the amendment.-STRICKLAND V. P. J. WILLIS & BRO., Tex., 42 S. W. Rep. 578.

65. MANDAMUS - County Officers.-A county officer is not an "officer of the State government," within Rev. St. art. 946, providing that the supreme court may issue writs of mandamus against "any district judge or officer of the State government."-TRAVIS COUNTY V. JOURDAN, Tex., 42 S. W. Rep. 543.

66. MARRIED WOMEN-Limitations.-Since the enactment in 1871 of the married woman's act, permitting married women to sue in the same manner as if they were unmarried, the statute of limitations runs against women during coverture, notwithstanding an earlier statute (Code Civ. Proc. § 17) in terms allowing to infants, married women, insane persons, and prisoners the general periods of limitation after the removal of such disabilities.-MURPHY V. J. H. EVANS CITY STEAM LAUNDRY CO., Neb., 72 N. W. Rep. 960.

68. MASTER AND SERVANT Safe Appliances.-The loop handle of a railway switch lever became bent, so that when thrown over between the tracks, instead of falling between the ties, it rested on top of a tie, ex. posing the loop above the level thereof. Plaintiff was injured by catching his foot in the loop while switching cars. He had been engaged about the yard as a member of a switching crew for six days, but worked mainly at night, and in his testimony denied any knowledge of the defect: Held, that the court was not warranted in presuming, as matter of law, that he had knowledge of such defect, but, in view of his denial, should have submitted the question to the jury; es pecially as the attention of one engaged in witching trains is properly fixed upon his work, so that he may well overlook defects in the road bed.-PEIRCE V. CLAVIN, U. S. C. C. of App., Seventh Circuit, 82 Fed. Rep. 550.

69. MECHANICS' LIENS Erection or Repair.-Where the right to a mechanic's lien for the "erection" of a house was disputed on the ground that the work in question was done in "the alteration and repair of an old house," evidence that the roof and three sides of the building were removed, and an addition erected on one side, a kitchen in the rear, and a porch in the front, with new roof, new partitions, and new ceiling Joists, supported a finding that such work was performed in "the erection of a dwelling house."-WARD V. CRANE, Cal., 50 Pac. Rep. 839.

70. MECHANIC'S LIENS Statement of Claim.-In an action to foreclose a mechanic's lien, it must appear in evidence that the statement of the claim therefor has been filed with the proper officer in the county within the time prescribed by statute. If not, there is a failure of proof of the existence of the lien.-CUMMINS V. VANDEVENTER, Neb., 72 N. W. Rep. 955.

71. MINES AND MINING-Continuity of Veins-Expert Evidence. In determining questions as to whether ore bodies found in different claims are parts of a con. tinuous vein or lode, or are separate and independent veins, a wide latitude is always permissible for the purpose of ascertaining the reasoning upon which the conclusions of witnesses are based, as well as their general knowledge of the ground, their experience and observation, and their qualifications as practical miners or experts, derived from years of experience in the particular mining district.-JUSTICE MIN. Co. v. BARCLAY, U. S. C. C., D. (Nev.), 82 Fed. Rep. 554. Adverse Interest.-In an action to foreclose a mortgage, the defendant C B claimed an adverse title prior and paramount to that of the mortgagor. Judgment was ordered and entered barring and foreclosing the defendants of all right and claim in the mortgaged premises except a right to re

72. MORTGAGE-Foreclosure

-

74. MORTGAGES Foreclosure Sales.-A mortgage provided that in case of default it should be lawful for "said party of the second part, her heirs, executors, administrators, and assigns," to sell the premises at public auction, "pursuant to the statute." The notice of foreclosure sale stated that the sale would be made by "Newell Daniels, sheriff:" Held, that under Rev. St. § 3528, providing that the sale shall be made by the person appointed in the mortgage, if any, or by the sheriff, under sheriff, or deputy sheriff, the sale under the above notice was properly made by the under sheriff.-MORRISSEY V. DEAN, Wis., 72 N. W. Rep. 873.

75. MORTGAGES-Parol Evidence.-Parol evidence is admissible to show that a part of the consideration for a conveyance of land was a promise to pay an existing mortgage on the land.-MORGAN V. SOUTH MILWAUKEE LAKE VIEW Co., Wis., 72 N. W. Rep. 872.

76. MORTGAGE - Purchase-money Foreclosure.-If the mortgagee foreclose a purchase-money mortgage against the mortgagor, and the mortgagor shows that the covenant against incumbrances has been broken In such manner as to give him a claim to substantial damages, he may reduce the mortgagee's demand to the extent of those damages.-KUHNEN V. PARKER, N. J., 38 Atl. Rep. 641.

78. MORTGAGE-Title Conveyed.-A mortgage of real property in this State does not convey any title or vest any estate before or after conditions broken, but merely creates a lien on the property.-ORR V. BROAD, Neb., 72 N. W. Rep. 850.

79. MUNICIPAL CORPORATION-Contracts-Certiorari. -One entitled, as the lowest bidder, to have a munic. ipal contract awarded to him, may, by certiorari, question the validity of its award to another.-STATE V. INHABITANTS OF CITY OF TRENTON, N. J., 38 Atl. Rep.

636.

80. MUNICIPAL CORPORATION - Indebtedness-Consti. tutional Limitation.-Under section 183 of the constitution, the indebtedness of a city cannot be increased beyond the limit therein specified, even though such debt is incurred by the issue of bonds for the purpose of refunding the indebtedness of such city. In such a case the debt is temporarily increased beyond the constitutional limit, and such increase may be permanent, owing to the loss or diversion of the fund created by the sale of such refunding bonds.-BIRKHOLZ V. DINNIE, N. Dak., 72 N. W. Rep. 931.

81. MUNICIPAL CORPORATION-Street Improvements— Contract. In a contract with a city to lay a pavement which shall remain in good condition for at least five years, a guaranty by the contractor to restore it at his own expense if it gets out of order during that period, and that, if he fails to do so, the city may make the repairs, and retain the cost out of the contract price, contemplates repairs arising from lack of durability, and does not increase the burden of abutting owners by indirectly making them pay for general repairs, in

violation of a charter provision that, after a street has been paved, the city shall keep it in repair at the gen. eral expense.-WILSON V. INHABITANTS OF CITY OF TRENTON, N. J., 38 Atl. Rep. 635.

82. NEGLIGENCE Defective Bridge Proximate Cause. After the wagon in which plaintiff was riding had passed over a bridge, and had gone 50 feet up the hill, the traces broke, and the wagon, running backward down the grade, missed the bridge, and went over the embankment into the stream: Held, that the proximate cause of the accident was the breaking of the traces, and not the absence of guard rails at the end of the bridge.-WILLIS V. ARMSTRONG County, Penn., 38 Atl. Rep. 621.

83. NUISANCE-Liability of Grantor for Continuance. -One who erects a structure or construction which creates a nuisance, and then conveys to another his title, and the lands and premises on which the structure or construction exists and is maintained, with a covenant in the deed of conveyance for quiet enjoy. ment, and right to maintain such structure or construction, is liable for the continuance of the nuisance, upon the ground that he affirms it, and must be regarded in law as continuing it. He is the author of the original wrong, and, thus transferring the premises with the original wrong still existing, he is treated as affirming its continuance.-EAST JERSEY WATER Co. v. BIGELOW, N. J., 38 Atl. Rep. 631.

84. PARTITION Remainder-men.-A remainder-man of an undivided interest in personalty cannot enforce compulsory partition, as it is enforceable only by one having a right of possession.-CONTER V. HERSCHEL, Nev., 50 Pac. Rep. 851.

85. PARTNERSHIP-Individual and Firm Creditors.A judgment obtained by adversary proceedings, and without collusion, against a partnership, cannot be assailed by a firm creditor, as being based on one partner's individual debt.-PFISTER V. GRATON & KNIGHT MFG. CO., Wis., 72 N. W. Rep. 883.

86. PLEADING-Action by Corporation-Corporate Existence.-In an action by or against a corporation it is not necessary to allege that it is a corporation, except in cases where the fact of corporate existence enters into, and constitutes a part of, the cause of action itself.-HOLDEN V. GREAT WESTERN ELEVATOR CO., Minn., 72 N. W. Rep. 805.

87. PLEADING-Demurrer.-When a demurrer is not directed against any particular one of several defenses, it is properly overruled, if any one of the defenses is good.-MOLLOHAN V. KING, Kan., 50 Pac. Rep. 881.

88. PLEADING-Master and Servant-Negligence.-An objection to the complaint that it does not state a cause of action may be raised after verdict and judg. ment, though it was not interposed before or at the time of trial. Where negligence is clearly the grava. men of an action, and matters are alleged in the complaint respecting a promise by an employer to repair defective machinery, merely to negative any presumption to the effect that the plaintiff had assumed the risk of the defective machinery by continuing in the employment, after its defect became known to him, the defendant is not warranted in assuming at the trial that the plaintiff based his right to recover on the promise to repair defects.-MANGUM V. BULLION BECK & CHAMPION MIN. Co., Utah, 50 Pac. Rep. 834.

89. PRINCIPAL AND AGENT-Unauthorized Agent-Con. tract. Where one falsely represents himself as an agent of another, and makes a contract in the name of his alleged principal, a proper remedy of the person with whom the contract is made against the agent is an action for breach of the contract.-OLIVER V. MORAWETZ, Wis., 72 N. W. Rep. 877.

90. PRINCIPAL AND AGENT-Undisclosed Principal.One who, as agent, assumes to represent a principal who has no legal existence or status, is himself liable.CODDING V. MUNSON, Neb., 72 N. W. Rep. 846.

91. PRINCIPAL AND SURETY-Bond of Bank Cashier.Where a person appointed cashier of a bank by the

board of directors, under paragraph 1419, Gen. St. 1889, gave a bond conditioned for the faithful performance of his duties, without any limitation as to time, and where there is no showing that his appointment was for a limited period, or that he was ever reappointed, held, that the mere fact that the directors from whom he received his appointment held their offices for one year only does not limit the liability of the surety on the bond to one year, but he is liable for any default occurring under the appointment, whether before or after the expiration of a year.-MERCHANTS' Bank of ELLIS V. HONEY, Kan., 50 Pac. Rep. 871.

92. PRINCIPAL AND SURETY-Promise of Surety-Consideration.-An extension of the time of payment is sufficient consideration for the promise of a third party, as surety, to pay the debt.-HOOPER V. PIKE, Minn., 72 N. W. Rep. 829.

93. PROHIBITION-When Granted-To City CounselVague Charges.-The writ of prohibition is an extraordinary writ issuing out of a court of superior jurisdiction, and directed to an inferior court or some other inferior tribunal. Its object is to prevent the inferior court or tribunal from usurping and exercising some judicial power which it has no legal authority to exercise at all.-STATE V. WARD, Minn., 72 N. W. Rep. 825. 94. PUBLIC LANDS Patent Collateral Attack.-A patent valid on its face may be collaterally attacked in an action at law, and shown to be void by extrinsic evidence which by its nature is capable of showing a want of authority to issue the patent or convey the title.-GARRARD V. SILVER PEAK MINES, U. S. C. C., D. (Nev.), 82 Fed. Rep. 578.

95. RAILROAD AID BONDS-Conditions.-Where a mu. nicipality issues its bonds to aid in the construction of a railroad, the maintenance and operation of the road during the life of the railroad company, as fixed by its charter or articles of incorporation, is, by clear implication, either a condition of, or the consideration for, the grant of aid; and if, during that time, the company abandons the operation of its road, and tears up and removes the track, the municipality granting the aid has a cause of action against it on common law prin ciples.-TOWN OF HINCKLEY V. KETTLE RIVER R. Co., Minn., 72 N. W. Rep. 835.

96. RAILROAD COMPANY-Damages to Abutting Prop. erty. To show depreciation of property by construction and operation of a railroad in the highwayon which the property abuts, evidence is admissible that the noise, dust, smoke, cinders, ashes and gases of passing trains are very annoying and inconvenient, and that the trains fill the house with smoke and cinders, and soil the curtains and wall paper.-DENISON & P. S. RY. Co. v. CUMMINS, Tex., 42 S. W. Rep. 588.

97. RAILROAD COMPANY-Injury at Crossing.-It was not contributory negligence per se to drive slowly upon a railroad track at a public crossing, without stopping to look and listen, where the view of the track from the highway was obstructed, and no signal was given to announce the approach of a train.-SOUTHERN RY. Co. v. BRYANT'S ADMR., Va., 28 8. E. Rep. 183.

98. RAILROAD COMPANY-Street Railroad-Municipal Corporations.-Where the charter of a street-car company provides specifically over what streets its lines shall run, a city ordinance giving such company authority to construct lines materially different from the charter lines is void, since charter and ordinance must conform in order to constitute a valid grant.-CITIZENS' RY. Co. v. AFRICA, Tenn., 42 S. W. Rep. 485.

99. RECEIVERS-Allowance of Claims-Estoppel.-A receiver of a credit-system insurance company stands in the place of the company, as to the allowance or disallowance of the claims against it; and when he acquires knowledge of a loss while the company is solvent, and does some act that implies that he will not insist upon proper and correct proofs of loss being made, he cannot thereafter set up this omission against an allowance of the claims for pro rata distribution.-GRAY V. BLUM, N. J., 38 Atl. Rep. 646.

100. REMOVAL OF CAUSES.-To authorize the removal of a cause from a State court to a circuit court of the United States, as one arising under the constitution, laws or treaties of the United States, as provided by Act Cong. March 3, 1887, as amended by Act Aug. 13, 1888, § 2, it must appear by the plaintiff's statement of his own claim that his case does so arise, it not being sufficient that it so appears from the petition for removal or from subsequent pleadings.-ECHOLS v. SMITH, Ky., 42 S. W. Rep. 538.

101. RES JUDICATA-Verdict.-A verdict in favor of defendant, so long as it remains unvacated, may be pleaded in bar of another suit on the same cause of action, though no judgment has been entered on it.HUMEV. SCHINTZ, Tex., 42 S. W. Rep. 543.

102. SALES Defects in Goods Notice.-Unless a vendee notify the seller of his dissatisfaction with goods bought, he cannot retain and use them without paying therefor.-KENTUCKY SAW WORKS V. LITTLE RIVER LAND & LUMBER Co., Tenn., 42 S. W. Rep. 527.

103. SALE-Warranty-Breach.-Where the plaintiff alleges that certain representations, amounting to a warranty, were fraudulently made, and proves the warranty and its breach, but fails to prove the fraud, he may recover for a breach of the warranty.-BROWN v. DOYLE, Minn., 72 N. W. Rep. 814.

104. SPECIFIC PERFORMANCE-Unilateral Contracts.It is sufficient, in order to entitle one to specific performance of a contract in equity, that it be signed by defendant, who is the party to be charged thereby, as plaintiff, by the institution of his suit, in writing con. sents to the contract, and makes the remedy as well as the obligation mutual.-CENTRAL LAND CO. OF BUCHANAN V. JOHNSTON, Va., 28 S. E. Rep. 175.

105. TAXATION-Expiration of Time to Redeem.-A notice of the expiration of the time of redemption from a tax sale contained three different tracts of land, which were all assessed to the same persons, sold to the same purchaser at the same tax sale, and were separately and distinctly described in the notice, with date of sale, amount sold for, interest, and the amount required to redeem set opposite each tract. The notice was so worded that the owner might redeem one or more or all of the tracts: Held, that the notice was not invalid because it included more than one tract.SNYDER V. INGALLS, Minn., 72 N. W. Rep. 807.

106. TAXATION-Lien-Priority.-The lien of the commonwealth as purchaser at a sale for delinquent taxes accruing on realty after the death of the owner is superior to the rights of creditors of the owner whose claims arose prior to his death, and were reduced to judgment after that event, and before the taxes were assessed.-COMMONWEALTH V. ASHLIN'S ADMR., Va., 28 S. E. Rep. 177.

107. TELEGRAPH COMPANY-Negligence-Mental Suffering-Damages.-Where the negligence of defendant telegraph company in delivering a message to plaintiff announcing that her father had been stricken with paralysis, and advising her to come to him, resulted in delaying plaintiff 24 hours after she received it, and her father died and was buried before she could have reached him had the message been duly delivered, defendant was not liable for plaintiff's mental suffering occasioned by suspense in not knowing the condition of her father during the time that she was delayed, since it was not one of the natural and usual results of such failure, within the contemplation of the parties at the time the contract was made.-WESTERN UNION TEL. Co. v. EDMONDSON, Tex., 42 S. W. Rep. 549.

108. TRESPASS TO TRY TITLE.-In an issue involving the title to land defendants were not estopped to set up a different title from that recited in the deed under which they claimed, where plaintiffs were not parties or privies to such deed.-LUMKINS V. COATES, Tex., 42 8. W. Rep. 580.

109. USURY-Defense to Note. -The defense of usury is good even against a bona fide holder for value of a negotiable promissory note who acquired title to the

Mortgage-Assump.

111. VENDOR AND PURCHASER tion by Grantee.-When a grantee of real estate, as part of the consideration for the purchase, assumes and agrees in the deed to pay a certain mortgage on the premises, he is liable for the mortgage debt, and the grantor, Immediately upon the maturity of the mortgage, may recover from the grantee the amount due thereon, although the grantor may have paid no part of it.-STICHTER V. Cox, Neb., 72 N. W. Rep. 848. 112. VENDOR'S LIENS Parties-Intervention.-Only the seller of real property has a vendor's lien thereon for the unpaid purchase price. One to whom, with the vendor's assent, the vendee has agreed to pay a portion of the purchase money, cannot claim such a lien.BRAY V. BOOKER, N. Dak., 72 N. W. Rep. 933.

113. WATERS-Irrigation Companies-Preferred Debts. -The modern rule of equity, giving preference and priority to debts incurred in the operation of railroads over existing mortgages, has its foundation and justification in, and has been evolved from, conditions pecu. liar to the nature of railroad franchises; and it is a serious question whether it may properly be extended to cases where the mortgaged property consists of canals and works for irrigating land.-CALIFORNIA SAFE DEPOSIT & TRUST CO. V. YAKIMA INV. Co., U. S. C. C., D. (Wash.), 82 Fed. Rep. 542.

114. WATERS-Navigable Waters-Power of Congress to Remove Obstruction.-When congress has assumed jurisdiction over a navigable river lying wholly within one State, congress has power to order obstructions to navigation removed, even though their construction was anthorized by such State.-UNITED STATES V. CITY OF MOLINE, U. S. D. C., N. D. (Ill.), 82 Fed. Rep. 592.

115. WATER COMPANIES - Negligence.-The fact that a municipality confers upon a water company the right to place its hydrants in the streets, and to open them for the purpose of flushing its mains, gives the company no license or right to flush at such times and in such a manner as to unnecessarily impede travel or imperil the safety of those passing and repassing over the street. TOPEKA WATER CO. v. WHITING, Kan., 50

Pac. Rep. 877.

116. WILLS-Nature of Estate.-A devise of a tract of land to a testator's four sons in remainder after the expiration of a life estate in his widow, and a direct de. vise to the sons of another tract of land, these devises being followed by the words, "should either of my said sons die without issue, then their portion of all the lands given them shall go to the survivors of said four sons, or their heirs, share and share alike," vested in each one of the four sons a defeasible estate in fee, subject to be devested upon his death without issue.-DANIEL V. DANIEL, Ga., 28 S. E. Rep. 167.

117. WITNESS - Cross-Examination Rebuttal Evi dence. In this case collateral and irrelevant matter, not adverted to in the examination in chief, was drawn out on cross-examination of the defendant as a witness. In rebuttal, and against objection, the State was permitted to contradict such collateral matter by testimony of a damaging nature highly prejudicialto the defendant: Held, that the ruling was prejudicial error, and the judgment must be reversed therefor.STATE V. HAYNES, N. Dak., 72 N. W. Rep. 923.

118. WITNESS-Interest.-For purpose of showing in. terest of witness for defendant in action against a sheriff for wrongful levy and sale under execution, evidence is admissible that witness is a son-in-law of the execution creditor, and that she gave a bond to protect defendant. BRADEN V. MCCLEARY, Penn., 38 Atl. Rep. 623.

Central Law Journal.

ST. LOUIS, MO., JANUARY 7, 1898.

The power of courts to compel the giving of expert testimony without extra compensation has long been a subject of judicial controversy. Whether expert witnesses can be compelled to testify as to facts of science with which they have become familiar by means of special study and investigation when no other compensation has been tendered than the usual fees of witnesses testifying to ordinary facts, is a point upon which the cases are not in harmony. In this country the cases are nearly balanced, and the question must be regarded as still an open one, although the weight of authority rather inclines to the theory that the expert may be required to answer without additional compensation. A recent Illinois case reaches that conclusion. In Dixon v. People, 48 N. E. Rep. 108, it was held that a physician, who has been subpoenaed and is interrogated as an expert witness, may be punished as for a contempt for refusing to give expert testimony, although no compensation greater than that allowed an ordinary witness by statute has been paid or promised him. This is in harmony with what has been known as the leading case on the subject-Ex parte Dement, 53 Ala. 389wherein the Supreme Court of Alabama denied the right to extra compensation in such cases. Some of the cases asserting the right of the expert to extra compensation do so upon the ground of property right acquired by the expert in knowledge as to particular science which it is in derogation of constitutional principles to take from him without special compensation. This was the view of the Supreme Court of Indiana, in Buchman v. State, 59 Ind. 1. As to this point the Illinois court says that "it is not exactly accurate to say that the mere abstract knowledge acquired in the study of a special employment is of itself property. It is the right to apply that knowledge to the accomplishment of a particular result which constitutes property. For instance, if the appellant had been required, to answer a question put to him with a view of prescribing a remedy for the relief of Mrs. Purdy, the plaintiff in the suit in which he

was called to testify as a witness, then it might be said, if he was not offered any com. pensation, that he was deprived of a property right. But where a physician is asked a hypothetical question, and is called upon to give his opinion upon the facts stated in the hypothetical question while he is testifying as a witness in court, he is not thereby required to practice his healing art. He is merely making a statement for the purpose of enabling the court and the jury to understand correctly a case which is before the court. There is no infringement here of a property right. It may be conceded that in a certain sense the knowledge of the physician, acquired by special study, is property; but the question here is, not so much whether certain knowledge is property, as whether the requirement that he shall answer a hypothetical question is a taking of his property. Where he is required to make an application of his knowledge to a particular case, so as to secure a particular result such as, for instance, the curing of a disease or the healing of a wound-then he would undoubtedly be entitled to compensation. A physician or surgeon cannot be punished for a contempt for refusing to make a post-mortem examination unless paid therefor; nor can he be required to prepare himself in advance for testifying in court, by making an examination, or performing an operation, or resorting to a certain amount of study, without being paid therefor. But when he is required to answer a hypothetical question, which involves a special knowledge peculiar to his calling, he is merely required to do what every good citizen is required to do in behalf of public peace and public order, and in promotion of public good." In some few States there will be found express statutory provisions on the subject of the compensation to be made. to expert witnesses. The tendency of such legislation has been in the direction of securing to such witnesses the right to extra compensation if in the discretion of the court it should seem proper that such extra allowance should be granted. In some States, as for instance in Iowa, the language of the statute is that the expert "shall receive" additional compensation to be fixed by the court. In other States the statute reads that such witnesses "may be allowed" extra compensation if the court deems it just and reasonable.