an administration bond is made payable, is not, upon a breach thereof "the person aggrieved," within the meaning of Code Ala., 1886, § 2575, providing for actions on official bonds by the person aggrieved.-Williams v. Stoutz, Ala., 9 South. Rep. 155.

3. ADMIRALTY-Attached Property.-Where a suit has been brought against one of two ship owners, and property attached thereunder released before the name of the other owner is introduced, the suit must be regarded as against the original respondent only.-National Board v. Melchers, U. S. D. C. (Penn.), 45 Fed. Rep. 643.

4. APPEAL-Attorney's Fees.-Attorney's fees provided for in the note sued on, and included in the judgment of the circuit court as attorney's fees in that court, cannot be deducted from the judgment before comparison with the judgment appealed from.-Grores v. Wiles, Ind., 27 N. E. Rep. 309.

5. APPEAL-Bond-Dismissal.-Under Code Civil Proc. Cal. §§ 946, 965, providing that when appellant is an administrator, acting in another's right, or appeals from a judgment in proceedings had upon the estate, he need file no bond, an administrator who appeals from an or der revoking his letters is not relieved from giving an appeal-bond, as such appeal is a personal matter, and not one in which the estate is interested.-Erlanger v. Danielson, Cal., 26 Pac. Rep. 505.

6. ASSIGNMENT FOR BENEFIT OF CREDITORS.-Payment by the assignee to a preferred creditor, as directed in the assignment, vests title in such creditor to the money so paid, though the assignment is, in an action afterwards begun, declared fraudulent as to creditors, where such preferred creditor has not participated in the fraud.-Knower v. Central Nat. Bank, N. Y., 27 N. E. Rep. 247.

7. ASSIGNMENT FOR BENEFIT OF CREDITORS — Mortgage. An instrument which provides for the immediate surrender of the property described to a trustee for creditors, with directions to him to proceed to sell it at private sale without delay, and to pay the debts, whether mature or not, in the order enumerated, as fast as funds can be realized from the sale, is an assignment for the benefit of creditors, and not a mortgage, notwithstanding it contains a defeasance clause.-Charles F. Penzel, Co. v. Jett, Ark., 16 S. W. Rep. 120.

8. ASSIGNMENT FOR BENEFIT OF CREditors Pref. ezences.-Three mortgages, payable on demand, given on the same day by an insolvent debtor to secure bona fide debts, which do not cover all of the debtor's property, do not constitute a common law assignment, and are not void under How. St. Mich. § 8739, which pro vides that all assignments commonly called "commonlaw assigments for the benefit of creditors" shall be void unless they are without preferences.-Sheldon v. Mann, Mich, 48 N. W. Rep. 573.

9. ASSIGNMENT FOR BENEFIT OF CREDITORS-Usury.Though in the yearly settlements between a debtor and creditor usurious interest was allowed, another creditor cannot, on that account, on the assignment of the debtor, object to the former creditor's receiving a dividend out of the assigned estate, unless the agreement to pay the usurious rate was part of a scheme to cheat and defraud creditors.-In re Estate of Selser, Penn., 21 Rep. Atl. 777.

10. ASSUMPSIT - Liability for Another's Debt. The fact that a person marries the sister of the purchaser of property, assists in hauling the property away, and afterwards resides on the premises on which it is placed and used, does not make him liable for the purchase money.-Womack v. Acuff, Tex., 16 S. W. Rep. 107.

11. BASTARDY - Inspection of Child.-In a bastardy proceeding, misconduct of the jurors, after adjourn ment for the day, and before the verdict, in inspecting the countenance of the child, is cured by an instruction that they must not take the child's appearance into consideration in determinining whether defendant is its father.-La Matt v. State, Ind., 27 N. E. Rep. 346.

12. CARRIERS-Failure to Furnish Cars.-Where one represents a railroad company as station agent, and

makes all contracts for shipment of live-stock, but is not authorized to agree to provide cars at specified times, and in fact has instructions forbidding him to do so, a contract for this purpose is nevertheless binding: upon the company as within the apparent scope of his authority, unless the shipper knows of the limitation.Receivers v. Graves, Tex., 16 S. W. Rep. 102.

13. CARRIERS OF GOODS-Damages.-A railroad company is not liable for damages for failure to deliver goods to an unidentified consignee, where he fails to produce the bill of lading, though he may offer. security.-Gulf, etc. R. Co. v. Freeman, Tex., 16 S. W. Rep.

109.

14. CERTIORARI.-To review the judgment of a justice court for an amount exceeding $50, where no facts were in dispute, the writ of certiorari is a proper remedy.— Greenwood v. Boyd & Baxter Furniture Factory, Ga., 13 S. E. Rep. 128.

15. CERTIORARI-Failure to File Bond.-Where a peti. tion for certiorari had been sanctioned by the judge and filed with the clerk of the superior court, but no bond as required by law was filed therewith, and consequent ly no writ of certiorari was issued, it was too late, after the expiration of the time allowed by law for obtaining. the writ of certiorari, to file such bond - Baker v. Mc Don ald, Ga., 13 S. E. Rep. 130.

16. CERTIORARI-When Lies.-The order of the circuit court appointing commissioners to determine the points and manner of crossings and connection of railways, and to assess the damages, is interlocutory, and cannot be reviewed by certiorari, which only lies in a case of a final order or judgment to determine the jurisdiction of the lower court.-State v. Edwards, Mo., 16 S. W. Rep. 117.

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17. CHATTEL MORTGAGES Bona Fide Purchasers. Persons to whom goods have been transferred in consideration of a credit for their value on an existing indebtedness of the owner are not bona fide purchasers or mortgagees, as to whom an unfiled prior mortgage on the goods is invalid under Laws N. Y. 1883, ch. 279, § 1.— Button v. Rathbone, Sard & Co., N. Y., 27 N. E. Rep. 266.

18. CHATTEL MORTGAGES-Sale - Estoppel.-Where a chattel mortgagee gives the mortgager permission to sell the mortgaged property, and stands by, and without setting up any claim, allows it to be sold to one having no actual notice of the mortgage, he will be estopped to deny the mortgagor's authority to sell.-Benedict v. Farlow, Ind., 27 N. E. Rep. 307.

19. CLERKS OF COURT-Terms of Office.-The terms of office of such clerks of the district court as, commencing in January, 1884, would terminate in January, 1888, were not affected by the amendments of the constitution adopted in 1883, but they continued to January, 1888, and the succeeding terms commenced at that time. -State v. Steward, Minn., 48 N. W. Rep. 603.

20. COMMON CARRIERS-Measure of Damages.-In case of shipment of an animal over a railroad, under a contract providing that, in case of loss, its market value at the point of destination shall be taken as liquidated damages for such loss, it is error, in an action for its death through the railroad company's negligence, to allow as damages a greater amount than the price for which the shipper has sold it to the consignee.-Gulf, etc. Ry. Co. v. Key, Tex., 16 S. W. Rep. 106.

21. CONFLICT OF LAWS-Contracts.-Application for a loan from a foreign corporation was made to its agent in Alabama, and the corporation paid the money to bankers in New York, who sent it to the agent, to be delivered to the borrower on execution by him of a note and mortgage on land in Alabama, which was done, and the money was there delivered. The mortgage recited that it was "made," and the acknowledg. ment was taken, in Alabama, but the notes were payable in New York: Held, that the contract was gov. erned by the laws of Alabama.-American Mortgage Co. v. Sewell, Ala., 9 South. Rep. 143.

22. CONSTITUTIONAL LAW-Police Power.-Where the evidence shows that the stretching of electric wires

over and upon the roofs of buildings is extremely dan gerous, both as being liable to originate fires and as obstructions to the extinguishment of fires otherwise orig inated, a city ordinance absolutely prohibiting the practice is a valid exercise of the police power.-Electric Imp. Co. v. City and County of San Francisco, U. S. C. C. (Cal.), 45 Fed. Rep. 593.

23. CONSTITUTIONAL LAW - Special Legislation.- Act Pa. June 14, 1887, "An act in relation to the government of cities of the second class," is not unconstitutional, as being a local act, by reason of its providing a time when it should go into operation as to the cities then of the second class, without making a similar provision for cities that should thereafter be entitled to come into the class.—In re City of Pittsburgh, Penn., 21 Atl. Rep. 759.

24. CONTRACT - Compensation for Indorsement.-To recover compensation for the use of one's name as an indorser there must at least be a proof of a contract therefor.-Hoffeditz v. Maidencreek Iron Co., Penn., 21 Atl. Rep. 764.

25. CONTRACT-Damages. It is the duty of a party who has suffered an injury from the non-performance of a contract to take reasonable measures to make the injury or damage for which he intends to hold the other party liable as light as possible.-Halstead Lumber Co. v. Sutton, Kan., 26 Pac. Rep. 444.

26. CONTRACT-Future Delivery.-A contract for the sale of stock at so much per share, to be delivered at the expiration of 12 months, with seller's option to deliver at any time during that period, is not void within Code Ala. § 1742, as founded on a gambling considera tion, when the parties intended an actual delivery and sale at the maturity of the contract.- Wolffe v. Perryman, Ala., 9 South. Rep. 148.

27. CONTRACT-Quantum Meruit.-Where the building is erected upon and becomes a part of the realty of the defendant, and, although defective in some repects, is of real and substantial value to the defendant for the purposes intended, the plaintiff may recover from the defendant what the building is reasonably worth to him.-School Dist. v. Boyer, Kan., 26 Pac. Rep. 484.

28. CONTRACT-Rescission-Injunction. In an action to rescind a contract for the purchase of real estate, the cancellation of the notes given in payment of such purchase, and to restrain the purchaser of said notes from collecting the same, an injunction should not be granted to restrain the purchaser of. such notes from collecting the same If it appeared from the petition of the plaintiffs that they had a plain and adequate rem. edy at law. Hardy v. First Nat. Bank of Newton, Kan., 26 Pac. Rep. 423.

29. CORPORATIONS.-Const. Ala. art. 14, § 4, prohibiting a foreign corporation from doing business in the State, without having an agent and known place of business in the State, was not intended to interfere with interstate commerce, and does not prevent a foreign corporation from selling a merchant of the State goods to be shipped into the State.-Ware v. Hamilton Brown Shoe Co., Ala., 9 South. Rep. 136.

30. CORPORATIONS-Actions.- The appointment of a receiver for a corporation does not work a dissolution, and a pending suit may proceed to judgment, in the name of the corporation, for the benefit of one to whom the receiver has duly assigned the demand in suit.-Hasselman v. Japanese Development Co., Ind., 27 N. E. Rep. 318.

31. CORPORATIONS-Service of Process.-Where a foreign corporation has a duly-appointed agent in the State, who has a place of business, on the inside walls of which is displayed a sign bearing the name of the corporation, and his own name as agent, and on the outside a sign bearing his name and business, and who is authorized to receive service of process binding the corporation, there is, in the absence of statutory enactments, a sufficient compliance with Const. Ala. art. 14, § 4, prohibiting a foreign corporation from doing busi

ness in the State without having a "known" place of business, and an authorized agent therein.-New England Mortg. Security Co. v. Ingram, Ala., 9 South. Rep. 140. 32. CORPORATIONS-Stockholders-Pledgee of Stock.A pledgee of stock, who has the old certificates canceled and new certificates issued in his own name, is llable to creditors of the corporation as a stockholder. -National Commercial Bank v. McDonnell, Ala., 9 South. Rep. 149.

33. CRIMINAL LAW-Arson. In the burning of her husband's barn a wife may be guilty of arson under Rev. St. Ind. 1881, § 1927, making it arson willfully and maliciously to burn any building occupied or unoccupied, the property so burned being of the value of $20, and being the property of another.-Emig v. Daum, Ind., 27 N. E Rep. 322.

34. CRIMINAL LAW-Burglary.-Under an indictment charging that at night the accused did, by force, threats, and fraud, break and enter a house, and did, with malice aforethought, assault one A, with intent to murder, the accused can be convicted of an assault with intent to murder, but not of the crime of burglary, under Pen. Code Tex. art. 704.-Hammons v. State, Tex., 16 S. W. Rep. 99.

35. CRIMINAL LAW Comenting to Commission of Crime.-A person consenting to a thing which is inno. cent in itself does not thereby commit a public offense although the thing may at the time appear to him to be a public offense, and although he may at the time be lieve the same to be a public offense.-State v. Douglass, Kan., 26 Pac. Rep. 476.

36. CRIMINAL LAW-False Pretenses.-In a prosecution for obtaining money under false pretenses, it is necessary for the State to prove the intent to defraud, the false pretenses made with the intent, and the fraud thereby accomplished must be shown, to warrant a conviction.-State v. Clark, Kan., 26 Pac. Rep. 481.

37. CRIMINAL LAW-Forgery.-An information which charges that defendant made out, swore to, and presented to the board of county commissioners of a certain county a claim against said county, which was allowed, and a warrant issued to him thereon, when sЯid county did not owe him anything, is not guilty of forgery under § 115 of the crimes act.-State v. Corfield, Kan., 26 Pac. Rep. 498.

38. CRIMINAL LAW-Incest-Rape.-Under § 1873, Hill's Code, the crime of rape by forcible ravishment and incest cannot be committed by the same act. Rape is accomplished by the impelling will of one person, and incest by the concurrent assent of two.-State v. Jarvis Oreg., 26 Pac. Rep. 302.

39. CRIMINAL LAW-Rape Resistance.-Where in a case of rape, no resistance by the prosecutrix is shown, and her fear of loss of life or great bodily harm is relied upon to supply the place of such resistance, as evidence of want of consent on her part, and her age is such that it is to be presumed that she was of an intelligent or understanding mind on the subject, and there is an entire absence of evidence to the contrary of such presumption, a new trial should be granted if the testimony is not such as to justify the jury in believing, beyond a reasonable doubt, that it was on account of such fear that she made no resistance.-Hollis v. State, Fla., 9 South. Rep. 67.

40. CRIMINAL PRACTICE-Bail.-Under Pen. Code Tex. arts. 798, 799, providing for the punishment of one who brings into this State, goods he has stolen in another State or territory, by the laws of which the act com. mitted was theft, a recognizance is not valid which binds the accused to appear and answer to an indietment for the theft of a horse in the Indian Territory, and afterwards bringing the said horse into Cook county, State of Texas.-Edwards v. State, Tex., 16 8. W Rep. 98.

41. CRIMINAL TRIAL-Arguments of Counsel.-On the trial of an indictment for arson it was error to allow the solicitor general, over objection of defendant's counsel, to state in his concluding argument that fre

quent burnings had occurred throughout the country, and to urge the jury, in consequence thereof, to strictly enforce the law in the case then on trial.- Washington v. State, Ga., 13 S. E. Rep. 131.

42. DECEIT-Sale-Latent Defect. Where defendant induces plaintiff to buy a mule by representing that it is "all right," when in fact it has a disease of the eyes, as defendant knew, which will in time result in blindness, and which reduces its value one half, plaintiff will be entitled to recover for the deceit.-Moncrief v. Wilkinson, Ala., 9 South. Rep. 159.

43. DEED-Cancellation.-In an action by a vendor against a vendee to set aside a deed, a third party who, subsequent to the delivery of the deed sought to be set aside, but before the suit is brought therefor, obtains by written contract with the vendor an interest in the land described in said deed, which interest is contingent upon the success of the plaintiff's action to set aside the deed, but who is not a party to the suit, is not privy to the judgment therein obtained.-Root v. Topeka Water Supply Co., Kan., 26 Pac. Rep. 400.

44. DEED-Fraud.-Where one who has through fraud and undue influence obtained a deed of land to himself, conveys the land to an innocent purchaser, he becomes liable to his grantor for the value of the land as a trustee ex maleficio.— Valintine v. Richardt, N. Y., 27 N. E. Rep 255.

45. DEED-Reformation.-A court of equity will, at the suit of the wife, reform a deed in which she joined her husband, where a provision reserving to her for life the rents and profits, which it was agreed should be inserted, has been omitted through the husband's fraud. -Koons v. Blanton, Ind., 27 N. E. Rep. 334.

46. DESCENT AND DISTRIBUTION-Deceased Wife's Es tate.-Where a deceased wife leaves a chattel as her separate estate, and it is mortgaged by the husband and sold, her children cannot sue as distributees to recover it, since, the father being entitled to half the property under Code Ala. 1886, § 2353, they as distributees, are only part owners.-Davenport v. Brooks, Ala., 9 South. Rep. 153.

47. DIVORCE-Right of Wife in Homestead.-On the dissolution of a marriage by total divorce the wife ceases to be a member of the husband's family as effectually as if she were dead. She is therefore no longer a beneficiary of the homestead set apart in his property. Her right to use or enjoy the property as a home. stead terminates with the expiration of the coverture. --Burns v. Lewis, Ga., 13 S. E. Rep. 123.

48. DRAINAGE-Hearing on Appeal.-In proceedings for the construction of a public ditch, where viewers were appointed, and reported first adversely to the petitioner, and subsequently, by order of the commission. eis' court, met and reported in his favor, an objection, not raised before the board of commissioners, will not be heard on appeal in the circuit court.-Budd v. Reidelbach, Ind., 27 N. E. Rep. 349.

49. DRAINAGE-Organization. The validity of proceedings to extend the boundaries of a drainage district cannot be questioned upon an application for judgment for a delinquent drainage assessment.-Peo. ple v. Jones, Ill., 27 N. E. Rep. 294.

50. EJECTMENT-Indians- Descent.-Where a plaintiff relies upon title to real estate alleged to be cast by descent upon his grantor in accordance with the custom and decision of an Indian tribe, he must establish the custom or decision of the tribe as to descent or distribution at the time of the death of the former owner or possessor, from whom he claims his grant or inherited the property.-O'Brien v. Bugbee, Kan., 26 Pac. Rep. 428. 51. ELECTIONS-Judges-Compensation.-Rev. St. Ill. 1889, ch. 46, § 273, which provides that judges of election shall be paid $3 per day, does not entitle them to such pay when acting as judges at a primary election held by a voluntary political party under the Illinois "Primary Election Law" of 1889.-Shiel v. Cook County, Ill., 27 N. E. Rep. 293

52 ELECTIONS OF CONGRESSMEN-Federal Laws-Inspection of Ballots -The laws of the United States concerning elections at which congressmen are elected paramount, and Mansf. Dig. Ark. § 2694, providing that "the judges of election shall securely envelop all the ballots which may have been received under seal, and return the same to the clerk of the proper county, which shall in no event be opened except in case of a contested election," cannot be held to justify the refusal of the clerk to produce the ballots before the grand jury of the United States, pending an investigation into alleged violations of federal election laws.In re Massey, U. S. D. C. (Ark ), 45 Fed. Rep. 629.

53 EXEMPTIONS-Joinder-Contract and Tort.-In an action to set aside a sheriff's sale of land, it appeared that plaintiff recovered a judgment upon a complaint uniting two causes of action in tort with one on contract: Held, that defendant is entitled to treat the judg· ment as one rendered upon contract, and to claim his exemption.-Ries v. McClatchey, Ind., 27 N. E Rep. 349.

54. FRAUDULENT CONVEYANCE-Mortgage-A provis ion that the mortgagee is to take possession of the goods, and convert them into cash "as soon as possible, consistent with the most profitable disposition that can be, under the circumstances, made in the premises," is not fraudulent per se, as putting the property out of the reach of creditors for an indefinite time, but is only evidence of fraud to be left to the jury.-Reynolds v. Johnson, Ark., 16 S. W. Rep. 124.

55. GIFTS INTER VIVOS-Delivery.-A writing signed and delivered recited: "I give to the trustees," etc., "the principal of a note for seven hundred dollars, said sum of seven hundred dollars to be given in trust to the said trustes when the said note falls due." The note was not delivered. Held, that there was no gift inter vivos, but merely an agreement to give when the note became due.-Gammon Theological Seminary v. Robbins, Ind., 27 N. E. Rep. 341.

56. GUARDIAN AND WARD-Limitation of Actions.-A suit to set aside a guardian's final report brought by the guardian of the deceased ward's minor heir, is barred if there Was an administrator of the deceased ward who could have brought suit six years before.-Horton v. Hastings, Ind., 27 N. E. Rep. 338. 57. HABEAS CORPUS-When Lies.-Under Rev. St. Mo. 1889, § 5376, a prisoner sentenced by the circuit court for selling liquor contrary to the local option law will not be released on habeas corpus, on the ground that the county in which the offense was committed never legally adopted the law, as that was a matter determinable by the trial court, and reviewable by appeal.In re Mitchell, Mo., 16 S. W. Rep. 118.

58. HOMESTEAD - Rights of Widow and Children Where real estate is occupied by a man and his family as a homestead at the time of his death, and afterwards by his widow and children, and the widow marries again, the homestead may be partitioned between her and the children.-Brady v. Banta, Kan., 26 Pac. Rep. 441.

59. HUSBAND and Wife-Desertion by Husband. -A wife, whose husband has deserted her, and fails to provide for her and her children's support, has the right to cause the land left in her possession to be cultivated, and to use so much of the crop as may be necessary for such support, and her rights are superior to those of a chattel mortgagee of her husband with notice of the circumstances.-Loy v. Loy, Ind., 27 N. E. Rep. 351.

60. INJUNCTION-Restraining Levy of Execution.-The execution issued by the court which rendered the judg ment to enforce payment cannot be arrested by any other court at the instance of the defendant in the suit. -Arthurs v. Villere, La., 9 South. Rep. 125.

61. INJUNCTION-Verification.-In an action for an injunction it is not necessary that the petition should be be sworn to, if the application upon which the injunction is asked is properly verified.-State v. Loomis, Kan., 26 Pac. Rep. 471.

62. INSURANCE-Proofs of Loss.-Waiver.- Where a fire Insurance policy was issued by an insurance company, and afterwards the insured property was destroyed by fire, and the company then denied all liability on the ground that the policy void, held, that by this denial the company in effect waived all its rights under certain stipulations in the policy requiring proofs of loss to be made, and giving the company 60 days thereafter within which to pay the loss.-Phenix Ins. Co. v. Weeks, Kan., Pac. Rep. 410.

26

63. INSURANCE-Warranties.-Although Civil Code Cal. § 2706, provides that "a statement in a policy of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof," yet, where it appears from the whole policy that such an expression was not intended as a warranty, it will not be held to be such.-National Bunk of D. O. Mills & Co. v. Union Ins. Co., Cal., 26 Pac. Rep. 509.

64. INTOXICATING LIQUORS-"Giving" or "Selling" to Minor. On indictment for selling or giving intoxicating liquors to a minor the minor testified that he sought to buy whisky from defendant, who told him he had none for sale; that he then borrowed some, and afterwards, not having any whisky, handed defendant money, asking him to buy as much whisky as he had borrowed, Held, that it was error to charge that the transaction was a "giving" or "selling," in violation of the statute.Coker v. State, Ala., 8 South. Rep. 874.

65. JUDGMENT.- Plaintiff obtained judgment against defendant in a Tennessee justice court. Defendant, after appealing to the circuit court, dismissed his appeal, and the court confirmed the justice's judgment. Plaintiff then dismissed his case. In Tennessee an appeal from a justice court vacates the judgment. The amount of the judgment was paid by defendant to the circuit court clerk. But it does not appear that "the clerk was the proper party to receive it, or that it was ever paid to plaintiff. Held, in an action in Georgia, that a plea in abatement of prior judgment which had been satisfied was property overruled.—Chattanooga R. f C. R. Co. v. Jackson, Ga., 13 S. E. Rep. 109.

66. LANDLORD AND TENANT-Crop Lien. -Money advanced by a landlord to his tenant for the purpose of en abling the tenant to make the necessary annual repairs on the farm comes within the statute of Arkansas providing for a landlord's lien to secure money advanced to enable the tenant to make the crop, and such lien is prior to a mortgage of the crop by the tenant.-Airey v. Weinstein, Ark., 16 S. W. Rep. 123.

67. LANDLORD'S LIEN- Surety for Tenant.-A landlord having, as surety with his tenant and another per. son, signed a note for supplies purchased by the tenant, but not having purchased or ordered them himself, cannot have a lien therefor on the tenants crop, though he is obliged to pay the note at its maturity.- Brimberry v. Mansfield, Ga., 13 S. E. Rep. 132.

69. LIEN-Subrogation. Where the owner of land conveys it in consideration that the grantee shall for the balance of his life board, nurse, and take proper care of him, he has a lien on the land for necessary medical services which he procures to be rendered him on the grantee's failure to do so, and one who renders such services will be subrogated to the grantor's rights. -Huffmond v. Bence, Ind., 27 N. E. Rep. 347.

70. LOTTERIES-Sale of Ticket-Regulations.-The defendant had the right to adopt reasonable and appropriate rules for the management of its complicated business, and to conduct the same in accordance there. with.-Collins v. Louisiana State Lottery Co., La., 9 South Rep. 27.

71. MANDAMUS-Injunction.-Where a judge has issued

an injunction against a gas company to prevent its shutting off the gas from petitioner's works in accord. ance with an order of the supreme court, mandamus will not lie to compel him to extend it to the sheriff to prevent him from levying an execution on defendant's property and shutting off the gas.-Whiteman v. Fayette Fuel Gas Co., Penn., 21 Atl. Rep. 773.

72 MANDAMUS TO JUDGE.-Mandamus will not lie to compel a judge to vacate an order setting aside an agreed statement of facts on motion of one of the parties thereto. The ruling must be reviewed on appeal from final judgment.-Ex parte Hayes, Ala., 9 South. Rep. 156.

73. MANDAMUS TO MUNICIPAL OFFICERS. The writ of mandamus will not be issued to compel the presiding officer of the common council of a city to declare lost a resolution authorizing a contract, which he has declared carried, where the resolution shows on its face that it is illegal, since all persons are chargeable with notice of its illegality, and no injury can be sustained nor liability incurred under it.- Tennant v. Crocker, ich., 48 N. W. Rep. 577.

74. MARRIED WOMEN-Free Traders.-The power of a married woman to contract as a free trader, under section 1760 of the Code, is restricted by the general provision ef section 1783 as to all married women, which disables them to bind their separate estate by any contract of suretyship.-Madden v. Blain, Ga., 13 S. E. Rep. 128.

75. MEASURE OF DAMAGES- Exemplary Damages. Whenever the elements of fraud, malice, gross negli gence, or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages, followed.-Cady v. Case, Kan., 26 Pac. Rep. 448.

76. MECHANICS' LIENS-Pleading.-Where, in a case for the foreclosure of a lien for material furnished, there is no allegation on the body of the petition that the contract to furnish materials was with the owner, but the petition refers to the lien statement as attached thereto, and as a part thereof, and said lien statement clearly shows the contract to furnish material was with the owner: Held, that the petition sufficiently shows that the contract was with the owner.-Jarvis Conklin Mortgage Trust Co. v. Sutton, Kan., 26 Pac. Rep. 406.

77. MORTGAGES- Foreclosure - Report of Master.Though the statute requires the master to whom a case is referred to reduce to writing and to return to court the testimony of all the witnesses examined by him, yet where a party attends the taking of testin ony, and makes no objection to the manner of doing it, it is too late after the report is made to object that the evi lence was not taken in the manner prescribed.-Johnson v Meyer, Ark., 16 S. W. Rep. 121.

78. MUNICIPAL AID BONDS.-In 1881 a city of the third class had the power, under certain terms and conditions, and within certain limitations, to subscribe to the capital stock of a railroad company, and to issue its bonds in payment for the stock, although the city may have been a portion of a municipal township, which township had already subscribed for all the stock and issued all the bonds in aid of railroads which it had the power to subscribe for or issue.-City of Iola v. Merriman, Kan., 26 Pac. Rep. 485.

79. MUNICIPAL CORPORATIONS Change of Street Grade. Where a city of the first class changes the grade of one of its streets, an abutting lot-owner will be entitled, under the statutes, to any damage which he may suffer thereby.-Parker v. City of Atchison, Kan., 26 Pac. Rep. 435.

80. MUNICIPAL CORPORATIONS-City Council.-To disqualify a member of a city council from voting on the passage of an ordinance establishing a sewer district, it must appear that he has a pecuniary interest in the measure adverse to that of the city.-City of Topeka v. Huntoon, Kan., 26 Pac. Rep. 488

81. MUNICIPAL CORPORATIONS-Defective Sidewalks.

In an action against a city for injuries resulting from a defective sidewalk, where the accident happened at night, and it appears that the same defect existed for some time before the accident, a witness who did not examine the sidewalk until the morning after the accident may testify as to its condition.-Shippy v. Village of Au Sable, Mich., 48 N. W. Rep. 584.

82. MUNICIPAL CORPORATIONS- Grade of Streets.-A city has the right to establish the grade of its streets, and it is only when the grade is changed after being once established that damages can be allowed therefor to property owners. Interstate Consolidated Rapid Transit By. Co. v. Early Kan., 26 Pac. Rep. 422.

88. MUNICIPAL CORPORATIONS- Street-Use by Railroads. A municipal corporation, vested by law with control over its streets, is bound to keep the same in good order and condition, sufficiently safe to prevent injury to travelers thereon. It may grant to a railroad company the privilege of building its tracks and running its cars thereon, with the obligation of keeping them in proper order and condition.-Cline v. Crescent City R. Co., La., 9 South. Rep. 122.

84. MUNICIPAL CORPORATIONS-Street Assessments.While Act Pa. April 1, 1870, § 6, may be broad enough to cover railroad property, yet it does not apply to the road-bed of a railroad, since the constitutionality of assessments for street improvements can only be sustained on the ground that the property assessed is benefited by the improvement, and the road bed of a railroad company is conclusively presumed not to be benefited thereby.-City of Allegheny v. Western Pennsylvania R. Co., Penn., 21 Atl. Rep. 763.

85. MUNICIPAL CORPORATIONS-Street Assessments.Where a city of the second class has made certain street improvemente, and has undertaken others under the Street Acts Pa. 1887 and 1889, when such acts and board are declared unconstitutional, viewers to ascertain damages and assess benefits for such im. provements cannot be appointed under the street act of 1864 and its supplements, as the proceedings preAlminary to the improvements under the two systems are radically different. Appeal of City of Pittsburgh, Penn., 21 Atl. Rep. 761.

86. MUTUAL BENEFIT INSURANCE- Garnishment.-No part of the fund set apart or appropriated in accordance with the rules, regulations, and by-laws of either of the societies or associations enumerated in Gen. St. 1878, ch. 84, § 368, or by any society or association similar thereto, to be paid over to the family of a deceased member, can be seized or appropriated by legal process to satisfy a debt due from a member of the family, or from the society or organization itself.-Brown v. Balfour, Minn.. 48 N. W. Rep. 604.

87. NEGLIGENCE-Exemplary Damages.-In an action to recover damages for personal injuries, the negli gence established must be wanton, willful, or malic ious, to justify punitive or exemplary damages.-Atch ison, etc. R. Co. v. McGinnis, Kan., 26 Pac. Rep. 453.

88. NEGLIGENCE-Malpractice.-In an action for malpractice against physicians and surgeons to recover damages for an alleged unskillful and negligent opera. tion upon the plaintiff's eye, which resulted in injury and disease, the plaintiff must affirmatively prove that the injury and disease were produced by the operation, and that the defendants did not exercise ordinary skill and care in performing the operation.— Pettigrew v. Lewis, Kan., 26 Pac. Rep. 458.

89. NEGOTIABLE INSTRUMENT-Bona Fide Purchaser.One who for an individual debt of a guardian takes from him an assignment of notes which he knows be long to to the ward, acquires no title, and such facts constitute a good defense by the maker to an action on the notes.-Mathis v. Barnes, Ind., 27 N. E. Rep. 308. 90. NEGOTIABLE INSTRUMENT Pleading.-Where, in an action by an indorsee of a negotiable promissory note, payable to order, the plaintiff declares on such note by setting out a copy of the same, with all the indorsements, and alleges ownership, and the indorse

ments are without date, the presumption of the law is that such note was transferred before maturity, and that plaintiff is the bona fide holder for value.-First Nat. Bank of Fort Scott v. Elliott, Kan., 26 Pac. Rep. 487. 91. NOVATION.-A person for whose benefit a promise to another, upon a sufficient consideration, is made, may bring an action in his own name on the contract against the promisor, but he cannot be compelled to act upon or accept such contract.-Howell v. Hough, Kan., 26 Pac. Rep. 436.

92. NUISANCE-A carpet cleaning establishment and stable upon premises in a thickly settled neighborhood or private residences are nuisances, when it appears that the dust and moths from the carpet cleaner and the stench and noises from the stable permeate the neighboring houses, and disturb the inmates.-Craven v. Rodenhausen, Ponn., 21 Atl. Rep. 771.

93. NUISANCE-Hearing.-An action to abate a milldam for the reason that it causes injury to the property of an upper proprietor is an action to abate a nulsance, and is an equitable remedy, and the trial may be before the court, or before a jury, or before a referee, or a part before one and a part before another, as the court, in its discretion, may determine.-Drink water v. Sauble, Kan., 26 Pac. Rep. 433.

94. OFFICE AND OFFICERS-Holding two Offices.-In this State a person holding a city office cannot hold at the same time the office of county commissioner.-State v. Plymell, Kan., 26 Pac. Rep. 479.

95. OFFICER-Defalcation- Successor.-Where an of. ficer becomes a defaulter, flees the State, leaves no one to care for the public affairs, and indicates a settled purpose to abandon the offices, it may be deemed vacant without a judicial determination, so that sureties of the defaulting officer cannot challenge the right of a person appointed to fill the abandoned office to prosecute an action for the recovery of the public money.Osborne v. State, Ind., 27 N. E. Rep. 345.

96. OFFICERS-Removal - - Compensation. - A public officer, unlawfully removed from office, to which another is appointed, who acquiesces in his removal, and has not by certiorari or otherwise, obtained a reversal of such order, or a relustatement in the vacated term, cannot recover the compensation incident to the office, accruing while he rendered no service.-Hagan v. City of Brooklyn, N. Y., 27 N. E. Rep. 265.

97. PARTNERSHIP-Guaranty.-A firm doing business under the individual name of one of the partners may sue on a written guaranty purporting to run to such partner individually, where it appears that the guarantor knew of the firm's existence when he gave the guaranty, and intended it for their benefit.—Beakes v. Da Cunha, N. Y., 27 N. E. Rep. 251.

98. PLEADING-Defect of Parties.-A defect of parties should be raised either by answer or demurrer, and, when not so taken advantage of, is usually waived.Hurd v. Simpson, Kan., 26 Pac. Rep. 465.

Where the

99. PLEADING - Misjoinder of Causes. sureties on two bonds given by a defaulting county treasurer agreed to divide the loss equally, and some of them paid the debt, and sued the others jointly for contribution, the question whether the liability is joint, or joint and several, or several only, must be raised by demurrer for misjoinder of causes of action.-Carnahan v. Chenoweth, Ind., 27 N. E. Rep. 332.

100. PRACTICE-Continuance.-An affidavit supporting a motion for continuance on account of the absence of a material witness must show that the party has been sufficiently diligent in his efforts to obtain the witness. It must set forth specific acts of diligence, such as search and inquiry. It is not enough that the party alleges that he made diligent inquiry, without stating how, where, and of whom he inquired.— Struthers v. Fuller, Kan., 26 Pac. Rep. 471.

101. PRINCIPAL AND AGENT-Evidence.-When a corporation carries on the business of buying and shipping grain through an agent, and the authority of such agent