rung revolved under pressure while he was going up to eat his lunch at the customary place, he was on the premises with the implied invitation of the company, so that, if it knew of the defect and failed to warn him thereof, it was liable for his injuries.-Boner v. Eastern Michigan Power Co., Mich., 177 N. W. 225.

60.- -Violation of Rules.-The violation by railroad employe of the company's rules is not necessarily negligence, and the employe is justified in violating the rule where to follow it would accomplish disaster.-Howell v. Southern Ry. Co., S. C., 102 S. E. 856.

Law.

61. Workmen's Compensation Courts cannot look for the same precision in adjudications by the Workmen's Compensation Board as otherwise might be insisted on if the members were required to be learned in the law. Whittle v. National Aniline & Chemical Co., Pa., 109 Atl. 847.

62. Mines and law applies the rule of strict construction, when a forfeiture is claimed for the breach of a condition subsequent in a conveyance of an interest in minerals in land.-Tickner v. Luse, Tex., 220 S. W. 578.

Minerals-Forfeiture.-The

63. Interest in Land.-A conveyance of an interest in the oil, gas and minerals in and under a tract of land is a conveyance of an "interest in the land."-Crabb et ux. v. Bell et al., Tex., 220 S. W. 623.

61. Mortgages-Redemption. The interest or estate of the mortgagor in land mortgaged being but an equity of redemption, when a second mortgage is given such equity is the only estate the second mortgagee acquires an interest in.-Gregory v. Suburban Realty Co., Ill., 127 N. E. 119.

65. Municipal Το establish a highway by prescription, the user must be adverse, open, and notorious, exclusive, continuous, and uninterrupted, for the period required by the statute.-Tri-City Artificial Ice Co. et al. v. Day, Ill., 127 N. E. 106.

Corporations-Prescription.

66. Parent and Child-Rights of Father.The father has the right to the control and custody of his child, unless he has forfeited this right by immoral conduct, or by an abandonment of the child.-Nickle v. Burnett, Miss., 84 So. 138.

67. Partnership-Undisclosed Partner.-One making contract in his own name for benefit of himself and an undisclosed partner may sue for the benefit of himself and partner and recover the full amount of the damages.-Bankers Trust Co. v. Schulze, Tex., 220 S. W. 570. 68. Principal and Agent-Proof of Agency. One dealing with an agent is bound to ascertain the nature and extent of his authority.Texas Co. v. Quelquejeu, U. S. C. C. A., 263 Fed. 491.

69.- -Proof of Agency.-Agency may be proved by testimony of the alleged agent as a witness.-Mackle Const. Co. V. Hotel Equipment Co., Ga., 102 S. E. 868.

70. Principal and Surety-Substantial Breach. -A surety, though one for profit, is relieved of liability where the assured has substantially breached the contract to the damage of the surety.-Berkshire Land Co. V. Moran et al., Mich., 177 N. W. 205.

the

71. Release-Executed Agreement.-In absence of fraud or mistake, the executed agreement of settlement made by a railroad company with one injured while in the employment of the company constitutes as conclusive and as effectual an estoppel against the party seeking to repudiate the settlement thus made as the final judgment of a court of competent jurisdiction, to the effect that the rights of the parties are as they are set forth in the agreement. The burden is always upon the assailant of the contract to establish the vice which he

alleges induced him, and a bare preponderance of evidence will not sustain the burden. A written agreement of settlement and release will not be rescinded for fraud or mistake, unless the evidence of the fraud or mistake is clear and convincing.-Midland Valley R. Co. v. Clark, Okla., 189 Pac. 183.

72. Remainders-Livery of Seisin.-At common law, an estate in remainder could not be aliened by livery of seisin, for to transfer land by that method possession is indispensable.Real Estate Title Ins. & Trust Co. of Philadelphia v. Dearborn, Me., 109 Atl. 816.

73. Sales-Rescission.-A buyer does not waive his right to rescind a contract for the purchase of an organ by making payments induced by promise to fix the organ and by delaying rescission at the request of seller.Ray v. American Photo Player Co., Cal., 189 Pac. 130.

74.

-Samples.-Where jewelry sold according to sample did not, with the exception of a few of the articles on top in the carton, correspond with the samples, buyer was not required to keep the jewelry conforming to sample, but could reject all of the jewelry, the rule requiring buyer to accept goods corresponding to sample having no application, where only a nominal part of the items or quantity of the goods corresponds thereto.-National Novelty Import Co. v. Ellis, Ark., 220 S. W. 467.

75. Tender.-In an action of trespass on the case for conversion of an automobile, where it appeared that when plaintiff attempted to tender defendant the amount of the purchase price owing thereon defendant refused to accept it and left, plaintiff's actions were all that were necessary or possible to comply with the necessity of tender or demand.-Wright v. Dwight, Mich., 177 N. W. 209.

76. Set-Off and Counterclaim-Pleading.For an answer to state a counterclaim entitling defendants to judgment on plaintiffs' failure to reply thereto, it must set up a cause of action which defendant could have maintained in an independent suit against plaintiff.-Turner v. Southeastern Grain & Live Stock Co., N. C., 102 S. E. 849.

77. Specific Performance Option.-Waiver by the vendor of the exercise of his option of forfeiture, thus continuing the contract, and its abrupt cancellation without notice, puts the vendor, in a measure, in default, making it unnecessary for the vendee to make further tender.-Gannaway V. Toler et al., Miss., 84

So. 129.

78. Wills-Construction.-Words will not be read into a will unless it is certain beyond a reasonable doubt that the testator has not expressed himself as he intended and supposed he had done.-In re McConnell's Estate, Pa., 109 Atl. 846.

79.- -Lex Rei Sitae.-The validity and construction of wills affecting title to land depend upon the law of the state where the land is situated.-McNamara et al. v. McNamara et al., Ill., 127 N. E. 130.

80. Reversion.-When a remainder devised in fee is limited in contingency, the reversion remains in the heirs of the testator until the happening of the event designated in the will for taking it out of them.-City Savings Bank & Trust Co. of Vicksburg v. Cortright, Miss.,

S4 So. 136.

81.- Testamentary Capacity. One possesses "testamentary capacity" whose mind and memory are sound enough to enable him to know and understand the business in which he is engaged when he executed a will, notwithstanding failing memory and mental and physical powers from old age.-Dripps v. Meader, Conn., 109 Atl. 808.

82. Witnesses - Cross-Examination.-Crossexamination of witnesses is to some extent within the discretion of the court.-People v. Miller, III., 127 N. E. 58.

Central Law Journal.

ST. LOUIS, MO., JULY 9, 1920.

BACK TO THE CONSTITUTION.

"It is high time for some one to call the attention of the American people to the fact that the men who founded this Republic were more fearful of democracy than they were of autocracy," said Mr. Harry F. Atwood, of Chicago, to the Franklin County Bar Association at Columbus, Ohio, May 24, 1920. The statement is true and is borne out by a reference to the Federalist, from which Mr. Atwood so freely quotes.

Speaking of the Federalist, we are surprised at the ignorance, not only of the people but of lawyers also, of this great collection of essays which contain the only contemporary construction and definition of the terms of the Constitution to which we have access. Mr. Atwood tells a story that illustrates this deplorable ignorance. He says that he was in Joliet on one occasion making an address. "After we were seated," said Mr. Atwood, "a gentleman came in with his wife and he was so distinguished looking that I inquired who he was. They said he was one of the prominent lawyers of the town. In the course of my address I referred to the Federalist several times, quoted what Hamilton had said and what Madison had said. When I had finished he came up to me, after some of the people had gotten away, and said, 'What is the Federalist? A new magazine that has just been started?" "

The Federalist, or quotations therefrom, should be taught in every high school in order that certain fundamental distinctions between different forms of government

might be made clear and that the theory of our own institutions as adopted by the framers of the Constitution may be thoroughly understood. Mr. Atwood does not exaggerate the importance of the Federalist when he says:

"The Federalist is the greatest governmental discussion in the libraries of the world. If there were any way of persuading the American people to read the Federalist, and to get foreign countries, the people of foreign countries, simply to read the Federalist, it would be a thousandfold greater service than any man has rendered to the world in the Twentieth Century."

Is it true that the framers of the Constitution were in actual fear of a democracy? Nothing can be clearer than that our forefathers carefully canvassed the advantages of every form of government, and Madison, especially, made a study of the institutions of government, and in the Federalist points out the advantages and disadvantages of each form. It is almost with prophetic eye and as if he saw the awful demonstration of its truth in Russia that he penned the following description of the dangers of democracy. He said:

"Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property, and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their professions, their opinions and their passions."

It is necessary for us to recall that just before the Constitutional Convention met the victorious Colonies had a bitter experience with the dangers of purely democratic rule which was partly the result of the weakness of the Articles of Confederation

and partly of the direct modes of political action which were not uncommon among the earlier colonies. In the short interval between the Revolution and the adoption of the Constitution the mob of 1786 drove Congress from Philadelphia into New Jersey and Shay's Rebellion assaulted the legislature in the State House of Massachusetts. Thus the framers of the Constitution had vivid object lessons of the inherent weakness of direct rule by the people. They saw that the people, no matter how intelligent, were utterly incapable of acting en masse, and that from such forms of government confusion and anarchy was the only possible result. The republican form of government was then devised, by which the people ruled, not by direct participation in the decisions of the government, but through representatives duly chosen by them.

The growing unpopularity of the initiative and referendum, the recall, and every other political instrument designed to give the people more direct control of governmental machinery, is due to the fact that the inherent common sense of the American people is leading them to the same conclusions which were reached by the framers of the Constitution-that there are natural limitations on the ability of the people to make quick decisions to meet important political emergencies, and that the old Roman precept is true that the people must rely on the judgment of good men to make these decisions for them.

The voice of the mob is not the voice of reason; it is the voice of chaos. The mob cannot act; it either destroys itself or creates a Napoleon or a Lenin to guide it out of the wilderness, and who, through it, are enabled to exercise autocratic sway over the people. What is everybody's business is nobody's business is as true in public as in private life. It is, therefore, the part of

wisdom to impress these facts upon the people and to show them that the framers of the Constitution denied the people a direct voice in government, not because they did not trust the people, but simply because no machinery has ever been devised to register accurately the voice of the people, and because the people are not capable of making wise decisions in most cases without expert advice.

The republican or representative form of government is the ideal of all forms of government. Under it the people have the supreme voice in the selection of the men who shall carry on the government and make its decisions, which leaves the people free to pursue their own callings. In private life the people act in the same manner. If they have a tumor they reserve the right to select the surgeon, but they would not be foolish enough to make the operation. If they are haled into court, they insist on their right to select their lawyer, but they are not so foolish as to try their own case. It is equally as foolish for the people to insist on the right to supervise and reverse a decision of a court under the so-called right of recall of judicial decisions or to vote on some intricate law like the Federal Reserve Act under the initiative or referendum. No such wise legislation would be possible if the people made the laws, because the majority of us would be without the knowledge or the experience not only to frame such a law, but even to pass on its various provisions. For this purpose we have our representatives who consult experts friendly to the people and a good law is the result. The people are entitled to the best in legislation and that is not possible when the people make the laws.

Pure democracy is primitive. It belongs to the age when the people made their own clothes and spun their own cloth. In this age of specialization the best work is

done by those specially skilled, and our government in the future will excel only so far as we commit into the hands of skilled men the performance of tasks and the making of decisions which only an expert can properly perform and make.

Let us, therefore, get back to the Constitution; let us exalt its simplicity and its elasticity. Let us demonstrate its ability to meet every special emergency, but above all let us point out its supreme benefit-the creation of a republican or representative form of government in which the people have the ultimate power of sovereignty but discharge such power not en masse but through the highest intelligence of trained public servants. Under such a form of government America has risen to become the greatest nation of all time. Shall she fling it away for an experiment in pure democracy which wherever tried has ended in violence, suffering and finally a military autocracy. Shall she not rather cherish and guard this priceless heritage and resist with all her power every effort to transfer to the people rather than to trained servants of the people the power of making the actual decisions of governmental action?

NOTES OF IMPORTANT DECISIONS.

WHAT IS THE BEST EVIDENCE OF A MOVING PICTURE?-Some lawyers were discussing recently the "impractical" questions asked of applicants for license at bar and law school examinations. One of these was the question: What is the best evidence of a picture thrown on the screen at a moving picture show? The lawyers argued the question sharply, some contending that the film was the best evidence; others that the testimony of eye-witnesses was equally good if not better than the film itself, but both sides agreed that it was not a "practical" question. To show how impossible it is to limit the questions that may arise in court to such as are "practical" the Supreme Court

of New York has had to pass on the very question that was regarded by our lawyer friends as impractical. Feeney v. Young, 181 N. Y. Supp. 481.

In this case the plaintiff, who was about to give birth to a child, was compelled to submit to a "Caesarian section" operation. She assented to her doctor's request to allow a moving picture to be taken of the operation to be exhibited exclusively to medical societies and in the interest of science.

The picture was subsequently exhibited to the public in two leading movie theaters in New York under the title, Birth. The plaintiff sued the physician under the Civil Rights statute, but the trial court rejected all the plaintiff's eye-witnesses of the picture as thrown on the screen as not the best evidence. The film was brought into court, but the picture thereon was so small as not to identify the plaintiff as part thereof. From a judgment for defendant plaintiff appealed to the Supreme Court, Appellate Division, which reversed the trial court on the ground that the picture as thrown on the screen, and not the film, was the best evidence. The Court said:

"The film itself, representing a single exposure, is only about an inch and a half square, and when thrown upon a screen it magnifies from 100 to 120 times its dimensions in the film itself. Little could be ascertained from this film as produced, and the plaintiff sought to show, both by her own evidence and that of her husband, and still another witness, that the picture as presented upon the screen was capable of identification as her picture. The ruling rejecting this evidence is the principal and only question presented upon this appeal. As an a priori question the evidence would seem to be admissible. The picture, as presented on the screen, constitutes the offense under the statute. If that were a permanent photograph, the photograph itself might probably be the better evidence; but it is not. It is a flash picture, presented only for a moment.

"There is, therefore, no permanent print of that presentation upon that screen which can be deemed the best evidence, and, in the absence of such permanent print, the evidence of eye-witnesses, who have seen the representation, must be competent evidence of the presentation itself. The film itself, on account of its size, could not represent the picture there shown, and the film cannot be used to reproduce the picture, either in the trial court or in the appellate court. It would seem, therefore, that the evidence of eyewitnesses, who had seen this representation presented only for a moment, would be competent evidence of the fact of publication."

THE DOMICILE OF A MARRIED WOMAN II.-FOR DIVORCE AND OTHER PURPOSES.1

Divorce.-Divorce is the destruction of the marriage status. It is a legal thing entirely. Even as the parties cannot of their own volition create the marriage so, too, they cannot destroy it. Only the law can destroy it. The one exception to this is that if one of the parties dies the law will recognize that the status is impossible of existence and so has been destroyed automatically.

Or

It is generally agreed that divorce is governed by the law of the domicile. The moot question is: "Whose domicile? That of the husband? That of the wife? that of either husband or wife?" A further question is: "Whose domicile ought to govern?"

It will be helpful to note in this regard just what the usual grounds for divorce are. Most of the statutes allow divorce for the following reasons: adultery, cruelty, cruel and abusive treatment, desertion (unless the abandoned party has given good cause for leaving), habitual drunkenness, conviction of crime and imprisonment, incurable insanity, non-support, and all causes rendering a marriage void or voidable. The last is connected with the interest of the State in having the marriage status properly created. The others are frank recognitions that there are certain individual interests of personality, physical person and substance that can be so outraged within the marriage status, that the interest which the State has in maintaining that status will be sacrificed in order that the individual interests should be protected from violation within a legal institution. Or, to put it from another angle, the law will not recognize the right of one.

(1) A preliminary discussion of general principles underlying this subject will be found in Part I of this article, published in last week's issue of the Journal. 91 Cent. Law J. 4.

party to the gratification of his procreative instinct when that party fails to fulfill his obligations to the State and to the other member of the relation. The marriage relation is recognized only so long as certain conditions are fulfilled. When they are not fulfilled the status will be dissolved. It would therefore follow that the law of the domicile of the injured party should be able to grant a divorce which would be valid everywhere. That this is the weight of authority will now be shown.

The cases show the following situations in which the wife sues for a divorce after the husband has given cause for the di

vorce.

1. The wife sues at the domicile of the husband when the husband has not left this domicile. Here it is matter of no importance practically, whether we say that the wife has a domicile separate from that of her husband or not. If she has a domicile separate from his it is at the same place where his is and the same sovereign has jurisdiction over both. If her domicile is his domicile the sovereign can grant the divorce as she sues at his domicile. The divorce is granted in such cases. The authorities are too numerous to cite on this point.

2. The husband deserts his wife and establishes a new domicile. The wife remains at the place which was the domicile of the husband prior to the desertion. She sues at that place for divorce. Her suit is successful. The courts say that it is unconscionable to have the wife chase all

(2) Haddock V. Haddock, 201 U. S. 562; Jeness v. Jeness, 24 Ind. 355; Kline v. Kline, 57 Iowa 386; Pine v. Pine, 100 N. W. 938; Ross v. Ross, 18 Australia L. T. 222; Ryley v. Ryley. 4 N. Z. J. n. s. C. A. 50; Turner v. Turner, 44 Ala. 437; Wright v. Wright, 24 Mich. 180; Re Atkinson, XIII Cape Law Journal 63 (2 T. R. 289); McCurrack v. McCurrack, 6 H. C. G. 256 (Girqualand.); Leete v. Leete, 19 W. N. 305 (N. S. Wales); Martin v. Martin, 17 N. Z. L. R. 126; Poingdestre v. Poingdestre, 28 N. Z. L. R. 604; Protapsoltis v. Protapsoltis. 1918 S. R. (Q.) 270, (Queensland); Buchanan v. Hownie, 1837, 16 S. 82; 13 Fac. 98 (Scotland); Forbes v. Forbes, 1910 (O. H.) 2 S. L. T. 425; Stewart v. Stewart, 1905, (O. H.), 13 S. L. T. 668; Forster v. Forster (1907), Victoria L. R. 159; Burtis v. Burtis, 162 Mass. 598; Deck v. Deck, 2 Sw. & Tr. 90; Vischer v. Vischer, 12 Barbour 640.