the station, in the opposite direction. Under these circumstances, his acts while on this personal, unauthorized trip were not the acts of his employer or within the scope of his em ployment. The connection between the master and servant was broken while he was engaged upon that unauthorized trip for his own personal ends and purposes. Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; O'Brien v. Stern Brothers, 223 N. Y. 290, 119 N. E. 550; Fallon v. Swackhamer, 226 N. Y. 444, 123 N. E. 737. We think the ruling in Jones v. Weigand, 134 App. Div. 644, 119 N. Y. Supp. 441, should not be extended beyond the facts in that case.

The judgment and order should be reversed, with costs, and the complaint dismissed, with costs. This court unanimously reverses the finding of negligence upon the part of defendant implied in the verdict of the jury. All

concur.

NOTE.-Liability of Owner of Automobile for Injury by an Incompentent.-The use by one not a servant or agent of the owner of an automobile was in the early days of this instrumentality somewhat differently regarded than now.

In Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227, it was said of automobiles that: "The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles." But, when we remember that many states have provisions in their laws requiring that not every one, but only one qualified by age or expert knowledge, lawfully may drive on the streets an automobile, there is implied a statement in legal policy, that an automobile is an instrument inherently dangerous. There is a suggestion that the owner should not allow it to come into use by any and everyone.

In Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, the opinion proceeds upon the assumption that unauthorized use was by one qualified as an expert, to-wit the chauffeur servant of the owner. And so are many other cases. But suppose that an operator of an automobile is intoxicated. In New York Highway Law such a one is prohibited from operating an automobile. Lincoln Taxicab Co. v. Smith, 150 N. Y. Supp. 86. Now it is readily conceivable that an owner permitting an intoxicated person to operate an automobile on the highway could be held liable. But is it not true that an owner must guard his automobile against surreptitious use by a disqualified person or be liable for consequences?

It has been held that a law providing for liability of an owner of an automobile for any injury caused by one to whom an owner has loaned it is constitutional. Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N. W. 520. The Court said: "It is true that the automobile has be

come so perfected that it may not be classed as a dangerous instrumentality,' when intelligently managed. It will not shy, balk, back up or run away when properly directed, but may do all of these things when managed by an incompetent. or reckless, driver. When in control of such a one it becomes an exceedingly destructive agency as the daily toll of lives and the many injuries to persons chronicled by the newspapers attest. ** * * The owner is supposed to know and should know about the qualifications of the persons he allows to use his car." But it was not said it was a matter of defense for an owner to show that a person using a car by consent of owner was competent. It seems to me that it would certainly be far more in the reach of police power specifically to hold an owner for the use of an automobile insufficiently guarded against its being operated by an incompentent person. Indeed, a statute of this sort ought not to be needed to fix responsibility of an owner for its being operated by an incompetent person.

In Lynde v. Browning, 2 Tenn. C. C. A. 262, there was considered the right of forfeiture of a machine that was being used by one who had stolen it and it was said: "Forfeiture of instrumentalities that have occasioned harm is one of the oldest principles of jurisprudence. This conception inheres in the English and American systems of jurisprudence." While it was said that no lien might attach for damages unless the operator was agent or servant of the owner, yet it was constitutional to make an owner, where a machine in the hands of a thief does damage, liable to the extent of the value of the machine.

But, if this be so, a fortiori it seems to me that if an incompetent operates a machine, whether with knowledge and consent of the owner or not, the owner ought to be held on the theory that he must guard against its coming into the possession of an incompetent.

ITEMS OF PROFESSIONAL

INTEREST.

C.

PROGRAM OF THE MEETING OF THE OHIO BAR ASSOCIATION.

The forty-first annual meeting of the Ohio Bar Association will be held at the Hotel Breakwater, Cedar Point, Ohio, July 6, 7 and 8, 1920.

The President's address will be delivered by Mr. Smith W. Bennett, of Columbus. Sir James Aikens, K. C., President of the Canadian Bar Association, of Winnipeg, will also deliver an address. Hon. Charles S. Thomas, U. S. Senator from Colorado, will address the Association on the subject of Federal Encroachments.

There will be the usual committee reports.

PROGRAM OF THE MEETING OF THE

KENTUCKY BAR ASSOCIATION.

The eighteenth annual meeting of the Kentucky Bar Association will be held at Henderson, July 14th and 15th.

The president's address will be given by Mr. Lewis Apperson, of Mount Sterling. The annual address will be delivered by Hon. Selden P. Spencer, of St. Louis. Other addresses will be given as follows: "The Income Tax," by Mr. Robert Miller, of Louisville; "The Work of the 1920 Legislature," by Mr. John Blue, of Marion, Ky.; "Some Great Lawyers of Kentucky," by Mr. W. L. Porter, of Glasgow, Ky.; "The Application of the Scintilla Rule by the Courts," by Mr. S. D. Rouse, of Covington, Ky.; "The Seventeenth and Eighteenth Amendments to the Constitution of the United States and the Effect Thereof," by Mr. Malcolm Yeaman, of Henderson, Ky.

BAR ASSOCIATION MEETINGS FOR 1920WHEN AND WHERE TO BE HELD.

American-St. Louis, August 25, 26 and 27. Arizona-El Paso, Tex., July 1, 2 and 3. Colorado-August 20 and 21; probably Colorado Springs.

Indiana-Indianapolis, July 7 and 8.
Kentucky-Henderson, July 14 and 15.
Minnesota-St. Paul, July 27, 28 and 29.
Missouri-St. Louis, December 3 and 4.
New Mexico-El Paso, Tex., July 1, 2 and 3.
Ohio-Cedar Point, July 6, 7 and 8.
South Dakota-Sioux Falls, August 4 and 5.
Texas-El Paso, July 1, 2 and 3.
West Virginna-Wheeling, July 28 and 29.
Wisconsin-Milwaukee, September 28, 29

and 30.

BOOKS RECEIVED.

Occasional Papers and Addresses of an American Lawyer. By Henry W. Taft, of the New York bar. 1920. The Macmillan Company. Price, $2.50. Review will follow.

The Nature of the Corporation as an Entity, with especial reference to the law of Maryland. By James Treat Carter, Ph.D., of the BaltiM. Curlander. Baltimore. 1920. more Bar. Price, $3. Review will follow.

HUMOR OF THE LAW.

In court a few days ago some colored gentlemen were being questioned for the purpose of ascertaining their fitness for jury service.

"I can't serve on dis jury, Judge-no, suh," said Clarence Green.

"Why not, Clarence?"

"Well, suh, my mind's done made up-yes, suh-"

"Is that so, Clarence? Since when has your mind been made up?"

"Well, suh, Judge, you might say ever since the incipiency of my information, suh, yes, suh."-New York Evening Post.

"The courts of justice in the mountains are not always show places of the English language," says Gov. Morrow of Kentucky, "but native judges who may know that L.L. B. does not mean 'lie like blazes,' often let fall gems of speech."

Lou Lewis, a Circuit Judge of the upper Kentucky River section in the mountains, always made the occasion of a charge to the grand jury one of expounding every law on the statute books with local applications mixed in. Incidentally, each of his charges was a political speech, for the Judge was a constant condidate for office. On the occasion that comes to mind, his concluding charge was this:

"Gentlemen of the jury: A most heinous crime has been called to the attention of this court. You all know the Piney Grove meetin' house. The godly elders and deacons thereof, in the goodness of their hearts, went down to the banks of the middle forks of the Kentucky and with great care selected a fine lot of water maples and brung 'em back and planted 'em in the meetin' house yard. Them trees growed and flourished and was doin' fine, but, gentlemen of the jury, observe the perversity of mankind.

"A few wild bucks on a Sunday rid their nags up to the meetin' house and, ignorin' the hitchin' post on the outside, rid their beasts into the yard and hitched them to the aforesaid maples, and while the congregation inside wuz a-singin' sweet songs of Zion, them thar beasts chawed all the bark off uv them thar trees and to-tilly destroyed them.

"Gentlemen of the jury, I say to you that a man who would do the like uv that would ride a jackass into the Garden of Eden and hitch him to the Tree of Life. Indict 'em, gentlemen, indict 'em."-Post-Dispatch,

1. Adverse Possession-Forcible Entry and Detainer. The actual possession that will support an action for forcible entry or detainer is the same kind of actual possession that will in time ripen into good title, and is determined by the same rules as in any other action.-New York-Kentucky Oil & Gas Co. et al. v. Miller et al., Ky., 220 S. W. 535.

2. Alteration of Instruments-Materiality. -Material alteration of negotiable instrument by party to it, as by reducing amount without consent of maker, renders instrument void, and it cannot be enforced even by a subsequent purchaser in good faith without notice, whether the alteration is injurious or beneficial to the party liable.-Keller v. State Bank of Rock Island, Ill., 127 N. E. 94.

4.- -Bulk Sales Law. Where, within four months of bankruptcy, defendant, without compliance with the Bulk Sales Law, purchased a bankrupt's stock of goods, the stock belonged to the trustee as against defendant, and defendant's purchase rendered him liable to the trustee in trover.-Philoon v. Babbitt, Me., 109 Atl. 817.

5. Insurance.-An order denying petition of a trustee to require bankrupt to deliver up a policy of life insurance or pay its surrender value held a bar to a later application to require him to surrender the policy or pay its loan value. In re Samuels, U. S. C. C. A., 263 Fed. 561.

6.- -Salaries.-Salaries, not unreasonable in amount, voted and paid by the directors of a corporation, who also owned a large majority of its stock, to certain officers of the corporation for past services, without objection by any stockholder or creditor, held not recoverable . by the trustee on behalf of subsequent creditors, on bankruptcy of the corporation more than ten years later.-In re Franklin Brewing Co., U. S. C. C. A., 263 Fed. 512.

7. Banks and Banking-Admission of Signature.-A statement by a bank cashier that a check was good admits that the signature of the drawer was genuine, and that there were sufficient funds on deposit to cover the amount named in the check, but not that the amount was that originally written by the drawer.Central Nat. Bank v. F. W. Drosten Jewelry Co., Mo., 220 S. W. 511.

8. Certifying Check.-The "certification of a check" by the bank on which it is drawn is equivalent to the acceptance of a bill of exchange, and implies that the check is drawn upon sufficient funds in the bank's possession, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. McAdoo, Director General of Railroads, v. Farmers' State Bank of Zenda, Kan., 189 Pac. 155. 9. Bills and Notes-Attorney Fees. It is no defense to a claim for attorney's fees in a suit on a note that, before the finding thereof and before giving defendant the 10 days' notice required by statute, the payee had already sued defendant on the note, and that such suit is pending at service of such statutory notice, but had been dismissed before the finding of second suit.-Lang v. Hall, Ga., 102 S. E. 877.

10. Boundaries-Adjoining Owners.-Boundary line agreement by adjoining owners having had bona fide dispute as to location thereof, followed by possession with reference to the boundary so fixed, is conclusive on the parties, although the possession may not have been for the full statutory period, it being sufficient to show that the dividing line was actually established and thereafter recognized or acquiesced in by the parties for a considerable time.-Holbrooks et al. v. Wright et al., Ky., 220 S. W. 524.

offering or giving him money to induce him to deliver a trunk to one not the owner is a 'violation of Crimnial Code, § 39.-Krichman v. United States, U. S. C. C. A., 263 Fed. 538.

12. Carriers of Goods-Perishable Property. -In an action for damages to fruit during shipment, the measure of damages is the difference between the market value of the fruit in good condition at place of destination and the market value in damaged condition at such place; the price at which they were subsequently sold in small lots at another place by the one who bought them being immaterial. Garry et al. v. Los Angeles & S. L. R. Co. et al., Utah, 189 Pac. 71.

13. Charities-Gifts.-Courts of equity favor gifts to charity, and if the mode pointed out for carrying into effect the gift fails, the court will provide another mode by which it will take effect.-Jansen v. Godair et al., Ill., 127 N. E. 97.

14. Chattel Mortgages-Bill of Sale.-An instrument in the form of a bill of sale, reserving title to personalty sold, cannot be properly treated as a mortgage merely because providing that, on payment of notes as they became due, title to an automobile should be in the buyer, with a warranty title thereto.-Roddenberry v. Fouche, Ga., 102 S. E. 869.

15. Conspiracy Husband and Wife. If defendant conspired with his wife and another woman to steal an automobile, he was guilty of conspiracy, regardless of whether the machine was actually stolen.-Dalton v. People, Col., 189 Pac. 37.

16. Contracts Consideration.-Promise to send one to school or college for services being rendered did not create a contract, where there was no agreement how long services were to be performed, or to what school or college the person rendering the services was to be sent, and for time. what length of Kuhlmann's Estate v. Poss, Tex., 220 S. W.

564.

17. Offer and Acceptance.-If an offer is accepted as made, the acceptance is not rendered ambiguous or conditional by uniting with it an expression of hope or suggestion that some unimportant addition or modification be made in its terms.-E. T. Barnum Iron Works v. Prescott Const. Co., W. Va., 102 S. E. 860.

be

18. Reasonable Time.-Generally what is a reasonable time is a question to be passed upon by the jury, but where the facts are undisputed and different inferences cannot drawn from them, the question as what is a reasonable time is one for the court.-American Realty Co. v. Bramlett, Ga., 102 S. E. 873. 19. Conversion-Equity.-Where testator authorizes executor to sell real estate, and it is apparent from the general provisions of the will that he intended it to be sold, although the power of sale is not in terms imperative, the intention to convert the estate will be implied. McCormick V. McCormick, Ill., 127 N. E. 78.

a

20. Corporations Nonassessability.-Representation that stock is nonassessable is assurance that the company has taken all steps necessary to waive right to levy statutory assessments, and is a representation of fact, which if false entitles the subscriber to rescind and is a complete defense to an action on the subscription.-Merchants' Realty & Investment Co. v. Kelso. Cal., 189 Pac. 116.

21. Covenants-Incumbrance.-The Covenant against incumbrance is a covenant as to things existing at the time it is made. If broken at all, it is broken the moment it is made, and the cause of action then exists, which does not pass by force of any conveyance purporting to grant the premises.-Beecher v. Tinnin, N. M., 189 Pac. 44.

22.- -Lex Rei Sitae. The law of the place where the land is situated governs in determining the effect of a covenant running with land. Langford V. Newsom, Tex., 220 S. W. 544.

23. Criminal Law-Impeachment.-In view of the facts of the case, a charge that a witness may be impeached by contradictory statements, and that that is one of the methods if impeachment recognized by the law, held erroneous, as not giving a full and more adequate instruction thereon; although no request to do so or to charge on the subject was presented. -Williams v. State, Ga., 102 S. E. 875.

24. Instructions.-A defendant has the right to insist that the court shall instruct on all legal questions necessary to reach a true verdict.-Kocher v. State, Ind., 127 N. E. 3. 25. Reasonable Doubt.-A charge that reasonable doubt does not mean mere vague conjecture or possibility, conjured up to acquit the defendant, but such a doubt as arises in the mind of an honest juror seeking the truth, and leaves it doubtful as fo truth of a transaction, and that it may arise from having heard the case and the want of weakness or insufficiency of the evidence, was not error.Newsome v. State, Ga., 102 S. E. 876.

26.

-Self-Serving Statement.-It was not error to exclude testimony of a witness for accused that, after accused had gone a quarter of a mile from place of the homicide, he said "he would go back and stay until somebody came," where he did not go back, as the declaration would have been a self-serving one and not part of the res gestae.-McBride v. State, Ga., 102 S. E. 865.

27. Damages-Loss of Earnings.-In personal injury suits, plaintiff may recover for loss of earnings or profits in his business, provided such earnings or profits are ascertainable with reasonable certainty.-Ganz v. Metropolitan St. Ry. Co., Mo., 220 S. W. 490.

28.

Death-Presumption of Care.-A pedestrian killed by a train at a crossing is presumed. prima facie, to have been using proper care.―Jones v. St. Louis-San Francisco Ry. Co., Mo., 200 S. W. 484. 29. Deeds Defeasance.-Conditions, when they tend defeat estates, are to be construed strictly; this being particularly true in the case of conditions subsequent relied upon to work a forfeiture.-Blackwood Improvement Co. v. Public Service Corporation of New Jersey, N. J., 109 Atl. 820.

30. -On

to

Disorderly House-Character of Visitors. a prosecution for keeping a house of illfame testimony showing the character of those who visited it and what they said and did while there is competent to show the character of the place.-State v. Rogers, Minn., 177 N. W. 358.

pro

31. Divorce--Abandonment.-Indecent husband to posals by a his daughter-in-law held sufficient to justify his wife in abandoning him, so that he could not secure divorce for desertion.-Knight v. Knight, Tex., 220 S. W. 609.

32. Equity.-A divorce suit is a proceeding in equity, and the chancellor has full supervision of the trial, and is not incumbered by rules of procedure with the same strictness as in jury trials.-Cole v. Cole et al., D. C., 263 Fed. 633.

33.- -Indignities.-A husband who cooked several meals a day and whose wife was absent a number of nights, without more, held not to have suffered such indignities as to warrant a decree of divorce.-Pierce v. Pierce, Mo., 220 S. W. 506.

34. Eminent Domain-Discontinuing Proceeding.-City may discontinue street extension condemnation proceeding at any time prior to payment or deposit of the sums awarded as compensation for the property proposed to be taken, and by so doing it loses none of its rights under ordinance providing for such extension.-Post Printing & Publishing Co. et al. v. City and County of Denver, Col., 189 Pac. 39. 35. Equity-Jurisdiction.-As a general equitable principle, jurisdiction of equity, once existing, is not lost because the courts of law have subsequently acquired a like authority.

Harris v. Esperanza Mining Co., N. J., 109 Atl. 826.

36. Execution-Redemption.-The

of a purchaser of land at foreclosure of mortgage is not subject to levy and sale prior to expiration of the period for redemption.— Bailey v. Erney, Col., 189 Pac. 18.

Fees.-Attorney fees 37. Fraud-Attorney are not recoverable in a tort action based upon fraud.-Baird v. Gibberd, Idaho, 189 Pac. 56.

38. Elements Stated.-The elements of a cause of action for fraud are representation, falsity, scienter, deception and injury.-Bouxsein v. First Nat. Bank of Granville et al., Ill., 127 N. E. 133.

39. Fraudulent Conveyances-Existing Creditors. To constitute a valid conveyance against is necessary, not only existing creditors, it that the consideration be valuable, but also adequate in the eye of the law.-Jones v. Williams, Vt., 109 Atl. 803.

V.

40. Husband and Wife.-Where ment debtor conveyed all his tangible assets to a corporation, receiving in exchange preferred and common stock of the corporation, a transfer of the common stock without consideration to his wife was a fraud on the judgment debtor and voidable by him.-Harnau v. Haight et al., Mich., 177 N. W. 281.

occurs

a prosecu41. Homicide Instructions.-In tion for manslaughter, where it appeared that decedent in company with defendants was shot and killed by some unknown person when he and defendants were engaged in committing highway robbery, an instruction that, if several persons conspire to do an unlawful act the and death in the prosecution of common object, all are guilty of the homicide, the act of one in furtherance of the common erroneous, design being the act of all, was since under it defendants might be held responsible for shooting done by another person when there was no concert of action between him and them.-People v. Garippo et al., Ill., 127 N. E. 75.

42. Husband and Wife Community Property. -The mere fact that land conveyed to wife was paid out of community property was not in itself sufficient to warrant conclusion that the land became community and not wife's separate property.-Zellner v. Samuelson et al., Tex., 220 S. W. 587.

43. Survivorship.-Where title to standing timber was in husband and wife as tenants by the entirety, after the husband died the wife took title, as survivor, to not only the standing timber but also the logs and lumber severed from the soil before the husband's death; such severance not affecting the application of the rules of tenancy by the entirety.-Morris V. Morris, Mich., 177 N. W. 266.

44.

Principal

Restrictions.-Landlord in absence of lease restrictions cannot permit signs or adto be placed vertisements of other parties against the will of tenants on outside walls of part of building leased.--Hilburn v. Huntsman et al., Ky., 220 S. W. 528.

52.-Tenancy at Will.-A tenant at will is entitled to two months' notice before he is subject to eviction.-Salios v. Swift, Ga., 102 S. E. 869.

53. Larceny-Intent.-To establish the crime of larceny, it is not essential that accused intended to benefit from the taking.-State v. Allen, Utah, 189 Pac. 85.

54. Libel and Slander-Slander of Title.-The utterance of false and malicious statements, disparaging the title to property in which one has an interest, if the statements are untrue and cause damage, constitutes slander of title. record an instrument Maliciously filing for

known to be inoperative is a false and malicious statement within the rule, but where a man does no more than file for record an instrument which he has a right to file, he commits no wrong.-Kelly v. First State Bank of Rothsay et al., Minn., 177 N. W. 347.

55. Liens Equitable Lien.-The courts have been strict in demanding as a condition to the establishing and enforcing of an equitable lien that the intention of the parties should be clearly found expressed in the contract, without vagueness or uncertainty.-Westinghouse Electric & Mfg. Co. v. Brooklyn Rapid Transit Co. et al., U. S. C. C. A., 263 Fed. 532.

56. Marriage-Mutual Consent.-The two essentials of a valid "marriage at common law" are capacity and mutual consent, and it is well settled that under the common law the marriage relation may be formed by words of present assent, per verba de praesenti, and without the interposition of any person lawfully auor to join thorized to solemnize marriages, persons in marriage.-Marsicano v. Marsicano, Fla., 84 So. 156.

57. Master and Servant Agency.-Where the agent of a threshing machine company, whose duty required him to see that the new took entire thresher worked satisfactorily, charge of the threshing operation, he is liable a fire started by for damage resulting from the operation of the machine without a spark v. Whalen, Wash., arrester.-Cronkhite et al. 189 Pac. 94.

58. Assumption of Risk.-An employe assumes the risk of an injury caused by defects in his employer's instrumentalities, of which he either knows or is in fault for not knowing.-Paquette v. Connecticut Valley Lumber Co., N. H., 109 Atl. 836.

59.--Course of Employment.-Where a construction company's employe working by the hour with 30 minutes' intermission for dinner fell from a ladder, used in the work because a