tive work, a pleațalleging that the city has paid for the work is not good without an allegation that the city so paid with knowledge of the breaches alleged.-City of Newark v. New Jersey Asphalt Co., N. J., 53 Atl. Rep. 294. 104. MUNICIPAL CORPORATIONS-Election.-Omission to vote by a minority of a city council did not affect the validity of election of a clerk. Attorney General v. Remick, N. H., 53 Atl. Rep. 308.

105. MUNICIPAL CORPORATIONS-Judicial Notice.-The city of St. Louis being a political subdivision of the state of Missouri, its corporate existence will be judicially noticed.-State v. Nolle, Mo., 70 S. W. Rep. 504.

106. MUNICIPAL CORPORATIONS-Ordinances.-An ordinance granting a privilege to a corporation held not void because the corporation was not fully organized when it was presented to the council.-Chicago Tel. Co. v. Northwestern Tel. Co., Ill., 65 N. E. Rep. 329.

107. MUNICIPAL CORPORATIONS-Sidewalks.-Where a city ordinance prohibiting the erection of signs, etc., across the sidewalks, is limited to the business center, and the most crowded thoroughfares of the city, these conditions may furnish reasonable ground for such discrimination.-Ivins v. Inhabitants of City of Trenton, N. J., 53 Atl. Rep. 202.

108. MUNICIPAL CORPORATIONS-Street Improvements. -In order to sustain an assessment for benefits from a street; improvement, it must appear that the assessment is not in excess of the benefits.-Rosell v. Neptune City, N. J., 53 Atl. Rep. 199.

111. NEGLIGENCE - Injury to Passenger. The negli gence of the driver of a carriage belonging to a transfer company is not imputable to a passenger exercising no control over the driver.-Frank Bird Transfer Co. v. Krug, Ind., 65 N. E. Rep. 309.

112. NEGLIGENCE-Subcontractor.-As the subcontrac tor has, as between himself and the original contractor, an independent employment, the original contractor was not liable for the negligence of the subcontractor to any one other than the owner of the building.-Schutte v. United Electric Co., N.JJ., 53 Atl. Rep. 204.

113. NEGLIGENCE-Subcontractor. Subcontractor repairing cement floor owes duty to employees of contractor, who must use it, to use due care.-St. Louis Expanded Metal Pireproofing Co. v. Dawson, Tex., 70 S. W. Rep. 450. 114. NUISANCE Noxious Exhalations. Where it is charged that the noxious exhalations from a building within a city were carried over the city, and the air was rendered unhealthful, it will be, assumed that the nuisance existed near the highways and dwellings of the city. State v. Uvalde Asphalt Pav. Co., N. J., 53 Atl. Rep. 299.

115. NUISANCE-Sunday Ball Games.- Noise from Sunday ball games, appreciably disturbing the rest and quiet of persons living in the neighborhood, will be enjoined.-Gilbough v. West Side Amusement Co., N. J., 53 Atl. Rep 289.

116. PARENT AND CHILD-Commercial Education.-The question whether a commercial education furnished an infant is necesssary for which the father is liable held a question for the jury- Cory v. Cook, R. I., 53 Atl. Rep.

315.

117. PARENT AND CHILD-Support of Father.-There is no implied contract by a father to pay his son for board and attention furnished him. Nicholas v. Nicholas, Va., 42 S. E. Rep. 669.

118. PARTITION-Parties.- Judgment creditors are not necessary parties to a partition unless creditors of a deceased tenant in common.-Childers v. Loudin, W. Va., 42 S. E. Rep. 637.

119. PARTNERSHIP-Impeaching Settlement. The party seeking to impeach the settlement of a partnership account for fraud or mistake must set out in his pleading the particular facts constituting the fraud or mistake relied on.-Anderson v. Anderson, Utah, 70 Pac. Rep. 608.

120. PATENTS- Oral Agreement.- An oral agreement for the sale of an invention, founded on a sufficient consideration, made pending an application for a patent, is valid in equity -Cook v. Sterling Electric Co., U. S. C. C., D. Ind., 118 Fed. Rep. 45.

121. PAYMENT-Application.- Where, on a payment, no application is made by debtor or creditor, the law will apply it to the unsecured, rather than the secured debt. Andrews v. Kentucky Citizens' Building & Loan Assn's. Assignee, Ky., 70 S. W. Rep. 409.

122. PLEADING-Certainty.-Lack of certainty in a declaration cannot be taken advantage of on general demurrer. Minnuci v. Philadelphia & R. R. Co., N. J., 53 Atl. Rep. 229.

123. PLEDGES-Rights of Parties.-Where the pledgee of collaterals collects the income thereof, he is a trustee of the pledgor for the proper application of the funds, or the refunding of the same, if the debt is otherwise paid.-McCrea v. Yule, N. J., 53 Atl. Rep. 210.

124. POST OEFICE-Exclusions from Mails - The postmaster general cannot prohibit delivery of letters, addressed to a corporation assuming to heal diseases through the influence of the mind. American School of Magnetic Healing v McAnnulty, U. S. S. C., 23 Sup. Ct. Rep. 33.

127. PRINCIPAL AND SURETY - Indemnity Bond.-P yment by a city for work, under the belief that it was done as required by the contract, will not release a surety against defective work not known by the city at the time.-City of Newark v. New Jersey Asphalt Co., N. J., 53 Atl. Rep. 294.

128. PUBLIC LAND-Cancellation.-Refusal of state land board to cancel a contract for the sale of land and to accept another's application for the purchase thereof, held not reviewable by the courts.--Robertson v. Greer, Oreg., 70 Pac. Rep. 614.

129. PUBLIC LAND- Soldier's Additional Homestead.An application for the entry of a soldier's additional homestead, under Rev. St. § 2306, is not made under the homestead laws; but such homestead is in the nature of a bounty to the soldier. - United States v. Lair, U. S. D. C., E. D. Ark., 118 Fed. Rep. 98.

130. RAILROADS Duty of Flagman.- Where a railroad company assumed the duty of protecting a crossing by a flagman, it is bound to do so with reasonable care.-Wolcott v. New York & L. B. R. Co., N. J., 53 Atl. Rep. 297.

131. RAILROADS - Fire from Engine. - On proof that a fire was communicated by an engine of defendant railway company, the burden of proof is shifted to defendant to rebut presumption of negligence.-Raleigh Hosiery Co. v. Raleigh & G. R. Co., N. Car., 42 S. E Rep. 602.

136. REMOVAL OF CAUSES Federal Court. Where a federal court dismisses without prejudice an action removed into such court, plaintiff may again sue in the state court. - Rodman v. Missouri Pac. Ry. Co., Kan., 70 Pac. Rep. 642.

137. SCHOOLS AND SCHOOL DISTRICTS — Change of Purpose. Where a building has been constructed with bonds issued on a vote to build a schoolhouse, such building will not be allowed to be converted into a theatre. — Sugar v. City of Monroe, La., 32 So. Rep. 961.

138. SCHOOLS AND SCHOOL DISTRICTS Tax.-A statement that the purposes of a tax to be raised by a school district are to meet current expenses and running expenses is sufficiently definite. - Stanton v. Board of Education of Neptune City, N. J., 53 Atl. Rep. 236.

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142. STREET RAILROADS Contributory Negligence.Attempt to cross a street car track in front of an approaching car is not of itself contributory negligence.Campbell v. Los Angeles Traction Co., Cal., 70 Pac. Rep. 624.

143. TAXATION - Assessment in Wrong Name. Where land has been conveyed to a trustee to secure the payment of a debt, it should be assessed in the name of the grantor, and not of the grantee. - Stevenson v. Henkle, Va., 42 S. E. Rep. 672.

other company, except for abuse of power by city. - Chicago Tel. Co. v. Northwestern Tel. Co., Ill., 65 N. E. Rep. 329.

148. TRADE-MARKS AND TRADE-NAMES - Unfair Competition. A defendant, adjudged guilty of unfair competition, is accountable in equity for all profits made on the goods sold in the simulated dress, without regard to whether the purchasers were thereby deceived. — N. K. Fairbank Co. v. Windsor, U. S. C. C., W. D. N. Y., 118 Fed. Rep. 96.

149. TRESPASS-Pleading.-Where the general issue is pleaded in trespass quare clausum, plaintiff is required only to prove possession at the time of the trespass.— Carpenter v. Logee, R. I., 53 Atl. Rep. 288.

150. TRIAL-Harmless Error. - Statement of plaintiff's counsel in argument, which he immediately withdrew on objection, held not prejudicial error.-Western Union Tel. Co. v. Perry, Tex., 70 S. W. Rep. 489.

151. TRIAL--Knowledge of Juror.-To avail a party of a fact known to a juror, he must be sworn and examined as any other witness.-De Gray v. New York & N. J. Tel. Co., N. J., 53 Atl. Rep. 200.

152. TRIAL-Lost Paper.-Permitting secondary evidence of the contents of a lost paper without preliminary proof of its loss held not error, where facts making it competent were subsequently proven.-Haller v. Gibson, Ind., 65 N. E. Rep. 293.

153. TROVER AND CONVERSION-Burden of Proof.-In an action for conversion, the burden is on the plaintiff to prove that he was the owner of the property alleged to have been converted.-Gam v. Cordrey, Dela., 53 Atl. Rep. 334.

154. TRUSTS-Accounting by Trustee.-A trustee, not shown to have wasted the estate or to have derived a profit therefrom, should be charged only with simple interest at the legal rate on funds remaining in his hands from time to time uninvested.-Canfield v. Canfield, U. S. C. C. of App., Sixth Circuit, 118 Fed. Rep. 1.

155. TRUSTS-Husband and Wife.-Purchase by husband of land with wife's money prior to the married woman's act held not to create trust in favor of the wife.Jesser v. Armentrout's Exr., Va., 42 S. E. Rep. 681. 156. USURY- Contract of Another State -A contract made in another state with a building and loan association thereof is governed by the usury laws of that state when it was made.-American Bldg. Loan & Tontine Assn. v. McClellan, Ark., 70 S. W. Rep. 463.

157 WATERS AND WATER COURSES-Exclusive Privileges. Where a water company, under contract to furnish city with water for 20 years, loses its exclusive privilege, the borough, on the expiration of the period, may contract with another company.-Philipsburg Water Co. v. Philipsburg Borough, Pa., 53 Atl. Rep. 347.

158. WILLS-Construction.-Where a suit for the construction of a will was beneficial to the estate, the expenses and costs thereof were properly paid from the estate.-Tiffany v. Emmet, R. I., 53 Atl. Rep. 281.

159. WILLS-Construction.-Where testator devised a farm, the devisee to pay a certain sum therefor, held, that such payments constituted the purchase price of the land and a lien on the land prior to all other liens against the devisee.-Marshall v. Hall, W. Va., 42 S. E. Rep. 641.

160. WILLS-General Legacies.-Legacies of shares of stock, exceeding what testator had, held general legacies. -Slade v. Talbot, Mass., 65 N. E. Rep. 374.

161. WITNESSES-Benefit Societies. A member of a beneficial association held incompetent, on the ground of interest, to testify against an administratrix, suing it.Cronin v. Supreme Council Royal League, Ill., 65 N. E. Rep. 323.

Central Law Journal.

ST. LOUIS, MO. MARCH 13, 1903.

POWER OF A COURT OF EQUITY TO RESTRAIN THE OFFICERS OF A LABOR UNION FROM CALLING A STRIKE ON INTERSTATE RAILROADS.

Much excited and unreasonable comment has been provoked by the recent order of Judge Elmer B. Adams of the United States Circuit Court in the recent case of Wabash Railroad Company v. Hannahan, et al. The order in this case, a temporary injunction against the leaders of certain labor organizations, was the outcome of a threatened strike of trainmen and trackmen of the Wabash Railroad. There was no agreement on the part of the employes of the Wabash Railroad to quit work; in fact, it was asserted that many of the employees had no desire to quit, but would be compelled to do so if the officers of the labor union to which they belonged should call the men out. So it resulted that the railroad company were compelled to treat with purely outside parties threatening to tie up their whole system by calling a strike of the men on their road, unless they acceded to certain demands by a certain day. Confronted with this state of facts, the railroad company resolved upon a bold and somewhat unusual course. They applied for a temporary restraining order, not against their own employees for conspiring to quit their employment at one time, but against the officers of two labor unions to which their men belong, commanding them not to call out or induce their men to strike, and alleging as a reason for such a remarkable order, not that there was any illegal conspiracy against them, but that the contemplated acts of defendants would compel the plaintiff to violate the provisions of the Interstate Commerce Act. The full text of the remarkable order made in this case was as follows:

"Now on this day this cause coming on to be heard on the motion of complainant for a preliminary restraining order or injunc❘ tion, as prayed for in said bill, and complain. ant having exhibited its sworn bill to the Hon. E. B. Adams, Judge, and this court, being now fully advised in the premises, and having heard read said bill, it is ordered that

a writ of injunction issue out of, and under the seal of this court, commanding said defendants, John J. Hannahan, et al., and each of them, individually and as representatives of the Brotherhood of Locomotive Firemen, and Brotherhood of Railroad Trainmen, their representatives, clerks, agents and attorneys, and all others who may be aiding and abetting, or acting in concert with them, and under their direction, absolutely to desist and refrain from in any way or manner ordering, coercing, persuading, inducing, or otherwise causing, directly or indirectly, the employees of the Wabash Railroad Company, complainant, engaged in or about the operation of its trains with the United States, as brakemen, switchmen or locomotive firemen, to strike or quit the service of said company, and from in any way molesting or interfering with said company's said employees, or with the operation of its trains, or conduct of its business as a common carrier, and from molesting or interfering with said railroad company, its officers, agents or employees, in respect to the operation of its trains, or the employment of men for or in connection therewith or from preventing or interfering with said company in the carrying out of its contracts of employment with its employees, and its contracts with shippers for the transportation of property, and from interfering with or preventing said railroad company from affording reasonable, proper and equal facilities for the interchange of traffic between its lines of railroad and other lines of railroad connecting therewith, and receiving, forwarding and delivery of passengers and property to and from its lines of railroad with other railroads connecting with such lines, and making a continuous carriage of freight from the place of shipment to the place of destination, and from preventing or interfering with such railroad company's connecting lines and their employees, in the like interchanges of traffic and facilities with said Wabash Railroad and from ordering, advising, or otherwise influencing employees of such connecting lines to refuse to interchange traffic and afford facilities therefor, and from interfering with or preventing said Wabash Railroad and its connecting lines from complying with the requirements of the Interstate Commerce Act of the United States, and with their said agreements with each other in respect to said facilities for the interchange of

traffic, and the receiving and interchanging of traffic, and from interfering with or preventing said railroad company in the carrying of the mail in accordance with its contracts with the United States, and the laws relating thereto, to the end that by any of the acts or means aforesaid, the said defendants, their agents or servants shall not interfere with said railroad company in the discharge, or prevent said railroad company from discharging its duties and obligations with respect to interstate commerce, or prevent it from performing any or all its duties or obligations imposed by the Act of Congress approved Feb. 4, 1887, and amendments thereto in relation to interstate commerce."

It is well settled of course that workmen have the right to combine for their own protection, and to persuade in a reasonable manner fellow workmen to join them or to refrain from taking the places made vacant by them. On the other hand it is equally well settled that workmen who have left the employ of their former master, have no right to attempt by coercion or intimidation to prevent others from taking their places. Many authorities familiar to every member of the profession might he cited in support of both these propositions.

The point, however, involved in the temporary restraining order issued by Judge Adams, has never to our knowledge been passed upon. This order virtually asserts the right of a court of equity to prevent even the calling of a strike by the officers of a labor union when such strike would seriously affect the operation of the mails or interfere with interstate commerce. It has been held that ordinarily the officers of a labor organization cannot he enjoined from calling a strike or assisting the carrying on of the strike by the disbursements of funds. Cumberland Glass Mfg. Co. v. Bottle Blowers Assn., 59 N. J. Eq., 49, 46 Atl. Rep. 208; Levy v. Rosenstein, 66 N. Y. Supp. 101. It would certainly be a gross interference with the constitutional liberty of any person to prohibit him from advising another to quit any employment he may be engaged in at the time. And certainly, if a labor union is not an illegal combination or organization, their officers who are given certain powers in advising or calling a strike by the constitution and bylaws cannot be enjoined from peacably exer

cising these powers whenever they see fit. But in the order of Judge Adams a new element is injected, the effect of the exercise of such powers on interstate commerce or other interests of the state or national governments. So long as only private interests are involved there can be no question that a court of equity could have no basis for making such an order unless, as we indicated in a previous editorial, great danger to life or property might result. 56 Cent. L. J. 101. The Interstate Commerce Act imposes certain obligations upon common carriers, such obligations existing for the benefit of commerce throughout the whole country. If labor organizations controlling the labor of the great railroad systems of the country should become so powerful as that by their word they could throw out of employment every available man for such work in the United States, it is not difficult to imagine how easily the wheels of commerce could be stopped, mails delayed and every provision of the Interstate Commerce Act rendered nugatory. A few years ago to have mentioned such a thing as possible would have brought upon him who made the statement the ridicule of the whole country. Now, however, the question is becoming a serious one. Labor unions are being regarded with as much, if not greater apprehension, as trusts, and are only tolerated as we sometimes tolerate the injection of one poison into the system as an antidote to another already there. How often the whole country has been prostrated before the feet of a small coterie of men who, exercising a little brief authority conferred upon them, have by their action stagnated sometimes the most vital business interests of the nation. If, as this power increases, its exercise begins to conflict seriously with interstate commerce or any other public interest, have not the federal courts whose duty it is to protect these interests the power to assume to exercise the most prompt and effective remedy against the threatened injury? Many jurists who have professed to see so much of evil in the use by the federal courts, of the writ of injunction, would do well to think more seriously on the impotency of the people when, in the merciless clutch of a partisan organization controlling the labor of the country, every national interest is paralyzed and no effective remedy at hand to protect the rights of the people.

NOTES OF IMPORTANT DECISIONS.

FRAUDULENT CONVEYANCES-CONVEYANCE OF MINING PROPERTY FOR STOCK IN MINING CORPORATION.-The transfer of property in exchange for stock in a corporation, where such payment for stock is not prohibited by statute, is not ipso facto a conveyance fraudulent to existing creditors. Such was the interesting point of the decision in the recent case of Homestead Mining Company v. Reynolds (Colo.), 70 Pac. Rep. 422. In this case two debtors owning several mining claims conveyed them to the defendant mining corporation in consideration of stock in such corporation. This conveyance was made just prior to the rendition of a judgment against them, but there was no evidence of any actual intention to defraud. The court said:

"No claim is made nor does the proof show, that there was an actual intent on the part of the judgment debtors to perpetrate a fraud upon their creditors, and, if there was fraud at all, it was what plaintiff denominates fraud in law; in other words, the necessary effect of the conveyance was a legal fraud, in that it left the judgment debtors without sufficient property to pay their existing indebtedness. The action was not in any sense grounded upon the proposition that the conveyance in question was a deed of gift made in trust for the use of the donor, which would be void under section 2024, Mills' Ann. St., and appellee's claim that the case comes under that section is not borne out by the pleadings or the evidence. It was incumbent, therefore, upon the plaintiff, having adopted the theory just mentioned, to prove that the conveyance was purely voluntary, or that it was made with the intention to delay and defraud creditors. There are allegations in the complaint that the conveyance to the corporation was for the purpose of putting the property beyond the reach of the creditors of Wall and Pursel; but the mere fact and there is no other proof-that the corporation paid no money, but issued its stock in payment for the property, is of itself not proof of such intent, because it is a method of transacting business permitted by the statute."

MUNICIPAL CORPORATIONS-CITY AS TRUSTEE Can a OF PUBLIC CHARITY UNDER A WILL. city act as trustee of a public charity under a will? Such was the question before the Supreme Court of Colorado in the recent case of Clayton v. Hallett, 70 Pac. Rep. 430. In this case, a testator gave his residuary estate to the city of Denver in trust for the establishment of a college for the education of orphan boys in the county and state. By the laws of the state the maintenance of schools was left to the school districts. Testator died in 1889. The city had no express authority in its charter to acquire and hold property, except as necessary for the public use of the inhabitants. But the charter provided for the assistance of charitable organizations, and for the gen

eral good government of the city. The court held that, the trust being germane to such objects, the city was authorized under its charter to accept and execute the trust.

This decision is in line with the authorities. Stephen Girard died in the year 1831, and by his will devised and bequeathed to the city of Philadelphia the residue of his estate in trust for the establishment and support of a permanent college for the education of poor white male orphans. This devise was sustained by the Supreme Court of the United States, and the court held that "the corporation of the city of Philadelphia is capable of taking under a devise of real and personal estate in trust for the establishment and support of a college for poor orphan boys, and can execute the trust." Vidal v. Girard's Exrs., 2 How. 127, 11 L. Ed. 205. Bryan Mullanphy died in the year 1851, and by his will devised and bequeathed the undivided one-third of his property to the city of St. Louis in trust, "to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way to settle in the West," and this trust was sustained by the Supreme Court of Missouri in the case of Chambers v. City of St. Louis, 29 Mo. 543. Charles McMichen, a citizen and resident of Cincinnati, made his will in 1855, and died in 1858 without issue. He devised certain real and personal property to the city of Cincinnati and its successors in trust, forever, for the purpose of building, establishing, and maintaining, as far as practicable, two colleges for the education of boys and girls. The Supreme Court of the United States, in Perin v. Carey, 24 How. 465, 16 L. Ed. 701, held that this was a valid devise, and that "the city of Cincinnati, as a corporation, was capable of taking in trust devises and bequests for charitable uses, and can take and administer the devises and bequests in the will of C. McMichen." Upon this subject of he authority of municipal corporations to administer a trust, Mr. Justice Wayne, speaking for the court, said: "If the purposes of the trust be germane to the objects of the corporation, if they relate to matters which will promote and perfect these objects, if they tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiress, where is the law to be found which prohibits the corporation from taking the devise upon such a trust in a state where the statutes of mortmain do not exist, the corporation itself having an estate as well by devise as otherwise? We know of no authority which inculcates such a doctrine, or prohibits the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and powers."

In speaking of the cases just cited the court in the principal case said: "The sections of the charter of Philadelphia, Cincinnati and St. Louis quoted in the cases cited show that the charters of these cities and the charter of Denver are practi