66. MALICIOUS PROSECUTION-Evidence of MaliceDefenses-Advice of Counsel.-Where in an action for malicious prosecution, the purpose of the proceeding complained of is shown to have been the collection of a debt, and not the enforcement of the laws against crime, malice may be inferred from that fact alone; the question being one of fact for the jury.-PETERSON V. REISDORPH, Neb., 68 N. W. Rep. 943.

67. MECHANIC'S LIEN-Building Contract.-Under a building contract, after the work is substantially done, a delay in completing it will not stay the running of the 60 days within which the contractor may file the statutory lien, unless it affirmatively appear that such delay was not unreasonable or unnecessary.-COOLEY V. HOLCOMB, Conn., 35 Atl. Rep. 765.

Priorities.-An

68. MECHANIC'S LIENS-Mortgages agreement between two mortgagees that the mortgage which is prior in date shall be postponed to the other is valid. A vendee of land, simultaneously with the delivery of his deed, gave a mortgage to secure borrowed money, a part of which was used to pay for the land: Held, that as to such part the lien of such mortgage was prior to a mechanic's lien for improvements made in part before delivery of the deed to the vendee, and under a contract with the vendee made before such delivery, but as to the balance of the mortgage the mechanic's lien was prior.-NEW JERSEY BUILDING, LOAN & INVESTMENT CO. V. BACHELOR, N. J., 35 Atl. Rep. 745.

69. MECHANIC'S LIEN-Personal Judgment.-Act 1893, § 15, providing that when, on trial of a cause under the mechanic's lien act, the proceeding will not support a lien, plaintiff may proceed to judgment as in an action on a contract, does not authorize an employee of a subcontractor, failing in his lien, to have personal judgment against the owner, there being no privity or contract between them.-LOWREY V. SVARD, Colo., 46 Pac. Rep. 619.

70. MINING LEASE - Royalty.-A coal mining lease provided as royalty 25 cents per ton when the coal sold at a certain amount or less "at the breaker." By universal usage the meaning of "selling price at the breaker" was the actual selling price at the place of delivery less the cost of selling and the freight. The lessee made a contract for a term of years with an agent to sell his coal on the usual commission: Held, that the lessee, having himself sold all his coal to one party, for a year covered by the agent's. contract, thereby securing a better price, was entitled, in de. termining the selling price for purposes of royalty, to deduct the part of the agent's commission which he still demanded.-SHOEMAKER V. MT. LOOKOUT COAL Co., Penn., 35 Atl. Rep. 731.

71. MORTGAGE-Foreclosure.-A personal deficiency judgment cannot be recovered against the guarantor of a mortgage note in an action to foreclose the mortgage, as the security must not only be exhausted, but also the personal remedy against the mortgagor, before the guarantor is liable.-COTTRELL V. NEW LONDON FURNITURE CO., Wis., 68 N. W. Rep. 874.

72. MORTGAGE FORECLOSURE-Duty of Officer to Pay Over Fund.-It is the duty of an officer selling land under a decree of foreclosure to pay the proceeds of the sale, upon confirmation thereof, directly to the persons entitled thereto under the decree, unless the court shall have ordered the proceeds to be paid into court.-FIRE ASSN. OF PHILADELPHIA V. RUBY, Neb., 68 N. W. Rep. 939.

73. MORTGAGES-Deficiency Judgment. -The cove. nant of a grantee to pay the mortgage on the land conveyed inures to the benefit of the mortgagee, to the extent of the deficiency on foreclosure sale, though the grantor obtained title from the mortgagors without covenanting or agreeing with them to assume or pay it, where, after receiving title, and before convey. ing it, he, for a sufficient consideration, gave bond to the mortgagee to pay any deficiency.-WAGER V. LINK, N. Y., 44 N. E. Rep. 1103.

74. MORTGAGES-Execution by Corporation.--Mort. gages properly executed in the name of a corporation by its president will be presumed to have been made by authority of the corporation, and for a purpose within its powers.-BROWNWOOD ICE Co. v. YORK MANUFG. CO., Tex., 37 S. W. Rep. 339.

75. MUNICIPAL CORPORATIONS - Changing Grade of Highway.-Changing the grade of an established highway, though it may result in consequential damage to adjoining property, is not a taking of such property for public use, within the provision of the constitution as to the exercise of the right of eminent domain.GILPIN V. CITY OF ANSONIA, Conn., 35 Atl. Rep. 777.

76. MUNICIPAL CORPORATION-Defective SidewalksNegligence.-Knowledge that a town is laying water mains does not charge one stepping in the dark into an unguarded excavation therefor, close to a sidewalk crossing, on which he has undertaken to cross the street, with negligence in not discovering and avoiding the excavation.-HALL V. INCORPORATED Town of MANSON, Iowa, 68 N. W. Rep. 922.

77. MUNICIPAL CORPORATIONS Insufficiency of Drains. The fact that a city, after notice that drains constructed by it to carry off street surface water are insufficient, fails to use ordinary diligence to make such changes as appear reasonably necessary to make the drains serve the purpose intended, does not render the city liable for the resulting overflow of private property, where it did not accelerate the flow of the water, or collect the same, and discharge it on such property otherwise than it would naturally have been discharged thereon, and it was not negligent either in devising or in adopting the plan of the drains.-KNOSTMAN & PETERSEN FURNITURE Co. v. CITY OF DAVENPORT, Iowa, 68 N. W. Rep. 887.

78. MUNICIPAL CORPORATIONS-Negligence.-Where a city negligently permits an excavation to be made, in such close proximity to a street as to endanger the traveling public, and a person, without fault, is injured by falling into such excavation, a recovery may be had for such injury.-CITY OF OKLAHOMA CITY V. MYERS, Okla., 46 Pac. Rep. 552.

79. MUNICIPAL CORPORATIONS Powers Water. — Corporation Act April 29, 1874, authorized water companies to supply cities with water, and provided for the purchase by the cities so supplied, at their option, after 20 years, of the plant of the company, at a price regulated by its net cost, and gave the court jurisdiction to compel such companies to furnish water at reasonable rates. Act May 23, 1874, gave cities of the third class the exclusive right to supply themselves with water, or to contract with any company for the erection of a water plant, and give it the exclusive right to furnish water to the city: Held, that a city, after having contracted for the erection of waterworks by a company, to supply the city with water, had no power to build waterworks of its own.-WHITE V. CITY OF MEADVILLE, Penn., 35 Atl. Rep. 695.

80. MUNICIPAL CORPORATIONS-Street Grading Contracts. A contract for the grading of a street in the city of St. Paul, entered into between the city and a contractor, is not ultra vires simply because the council bas omitted to establish gradient lines for the street prior to the passage by the council of an order directing that such street be graded. Nor is such contract ultra vires simply because condemnation proceedings, through which the city has attempted to acquire an easement for slopes along such street, have not been fully consummated prior to the passage of such order. -KEOUGH V. CITY OF ST. PAUL, Minn., 68 N. W. Rep. 843.

car tracks in the street the driveway, much used, was 9 feet wide; that a tramway car overtook plaintiff, and, to avoid the car, from which projected a side step 2 feet wide, he pulled his team away from the track; that one of the horses went into the ditch, and, being fright ened, struggled to get out, and brought the wagon into such a position that it was struck by the car, and plaintiff was thrown out under the horses: Held, that the open ditch was the proximate cause of the ac cident, and hence the city was liable.-CITY OF DEN. VER V. JOHNSON, Colo., 46 Pac. Rep. 621.

82. MUNICIPAL CORPORATIONS Street Railways Charter-Construction.-A provision in the charter of a street railway company that it shall be subject to such regulations as might be made by the city "in regard to paving, repairing, grading," etc.. of the streets on which its (tracks are located, does not au. thorize the city to impose upon the company the cost of paving such streets.-CITY OF PHILADELPHIA V. HESTONVILLE, M. & F. R. Co., Penn., 35 Atl. Rep. 718.

83. MUNICIPAL CORPORATION-Street Railway Companies-Street Paving.-Where the charter of a street railway company fixes the company's liability for street paving, the city cannot enlarge it.-CITY OF PHILADELPHIA V. PHILADELPHIA CITY PASS. Rr. Co., Penn., 35 Atl. Rep. 720.

84. MUNICIPAL CORPORATION-Street Railway Companies. A provision in the charter of a street railway company that, on completion of the road, the com. pany should be subject to city ordinances "regulating the running of passenger railway cars," does not enable the city to impose on the company the cost of street paving. - CITY OF PHILADELPHIA V. EMPIRE PASS. RY. Co., Penn., 35 Atl. Rep. 721.

83. MUNICIPAL CORPORATION-Taxation.-Under St. § 3258, which is a part of the charter of cities of the third class, and provides that any right, lien, or liability acquired or accrued under a former charter shall continue and be enforced, a city which at the time of the enactment of such new charter had the right, under its former charter, to assess property for previous years, its assessment having been omitted, may still exercise such right, though under the new statute (St. § 3403) the right to make such assessment would be barred by limitation.-Board of COUNCILMEN OF CITY OF FRANK. FORT V. MASON & BOARD Co., Ky., 37 S. W. Rep. 290. 86. NEGLIGENCE Acceptance of Insurance.-The owner of property destroyed by fire, having been paid the loss by the insurer, cannot recover of the one whose negligence caused it; the insurer being subrogated to his rights.-ALLEN V. CHICAGO & N. W. RY. Co., Wis., 68 N. W. Rep. 873.

87. NEGLIGENCE- Evidence. In an action for personal injuries received from being struck by a piece of steel thrown out by a blast, by which defendant was breaking steel into pieces, the court, after instructing that defendant was not liable unless he was negligent, again instructed that, no matter what precautions defendant took to prevent the steel from flying, he was liable if plaintiff was struck by a flying missile: Held, that a judgment for plaintiff should be reversed.BAKER V. HAGEY, Penn., 35 Atl. Rep. 705.

88. PARTNERSHIP.-Where one of two partners in a mining lease surrenders it before its expiration, and takes another to himself alone, the new lease, as to the other partner, will be held to be a continuation of the old.-CONTINENTAL DIVIDE MINING INV. Co. v. BLILEY, Colo., 46 Pac. Rep. 633.

89. PARTNERSHIP - - Assignment.-Husband and wife, who are copartners in trade, are not entitled, either jointly or severally, to an allowance in lieu of homestead out of the assets of the copartnership in the hands of an assignee for the benefit of creditors, until the debts of the copartnership have been paid in full. -AULTMAN, MILLER & Co. v. WILSON, Ohio, 44 N. E. Rep. 1092.

90. PARTNERSHIP-Confession of Judgment.-By vir tue of his general power to act as agent of the firm, a

partner has no authority to confess judgment against his partners; and if judgment is entered on such confession it will be void as to them, but valid as to him. -DAVENPORT MILLS Co. v. CHAMBERS, Ind., 44 N. E. Rep. 1109.

91. PATENTS-Sale of Patent Rights.-A sale of a nonexclusive license to manufacture and sell a patented article is not a sale of a "patent right," within Horner's Rev. St. 1896, § 6054, et seq.-ECLIPSE ENGINE Co. v. ZIMMERMAN MANUFG. CO., Ind., 44 N. E. Rep. 1115.

92. PLEDGE-Validity as against Creditors.-In order to constitute a valid pledge, there must be an immediate, actual, and continued change of possession of the property pledged, as against creditors or subsequent purchasers or incumbrancers in good faith.-JACKSON V. KINCAID, Okla., 46 Pac. Rep. 587.

94. PRINCIPAL AND AGENT - Life Assurance SocietyAuthority of State Manager.-Where a foreign life assurance society maintains a branch office in a State, with a manager whose agency is general in that State, and to whom the people look for information or adjustments of the society's business in the State, the acts and knowledge of the manager are the acts and knowledge of the society.-VAN WERDEN V. EQUITABLE LIFE ASSUR. Soc. of UNITED STATES, Iowa, 68 N. W. Rep. 892.

95. PRINCIPAL AND AGENT - Ratification of Agent's Acts. In an action for the conversion of certain notes collusively transferred to defendant by plaintiff's agent, it appeared that under the contract of agency all notes were to be taken in plaintiff's name, and that the agent, contrary to his agreement, had taken the notes in his own name: Held, that the plaintiff, by bringing the action, sufficiently ratified the act of the agent in taking the notes in his own name to entitle him to recover for their conversion.-WARDER, BUSHNELL & GLESSNER Co. v. CUTHBERT, Iowa, 68 N. W. Rep. 917.

96. PUBLIC LANDS Transfer of Land Warranty.Where a land warranty is transferred, before its location, by an instrument duly executed and containing a warranty, the legal title to the land on which the warrant is thereafter located, and which is patented to the original grantee, vests at once, on the issuance of the patent, by estoppel, in the transferee.-BORROUM V. CULMELL, Tex., 37 S. W. Rep. 313.

97. RAILROAD COMPANY- Collision.-While the fact that safety gates at a railroad crossing, which should be closed in case of danger, are standing open, does not relieve a traveler of the duty of exercising care, it can be considered in determining whether he exercised care according to the circumstances.-ROBERTS V. DELAWARE & H. CANAL Co., Penn., 35 Atl. Rep. 723.

98. RAILROAD COMPANY - Lien Pledge of Rolling Stock.-A receipt given by the secretary and manager of a railroad company to the company for its rolling stock, with an indorsement reciting that the receiptor holds possession of such property to secure the pay. ment of a note of the company to a third party, does not have the effect of a warehouse receipt, and, there being no visible change of possession of the property, no lien is thereby created in favor of the holder of the note, as against other creditors of the company.MECHANICS' TRUST CO. v. Dandridge, Ky., 87 S. W. Rep. 288.

99. RAILROAD COMPANY Negligence - Proximate Cause.-Negligence in failing to give a signal at a railroad crossing, resulting in the killing of a person on the crossing, cannot be held the proximate cause of the injury resulting from the body being thrown against one standing on a depot platform, 50 feet from the crossing.-WOOD v. PENNSYLVANIA R. Co., Penn., 35 Atl. Rep. 699.

100. RAILROAD COMPANY Street Railways - Negli gence. In an action against a street railway company for injuries alleged to be due to the negligence of the driver of the car, it was not error to charge that neg. ligence on his part is the want of such care as a reasonably skillful and prudent street car driver would observe under similar circumstances, and if by failure to exercise such prudence a passenger is injured the company would be liable.-DURNETT V. GULF CITY RAILWAY & REAL ESTATE Co., Tex., 37 S. W. Rep. 336.

101. REAL ESTATE AGENT - Commissions.-All agree. ments between a real estate agent or broker and a proposed purchaser touching the subject-matter of his employment, which are not disclosed to his principal, should be scrutinized closely, and, if not found com. patible with entire integrity and good faith toward the principal, they will defeat the agent's claim for commission from his principal.-HOBERT V. SHERBURNE, Minn., 68 N. W. Rep. 841.

102. SALE-Evidence.-In an action for price, the purchase, though denied by defendant, is sufficiently shown by evidence that the bill of sale, signed by the vendor alone, was placed in escrow, with memoranda as to the manner of payments, that a payment was made by defendant in accordance therewith, and that he took possession and mortgaged the property.— MOUNT LINCOLN CUAL CO. V. LANE, Colo., 46 Pac. Rep. 632.

103. SALE-False Representation.-As a matter of defense to an action for the price of a harvester bought by written contract, it may be shown by parol that the contract was entered into by reason of false and fraudulent representations that the machine had all brass bearings, but for which the contract would not have been executed; this not being a parol warranty in addition to warranties in the writing. — MCCORMICK HARVESTING MACH. Co. v. WILLIAMS, Iowa, 68 N. W. Rep. 907. 104. SALE - Warranty Parol Evidence. Where, in the absence of fraud, accident, or mistake, the parties have deliberately put their contract into writing, which is complete in itself and couched in such language as imports a complete legal obligation, parol evidence is inadmissible to introduce into the contract a term which is not contained in the writing.WHEATON ROLLER. MILL CO. V. JOHN T. NOYE MANUFG. Co., Minn., 68 N. W. Rep. 854.

105. SALES Rescission.-Where a pony is sold, with option to the purchaser, if dissatisfied, to rescind the sale within a certain time, the purchaser, on the death of the pony within such time, may still rescind the sale.-LYONS V. STILLS, Tenn., 37 S. W. Rep. 280.

106. SCHOOLS-Contract with Teacher.-Under a con. tract for the employment of a teacher, written in the statutory form, and without stating the term of employment, on the face of which the directors have stamped the words: "The directors reserve the right to annul all contracts every four months," the directors cannot, at the expiration of the four months, summarily dismiss the teacher, without notice or a hear. ing; their authority being limited by Mill. & V. Code, § 1192, subsec. 3, which authorizes directors to employ teachers, and "to dismiss them for incompetence, im. proper conduct, or inattention."-THOMPSON V. GIBBS, Tenn., 37 S. W. Rep. 277.

107. SPECIFIC PERFORMANCE Agreement to Convey Land. Neither the possession and occupancy of land by a daughter of the owner, with her husband and children, nor the making of improvements thereon by them, will be held such a part performance of a parol promise by the father to make a gift of the land to the daughter as to render such promise enforceable against a subsequent grantee of the father, without clear and positive proof of the promise, and that the possession was taken with sole reference thereto.MEIGS V. MORRIS, Ark., 37 S. W. Rep. 302.

108. TAXATION-Taxes on Personal Property.-Under Gen. St. § 2818, which declares in terms that all taxes shall be levied at a fixed date, and shall be a perpetual

lien upon all land subject to taxation until the taxes and penalty are paid, as modified by sections 2819 et seq., which make taxes levied and assessed upon personal property a lien on the property against which the taxes are assessed, and give the counties power to protect themselves by distraint, none of which, however, contains an express declaration that the taxes shall be a lien superior to all antecedent incumbrances,-taxes levied against the personal property of an owner subsequent to the execution of an incumbrance on land in favor of a third party are not a lien superior in right to that security.-GIFFORD V. CALLAWAY, Colo., 46 Pac. Rep. 626.

110. TRIAL Jury. When the court directed an officer to discharge the jury at a certain hour if they had not then agreed, and the officers did not discharge them, but the jury continued their deliberations, and arrived at a verdict some hours later, which was afterwards returned into, and accepted by, the court, the failure on the part of the officer to observe the directions of the court did not avoid the verdict.-HANSEN V. LUDLOW MANUFG. CO., Mass., 44 N. E. Rep. 1091.

111. TRUST - Conveyance to Wife.-Evidence that at the time a husband bought property, which he had conveyed to his wife, and improved as a home, he stated to the lawyer drawing the conveyance that the property was to be returned to him in case of his wife's death, and, after consultation, directed the preparation of reciprocal wills, which were executed by himself and his wife in favor of each other, is suffi. cient to overcome the presumption of a settlement on the wife arising from the conveyance to her, and to establish a resulting trust in the husband.-DUVALE V. DUVALE, N. J., 35 Atl. Rep. 750.

112. VENDOR AND PURCHASER - Fraud-Rescission.Where a vendor falsely represents that a certain proportion of the land is tillable, and insists on consummating the sale at once, knowing that the vendee has not examined the property and does not intend to, but takes it with the express understanding that the representations as to its quality are true, such vendee may rescind the contract, though the vendor may not have known that his representations were untrue.— BRETT V. VAN AUKEN, Iowa, 68 N. W. Rep. 891.

113. WILLS Conversion. - A will providing: "The balance of my property (land on which was a gristmill, operated by testator's husband) to remain as it is, under the care of my husband, he to carry on his business the same as if I was here, and to reap all benefits so long as he lives; my husband to have power to sell it at any time, and when sold, and all debts on property paid, he to receive $2,000 of my money, and balance to be put out on interest, under his care, for my son,"-does not work a conversion of the realty.TAYLOR V. HASKELL, Penn., 35 Atl. Rep. 732.

114. WILLS- Nature of Estate.-Testator gave to his wife a house and lot and household furniture, "to use, occupy, or dispose of as she may think proper," and directed that, if she "should continue in the use, occupation, and ownership of the said house and lot and furniture and household goods until her death," the same should then go to his children, etc.: Held, that the limitation over to the children was void, and the will vested in testator's wife a fee-simple estate.BENZ V. FABIAN, N. J., 35 Atl. Rep. 760.

115. WITNESS.-The wife of one of two defendants is not a competent witness in favor of the other defendant as to matters in which the defense of the two is the same.-BARTLETT V. CLOUGH, Wis., 68 N. W. Rep. 875.

where judges have abused their authority, by improper expressions or statements made in the presence of the jury, but no such abuse had been shown here."

NOTES OF RECENT DECISIONS.

CRIMINAL LAW-HOMICIDE-SELF-DEFENSE -DUTY TO RETREAT.-In State v. Hatch, 46 Pac. Rep. 708, decided by the Supreme Court of Kansas, it was held that in a prosecution for murder, where the homicide was admitted, and the defendant relied only upon the justification of self-defense for acquittal, it was error for the court to instruct the jury, in substance, that the right of self-defense does not arise when there is opportunity to restrain the deceased by process of law, and that if, having opportunity, the defendant failed to invoke the authority of the law by going before a magistrate with a view of having the deceased bound over to keep the peace, then he was not entitled to the plea of self-defense, and that a person who is unlawfully attacked by another may stand his ground, and use such force as at the time reasonably appears to him to be necessary to protect himself. Where the defendant is in the wrong, however, and commences the affray, even without an intent to kill or inflict great bodily harm, and the other person, being thus provoked, makes a deadly assault, then it is the duty of the defendant to retreat as far as the fierceness of the assault will permit him to do without danger of great personal injury to himself, before slaying his antagonist.

CONSTITUTIONAL LAW-PRIVILEGE OF CITIZENS OF ANOTHER STATE-RIGHT TO MAINTAIN ACTION.-The Supreme Court of Wisconsin in Eingartner v. Illinois Steel Co., 68 N. W. Rep. 664, passed upon a point as to which there is considerable controversy. It was held (Cassoday, C. J., dissenting), under the provision of the federal constitution (art. 4, § 2), that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States;" that a citizen of one State may maintain an action in the courts of another State whenever a citizen of the latter State might do so. The court accordingly decided that a citizen of

Illinois had the absolute right to sue an Illinois corporation in a State court of Wisconsin, upon a cause of action on tort arising in Illinois. The action was for damages for personal injuries suffered by plaintiff-an employee of defendant-in the defendant's rolling mill in the city of Chicago. To the same effect as the Wisconsin case is Cofrode v. Circuit Judge, in the Supreme Court of Michigan, 79 Mich. 332. On the other hand, there is in New York the case of Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, holding that section 1780 of the Code of Civil Procedure, limiting the right of a nonresident to sue a foreign corporation to certain specified cases, is not repugnant to the constitutional provision above quoted. The Massachusetts doctrine on the subject is apparently in accord with that of New York. See Smith v. Ins. Co., 14 Allen, 336; Bank v. Rindge, 154 Mass. 203; Kimball v. Railway Co., 157 Mass. 7; Mfg. Co. v. Du Bois, 165 Mass. 117.

While the Supreme Court of the United States has not considered the question how far the constitutional right of a citizen of one State to bring suit in another State extends, there are obiter remarks in opinions by that tribunal to the effect that some privilege of use of State courts was comprehended by the words "privileges and immunities." In Ward v. Maryland, 12 Wall. 418, for instance, it is said, referring to the words "privileges and immunities:"

"Beyond doubt, these words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade or business without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the State, and to be exempt from any higher taxes or excises than are imposed by the State upon its own citizens."

LANDLORD AND TENANT-ASSIGNMENT FOR BENEFIT OF CREDITORS-FORFEITURE OF LEASE. -In Medinah Temple Co. v. Currey, decided by the Supreme Court of Illinois it was, held that a provision in a lease for a term of years that the "lessee shall not assign this