the date alleged in the complaint, and in a different county than the one alleged, does not constitute a material variance.-Brueshaber v. Hertling, Wis., 47 N. W. Rep. 725.

236. SPECIFIC PERFORMANCE-Mines.-In an action for specific performance of a contract to make a mining lease where proof was given that, worked in the manner intended, the earth would be liable to fall in, thus interfering with defendant's part and injuring the value of the mine, and that the lease would probably result in trouble and litigation, it was within the court's discretion to refuse specific performance.-Miles v. Dover Furnace Iron Co., N. Y., 26 N. E. Rep. 261.

237. STATUTES-Enactment.-Questions upon the facts as to whether a bill was passed by the legislature as stated in the notes of the secretary.-People v. Burch, Mich., 47 N. W. Rep. 765.

238. STOCKHOLDERS-Liability.-Under Rev. St. Wis. §§ 1753, 1758, stockholders who have paid less than its par value for their stock, are liable to creditors of the corporation for the difference between that and its par value.-Gogebic Inv. Co. v. Iron Chief Min. Co., Wis., 47 N. W. Rep. 726.

239. TAXATION Exemption Church Property.— A rectory or parsonage belonging to a church society, its primary use being for a secular purpose, to wit, the residence of the priest or minister, is not exempt because of some part of it being also used for religious services.-Ramsey County v. Church of the Good Shepherd, Minn., 47 N. W. Rep. 783.

240. TELEGRAPH COMPANIES-Penalties.-A suit under the act of 1887, for the recovery of a penalty incurred by a telegraph company by reason of its failure to deliver a dispatch in due time is barred by section 2925, of the Code within one year from the time the.company's liability thereto was discovered, or by reasonable diligence could have been discovered.- Western Union Tel. Co. v. Nunnally, Ga., 12 S. E. Rep. 578.

241. TIME-Computation.-Section 82, ch. 66, Gen. St., relating to the computation of time, was intended to establish a uniform rule, applicable to the construction of statutes as well as to matters of practice.-Spencer v. Haug, Minn., 47 N. W. Rep. 794.

242. TRADE-MARKS-Infringement.-In a suit to restrain infringement of plaintiff's trade mark it is no defense that defendant had a license for its use, where the contract for the license requires defendant to keep books, make returns, and pay royalties or forfeit the license, and it is shown that defendant failed to per form these conditions, and that plaintiff notified him that the license was terminated.-Martha Washington Flour Co. v. Martien, U. S. C. C. (Penn.), 44 Fed. Rep. 473.

243. TRESPASS TO TRY TITLE-Practice.-Under the Texas statute allowing a defendant in trespass to try title 20 days after the notice in which to file an abstract of title, when plaintiff serves such notice only 13 days before trial, he cannot object to defendant's introduction of written evidence of title because of the latter's failure to file the abstract.-Barth v. Green, Tex., 15 S. W. Rep. 112.

244. TRIAL-Evidence.-After a cause has been finally submitted, the court has no power, under Code, § 2799, to grant leave for the introduction of additional evidence.-Dunn v. Wolf, Iowa, 47 N. W. Rep. 887.

245. USURY-Foreclosure-Burden of Proof.-Usury must be strictly proved and the burden of proof is upon the party setting it up to establish it clearly.- Berdan v. Trustees, N. J., 21 Atl. Rep. 40.

246. VENDOR AND VENDEE-Statute of Frauds.-Where the real estate is induced by the fraud of the vendor, although such fraudulent representations may be in reference to a matter within the statute of frauds, the vendor will be liable for damages to his vendee.-Foss v. Newbury, Oreg, 25 Pac. Rep. 669.

whether the village authorities authorized the prosecutions or not.- Waukesha County v. Village of Waukesha, Wis., 47 N. W. Rep. 831.

248. WARRANTY-Measure of Damages.-In an action for the price of a stallion, where the answer alleges breach of a warranty that the horse was a "sure colt getter," the measure of damages is the difference between the value of the horse as actually received, and its value if he had been as warranted, and the reason able expense of advertising, keeping, and standing the horse during the season. Short v. Matteson, Iowa, 47 N. W. Rep. 874.

249. WATERS - Overflowing Land-Damages.-Damages for the percolation and flowing of water upon one's land, from an artificial pond constructed by a city on adjoining land can be recovered only to the date of the writ, and not for a permanent injury.-Ald worth v. City of Lynn, Mass., 26 N. E. Rep. 229.

250. WATERS AND WATER COURSES-Dams.-Where a canal company constructs a dam across a natural stream, which flows down through plaintiff's land, and discharges the water thereby detained in larger amounts than the stream will carry, causing the same to overflow the land, it is guilty of a trespass, and lia. ble for the injuries caused thereby, though it was authorized to construct the dam, and the same was constructed in alproper manner.-McKee v. Delaware & H. Canal Co., N. Y., 26 N. E. Rep. 305.

251. WATER COMPANIES-Street Mains.-Act of legislature authorizing private corporation to supply water to a city held, to authorize a contract with a corpora. tion organized to supply the city with water to also lay mains in the streets.-City of Duluth v. Duluth Gas & Water Co., Minn., 47 N. W. Rep. 781.

252. WIFE'S POWER TO CHARGE HER SEPARATE ESTATE. -A mortgage of her separate estate, given by a married woman to secure the payment of her husband's debts to the mortgagee, is invalid in South Carolina.-People's Nat. Bank of Charleston v. Epstin, U. S. C. C. (S. Car.), 44 Fed. Rep. 403.

253. WIFE'S SEPARATE ESTATE. The fact that a deed by a husband to his wife shows on its face that the land was a gift is sufficient to make the land her separate estate, and, in an action to recover it, it was not prejudicial error to permit him to testify that such was his intention.-Callahan v. Houston, Tex., 14 S. W. Rep. 1027.

254. WIFE'S SEPARATE ESTATE-Conveyance.-A married woman who sells her separate property, and stipulates the right to redeem, and remains in possession of the property, cannot be made to deliver it, when it is proven that the only amount with which she could be charged has been paid by her since the sale, and the remainder of the price was her husband's debts.— Krouse v. Neal, La., 8 South. Rep. 471.

255. WILL-Construction. A testator devised to his son certain land in Mississippi, "being forty-one eighths of land, if I gain the suits against H, depending in the chancery court at Columbus; also four sections of my Texas land scrip to be taken by lots:" Held that the devise of the Texas land was not contingent upon the result of the suit.-Yeatman v. Haney, Tex., 14 S. W. Rep. 1045.

256. WILLS-Construction.-Testator devised his land in fee-simple to his son and daughter. A subsequent, paragraph of the will was as follows: "I direct my said executor to take charge of my said daughter's interest of my estate, and invest the same for her benefit, or, should she elect to have her entire interest in the farm during her natural life, at her death to see that her children only derive any and all benefit from said estate." Held, that this did not create a trust in the land, and hence the daughter's title is such that specific performance of a contract to convey it may be decreed. -In re Lebling's Estate, Penn., 21 Atl. Rep. 15.

257. WITNESS-Refreshing Memory-Memoranda.-A witness cannot refresh his memory by the use of a copy of a memoranda made by him, without accounting for the absence of the original.-Byrnes v. Pacific Express Co., Tx., 15 S. W. Rep. 46.

ST. LOUIS, MARCH 27, 1891.

THE Kentucky case, published in full with note in this week's issue, is an interesting study, even if, on account of the scarcity of such litigation, it is not of very great practical value. A question upon which men like Lord Campbell, Lord Justice Brett, Lord Selborne, Mr. Justices Crompton and Earl, on the one side and Mr. Justice Coleridge and Lord Coleridge on the other, came to opposite conclusions, is, to say the least, one not easy of solution. Whether a suit for damages may be maintained for malicious interference by a stranger with the performance of a contract, is the question presented, and though there are some who will agree with the Kentucky court in denying such right of action, the modern sentiment in England, if not in this country, is favorable to it.

SOME time ago we advanced the opinion that the international copyright bill is intended to promote the interests of American authors, publishers and readers, but that above all, it would enhance national self respect and repute. The editor of the Chicago Legal Adviser, at the time, took vigorous issue with this position and seemed to find it difficult to imagine how the measure could enhance national self respect and reputation, asserting that it was only in the interest of publishers. A glance at the columns of a recent issue of that paper reveals to us, for the first time, perhaps the real ground of objection, on the part of that paper, to the international copyright bill and leads us to believe that its opposition extends in fact, to any copyright measure; for we find in the issue referred to, an article written for, and published by us some weeks ago, on the subject of the "Torrens Land Transfer," which is copied into the Legal Adviser word for word, without any credit whatever. We are pleased of course, that the Legal Adviser should have thought the article worthy of reproduction, as it undoubtedly was, being a well prepared VOL. 32-No. 13.

of current interest, especially in the State of Illinois where the question of reform in land transfers has been recently started by the State Bar Association. But in reproducing it entire, without proper credit, and placing it before its readers as an original article, the Adviser demonstrated that it had no regard either for the laws of copyright or for the laws of courtesy.

We observe also, that in issues of that paper, many of our Notes of Recent Decisions are printed without credit to us. We make no claim to any particular originality in the selection or review of current opinions of the courts, but if the Adviser thinks them worth the using, we consider that we are at least entitled to the credit.

In a recent issue (p. 49), we called attention to a decision of Judge Gresham, involving the liability of bank correspondents iu

the collection of drafts, which was in effect a departure from old and established rules and which placed upon a bank to whom a draft is sent for collection, the duty of seeing that the money collected thereupon reaches its final destination. The effect of the decision in that case was to make a bank, undertaking the collection of a draft, an insurer or guarantor of the fund. A study of that case, however, will disclose a ground upon which the decision might have been placed, without resorting to a rule which is not only subversive of established banking customs but which seems too strict an application of the doctrine of agency. In that case the defendants were guilty of such negligence in the transmission of the fund as should make them liable for its loss. The authorities upon this question, though conflicting and in many instances squinting at, if not actually upholding the doctrine that the collecting bank is an absolute guarantor of the fund, may and should be reconciled upon the more reasonable doctrine of negligence. A late case-St. Nicholas Bank v. The State National Bank-decided by the New York Supreme Court is illustrative of this position. There the plaintiff having a draft to be collected in Dallas, Texas, transmitted it to defendant, a banking corporation of Memphis, Tennessee. The defendant sent it to their regular correspond

ents at Dallas, who duly presented it and received the money, and remitted same to defendant by sight draft, on a banking concern in New York, and defendant forwarded this same draft to plaintiff. Before it could be presented for payment in New York, however, both the drawer and the drawee failed, and the money was lost.

The court, upon an examination of the authorities, conclude that in most if not all the cases, there was a distinct act of misconduct or neglect producing the loss, while in the present case, there was neither wrong, inattention nor carelessness on which the liability' of the defendant could be placed. But the prevailing mode of transmitting the fund collected was followed. Neither did the defendant or its agent retain the money, which act was the ground of liability in some cases. On the contrary, both the defendant and its correspondent promptly remitted the proceeds by the means usually taken. In fact, there was an entire absence of wrong or negligence on the part of either bank, and the money was lost through inevitable accident; a defense, which, according to Judge Gresham, would not be tenable even in a case like the present.

This decision appeals at least to common sense. It is unjust to saddle upon a bank guilty of no actual carelessness, a loss resulting from the carelessness of another or from inevitable accident. It is true, that if the law of principal and agent is to be followed to its logical conclusion, the Memphis bank in this case might be held liable. But the principle laid down by Judge Daniels, who rendered the decision, is wholesome and is only another illustration of the power of the common law to adapt itself to the changes which go hand in hand with advancing civilization.

NOTES OF RECENT DECISIONS.

CARRIERS OF GOODS-NEGLIGENCE-PROXIMATE CAUSE-ACT OF GOD.-In Blythe v. Denver & R. G. Ry. Co., 25 Pac. Rep. 702, decided by the Supreme Court of Colorado, which was an action against a railroad company to recover the value of an express package, it appeared that the express car, with three others, was blown from the track by a gale, into

such a position that all the goods must have been thrown into one corner at the top; that the car was immediately set on fire by coals from the stove, and burned so rapidly that the messenger escaped with difficulty; and that the wind was so fierce as to make it almost impossible to stand or walk, and the air so full of dust that one could scarcely see. It was held sufficient evidence to support a finding that the proximate cause was the "act of God," and not the failure of the company to remove the goods after the car was overturned. Upon the subject of proximate cause, Reed, C., says:

Great ability and research have been expanded in attempting to arrive at and determine upon some general definition of the terms "proximate" and "remote" causes and establish a rule and a line of demarkation between the two. Such efforts appear to have been but partially successful. Both have received various definitions, though differently worded, amounting to practically the same thing. But, in almost every instance where they have been attempted to be applied, their applicability seems to have been determined by the peculiar circumstances of the case under consideration. Webster defines "proximate cause," "that which immediately precedes and produces the effect, as distinguished from the remote, mediate, or predisposing cause." And. Dict. Law: "The nearest, the immediate, the direct cause; the efficient cause; the cause that sets another or other causes in operation, or dominant cause.' But with these definitions in view, when two causes unite to produce the loss, the question still remains, which was the proximate cause? In Insurance Co. v. Tweed, 7 Wall. 52, the late lamented Mr. Justice Miller said: "We have had cited to us a general review of the doctrine of proximate and remote causes, as it has arisen and been decided in the courts in a great variety of cases. It would be an unprofitable labor to enter into an examination of these cases. If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations." In Howard Fire Ins. Co. v. Norwich & N. Y. Transp. Co., 12 Wall. 199, in delivering the opinion of the court, Mr. Justice Strong said: "And certainly, that cause which set the other in motion, and gave to its efficiency to do harm at the time of the disaster, must rank as predominant." In Railroad Co. v. Kellogg, 94 U. S. 475, it is said: "The inquiry must therefore always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury." In Insurance Co. v. Boon, 95 U. S. 130, it is said: "The proximate cause is the efficient cause; the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster."

Stevens, 36 Minn. 303, 31 N. W. Rep. 55. The last case turned upon the express language of the statute of Minnesota, the statute expressly providing that the keeping at the request of the legal possessor shall be sufficient to create lien; the court holding that the mortgagee took his mortgage with a full knowledge that under the law the mortgagor might create an agister's lien upon it superior to his mortgage, and hence was bound thereby. See Hammond v. Danielson, 126 Mass. 294. But the weight of authority, and, as we think, the better reasoned cases, are in accord with the conclusion to which we have arrived. See McGhee v. Edwards, 87 Tenn. 506, 11 S. W. Rep. 316; Jackson v. Kasseall, 30 Hun, 231; Bissell v. Pearce, supra; Charles v. Neigelsen, 15 Ill. App. 17; Sargent v. Usher, 55 N. H. 287; Bank v. Lowe, 22 Neb. 68, 33 N. W. Rep. 482; Easter v. Goyne, 51 Ark. 222, 11 S. W. Rep. 212; Jones, Liens, §§ 691-693; Jones, Mortg. § 472. The lien which exists in favor of one making repairs upon a vessel rests upon different principles than does a statutory lien in favor of an agister, and hence we do not think the authorities cited as to the effect of such liens are in point. In Easter v. Goyne, supra, it is said: "The statute under consideration does not evince the intention to give preference to the statutory lien, and, in the absence of a legislative intent to that effect, the courts have not, unless in exceptional instances, permitted the lien created by the statute to become paramount to a prior recorded mortgage.

* In accordance with this rule it has been decided by this court that a mechanic's lien is subordinate to a prior recorded mortgage." And so it has been held by this court as to a mechanic's lien. McCrisaken v. Osweiler, 70 Ind. 131; Close v. Hunt, 8 Blackf. 254; Troth v. Hunt, Id. 580. The case of Case v. Allen, 21 Kan. 217, being, as we think against the great weight of authority, and in principle against our own cases, cited above, we cannot give to it the weight that it would otherwise be entitled to receive.

DEATH BY WRONGFUL ACT-POSTHUMOUS

CHILD-DAMAGES LIMITATIONS. In a recent editorial we discussed the question suggested by a recent Irish case as to the right of a child to bring suit against a carrier for injuries sustained while in the womb of its mother. A question of similar character arose in Nelson v. Galveston H. & S. A. Ry. Co., 14 S. W. Rep. 1021, decided by the Supreme Court of Texas. It was there held that under Rev. St. Tex., art. 2903, which provides that an action on account of injuries causing death, "shall be for the sole and exclusive benefit of the surviving children," a posthumous child may recover damages for his father's death and the fact that at the time of the death one of the parties entitled to sue was under no disability does not set the statute of limitations in motion as against such posthumous child. Hobby, J., after citing the old English cases of Thelluson v. Woodford, 4 Ves. 319; Doe v. Clark, 2 H. Bl. 399; Goodtitle v. Wood, 7 Term Rep. 103, Lancashire V. Lancashire, 5 Term

Rep. 49, in effect holding that a child en ventre sa mere should be considered as absolutely born and in esse from the time of its conception says:

Such is the doctrine of cases decided in 1798, almost a century since, establishing the rights of such children to that character of property, real estate, which bas been generally regarded as the most attractive and valuable over which the dominion of man has been asserted, and the ownership of which then carried with it privileges and rights frequently coveted more than the property itself. If, then, the construction of wills, devises, and statutes was such as operated to enable a posthumous child to inherit and hold property of the character described, and considered him in all respects as entitled to the rights of a child before the death of the father, can there be any reasonable doubt that the proper construction of our statute, giving the right of action to the "surviving children" of the person whose death was caused, etc. includes the plaintiff in this case, as one of such children? Had the expression "surviving children" been used in a will in the same connection as in the statute, and had it been for the benefit of the posthumous child to take, under the authorities cited it would be held to apply to him. Had the children born before the father's death been provided for by will, and it was silent as to the posthumous child, nevertheless he would not be excluded under the will because not named. The principle underlying this is that it would not be presumed that the testator intended to exclude such child from the benefits of the will merely because he had not expressly mentioned him as such, and had expressly referred to the children born before his death. There can be no stronger reason for presuming that the leg. islature intended to exclude a posthumous child from the benefit of article 2903 than there would be for supposing a testator, by the use of similar language, intended to exclude him. We conclude, therefore, that it was manifestly the purpose of the legislature to give the right of action, in a case like the present, to all of the surviving children of the deceased. We think, also, that the plaintiff in this case, although unborn at the time of his father's death, was in being, and one of his surving children.

Attention may also be called to the case of Railway Co. v. Thornberg, 71 Tex. 61.

SHARING OF PROFITS AS A TEST OF PARTNERSHIP.

The older English cases laid down the broad doctrine that a community in the profits of a business necessarily made a partnership. In 1775, it was stated, for the first time, that every man who has a share of the profits of a trade ought also to bear his share of the loss.'' Since that time, and until the decision of the well known case of Cox v. Hickman,2 in 1862, it has been the established law of England, that all persons who share the 1 Grace v. Smith, 2 W. Bl. 998; Waugh v. Carver, 2 H. Bl. 235; Gilpin v. Enderbey, 5 B. & Ald. 954. 28 H. L. Cas. 268.