plaintiff's well.-HAGUE V. WHEELER, Penn., 27 Atl. Rep. 714. 66. INTOXICATING LIQUORS Fine for Violating an Injunction. The plaintiff in an action by a private citizen to enjoin a liquor nuisance is the proper party plaintiff in an action to make a fine, imposed on de fendant therein for violation of the injunction, a lien on the property of the person who knowingly permitted such defendant to use it in violating the law and such injunction.-CAMERON V. KAPINOs, Iowa, 56 N. W. Rep. 677. 67. JUDGMENT-Collateral Attack-Defective Notice.Where a defective notice or proof of service of notice is held by the trial court to be valid, the judgment rendered thereon cannot be collaterally attacked. ROTCH V. HUMBOLDT COLLEGE, Iowa, 56 N. W. Rep. 658. 68. JUDGMENT-Insolvency-Discharge.-A discharge in insolvency, in Wisconsin, of a citizen of that State, does not prevent a citizen of another State, who was not a party to the insolvency proceedings, from bring · ing an action in a court of Washington on a Wisconsin judgment obtained prior to the discharge. — WEBER V. YANCY, Wash., 34 Pac. Rep. 473. 69. LANDLORD AND TENANT-Lease-Water Rights.It is no defense to a tenant's claim that his rights under a lease have been invaded and infringed upon, to say that the invasion and infringment were the acts of another tenant, when they have been performed with the landlord's consent and active concurrence. - CITY POWER Co. V. FERGUS FALLS WATER CO., Minn., 56 N. W. Rep 685. 70. LEASE-Rent.-A lease of mining land provided that the lessees might erect buildings and put in machinery, and that all such improvements should form part of the realty, but that on the termination of the lease the lessees should be entitled, on paying all rents and taxes, to remove such improvements: He'd, that this provision covered machinery on the land at the time of execution of the lease, and at that time purchased by the lessees from the lessors. -PENDILL v. MAAS, Mich., 56 N. W. Rep. 597. 71. LIBEL-Rumors.-An article describing a person as having such a mania for destruction that she scatters poison about the neighborhood for dogs, chickens, and household pets, and alleging that she poisoned a cow, tried to take her own life, and attempted the destruction of a family against whom she had a grudge, is libelous as tending to excite fear and abhorrence.REPUBLICAN PUB. Co. v. MINER, Colo., 34 Pac. Rep. 485. 72. MARINE INSURANCE. - On the issue whether the broker's misrepresentations of the then situation of the ship proposed for insurance was material to the risk, on account of the prevalence of storms in those waters after a certain season of the year, a vessel owner, called by plaintiff as an expert, cannot testify to his experience in insuring a similar vessel of inferior class to plaintiffs, in the same waters, at the same time of year, and that he paid a lower rate of premium than plaintiff.—DURKEE V. INDIA MUT. INS. Co., Mass. 34 N. E. Rep. 1133. 73. MARRIAGE — Proceeding to Annul. In a suit to annul a marriage on the ground that, at the time of its celebration, defendant had a wife living, an admission of such previous marriage in the answer is sufficient to establish it, when corroborated by the production of evidence of a certified copy of the record thereof in the bureau of vital statistics, and of the record of a suit commenced by defendant against the person alleged to have been the other party to the previous marriage, to annul it.-DARE V. DARE, N. J., 27 Atl. Rep. 654. 74. MASTER AND SERVANT-Dangers of Employment.A railroad company is not negligent in failing to inform one of its experienced engineers, who has run over its road for many years, and who was appointed to instruct an engineer on another engine in all the physical pecu. liarities of the road, that such engine is several inches wider than the one he had been accustomed to handle; and he cannot, therefore, recover for injuries sustained by his head coming in contact with the iron work of a bridge while leaning out of the cab window watching his train, though he could safely have done so in his old engine.-BELLOWS V. PENNSYLVANIA & N. Y. CANAL & R. Co., Penn., 27 Atl. Rep. 685. 75. MASTER AND SERVANT - Defective Appliances Ownership. The fact that a quarry company does not use its own cars to run its product to the railroad, but the railroad's own cars, and that it has to take what cars it can get, does not exempt it from liability to one of its workmen injured by the defects of such a car.SPAULDING V. W. N. FLYNT GRANITE Co., Mass., 34 N. E. Rep. 1134. 77. MASTER AND SERVANT-Fellow servants.-A sec tion hand on a hand car going to his place of work to aid in repairing the railway, and the conductor and engineer of a walking train also engaged in repairing the railway, are fellow-servants, and the company is not liable for injuries to the section man caused by the negligence of the conductor and engineer.-ATCHISON ETC. R. Co. v. MARTIN, N. Mex., 34 Pac. Rep. 536. 78. MINES AND MINING Existence of "Vein" and "Apex."-In ejectment by mine owners against the owners of an adjoining mine, the main issue was whether or not a vein existed, having its apex within the lines of defendants' claim, which they had a right to follow downward vertically under the superficial line of their claim, and within the line of plaintiffs' claim. The evidence was that the shale cap overlying the ground in dispute, eroded on plaintiffs claim, con tinuing in a semi-circular or onto defendants claim, contained no mineral, and that the mineral occurred in the lime, and in a few places between the shale and lime, but not connected with the former: Held, that the question as to the existence of such vein and apex was for the jury.-ILLINOIS SILVER MINING & MILLING Co. v. RAFF, N. Mex., 34 Pac. Rep. 544. 79. MUNICIPAL CORPORATIONS-Grant to Railroad.-A grant by a municipal corporation to a railroad company of the right to construct its road "across or along such streets as it might find expedient to use," and to occupy so much of specified streets as "may be neces sary for the construction of its track, sidings, and branches," does not by necessary implication pass to the company the right to the exclusive use of the streets designated, unless the whole width of the street is reasonably necessary for its business. -PENNSYLVANIA S. V. R. Co. v. PHILADELPHIA & R. R. Co., Penn., 27 Atl. Rep. 683. 80. MUNICIPAL ORDINANCE-Imprisonment.-In order that the police court in a city of the second class may commit a defendant, duly convicted of the violation of a city ordinance, to jail, in default of payment of a fine and costs, it is not necessary that a city ordinance should authorize such commitment, because authority to so commit is conferred by paragraph 89, ch. 19, Gen. St. 1889.-IN RE MCCORT, Kan., 34 Pac. Rep. 456. 81. MUNICIPAL CORPORATION-Obstruction in StreetContributory Negligence.-In an action for injury to a horse frightened by an obstruction in the street, the fact that plaintiff could have avoided passing the obstruction by traveling another road, going a mile and half out of his way, is not to be considered on the question of his contributory negligence.-CAIRNCROSS V. VILLAGE OF PEWAUKEE, Wis., 56 N. W. Rep. 648. 82. MUNICIPAL IMPROVEMENTS-Assessments of Benefits-A city of the metropolitan class has power, in order to provide funds for the payment of damages awarded the owners of property appropriated for extending a street, to levy a special assessment upon all the property specially benefited abutting on or adaj cent to the street so extended, and is not confined for the purpose of such assessment to the property abutting upon or adjacent to that portion of the street which constitutes the extension.-MCCORMICK V. CITY OF OMAHA, Neb., 56 N. W. Rep. 626. 83. MUTUAL BENEFIT SOCIETY-Receiver.-A receiver should not be appointed for a benevolent society, and an injunction Issued to restrain its officers from man aging its affairs, on allegations in the bill filed by one of the members that, at a meeting of the order, in the absence of a majority of the members, certain members were illegally expelled, and certain officers displaced, and new ones elected, and that the new officers, defendants in the bill, coerced or misled by another defendant, were conducting the order prejudicially to the interests of plaintiff and the order at large, where every substantial averment of the bill is denied by a completely responsive answer, which is not overcome, or even met, by further proof.-CROMBIE V. ORDER OF SOLON, Penn., 27 Atl. Rep. 710. INSTRUMENT 85. NEGOTIABLE Presumption as to Payment.-Possession by the maker before maturity, and after it has been in circulation, of a note payable "on or before" a certain date, is presumptive evidence of its payment.-FIRST NAT. BANK V. HARRIS, Wash., 34 Pac. Rep. 466. 86. NEGOTIABLE INSTRUMENT-Principal and AgentNotice. Where an agent invested his principal's money in notes after their maturity, with notice of the equitable defenses to the notes, the principal is not a bona fide holder, as notice to the agent was notice to the principal.- KNOTT V. TIDYMAN, Wis., 56 N. W. Rep. 632. 87. PARENT AND CHILD-Duty of Parent to Support.There is no difference between the parents, as to their duty to maintain their off-spring. The mother is under the same obligation as the father, in that behalf. During coverture, with its incidents, at the common law, her duty was suspended, but during her widow. hood, and especially under the modern statutes giving her dominion of her own property, she is under the same obligation as the father.-ALLING V. ALLING, N. J., 27 Atl. Rep. 655. 88. PARTNERSHIP - Limited Partnership. Where a partner in a limited partnership agrees to contribute a specified sum by paying a mortgage on the partnership property, his failure so to do, which causes the mortgage to be foreclosed and the property to be lost to the partnership, converts his contribution into a cash subscription to the capital of the partnership, which may be reached on execution by one of its creditors, under Act June 2, 1874, § 2, which provides that, where an execution against the partnership has been returned unsatisfied, it may be issued against the members, "to the extent of the portion of their subscription, respectively, in the capital of the association, not then paid up."-Cox v. WATTS, TWELLS & Co., Penn., 27 Atl. Rep. 687. 89. PARTNERSHIP-Novation.-A lumber firm agreed with two of its members to sell them sawed lumber at a certain price. The two members formed a new firm, and one of them sold his interest in the contract to the other, and the latter sold interest therein to two strang. ers. The old firm continued to sell to the purchasing concern under the agreement, and to receive payment therefrom, without regard to its personnel, the bills being in all instances made out in the name of the purchasing concern. There was no evidence of any agreement to release the original contractors: Held, that there was no novation, and the lumber firm could sue one of the purchasing members for an accounting without joining his new associates in the purchasing contract.-CHAPIN V. BROWN, Cal., 34 Pac. Rep. 525. 90. PUBLIC LANDS-Color of Title.-A judicial decree, followed by possession under a bona fide claim, is color of title, within the meaning of Act Cong. Feb. 25, 1885, prohibiting inclosures of public lands unless under "claim or color of title made or acquired in good faith," and, such possession having lasted for 25 years, the holder can maintain ejectment against persons assuming to enter on the premises as being "public lands of the United States."-Los ANGELES FARMING & MILLING CO. v. HOFF, Cal., 34 Pac. Rep. 518. 91. QUO WARRANTO-Turnpike Tolls.-In an action in the nature of a quo warranto, brought by the attorney general, to have a certain road declared a highway, and to enjoin defendant from collecting tolls thereon, defendant's claim and exercise of the franchise being admitted, the burden is on defendant to show by what warrant or authority such claim is made.-PEOPLE V. VOLCANO CANYON TOLLROAD Co., Cal., 34 Pac. Rep. 522. 92. RAILROAD COMPANY-Crossing-Contributory neg ligence -A person injured while crossing railroad tracks by a train coming from the east could at a distance of 5 feet from the track have seen 250 feet east along the track, but his attention was diverted by a switch engine to the west: Held, that he was guilty of contributory negligence.-GARDNER V. DETROIT, L. & N. R. Co., Mich., 56 N. W. Rep. 603. 93. RAILROAD COMPANIES-Crossings - Negligence.When a team has become stalled on or so near to their track as to be in danger of being struck by a passing train, railway employees must be prompt and energertic in their efforts to stop the train in season to avoid a collision.-GARLAND V. MAINE CENT. R. Co., Me., 27 Atl. Rep. 615. 94. RAILROAD COMPANIES Killing Stock. - Where plaintiff allowed his horses to be turned loose in a yard knowing that the fence between the yard and defend. ant's railroad track was down for several rods, he was guilty of such contributory negligence as will defeat an action for killing the horses after they had strayed upon the track.-PETERSON V. WISCONSIN CENT. R. CO., Wis., 56 N. W. Rep. 639. 95. RAILROAD COMPANY - Negligence. A railroad company is not guilty of negligence in ballasting a side track so that, while the ties were covered in the middle of the track, at the sides, near the rails, the dirt was two to four inches below the rails; thus leaving holes between the ties.-RAGON V. TOLEDO ETC. R. Co., Mich., 56 N. W. Rep. 612. 96. RECEIVERS-Powers.-A consent order for the ap pointment of a receiver of a mercantile partnership provided that he might continue the business "of the La Jara store, and replenish the stock therein from the moneys received, until said stock can be sold at a good and reasonable price:" Held, that the receiver was justified in buying goods necessary to replenish the stock at 30 days' time, as customary, liquidating the bills out of the proceeds of the sales.-RUSHWORTH V. SMITH, Colo., 34 Pac. Rep. 483. 97. REMOVAL OF CAUSES-State and Federal Courts. -Though a State court has denied an application to remove a cause to the Federal Court on the ground that the application was not made within the time prescribed by the federal statute, a subsequent order of the Federal Court that the cause be entered and docketed therein is conclusive of the question; and the State court has no right to thereafter retain jurisdiction of the cause, and proceed with the trial.— NORTHER PAC. R. Co. v. MCMULLEN, Wis., 56 N. W. Rep. 629. 98. RES JUDICATA.-A judgment in a proceeding for an accounting between plaintiff and defendant as partners, in which proceeding plaintiff set up a claim for services rendered the partnership, cannot, as a matter of law, be held to bar a subsequent action for services against defendant individually, where there is some evidence that the services sued for were not em braced in the claim set up in the former proceeding.— KASTER V. WELSH, Penn., 27 Atl. Rep. 668. 99. SALE-Warranty.- Where the seller of hogs at auction states to those present for the purpose of bid. ding that the hogs are all right, intending thereby to effectuate a sale, and a person who is ignorant of the condition of the hogs purchases them, believing that the statement was so intended, and relying thereon, the statement constitutes a warranty that the hogs are sound.-POWELL V. CHITTICK, Iowa, 56 N. W. Rep. 652. 100. SALE-Warranty.-Where a person with knowl. edge of defects in material delivered under a contract containing specifications as to quality, receives and uses the same without giving notice of the defect, he cannot in an action against him for the price, set up a counter-claim for damages for the defects.-BERTHOLD V. SEEVERS MANUF'G Co., Iowa, 156 N. W. Rep. 669. 101. SALE MADE ON SUNDAY.-One who sells and delivers property on Sunday cannot recover it on the ground that the sale was void.-COнN V. HEIMBAUCH, Wis., 56 N. W. Rep. 638. 102. TENANCY IN COMMON-A tenant in common cannot purchase on foreclosure of an outstanding mortgage on the property, and, on obtaining a sheriff's deed, set up such title against his cotenant.-MoY V. MOY, Iowa, 56 N. W. Rep. 668. 103. TOLL BRIDGES-Penalties fer overcharges.--Under Act 1874 (P. L. 73), § 31, ch. 3, providing a penalty against defendant bridge company for each over charge of toll which it shall "collect or demand," where plaintiff, at one time, paid for tolls due for driv ing over the bridge at various times preceding the payment, but one penalty is incurred, though the account paid embraced many items of overcharge.-PORter v. DAWSON BRIDGE CO., Penn., 27 Atl. Rep. 730. 104. TRESPASS ON PRIVATE POND. To constitute a private pond, within the meaning of Act June 3, 1878, § 1, which imposes a penalty on a trespasser who takes fish from any private pond improved by the owner or lessee for the propagation of fish after he had posted public notices adjacent to such pond the pond must be owned entirely by the person who stocked it with fish; and in an action for the penalty it is error to refuse an instruction to find for defendant if he owned any part of the pond, and to charge that his ownership must be of a "substantial part," meaning a strip from two to six rods wide.-BENSCOTER V. LONG, Penn., 27 Atl. Rep. 674. 105. TRIAL-Advising Jury to Agree.-It was not error for the trial court to instruct the jury, after they had been out some 20 hours without agreeing upon a verdict, to the effect that if one or two of their numbers differed in their views of the evidence from the others they should be thereby induced, although not required to surrender conscientious convictions, to doubt the correctness of their own judgments, and should be led to inquire whether they were not mistaken.-GIBSON V. MINNEAPOLIS, ST. P. & S. S. M. RY. Co., Minn., 56 N. W. Rep. 686. 106. TRUST-Declaration-Validity.-A banking firm was agent to receive stock subscriptions for the A corporation, which subscriptions they were at liberty to use as other deposits until the stock was issued. While holding such deposits they prepared a declaration that certain securities, part of their general assets, were "held as collateral security against" such deposits, which paper, without their signature, they placed, together with the securities, in an envelope, indorsed, "Subscribers to the A corporation collaterals," which they then deposited in a tin box in a safe-deposit company: Held, that this was insufficient to create trust in favor of such creditors.-GIRARD LIFE INSURANCE, ANNUITY & TRUST Co. V. MELLOR, Penn., 27 Atl. Rep. 662. a 107. TRUSTEES Counterclaim.-In an action by a substituted testamentary trustee to foreclose a mortgage executed to his predecessor, plaintiff is not liable to a personal judgment on a counterclaim for the excess of fees over the amount of the mortgage due defendant as attorney under retainer by his predecessor, as the contract bound the latter individually, and plaintiff did not assume any responsibility.-UNITED STATES TRUST Co. v. STANTON, N. Y., 34 N. E. Rep. 1098. 108. VENDOR AND PURCHASER - Rescission.-Where vendees of land, as part consideration for the contract, agree to make certain improvements within a specified time, and they do not make the improvements themselves, but procure them to be made by contract, they are not entitled, in case of rescission for failure of the vendor to perform, to recover of the latter the cost of such improvements, but only the reasonable value.FOUNTAIN V. SEMITROPIC LAND & WATER CO., Cal., 34 Pac. Rep. 496. 109. WATER COURSES. Where a water company builds a dam and reservoir on a stream for the purpose of supplying a village below with water, but does not acquire any right to the waters above the dam, it is subject to the right of the inhabitants of a village situated above the dam to use the water of the stream, which was their only source for obtaining water, and it cannot enjoin the construction of a dam above its dam for the purpose of supplying such village.-BARRE WATER CO. v. CARNES, Va., 27 Atl. Rep. 609. 110. WILLS.-Testator devised separate tracts of land to his two sons, and to his daughter bequeathed $5,600: the will further providing that, "if there is not personal property and money enough to make that amount, the boys is to pay enough to make the amount:" Held, that any deficiency in the amount of the legacy, because the personal estate was insufficient to satisfy such legacy, was chargeable as a lien on the land devised to the sons.-HENRY V. GRIFFIS, Iowa, 56 N. W. Rep. 670. 111. WILLS-Construction.-A will reciting that testator, knowing that his wife would ever continue the same kind, devoted mother to their children which she had always proven herself, gave all his property to his wife, expressly excluding said children: Held, that an intentional omission to provide for issue of deceased children appeared on the face of the will, within Civil Code, § 1307, providing that in case of an omission to provide for any child or the issue of a deceased child, unless it appears that such omission was intentional, he shall take as though there had been no will.-RHOTON V. BLEVIN, Cal., 34 Pac. Rep. 513. 112. WILLS-Devisavit vel Non-Mental Capacity.-An application for an issue devisavit vel non is properly denied where the decided weight of evidence is in favor of the testamentary capacity of testatrix, and it appears that the two sons in whose favor the will was made cared for their mother and her estate, while the sons who were disinherited had attempted to have their mother declared a lunatic, and her property taken out of her possession.-IN RE PENSYL'S WILL, Penn., 27 Atl. Rep. 670. 113. WILLS-Undue Influence-Burden of Proof.-L, who was weak-minded, and susceptible to slight influences, while resident with A, one of his four brothers, who then apparently dominated him, was attended by A to the office of a lawyer, where in A's presence he made his will, by which he gave his entire estate to A, to the exclusion of his other brothers, after which A took the will, and indorsed it as the will of L to A, and retained it until after L died: Held, that the burden was upon A to show that the instrument was executed without the exercise of undue influence by him. BOISAUBIN V. BOISAUBIN, N. J., 27 Atl. Rep. 624. 114. WITNESS-Husband and Wife. In a proceeding by an execution creditor to reach property alleged by the debtor to belong to his wife, and claimed by her as such, the wife is a competent witness as to her ownership, since she is not interested against the husband, within the meaning of Act May 23, 1887, which renders husband and wife incompetent where they offer to testify "against each other." NORBECK V. Davis, Penn.,[27 Atl. Rep. 712. INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- CORRESPONDENCE AND BOOK REVIEWS IN VOLUME 37. A separate subject-index for the Digest of Current Opinions" will be found on page 518. follow- ASSIGNMENT FOR BENEFIT OF CREDITORS, effect of giving preference by way of chattel mort- ATTACHMENT, issued on a legal holiday, validity of, 85. ATTORNEY AND CLIENT, how far declarations of an attorney are admissible admission of women to practice law, 250. admission of women to the bar, 321. legality of oath taken by an attorney as a notary, BALLOTS. See ELECTIONS AND VOTERS. payment of interest in advance on demand note how far the fact that a director in a bank discount- BEHRING SEA, decision of the arbitrators in the case of, 249. BILL OF DISCOVERY, to compel judgment debtors to disclose assets on BILLS OF LADING. See CARRIERS OF GOODS. death of, 41. BOND INVESTMENT COMPANY, 2. 13, 113, 221, 261, 280, 301, 321, 421, 461, 481, 501. when indictable as a conspiracy, 166. as a ground for civil action, 167. when injunction will issue, 169. cases of contempt, 169. BUILDING AND LOAN ASSOCIATION, equalization of stockholders of insolvent building CARRIERS OF GOODS, liability of vendor and shipper of goods for freight liability of, for bills of lading fraudulently issued, right of stoppage in transitu before delivery to the CARRIERS OF PASSENGERS, liability for injury to passenger alighting at eating whether a party traveling free on a freight train is a where a passenger having ticket is directed by an CHATTEL MORTGAGE, effect of alteration of, by the insertion by mort. lien of, as against an agister's lien, 375. implied consent of mortgagee, 376. doctrine that the agister's lien is paramount, 376. this comity not recognized, 377. Louisiana rule, 378. Pennsylvania rule, 378. Michigan rule, 378. CONSTITUTIONAL LAW, constitutionality of single tax law, 12. some late and novel constitutional questions, 21. validity of city ordinance requiring owners of tene- origin of the doctrine of annulment of act in con- constitutional power of majorities, 369. the constitutionality of the weekly payment act of validity of the Massachusetts interchangeable effect of indictment by a less number of jurors than for disobeying injunctions against boycotting, 169. power of the court to compel accused to testify, CONTRACT, parol evidence to explain written contract, 22. negative covenants in contracts for personal serv - action of malicious interference with performance recovery by stranger to a contract upon a promise validity of contracts of foreign corporations, which injunction to restrain making of, by employee with for personal services, injunction to prevent the of sale, rescission of for fraud, 414. illegality of, between author and publisher, 470. COPYRIGHT, of photographs, 189. See NEGLIGENCE. right of the State to obtain a, 229. CORPORATIONS. See, also, STOCK AND STOCKHOLDERS.. stockholders' defense against a corporate creditor, 212. stock dividends, 241. interstate remedies against stockholders, 241. consolidation of, in Georgia, 429. rights and remedies of preferred shareholders, 433 what are net earnings to be appropriated in divi- |