting.

A license does not become ipso facto void on a failure to pay royalties even if it contain an express stipulation to that effect. Standard Dental Mfg. Co. v. Nat. Tooth Co., 75 Fed. 291. There must be some proper proceeding and a rescission in equity. Hanifen v. Lupton, 95 Fed. 465. The question in this case is obviously the effect of the judgment of the lower court pending appeal. When the case is to be tried anew upon appeal as upon original process, the effect of the appeal is to vacate and render null the judgment. Powell on Appellate Proceedings, c. 9. It is very clear that if the judgment remained good, the original cause of action would be merged in it, and might even be pleaded as a bar to it. Curtiss v. Beardsley, 15 Conn. 518. So, in an early case, it was held that the judgment of the common pleas, when regularly appealed from, becomes wholly inoperative. Campbell v. Howard, 5 Mass. 376. These cases must be distinguished from those where the appeal is in the nature of a writ of error or for review of errors only. In the latter class, the appeal does not vacate the judgment but merely suspends its execution. Curtiss v. Root, 28 Ill. 367. Some cases have held, however, that in either case the appeal does not suspend or supercede the force of the judgment. St. v. Chase, 41 Ind. 356; Walls v. Palmer, 64 Ind. 493.

RAILROADS - CROSSING ACCIDENT

CONTRIBUTORY NEGLIGENCE - INFIRM

PERSONS. TOLEDO P. &. W. Co., v. HAMMETT, 77 N. E. (ILL.) 72. Held, that a deaf person on approaching a railroad crossing is required to be more careful in order to avoid contributory negligence than a person not so afflicted.

Highway travelers approaching a railroad crossing are charged with diligence to ascertain if a train is about to pass by; and their diligence must be greater accordingly as the particular locality and the circumstances of the case seem to require greater caution. Morris v. Chic. M. & St. P. R. Co., 26 Fed. 22. The care and caution required of a person in crossing a railroad track is such reasonable care and caution as a man of ordinary prudence would exercise in similar circumstances. Wichita & W. R. Co. v. Davis, 37 Kan. 743. This usually requiring the traveler to "look and listen." Easley v. Mo. Pac. R. Co., 113 Mo. 236. So it is gross negligence for a blind person to attempt to cross a network of tracks unattended, where he knows that trains are passing. Fla. Cent. & P. R. Co. v. Williams, 37 Fla. 406. A greater degree of care is imposed upon an infirm person to avoid danger in crossing the tracks, but the responsibility of the railroad is not increased by the fact of plaintiff's deafness. Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; nor by the fact that plaintiff was blind in one eye, Marks' Adm'r v. Petersburg R. Co., 88 Va. I; unless the employees in charge of the train know of the infirmity. C. C. & C. R. Co. v. Terry, supra. Generally speaking an engineer is bound to use ordinary care but not the highest degree of care when approaching a crossing. C. R. L. & P. R. Co. v. Caulfield, 27 U. S. App. 358. And to protect a person in a helpless condition. Yoakum v. Mettasch, 26 S. W. 129. But not to stop a train, even when possible, because an idiot is on the

track, the fact of idiocy being unknown to him. Daily v. R. & D. R. Co., 106 N. C. 301.

STATES-TORTS - PERSONAL INJURIES - NEGLIGENCE OF VOLUNTEER. SPENCER v. State, 97 N. Y. Supp. 154. Held, that where the foreman of a repair gang in the employ of the state and engaged in replacing the old flooring of a bridge silently acquiesced in the act of a stranger, who desired to remove boards for his own use, the state was liable for injury to a third person, resulting from the negligent performance of such act by the stranger. Parker and Chester JJ., dissenting.

In the absence of statute a state is not liable for the negligence of its officers in the discharge of their ordinary duties, Chapman v. State, 104 Cal. 690. But the maxim, “the king can do no wrong," does not imply that the state cannot do an act for which the citizen is not entitled to redress. Its real meaning is that the right to sue must be voluntarily given by the state not coerced, Metz v. Soule, 40 Iowa 236; 2 Blackstone 255. If there be a statute allowing the state to be sued then we are to treat the state as an individual and the question arises, would an individual be liable in the case cited supra. Haluptzok v. Gt. Northern Ry., 55 Minn. 446; Booth v. Mister, 7 Car. & P 66, hold that where a servant in the employ of the master hires another to assist him in performing acts for the master, the master is liable for the sub-servant's acts. The reasons given are diverse. It may rest upon the idea of implied authority, or of ratification, or of the negligence of the servant in directing or controlling the work, or of the duty of the occupier of premises not to permit his property to become a nuisance. The case of a volunteer is decided for nearly the same reasons, chief of which is the doctrine of implied assent, Hill v. Morey, 26 Vt. 78.

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TELEPHONES AND TELEGRAPHS PLACING OF WIRES - REGULATION BY VILLAGE. — VILlage of Carthage v. Cen. N. Y. T. & T. Co., 96 N. Y. Sur. 919. Held, that where a telephone company extends its lines in a village without permission of the trustees, the trustees can require such extension to be taken down and placed underground, without requiring a rival company to place its wires underground; there being no such requirement as to wires previously erected, and the rival company not appearing to have made extensions at or after the same time. McLennan, P. J., and Nash J., dissenting.

The right to construct a telegraph or telephone line along and upon a street or highway must be derived from an express grant of authority. N. Y. & N. J. Tel. Co. v. East Orange, N. J., 42 N. J. Eq. 490. But a municipality has no right to nullify a franchise granted to a telephone company to erect poles and wires in the streets in the absence of any provision therein reserving the right. Old Colony Trust Co. v. Wichita, 123 Fed. 762. Where, however, the use of the streets of a city by a telegraph and telephone company is without authority, either because of the particular mode of use or because of the utter lack of authority to occupy the streets, an injunction by the city will be to restrain such future use. St. v. Met. T. and T. Co., 31 Hun. 596. Utica v. Utica Tel. Co., 24 N. Y. App. Div. 361. And, notwithstanding telegraph lines are instruments of commerce, a city has the right to determine how, in what manner, and upon what condi

tions a telegraph company shall enter the city and pass through it. Mutual Un. Tel. Co. v. City of Chicago, 16 Fed. 309. And, while there is no power in a municipality arbitrarily to declare a forfeiture of the company's right to occupy its streets, Abbott v. Duluth, 104 Fed. 833, nevertheless a city cannot, by a contract which permits a telephone company to construct and maintain its line upon a certain street, deprive itself of the power to enact such legislation as is necessary for the public safety, general welfare, and Convenience. Mich. Tel. Co. v. City of Charlotte, 93 Fed. 11.

TELEPHONES POLES AND WIRES IN STREETS — ADDITIONAL BURDEN. Frazier v. EAST TENNESSEE TELEPHONE COMPANY, 90 S. W., 620. (TENN.). Held, that telephone poles and wires erected in the street do not constitute an additional burden upon the fee of abutting owners, for which they are entitled to compensation. Shields, J., dissenting.

Cases on this point are in irreconcilable conflict, the weight of authority being to the effect that such wires and poles are an additional burden. It is said that the erection and use of telephone wires and poles is one of the new uses over which the power of the city extends as it springs up, as well as to uses common and known at the grant of the power to the city. City of St. Louis v. Bell Telephone Company, 96 Mo. 623. And it is held in Missouri that telephone companies organized under the laws of the state may set their poles and wires along the public street, without compensation to owners of abutting fees, subject to regulation by the city. The State ex rel v. Flad. 23 Mo. App. 185. Statute giving right to erect poles and wires is constitutional though it makes no provision for compensation to the owners of the fee.

Pierce v. Drew, 136 Mass. 75. On the other hand it is said that a telephone system not being a use to facilitate travel is an added servitude to the fee. Union Elec. Tel. & Telg. Co., v. Applequist, 104 Ill. Appl. 517. Ches. & Pot. Tel. Co. v. Mackenzie, 28 Am. St. Rpts. 219. The public easement includes the grading, paving, cleaning and lighting of the highway, the apparatus of street railways and apparatus for the protection and convenience of travelers using the way, but the right to construct a telephone line for public use is not within this easement and can be acquired upon the fee of abutting owners, against the consent of such owners, only through the power of eminent domain. Nicoll v. Tel. Co., 62 N. J. L. 733; Hodger v. Tel. Co., 133 N. C. 235.

TRIAL - ARGUMENT OF COUNSEL - APPEAL TO SYMPATHY.- Dallas CONSOLIDATED ELECTRIC ST. RY. Co. v. Black, 89 S. W. (Tex.) 1087. Held, that where in an action against a corporation for injuries, the evidence was conflicting, it was prejudicial error for counsel for plaintiff to argue that plaintiff was a poor girl and defendant a rich corporation, though such facts were in evidence.

Where counsel uses language calculated to arouse prejudice in the jury, an adverse party may interpose, and if the court fails or refuses to check the abuse an exception lies. Abbott's Brief on Civil Jury Trials. 2nd Ed. 399. It is not within the privilege of counsel in argument to jury to use language calculated to humiliate or degrade the opposite party in the eyes of the jury. Coble v. Coble, 79 N. C. 589. And he may not avert the consequences of his remark by taking it back. Wolfe v. Minnis, 74 Ala. 386. It is the duty of the court to stop him under these circum

stances. Magoon v. B. & M. R. Co., 67 Vt. 177. And if such remarks are expressly discountenanced by the judge there is no ground for error. Dugan v. Chic. St. P. M. & O. Ry. Co., 85 Wisc. 609. Where there was conflict in evidence the verdict for plaintiff was not set aside for the mere fact that counsel said he was poor. City of Chic. v. Todd, 50 Ill. App. 609. But to say "Because he (defendant) has his thousands, because the rich opposes the poor, shall the plaintiff be deprived of his rights," was reversible error. Bitterman v. Hearn, 32 S. W. 341.

REVIEWS.

A Treatise on the Incorporation and Organization of Corporations. By Thomas Gold Frost, LL.D., Ph.D., of the New York Bar. Little, Brown & Company, Boston, 1906. Second edition. Buckram. Pages 998.

Any work of this nature, embodying as it does the incorporation acts of the several states and territories, requires constant revision and alteration; here eternal vigilance is the price of accuracy. The author has, however, made a virtue of necessity and in publishing this second edition of his treatise on incorporation* has not only included the changes in the corporation acts of the different states up to January, 1906, but has devoted additional space to the hitherto neglected subject of amendment of charters. This book is not, nor is it intended to be, a text-book; its principal sphere of usefulness is to the practitioner, who is desirous of incorporating a company and is in search of a domicile in a state with laws the most favorable to its existence. For a corporation lawyer the work serves the same purpose as a Baedecker does to a traveller. The present edition is marred by miserable proof reading (e. g. on p. 30 "common law papers" for "common law powers" and a multitude of errors in the paging referred to wherever Part III Tables I-XVII are mentioned) but the maxim lex non curat de minimis is peculiarly applicable in this case, for the book, taken as a whole, admirably covers the field designed.

Current Law. Vol. IV. (Indictments to Witnesses.) Edited by George Foster Longsdorf and Walter Q. Schumaker. KeefeDavidson Co., St. Paul, Minn., 1905. Sheep. Pages 1971.

"Current Law" has already become known so well, and has become so indispensable where it is known that a review longer than an acknowledgment is superfluous. The present volume is larger than the first three, but the simple method of treatment is maintained-a method which facilitates the finding of new points of law or of new cases upon old points. G. S. A.

Copyright Cases and Decisions. By Arthur S. Hamlin, G. P. Putnam's Sons, New York and London, 1904. Cloth, pages 236.

The purpose of this compilation, as the author states, is to bring together, for the convenient reference of those interested in copyright property, the issues that have arisen and the decisions.

*Review of 1st edition in 14 Yale Law Journal P. 294.

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