ship as to the lots, and though the conveyance is taken in the name of one only, the other is entitled to his share of the profits accruing from a resale.--Heard v. Wilder, Iowa, 46 N. W. Rep. 1075.

14. PRACTICE-Change of Venue.-In an action to enjoin a sale under execution, in which the sheriff, though having no personal interest, is joined as co-defendant, he is not entitled to a change of venue on his motion made after the real defendants in interest have answered, under the provision of Code Iowa, § 2589, that, "if a suit be brought in the wrong county, it may there be prosecuted to a termination, unless the de fendant, before answer, demanded a change of place of trial to the proper county."—Omaha & St. L. Ry. Co. v. O'Neill, Iowa, 46 N. W. Rep. 1100.

75. PRINCIPAL AND AGENT-Ratification.-A woman as local agent of a manufacturing company sold notes, belonging to her principal, to a bank, supposing that she had a right to do so, and remitted the proceeds to the company. The sale was, in fact, without authority, of which circumstance the bank had constructive notice from the form of the notes: Held, in replevin by the company, that by retaining the proceeds of the sale after being informed of it, it ratified the transaction, though the money had been applied to a different account from that to which it would have gone if it had been known from what source it came.- Wm. Deering & Co. v. Grundy County Nat. Bank, Iowa, 46 N. W. Rep. 1117. 76. PRINCIPAL AND SURETY-Marshaling Assets.—A creditor who had a claim against two debtors, one a principal and the other a surety, cannot be compelled by another creditor of the principal debtor to exhaust his remedy against the surety before the proceeding against the principal.-In re Hobson, Iowa, 46 N. W. Rep. 1095.

77. PUBLIC LANDS-Commissoner of State.-Act. Tex. April 6, 1881, which authorizes the commissioner of the general land-office to order a re-examination of public lands if he has reason to believe that the report on file in the land-office as to the value or quality of the land is erroneous, gives him the implied power to withdraw from sale lands ordered to be re examined until such re-examination is completed.-Kentucky CattleRaising Co. v. Bruce, Tex., 14 S. W. Rep. 619.

78. QUIETING TITLE-Possession.-Act. Ark. 1857, to quiet land titles, declaring that no action for the re covery of any land against any person, his heirs or assigns, holding under a donation deed from the State shall be maintained, unless the plaintiff, his ancestor, or grantor, was seized or possessed within two years next before the commencement of the action, is available as a defense to one who holds under a donation deed good upon its face, though perhaps invalid for reasons not there appearing.-Simms v. Camby, Ark., 14 S. W. Rep. 623.

79. RAILROAD COMPANY-Contract.-A city ordinance gave a railroad company permission to lay its tracks along a certain street upon condition that the company should pay for the erection of a viaduct over the street and should indemnify the city "from any and all legal damages, judgments, decrees, and costs and expenses of the same which it may suffer, or which may be recovered or obtained against said city, for or by reason of the granting of such privileges and authority, or resulting from the passage of this ordinance, or any matter or thing connected therewith:" Held, that the company was liable for a judgment recovered against the city for damage caused to property by the construction of such viaduct.-Chicago B. & Q. R. Co. v. City of Chicago, Ill., 25 N. E. Rep. 514.

80. RAILROAD COMPANY-Fire.-Where a railroad company, by its agents and employees, in burning off its right of way, negligently allows the fire to escape upon the premises of the adjacent land-owner, where it consumes the property of the latter, the injury thus inflicted falls fairly within the scope of chapter 155, Laws 1885, as the result of a fire caused by the operation of said railroad.-Missouri Pac. Ry. Co. v. H. A. Cady, Kan., 24 Pac. Rep. 1088.

81. RAILROAD COMPANIES-Injuries to Persons on Track.-Decedent, while walking along a railroad track without license, was run into and killed at a distance of 150 yards from a crossing behind him, from which direction the train was coming. The engine was in a reversed position, and there was no head-light or cowcatcher on the tender. The bell was not rung, nor was the whistle blown at the crossing, though provided for by statute. Had such signals been given, decedent would probably have heard them and escaped injury. He was not seen by the trainmen until after the accident: Held, that decedent was a mere trespasser, to whom the company owed no duty, and therefore it was not liable.-Toomey v. Southern Pac. Ry. Co., Cal., 24 Pac. Rep. 1074.

82. RAILROAD COMPANIES-Taxation.-The rule exempting from taxation for local purposes so much of a railroad company's property as is indispensable to the construction of the road, and fitting it for use, does not embrace the railroad repair-shops, and they are liable for township and school taxes.-Pennsylvania & N. Y. Canal & R. Co. v. Vandyke, Penn., 20 Atl. Rep. 653.

83. RECEIVER-Estoppel-Injunction.-The receiver of a bank who has, with the knowledge of the court that appointed him, defended in the name of the bank an attachment suit brought against it, and obtained a release of the attached property on forthcoming bond, cannot, after judgment has been rendered against the bank in the attachment suit, enjoin the attaching creditors from suing on the forthcoming bond.-Smith United States Express Co., Ill., 25 N. E. Rep. 525.

84. RELEASE AND DISCHARGE- Damages.-A passen. ger, suing for personal injuries, had accepted money from defendant railroad company, giving a release, which he sought to avoid on the ground that he was insane or unconscious when it was given. The jury were charged that the release was valid if he used or retained the money, knowing that he had received it in satisfaction of his injuries, and did not promptly disaf. firm the contract, but acquiesced therein. The only evidence of satisfaction was the fact that he had in some manner disposed of the money: Held, that there was no error in the instruction.-International & G. N. R. Co. v. Brazzil, Tex., 14 S. W. Rep. 609.

85. REPLEVIN-Evidence.-Where, in an action to recover personal property, defendant claims title under a chattel mortgage, which plaintiff attacks as invalid because the mortgagor when he bought the property did not take possesion of it, and the fact of his taking possession is an issue in the case, the mortgage is admissible in evidence.-Lausley v. Van Alstyne, Iowa, 46 N. W. Rep. 1119.

86. RES ADJUDICATA-Forcible Entry and Detainer.In an action of forcible entry and detainer, it appeared that the plaintiff's title was derived through a foreclos ure suit against defendant. The land was defendant's homestead, and his wife was not a party to either suit: Held, that defendant could not set up as a personal defense his wife's homestead interest in the land, since he might have pleaded that defense in the foreclosure suit.-Dodd v. Scott, Iowa, 46 N. W. Rep. 1057.

87. SALE OF LANDS-Forfeiture.-A contract for the sale of lands provided that the purchaser should pay a sum down, take immediate possession, and pay the balance on or before three years, with interest, when he was to receive a clear title. In case of default he was to forfeit both the lands and the sums paid. The vendor had no title to part of the lands sold: Held, that so long as he was unable to make a conveyance in accordance with the contract, there could be no forfeiture for non-payment of interest due him by the vendee.-Getty v. Peters, Mich., 46 N. W. Rep. 1036.

88. SCHOOLS AND SCHOOL DISTRICTS.-Where the president of a board of school directors is authorized to employ teachers with the consent of the board, and one whom he employs as a teacher, by written contract, begins teaching under the contract, with the knowledge of each member of the board, who know that the board has taken no action on the contract, the

consent of the members will be presumed, and the con. tract held valid.-Hull v. Independent Dist., Iowa, 46 N. W. Rep. 1053.

89. SHIPPING- Boarding Arriving Vessel.- Section 4606 of the Revised Statutes, providing for the punishment of any person who, without the consent of the master, goes on board an arriving vessel before she reaches her place of destination, and is moored thereat, applies to foreign vessels.- United States v. Sullivan, U. S. C. C. (Oreg.), 43 Fed. Rep. 602.

90. SPECIFIC PERFORMANCE - Contracts.-A contract to convey a city lot, which stipulates that the conveyance shall be subject to the house-line and building restrictions mentioned in the contract, will be specific. ally enforced as made, and the vendee cannot have a conveyance decreed free from such restrictions.Abraham v. Stewart, Mich., 46 N. W. Rep. 1030.

91. TAXATION-Lien.-The mortgagor of realty after foreclosure and sale, but before his right of redemption has expired, is the owner thereof within the meaning of Code Iowa, § 865, providing that "taxes due from any person upon personal property shall be a lien upon any real property owned by such person."-New England Loan & Trust Co. v. Young, Iowa, 46 N. W. Rep. 1103.

92. TAX-DEED-Registration.-Although the registration of a tax-deed before the expiration of the period of redemption does not make it a muniment of title, or render it available as a basis of possession, under Rev. St. Tex. art. 3193, which prescribes a limitation of five years in favor of one claiming under a deed "duly regis. tered," yet, upon the expiration of the redemption period, such prior registration becomes good, and a new registration is not required.-Davis v. Hurst, Tex., 14 S. W. Rep. 610.

93. TAX-SALE- Redemption.-One who, without any claim of ownership or right of possession, herds his cattle on a range of open and uncultivated land is not n possession of a quarter section forming part of the range, within the meaning of Code Iowa, § 894, requiring notice of the expiration of the time of redemption from a tax-sale to be served on the person in posses. sion of the land.-Brown v. Pool, Iowa, 46 N. W. Rep. 1069.

94. TAX-TITLES-Documentary Evidence.-It is no objection to the admissibility in evidence of a sheriff's tax-deed, regular on its face, that it is not shown that the comptroller general had properly advertised the land before issuing the fi. fa. for taxes, and that the deed does not show that the land was properly advertised, as it will be presumed that the recitals of the deed as to the conduct of the sheriff are correct, and that the comptroller general did his duty.-Livingston v. Hudson, Ga., 12 S. E. Rep. 17.

95. TRUSTEES-Compensation.-The management of a wife's one-third interest in property, conferred on her husband by a decree of divorce, is a personal trust, which he can neither transfer nor perpetuate; and the trustees under his will, which did not even assume to make any disposition of such trust, are not entitled to any fees and commissions under the will for their man. agement of the wife's one-third interest after the husband's death.-Blanckenburg v. Jordan, Cal., 24 Pac. Rep. 1061.

96. TRUSTS-Revocation.-Where an improvident son conveys his property to his mother, in trust for him. self, and is also by his father's will made the beneficiary of other property bequeathed to his brothers in trust for him, and subsequently executes another deed conveying all his property-both that contained in the conveyance to his mother and that bequeathed to him -to his mother and brothers, in trust for himself, but on terms more favorable to them than those contained in the first deed and the will, he may have this last conveyance set aside as a void contract between the trustee and cestui que trust, but the original trust will remain in force.-Avery's Trustees v. Avery, Ky., 14 S. W. Rep. 593.

97. TRUSTS-Vendor.-A vendee under a land con. tract, who had in fact obtained the contract as agent for a land company, assigned it to the company's manager, and also executed a subcontract in which he agreed to convey the land to the company. The vendee paid one installment of the purchase price, and the company's manager paid the second-both with the company's funds: Held, that these facts did not raise an implied trust in the land in favor of the company, as against the vendor.-Stratton v. California Land & Timber Co., Cal., 24 Pac. Rep. 1065.

98. USURY-What Constitutes.-A note, drawing 10 per cent. interest, being several months past due, an agree. ment is usurious which extends the time of payment in consideration of a promise to pay 12 per cent., the highest legal rate, from the maturity of the note.Krause.v. Pope, Tex., 14 S. W. Rep. 616.

99. VENDOR AND VENDEE-Contract.-Where a contract for the sale of land provides that the vendee may disaffirm the sale at the end of a year, in which event he is to be repaid his purchase money, with 10 per cent. interest, on giving 30 days' notice of his intention to disaffirm, the vendor cannot complain that the vendee gave more than 30 days' notice of his intention, as this is to the vendor's advantage.-Herberger v. Husmann, Cal., 24 Pac. Rep. 1058.

100. VENDOR'S LIEN-Quitclaim Deed.-Under Code Iowa, § 1940, which provides that no vendor's lien shall be enforced after a conveyance by the vendee, unless such hen is reserved by written instrument, acknowledged and recorded, or unless such conveyance is made pending suit to foreclose the lien, a quitclaim deed by the vendee is sufficient to bar à vendor's lien not evidenced by writing.-Chrisman v. Hay, U. S. C. C. (Iowa), 43 Fed. Rep. 552.

101. WATERS AND WATER-COURSES-Rights of Fishermen.-The owner of a tug which on a clear, calm day negligently runs through a fisherman's net that was easily preceptible and could have been avoided, without prejudice to the prosecution of the voyage, is liable for the damage.-Wright v. Mulvaney, Wis., 46 N. W. Rep. 1045.

102. WILLS-Construction.-A testator after devising property to his two sons absolutely and other property in trust for the two children of his deceased daughter, declared in the fourteenth paragraph of his will that, "should either of my sons die leaving no legal descendants, then and in that event, all the property that should have been his if living, shall go to and become the property of the survivor and his legal descedents, and the property of the survivors of the trustees mentioned, for the uses and trusts of the wards," etc.: Held, that it was not the intention to create a limitation over upon an indefinite failure of issue, but only upon the death of the son without issue living at the time of his death, and hence there was no attempt to create a perpetuity, and the limitation was good.—Armstrong v. Douglass, Tenn., 14 S. W. Rep. 604.

103. WILL-Estate.-A devise of property in trust to pay the income to testator's daughter, "for her sole and separate use, upon her separate receipt, without the control or interference of any husband she may have or take for and during all the the term of her natural life," creates a trust for life and not for coverture, though the daughter, being only five years old, is not married or contemplating marriage.-In re Dorney's Estate, Penn., 20 Atl. Rep. 645.

104. WITNESS-Credibility.-When a witness denies his former conviction, it may be shown by the record under How. St. Mich. § 7543, providing that no person shall be disqualified as a witness by reason of crime, but conviction of crime may be shown to affect his credibility.-Helwig v. Laschowski, Mich., 46 N. W. Rep.

1033.

105. WITNESS-Memoranda.-A witness may refresh his memory by reference to memoranda of the dates, weights, and prices entered by himself at the times certain sales were made.-Rohrig v. Pearson, Colo. 24 Pac. Rep. 1083.

ST. LOUIS, JANUARY 9, 1891.

THE recent decision of the Supreme Court of Missouri, in the Laclede Gas-light Company case, involving the validity of a late ordinance of the city of St. Louis, restricting the charges of that company to 90 cents per thousand feet of gas, has been criticised by some and considered by others, not conversant with its scope, as of like character with recent decisions of the United States Supreme Court, involving the power of municipal or State legislatures to regulate charges by public or quasi public corporations. The fact is, however, that the decision in no respect touches upon this question. The ordinance in question was declared invalid upon the plain and well established proposition of law, that a power to fix its charges given by charter to a corporation was a contract which cannot be diminished by subsequent legislative action, whether State or municipal. The effect, in other words, is the same as if the State, in granting the charter, had set a price at which the company might sell gas, and then declared that the powers thus granted should be exempt from subsequent alteration or repeal. In addition to its legislative charter, an ordinance of the city was passed later, which authorized the Gas-light Company to charge $1.25 per thousand for gas furnished. The court holds also that this ordinance, when accepted by the Gas-light Company, constituted a valid contract between that company and the city of St. Louis, which could not thereafter be abrogated by ordinance. The point in the case seems to us almost too plain for argument, and we are curious to read the dissenting opinion of Judge Barclay, who was the sole dissentient, and who announced that he would express his views hereafter.

THE decision of the Supreme Court of Indiana, in the case of Bedford Bank v. Acoam, reported on page 33 of this issue, and the note thereto, will show, we think, that a good court may sometimes go wrong. In taking VOL. 32-No. 2.

case, that a banker has no right to apply money on deposit in his bank to the payment of a note of the depositor, payable at the bank, without the order of the depositor, we believe that we are upheld both by reason and the preponderance of authority, at least in this country. The fact is, that we have not found a case decided by any court in this country which unequivocally sustains the position taken by the Supreme Court of Indiana upon the question.

It may be of interest to call attention to the fact that a bill is now pending in congress, to amend, in some particulars, the act of 1887, for the removal of causes from State to federal courts. The bill introduced proposes to make two amendments to the existing statutes for the removal of causes. The first amendment proposed, requires that a party applying for a change or removal must give his adversary five days' notice of his purpose to apply. The other amendment provides that, where jurisdiction is conferred on the federal courts by the citizenship of the parties alone, to entitle a party to secure the removal of the case, the amount in controversy must exceed $2,000. It will be

noted that the amendments restrict rather than enlarge jurisdiction. There are many who think that the existing law is susceptible of very substantial amendment, if not of absolute substitution.

THE learned editor of the London Law Quarterly Review, calls attention to the fact that the judges who decided the case of Cochrane v. Moore, reported in full with annotation in our last issue, were so occupied in investigating the principles of the law of England governing the gift of chattels by word of mouth, that they forgot to consider the equally interesting question whether the case was, according to the principles of English law, governed by the territorial law of England (lex domicilii), or by the territorial law of France (lex situs.) He claims that there is a good deal to be said for either opinion. The donor and the donee were (we presume) both domiciled in England. The gift, on the other

hand, took place in France, and the horse of which a share was given was, at the time when the present was made, in France. There is authority in the way of general dicta for asserting that a valid assignment of chattels depends upon the lex domicilii of the assignor. But these dicta refer to general assignments, e. g., in consequence of death or marriage, and there is, it is believed, no English case definitely ruling that a gift or sale of an individual movable, depends for its validity on the lex domicilii. On the other hand, there is the authority of some of the weightiest writers on private international law, such, for cxample, as Savigny and Westlake, for asserting that the validity of such a gift is determined by the lex situs, and there are English cases which point in the same direction. therefore, maintainable that the question really calling for decision in Cochrane v. Moore, was one which the court never considered.

It is,

NOTES OF RECENT DECISIONS.

REMOVAL OF CAUSES-CORPORATION-RESIDENCE. The recent decision of Shiras, J., in the case of Myers v. Murray, Nelson & Co., 43 Fed. Rep. 695, in the United States Circuit Court for the Southern District of Iowa, in dissenting from the doctrine of Hirschl v. Threshing Machine Co., 31 Cent. L. J. 92, makes an important change in the law governing the removal of causes from State to federal courts by corporations. Until the decision in the Hirschl case, by Justice Miller, it had been the settled doctrine that a corporation could be a resident only of the State under whose laws it was created. This doctrine was laid down in Fales v. Railroad Co., 32 Fed. Rep. 673; Booth v. Manufacturing Co., 40 Fed. Rep. 1, but Justice Miller ruled, in the Hirschl Case, that for the purpose of suing and being sued, it may become a resident in each State in which it does business under State law, and that when a corporation of one State is sued in the court of another State, a petition for removal by it is not sufficient, unless it alleges, in addition to the usual averments as to citizenship, that it is a non-resident of the State in which it is sued. A contributor, who prepared the note to the

Hirschl Case at the time it was reported in this JOURNAL (31 Cent. L. J. 93), took the position that the decision in question would practically require all corporations to litigate in the State courts, which has undoubtedly been the case. The decision in the present case, of Meyers v. Murray, Nelson & Co., is to the effect that a corporation, though carrying on business in several States, can have a residence only in the State in which it was created; so that the averment that a corporation was created under the laws of a certain State, precludes the idea that it may have become a resident of another State, and is sufficient in a petition for removal of a cause from a State to a federal court. This was in effect overruling the Hirschl Case, and upon the authority of the following decisions, namely: Insurance Co. v. Francis, 11 Wall. 210; Ex parte Schollenberger, 96 U. S. 377; Railroad Co. v. Koontz, 104 U. S. 5; Pennsylvania Ry. Co. v. St. L., A. & T. H. Ry. Co., 118 U. S. 290; Muller v. Dows, 94 U. S. 444.

NEGOTIABLE INSTRUMENT - FRAUD BURDEN OF PROOF-INNOCENT PURCHASER.-The case of Canajoharie National Bank v. Diefendorf, 25 N. E. Rep. 402, decided by the New York Court of Appeals, has aroused some criticism in banking circles. It was there laid down that where the maker of notes has shown that they were procured from him by fraud, the burden is upon the holder to show that he is an innocent purchaser for value. That negotiable notes offered to a cashier of a bank before maturity were made by a farmer whom he knew, and who had no outside business to call for such large transactions, that they had been executed in a city two hundred miles from his home, and were offered for discount by an utter stranger; held, were sufficient to put the cashier upon inquiry; and where he purchased them without the least investigation, the jury were warranted in finding that the bank was not an innocent holder for value, although it paid about eighty-five per cent. of the face of the notes. The Albany Law Journal says on the subject of this case:

The case of Canajoharie National Bank v. Diefendorf, decided by the court of appeals of this State, and reported in full in this journal last week, has aroused some criticism, and in some quarters has been thought opposed to the general current of

authority on the question. There can be no doubt of the general proposition that when the maker or indorser of a note shows that it was made or indorsed for a special purpose, from which it has been wrongfully diverted, the burden of proof is shifted to the holder to show that he was ignorant of the diversion; he cannot recover by simply showing that he paid value before maturity. This is the law, we believe, in spite of a rather incautious obiter dictum to the contrary in Dalrymple v. Hildebrand, 62 N. Y. 11; 8. c. 20 Am. Rep. 438. In the present case the holding is simply that certain circumstances of suspicion appearing, it was properly left to the jury to say whether they imposed on the holder the duty of inquiry. We do not see any thing wrong or unusual in this. It is merely a holding that the question is one of fact. The holding in question is not nearly so strong as that in Ormsbee v. Howe, 54 Vt. 182; S. C., 41 Am. Rep. 841, which was that a note obtained by fraud and duress, and without consideration, is void in the hands of a third person who is a a general purchaser of the payee's notes and cognizant of his fraudulent practices in obtaining them.

PENSION MONEY-EXECUTION-EXEMPTION. -The case of Crow v. Brown, 46 N. W. Rep. 993, decided by the Supreme Court of Iowa, not only overrules many previous decisions of the courts of that State, but places that court on the subject of exemption of pension money from execution, in opposition to the prevailing authorities in this country. The decision there is, that property purchased by a pensioner with his pension money, is exempt from execution and sale for his debts under Rev. St. U. S. § 4747, providing that it "shall inure wholly to the benefit of the pensioner." The court says that Foster v. Byrne, 35 N. W. Rep. 513; Triplett v. Graham, 58 Iowa, 135; Baugh v. Barrett, 69 Iowa, 495; Farmer v. Turner, 64 Iowa, 690, were improperly decided, and that since the final opinion in Foster v. Byrne was rendered, the personnel of the court has been changed, and upon full examination of the question the majority of the court are of the opinion that such pension money is exempt from execution. Robinson, J., dissents from the majority of the court in the present case, and, as we think, upon substantial grounds. The United States statute referred to, reads that "no sum of money due or to become due to any pensioner, shall be liable to attachment, levy, etc.' The language used makes it clear that the exemption contemplated by the statute applies only to money due or to become due, and that it was not intended to act upon the pension money after it reaches the control of the pensioner. This view is in harmony with the cases of

Rozelle v. Rhodes, 116 Pa. St. 134; Friend v. Garcelon, 77 Me. 26; Crane v. Linneus, 77 Me. 61; Cranz v. White, 27 Kan. 319; Jordain v. Association, 44 N. J. Law, 376; Robion v. Walker, 82 Ky. 61; Faurote v. Carr, 108 Ind. 126; Spellman v. Aldridge, 126 Mass. 117; Hissem v. Johnson, 27 W. Va. 672. The case of Folschow v. Werner, 51 Wis. 87, is the only case supporting the view of the majority of the Iowa court, and that case was predicated upon the case of Eckert v. McKee, 9 Bush, 355, which was overruled by Robion v. Walker, supra.

The

power of congress to exempt from execution pension money after its payment to the pensioner, is a questionable one, and has been doubted in Webb v. Holt, 57 Iowa, 716, Hissem v. Johnson, supra, and Cranz v. White, supra. The question was referred to, but not determined in United States v. Hall, 98 U. S. 343, that case going no further than to hold that congress may enact laws to protect pension money until it shall have passed into the hands of the pensioner. The power to enact laws which shall have the effect given to the statute under consideration by the opinion of the majority of the court in the present case, is not expressed in the constitution, and if possessed by congress is an implied or incidental one. The fact that if exercised it would create in many of the States a new class of exemptions, is contrary to the general policy of congress not to interfere unnecessarily with the domestic affairs of the States, and is an additional reason that congress did not intend to exempt property in the hands of the pensioner purchased with pension money. See on this general subject, 31 Cent. L. J. 324. It is almost unnecessary to state that decisions like Yates County National Bank v. Carpenter, 31 Cent. L. J. 2, where the question of exemption was one under the State statute, is not in point with the question here determined.

RAILROAD COMPANIES-INJURIES TO PERSONS ON TRACK.-The case of Toomey v. Southern Pac. Ry. Co., 24 Pac. Rep. 1074, decided by the Supreme Court of California, is of interest as showing the very slight consideration given by courts to the right of a trespasser on a railroad track. It appeared in that case that decedent, while walking along a railroad track without license, was run