been received, but not carried through its books, is held in the California case of Plumas County Bank v. Bank of Rideout S. & Co. 131 Pac. 360, to fall upon the depositor, and not upon the former depository, where the deposit had been placed to his credit, and the small overdraft which the transaction caused was subsequently made good, although the first check to cover the draft, received before the doors were closed, was returned by an agent of the bank without authority.

Courts are in harmony upon the proposition that title to a check credited by a bank other than the one upon which it is drawn, to the account of a depositor after its indorsement in blank by him, passes or does not pass to the bank, according to agreement, express or implied, between the parties, and that all presumptions in favor of either the bank's title or that of the depositor yield to such agreement. But they are not in harmony as to what facts in the transaction indicate an implied agreement or an intention to pass or not to pass title. Accordingly it has been held, by the weight of authority, that the bare transaction, i. e., the passing of credit to the depositor after indorsement and delivery, creates a presumption in favor of the passing of title to the bank, which presumption, of course, yields if there are other facts sufficiently strong to overcome it. While other courts hold that the check is presumed to have been transferred only for collection, and that it requires stronger circumstances than the mere transaction of indorsement and credit to overcome the presumption.

The recent decisions on title of check drawn on another bank, which has been credited to depositor, are gathered in the note appended to the foregoing case in 47 L.R.A. (N.S.) 552, the earlier adjudications having been collected in a note in 7 L.R.A. (N.S.) 694.

Bills and notes liability of indorser of overdue paper. Practically all of the cases involving the extent of liability of an indorser or assignor of a bill or note transferred after maturity at a discount sustain McAdams v. Grand Forks Mercantile Co. 24 N. D. 645, 140 N. W. 725, an

notated in 47 L.R.A. (N.S.) 246, in holding that in the case of an indorsement or transfer of a negotiable instrument after its dishonor or maturity, and where the consideration passing between the indorsee and his indorser is not equal to the amount of the paper, the indorsee, in an action against the indorser, can recover only the consideration he has actually paid.

Constitutional law

equal protection of the laws classification of railway employees - police power. The modification of the fellow-servant rule as to railway employees, made by Ind. act of March 4, 1893, § 1, is held in Louisville & N. R. Co. v. Melton, 218 U. S. 36, 54 L. ed. 921, 30 Sup. Ct. Rep. 676, annotated in 47L.R.A.(N.S.) 84, not to offend against the equal protection of the laws clause of the Federal Constitution because construed as applying to all employees doing work essential to enable the carrying on of railway operations, and not as limited to those engaged in or about the movement of trains, but such general classification of railway employees is a proper exercise of the police power. It may be stated that by the more recent decisions, statutes abolishing the fellow-servant rule as to all corporations have been held invalid in Indiana and Mississippi, but upheld in Arkansas; that the South Dakota statute confined in its application to common carriers has been held invalid by the Federal circuit court of appeals; that statutes abolishing the fellow-servant rule as to railroads and mines have been upheld in Missouri and Oklahoma; that statutes applying to railroads only have been upheld in Alabama, Indiana, Nebraska, North Carolina, Texas, and Wisconsin; and that the Federal and Michigan statutes confined to common carriers by railroad have been upheld.

A statute abolishing entirely the fellow-servant doctrine has been sustained in Colorado, while statutes establishing the superior servant doctrine have been upheld in Mississippi, Texas, and Virginia; and in California a statute establishing the departmental doctrine, and abolishing the defense afforded by the fellow-servant rule where the negligent servant was at work at another machine

than that at which the injured servant was at work, has also been upheld.

illegal

Contract proof in defense. While there are numerous cases in which actions upon promissory notes or other executory contracts have been defeated upon the ground that the real consideration for defendant's promise was illicit relations, the first case involving the question whether an action in form upon an executory contract, to recover money actually paid or advanced, can be defeated upon the ground that the real consideration was illicit relations, is the West Virginia decision of Lanham Meadows, 78 S. E. 570, annotated in 47 L.R.A. (N.S.) 592, which holds that if a party to an illegal agreement, by proof of part of the facts constituting the transaction out of which it grew, makes a prima facie case for recovery against the other party without disclosing the illegality, the defendant's guilty participation in the transaction does not preclude him from proving as matter of defense the illegal part of the contract.

V.

ef

Domicil for purpose of divorce fect of intention. Intention by one removing with all his effects from a town. which is not his domicil of origin, to retain his residence there, is held in the Vermont case of Turner v. Turner, 88 Atl. 3, 47 L.R.A. (N.S.) 505, not sufficient to effect that result for the purpose of conferring jurisdiction of a divorce proceeding, if he has in that place neither property nor home nor place to which he has a right to return.

Eminent domain disqualification of commissioner property subject to assessment. One whose property is subject to assessment to pay for land taken by a city under right of eminent domain is held in Re Rochester, 208 N. Y. 188, 101 N. E. 875, not competent to act as a commissioner in the condemnation proceeding, although the statute makes incompetent only those interested in the property to be taken.

The decisions as to what interest will disqualify a person to serve as a commissioner or juror in eminent domain.

proceedings are presented in the note accompanying the foregoing case in 47 L.R.A. (N.S.) 151.

Evidence res gestæ remote declarations. A statement by the conductor of a train which broke in two and injured an employee thereon, as to the cause of the break, made a half hour after he had ascertained it, in response to a question by the injured person, is held in Callahan v. Chicago, B. & Q. R. Co. 47 Mont. 401, 133 Pac. 687, 47 L.R.A. (N.S.) 587, not admissible in evidence in an action to hold the railroad company liable for the injury, under a statute making admissible declarations which form part of the transaction which is itself the fact in dispute or evidence of

such fact.

ties

Fraudulent conveyance

existing equi

contingent liability for rent. The contingent liability of an unreleased assignor of a leasehold for rent is held in Sallaske v. Fletcher, 73 Wash. 593, 132 Pac. 648, to be an existing equity within the meaning of a statute providing that a conveyance by a man to his wife shall not affect existing equities in favor of creditors of the grantor at the time of the transfer.

The question whether or not conveyances by persons such as sureties, guarantors, indorsers, etc., who are contingently liable, are within the statutes avoiding fraudulent conveyances or transfers as against the original obligee or his transferee or creditors, is discussed in the note appended to the foregoing case in 47 L.R.A.(N.S.) 320.

Gas right of home company to supply. The first case to pass upon the right of a municipality to compel one who, pursuant to rights acquired in public streets prior to the incorporation of the municipality, has maintained pipes, etc., for the supply of water or other commodities of general public use therein, to secure a franchise, seems to be the Alabama case of Cloverdale Homes v. Cloverdale, 62 So. 712, 47 L.R.A.(N.S.) 607, which holds that a corporation organized to develop a tract of residence property not within the limits of a municipal corpo

ration, which, having no authority to engage in the business of supplying gas, has authority to contract for a supply of gas for its patrons, and enters into a contract with a gas company to supply such patrons through mains laid by it, cannot, where the fee of the street is in abutting owners and it secures permission to lay its mains from the county authorities, be compelled to secure a public service franchise by the municipality when it is incorporated, which will compel it to supply all applicants, as a condition to permitting its patrons to open the street to tap its mains.

Guardian and ward failure to redeem from mortgage accounting-laches. In an action brought by the plaintiff against the devisees of his former guardian, and the heirs and devisees of the guardian's bondsmen, to charge them with liability because of the failure of the guardian to redeem certain property of his ward from a mortgage foreclosure sale, the action being brought thirty-five years after the foreclosure, and twenty years after the ward became of age, the only excuse given for the delay being that he was not apprised of his ownership of the mortgaged land or his rights under the guardianship until shortly before suit, it is held in Sweet v. Lowry, 123 Minn. 13, 142 N. W. 882, that the complaint affirmatively shows laches, and that a demurrer was properly sustained.

The decisions regarding limitation of actions or suits to compel a guardian

to account or to recover on his bond are gathered in the note appended to the foregoing case in 47 L.R.A. (N.S.) 451.

Guardian desire of old man to marry. Often, and perhaps in the majority of cases where children ask for the appointment of a committee for their father, and he is a widower, the cause of their action is the fear that the property of the parent will be absorbed by woman in general or in particular; yet there seems to be very little about it in the law digests.

The Oklahoma case of Hogan v. Leeper, 133 Pac. 190, annotated in 47 L.R.A. (N.S.) 475, holds that the fact that a man seventy-six years of age desires to

marry is not sufficient ground for the appointment of a guardian of his property.

Husband and wife right to pledge credit for necessaries. A man who furnishes his wife, with whom he is living, an allowance sufficient to purchase the necessaries for the family is held in the New Jersey case of James McCreery & Co. v. Martin, 87 Atl. 433, annotated in 47 L.R.A. (N.S.) 279, not liable for goods of the general description of necessaries furnished to her on credit which he has forbidden her to pledge.

Infant lease right to recover payments made. An infant who leases real estate under a contract by which he is to pay rent for a certain number of months, after which he is to receive a deed for the premises, and under which failure to make payments will create a forfeiture of his rights, is held entitled in the Alabama case of Ex parte McFerren, 63 So. 159, in case he never takes possession of the property, and his contract is forfeited during his minority, to recover the payments which he has made under the contract.

The decisions dealing with infants as lessees are gathered in the note appended to the foregoing case in 47 L.R.A. (N.S.) 543.

Insurance by carrier duty to account to shipper. The owner of a vessel which insures the cargo for account of whom it may concern, and collects the insurance on it, upon loss of the cargo by fire, for which he is not liable to the shippers, because of limitation of liability proceedings, is held in Symmers v. Carroll, 207 N. Y. 632, 101 N. E. 698, annotated in 47 L.R.A.(N.S.) 196, liable to account to them for the money collected, and cannot retain the same for

his own use.

Libel newspaper effect of care and good faith. It is generally held that a mistake in identity, although honestly made, is no defense to an action for libel; that it is admissible, however, in mitigation of damages.

A newspaper, it is decided in the Massachusetts case of Sweet v. Post Pub. Co. 215 Mass. 450, 102 N. E. 660, annotated in 47 L.R.A. (N.S.) 240, cannot escape liability for libel for publishing sensationally and with descriptive particulars, that a certain person was one of those who it states was indicted for crime, if such person was not in fact the one indicted, because of the fact that it was honestly mistaken after a bona fide attempt in the exercise of reasonable care and diligence to get the facts for

publication, on account of the similarity in the names of the two persons.

Lien- vendors

enforcement by vend

ors' creditors. A creditor of a vendor who conveys property on condition that the vendee shall satisfy the creditor's claim is held entitled in Zeiser v. Cohn,

207 N. Y. 407, 101 N. E. 184, to enforce the vendor's implied lien for the satisfaction of the claim, although it was unliquidated at the time of the conveyance.

This case holds that the fact that a substantial part of the property transferred by a debtor on consideration of does not prevent the enforcement of a the payment of his debt was personalty lien in behalf of the creditor, if the prom

ise in his favor was concealed from him until the personalty was dissipated.

The right of a creditor of a vendor to the benefit of the vendor's lien is discussed in the note accompanying the foregoing decision in 47 L.R.A. (N.S.) 186.

Limitation of action on judgment when begins to run. There is very little direct authority as to whether the running of the statute of limitations against a judgment is postponed until the expiration of the time for appeal or motion to avoid, and the few cases on the subject are in conflict.

The Utah case of Sweetser v. Fox, 134 Pac. 599, 47 L.R.A. (N.S.) 145, which seems to be well reasoned and sound, holds that the limitation period upon a judgment begins to run from the time of its rendition or entry, and

not from the expiration of the time for review on appeal, if no appeal is in fact taken, notwithstanding a provision that an action shall be deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.

Marshaling mortgages — personal lia- personal liability of claimant. The owner of a tract of land, who gives a mortgage upon it and then conveys it in consideration of the buyer assuming the mortgage debt and giving him a note for the rest of the purchase price, secured by a second mortgage on a part of the tract, is held in the Kansas case of Newby v. Norton, 90 Kan. 317, 133 Pac. 890, annotated in 47 L.R.A. (N.S.) 302, not precluded by the fact that he is personally liable for the payment of the first mortgage, from requiring a marshaling of securities, so that the parcel of land on which he has no lien shall be appropriated to the payment of the first mortgage before the remainder of the tract is resorted to for that purpose.

That a lumber company operates a railroad for the carriage of logs is held. in Twiddy v. Dare Lumber Co. 154 N. C. 237, 70 S. E. 282, 47 L.R.A. (N.S.) 135, not to bring employees engaged exclusively in sawing logs in the loading yard, preparatory to their being placed on the cars, within the operation of a statute abolishing the fellow-servant rule with respect to employees of railroad companies.

Substituting new wheels for old on an engine in a repair shop of a railroad is held in Slaats v. Chicago, M. & St. P. R. Co. 149 Iowa, 735, 129 N. W. 63, Ann. Cas. 1912D, 642, 47 L.R.A. (N.S.) 129, not "connected with the use and operation" of the railway within the

meaning of a statute abolishing the fellow-servant rule in case of wrongs so connected, although the engines to be repaired rest on rails connected with the main track of the system and therefore a helper injured by the starting by a fellow servant without warning, while he is in a position of danger, of an engine to move another upon which such substitution is being made, cannot hold the railroad company liable for the injury. And an injury received by a fall from a hand car is held in Richey v. Cleveland, C. C. & St. L. R. Co. 176 Ind. 542, 96 N. E. 694, 47 L.R.A. (N.S.) 121, not to be within a statute making employers liable for injuries by employees in the operation of a railroad, since the hazard is not so peculiar as to come within a proper classification of perils for which railroads alone may be rendered liable.

The construction placed upon the fellow-servant statutes differs greatly in the various jurisdictions. The narrow construction placed upon them by the earlier decisions, which limited their application to servants who were subjected to the peculiar hazards of operating railroads, has been repudiated in practically all of the new jurisdictions, where the application of the statute has been broadened to embrace all classes of employees.

A note presenting the recent decisions on employees and employments within the purview of statutes abrogating the fellow-servant rule accompanies the foregoing cases in 47 L.R.A. (N.S.) 113, the earlier adjudications having been gathered in a note in 18 L.R.A. (N.S.) 477.

Master and servant assumption of risk weather conditions. Where the plaintiff, a carpenter of experience, was employed to repair a pitched roof upon defendant's shed, and, having worked thereon for two days, upon the third day slipped upon snow and ice which collected while he was working, and fell from the roof, injuring himself, it is held, in Peterson v. American Ice Co. 83 N. J. L. 579, 83 Atl. 872, 47 L.R.A. (N.S.) 144, that the danger incident to the snow and ice upon the roof was as obvious to the plaintiff as to the master, and was a risk assumed by the plaintiff in the performance of his work.