deciding as to the nature of fixtures where the line of distinction is difficult to draw, as is frequently the case. The modern tendency seems to be to defer largely to this intent, especially in close cases, and the rule relieves, to some extent, from these difficulties, and harmonizes, in a sense, much of the real or apparent conflict in the authorities. As so few cases of this kind are fairly alike, a universal rule cannot be adopted. And, as every case must be determined, to some extent, at least, on its own peculiar facts, it is clear that the intent of the parties should have much weight in solving difficult questions of this nature." W. C. RODgers.

Nashville, Ark.

55 Manwaring v. Jenison, 61 Mich. 17; Wheeler v. Bedell, 40 Mich. 696; Ferris v. Quimby, 41 Mich. 202; Waters v. Renber, 16 Neb. 99; Choate v. Kimball, 56 Ark. 55; Rogers v. Prattville Mfg. Co., 81 Ala. 483; Carpenter v. Allen, 150 Mass. 281; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519; Maguire v. Park, 140 Mass. 21; Allen v. Mooney, 130 Mass. 155; Hill v. Farmers' & Mechanics' Nat. Bank, 97 U. S. 450; Speiden v. Parker, 46 N. J. Eq. 292; Vail v. Weaver, 132 Pa. St. 363; German Savings & Loan Soc. v. Weber (Wash.), 47 Pac. Rep. 224: Feeder v. Van Winkle (N. J. Eq.), 33 Atl. Rep. 399; McMath v. Levy (Miss.), 21 South. Rep. 9; Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229, 233; Hill v. Munday, 89 Ky. 36; Johnson v. Moser, 82 Iowa, 29.

HIGHWAYS-DRIVING ON WRONG SIDECOLLISION-VERDICT-PRESUMPTION.

ANGELL v. LEWIS.

Supreme Court of Rhode Island, February 11, 1898. 1. Plaintiff's wife was driving on the right-hand side of the road, and, meeting two teams, turned still further to the right to let them pass. As she was passing them, defendant, who was immediately behind them, turned out to the left, and collided with plaintiff's wife. It was dark at the time, and a team could not be seen at any great distance, and defendant did not see plaintiff's team until it was too late to avoid the accident. The teams in front of defendant were traveling at the rate of eight or nine miles an hour. Held, that a verdict for defendant was against the evidence.

2. One who drives on the wrong side of a road is required to use greater care than if he was on the right side; and, if a collision takes place under such circumstances, the presumption is against him.

TILLINGHAST, J.: The evidence shows that on January 3, 1897, between 5 and 6 o'clock P. M., the plaintiff's wife, together with her hired girl, while driving from her home at Fruit Hill toward Centerdale, in North Providence, in the plaintiff's team, which consisted of a horse and top buggy, met with an accident in the following manner: The plaintiff's wife, while driving along on the

right-hand side of the road, saw two teams coming toward her from the opposite direction, and seasonably turned out still further toward the right, to allow them to pass. As she was passing them, the defendant, who was in his team,-a twowheeled village cart,-immediately in the rear of said teams, and coming in the same direction, instead of keeping behind them, suddenly turned out to his left, and, in attempting to pass said teams, ran into the plaintiff's team, and caused the damage to recover which this suit is brought. It was dark and foggy at the time of the accident, and a team could not be seen at any considerable distance. The defendant admits that there were two teams ahead of him; that he turned out to his left to go by them; and that, as he turned out, he met and collided with the plaintiff's team, which he did not see until he started to go by the others, when it was too late to avoid the collision. He also admits that when he pulled out to pass the teams ahead of him he was not thinking that some one might be coming toward him on the other side of the road. The road where the accident happened was practically level, and was 37 1-2 feet in width, 25 feet of which, at least, could be safely used for carriages. The teams in front of defendant were traveling, according to the testimony of the persons driving the same, at the rate of eight or nine miles per hour, when defendant attempted to pass them; and the evidence is pretty clear that defendant was driving at a rapid pace when he attempted to pass the other teams.

These being the material facts in the case, the verdict of the jury, which was for the defendant, was clearly against the evidence, and ought to be set aside. Gen. Laws R. I. ch. 74, § 1, provides that "every person traveling with any carriage or other vehicle, who shall meet any other person so traveling on any highway or bridge, shall seasonably drive his carriage or vehicle to the right of the center of the traveled part of the road, so as to enable such person to pass with his carriage or vehicle without interference or interruption." The evidence shows that the plaintiff's wife complied with this requirement on meeting the two teams aforesaid, and that she was in the act of passing them safely, when the defendant suddenly pulled his team to the left, and collided with hers. In thus taking the wrong side of the road, the defendant took the risk of the consequences which might arise from his inability to get out of the way of another team approaching on the right side of the road, and is responsible for injuries sustained by the latter while exercising ordinary care. In other words, one who violates the "law of the road" by driving on the wrong side assumes the risk of such an experiment, and is required to use greater care than if he had kept on the right side of the road; and, if a collision takes place in such circumstances, the presumption is against the party who is on the wrong side, And this is especially true where the collision takes place in the dark. Cruden v.

Fentham, 2 Esp. 685; Shear. & R. Neg. (4th Ed.) § 651; Elliott, Roads & S. 620, and cases cited in notes 5-7; Chaplin v. Hawes, 3 Car. & P. 554. In Brooks v. Hart, 14 N. H. 311, the court say: "It is legal negligence in anyone to occupy the half of the way appropriated by law to others having occasion to use it in traveling with teams and carriages, and he is chargeable for any injury flowing exclusively from that cause." To the same effect are Wilson v. Manufacturing Co., 2 Har. (Del.) 70, and Fales v. Dearborn, 1 Pick. 345. See also 12 Am. & Eng. Enc. Law, 957-960, and cases; Kennard v. Burton, 25 Me. 39. The plaintiff's wife had the right to presume that the driver of any team coming in the opposite direction would duly observe the law of the road as she herself was doing (Wood v. Luscomb, 23 Wis. 291), and hence she was not called upon to exercise that degree of care which devolved upon the defendant when taking the wrong side of the road. Pluckwell v. Wilson, 5 Car. & P. 375. Of course, if plaintiff's wife had discovered the defendant's team in time to have avoided the collision by stopping or otherwise, it would have been her duty to do so, notwithstanding the fact that defendant was guilty of negligence in violating the law of the road. O'Malley v. Dorn, 7 Wis. 236; Cooley, Torts, 66, 67. But it is very clear from the testimony that she did not see defendant's team until it was too late to avoid the collision, and hence that she was not in fault regarding the accident. Petition for new trial granted, the same to be had on the question of damages only.

NOTE -Rights and Duties of Persons Traveling on Highways and Streets.-By the law of the road, a traveler in any vehicle in passing another coming toward him must keep to the right. Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67; 3 Lawson's Rights, Remedies and Practice, § 1166. Failing to keep to the right is evidence of negligence on his part in case of a collision (Jones v. Andover, 10 Allen, 20; Goodhue v. Dix, 2 Gray, 181; Spofford v. Harlow, 3 Allen, 176), but it does not make the party absolutely liable, as circumstances may make it necessary to drive to the left instead of to the right. McLane v. Sharp, 2 Harr. (Del.) 481; Strause v. Whittlesey, 41 Conn. 559; Beckerlee v. Wieman, 12 Mo. App. 354. Where two persons meet traveling in their wagons upon the highway, and a collision takes place, and one of them is thrown from his wagon and injured, in order that he may maintain an action for the damages, the injury must not have been caused by any want of ordinary care on his part to avoid it, although he was traveling in the manner prescribed by the statute and the other party was not. Kennard v. Burton, 25 Me. 393, 43 Am. Dec. 249; Parker v. Adams, 12 Met. 115. The traveler is not obliged to go to the extreme right. It is sufficient that he goes far enough for the other to pass safely. Wordsworth v. Willan, 5 Esp. 273. Nor need a traveler keep on the right side of the road all the time; this is required of him only when meeting another traveler. Parker v. Adams, 12 Met. 415; Daniels v. Clegg, 28 Mich. 32; Palmer v. Barker, 11 Me. 388; Brooks v. Hart, 14 N. H. 307. A driver on the wrong side of the road must use greater care than if he was on the proper side. If he is on the wrong side of the road he must give way to a vehicle on the

right side. Palmer v. Barker, 11 Me. 338. The duty under a statute to turn to the right, it is held, does not apply where one vehicle is going along a street into which another is turning from a cross street, (Lovejoy v. Dolan, 10 Cush. 495; Smith v. Gardner, 11 Gray, 418), nor where two vehicles meet at the intersection of two cross streets. Garrigan v. Berry, 12 Allen, 84. Under a statute requiring travelers meeting each other on the highway to drive to the right of the middle of the traveled part of the road or bridge when practicable, it is the duty of the traveler, when it is difficult or unsafe for him to drive to the right to stop a reasonable length of time at some convenient part of the road to enable the other person to pass, and without any request from him. Kennard v. Burton, 25 Me. 39. The fact that the plaintiff was at the time of the collision, on the wrong side of the road, does not prevent his recovering if the defendant could, nevertheless, by the exercise of ordinary care have avoided the injury. Jones v. Andover, 10 Allen, 20; Smith v. Gardner, 11 Gray, 418. And see Walkup v. May (Ind.), 36 N. E. Rep. 917; Riepe v. Elting (Iowa), 56 N. W. Rep. 285. Nor does the fact that the defendant is thus violating the law of the road entitle the plaintiff to recover damages of him if the plaintiff could have avoided the collision by the exercise of ordinary care; he cannot negligently or wantonly run into the defendant and then make him pay damages for the resulting harm, simply because the defendant was violating the law. Parker v. Adams, 12 Met. 415; Daniels v. Clegg, 28 Mich. 32. Persons meeting on highways owe to each other reciprocal duties, and are bound to use reasonable precautions to avoid collision. O'Malley v. Dorn, 7 Wis. 236. The law of the road or the statutes of this country do not apply as between & person on horseback and a vehicle (Dudley v. Bollas, 24 Wend. 465), or a vehicle and a pedestrian, nor where both vehicles are going in the same direction (Bolton v. Couler, 1 Watts. 360; Foster v. Goddard, 40 Me. 64), nor to vehicles not moving or passing (John son v. Small, 5 B. Mon. 25), nor to buildings that are being moved through a public highway. Graves v. Shattuck, 35 N. H. 257. When a driver attempts to pass another going in the same direction on a public road, he does so at his peril, at least he must be responsible for all damages which he causes to the one whom he attempts to pass and whose right to the proper use of the road is as great as his, unless he is guilty of such recklessness or even gross carelessness as would bring disaster upon himself. Avegno v. Hart, 25 La. Ann. 235. Pedestrians and vehicles have equal rights on the highway and of each is required such care and diligence as is necessary to prevent or escape injury. Brooks v. Schwerin, 54 N. Y. 343; Barker v. Savage, 45 N. Y. 191; Quick v. Holt, 99 Mass. 164. And see Newcomb v. Boston Protective De partment, 146 Mass. 596. A person on foot or on horseback cannot compel a teamster who has a heavy load to leave the beaten part of the road if there is suffi cient room to pass, and this rule applies where a per son on horseback meets a buggy carrying three persons, drawn by a single horse. Beach v. Parmeter, 23 Pa. St. 196. A horseman should yield the road to the driver of a vehicle. Washburn v. Tracy, 2 D. Chip. 128, 15 Am. Dec. 661. But a traveler on horse-back, meeting another horseman or a vehicle, is not required to turn in any particular way to avoid collision; he must exercise due care under the circumstances. Dudley v. Bollas, 24 Wend. 465.

Recent Cases on the Law of the Road.-In an action for damages caused by a collision between ve hicles, it is proper to instruct the jury that the fact

that defendant's vehicle was on the wrong side of the road is evidence of negligence, though not conclusive. Randolph v. O'Riorden (Mass.), 29 N. E. Rep. 583. Plaintiff, while riding on a bicycle at the rate of three miles an hour, collided with defendant, driving a buggy at a rate exceeding six miles an hour, and was injured. Held, that plaintiff was not guilty of contributory negligence in failing to avoid the collision by turning to the left, he having a right to assume that defendant would obey the law, and turn to the right (plaintiff's left). Schimpf v. Sliter (Sup.), 19 N. Y. S. 644. A person driving on a highway at a rapid rate after sunset is liable for damages caused by a collision due to his failure to keep to the right-hand side of the road. Shockley v. Shepherd (Del. Sup.), 32 Atl. Rep. 178, 9 Houst. 270. In an action for injuries to plaintiff's horse, caused by a collision with defendant on a highway, evidence that there was a beaten wagon way on each side of the road, and that defendant was driving to his left of the center of the road, warrants a finding that defendant was negligent. Luedtke v. Jeffrey, 61 N. W. Rep. 292, 89 Wis. 136. Where plaintiff was driving at night in a slow trot, as far to his right hand side of the road as possible, he was not, as a matter of law, guilty of contributory negligence. Luedtke v. Jeffrey, 61 N. W. Rep. 292, 89 Wis. 136. One who drives a truck on what to him is the left-hand side of the street, in order to reach the store of his employer, which is located on that side, is bound merely to exercise ordinary care to avoid colliding with vehicles approaching from the opposite direction. Peltier v. Bradley, Dann & Carrington Co., 34 Atl. Rep. 712, 67 Conn. 43. Gen. St. secs. 2689, 2690, providing that, when the drivers of any vehicles for the conveyance of persons shall meet on the highway, each shall turn to the right, and that a driver of any such vehicle who neglects to do so shall be liable in treble damages for any injury caused thereby, do not apply to drivers of trucks. Peltier v. Bradley, Dann & Carrington Co., 34 Atl. Rep. 712, 67 Conn. 43. Where one driving north on the west track of the highway crosses the road, and wantonly drives into and injures the horse of one approaching from the other direction, he will be liable for such injury, though the other may himself have been careless in turning to the left instead of to the right. Tyler v. Nelson (Mich.), 66 N. W. Rep. 671. The driver of a repair wagon for a street-railway company, who drives along a public street at a speed of ten or twelve miles an hour, and runs into another vehicle, which, in turning to one side, passes in front of him, is guilty of negligence, for which the railway company is liable. Northridge V. Atlantic Ave. R. Co. (City Ct. Brook.), 36 N. Y. S. 263, 15 Misc. Rep. 66. Where, in an action for per sonal injuries, plaintiff's evidence was that, while he was on a highway, where it was covered with straw, which deadened the noise of an approaching horse, defendant came toward him from behind, riding at a furious gate, and, without any warning or attempt to turn to either side, rode over plaintiff, it was error to direct a verdict for defendant. Stanfield v. Anderson (Ariz.), 43 Pac. Rep. 221.

.43, 78, 103

UNITED STATES C. C. OF APP........
UNITED STATES D. C.....................................................................................
UTAH

VERMONT.............................................

WISCONSIN....

.24, 58, 82 .... 32 .60, 118 .2, 5, 15, 55, 62, 77, 80, 102, 111, 127 1. ADJOINING LAND OWNERS Excavations-Negligence. The owner or tenant of a building, having knowledge that an adjoining landowner intends and is proceeding to excavate his land, must take any precautionary measures necessary to prevent damage thereto by the mere making of such excavation in an ordinarily careful manner, but he need not guard against damages resulting from negligence.-BOHRER V. DIENHART HARNESS Co., Ind., 49 N. E. Rep. 296.

2. APPEAL-Adverse Parties.-A purchaser at a foreclosure sale is an "adverse party," within Rev. St. § 3049, who should be served with a copy of a notice of appeal from the order confirming the sale.-ROGERS v. SHOVE, Wis., 73 N. W. Rep. 989.

3. APPEAL-Failure to Appoint Guardian Ad Litem.Plaintiffs in error appeared in the case, employed counsel, and made their defense. They made no request for the appointment of a guardian að litem. They were apparently adult. Their minority was not in any way disclosed to the court: Held, the failure to appoint a guardian ad litem, under the circumstances, was not a ground for a new trial under the provisions of the code.-HOLLOWAY v. MCINTOSH, Kan., 51 Рac. Rep. 963.

4. ASSIGNMENTS FOR BENEFIT OF CREDITORS-Preference-Parties.-Act Ky. 1856 provides that, in suits to set aside preferential transfers of property by an insolvent debtor, the transferee and the debtor are the only necessary parties defendant. Act Ky. March 16, 1894, relating to voluntary assignments, provides that property transferred in preference shall vest in the assignee, and he shall bring suit to recover same, hav. ing therein all the remedies of creditors: Held, that the provisions of the two acts give to the assignee not only the right to recover of the transferee the property fraudulently transferred, but also the right to investigate the bona fides of transfers of other property which may not have been fraudulent or preferential, and that, in a suit by an assignee to recover property con. veyed in preference, in which the bill contains a prayer for general relief, the insolvent debtor is a necessary party.-LOVING v. Arnold, U. S. C. C., D. (Ky.), 84 Fed. Rep. 214.

5. ASSIGNMENTS FOR CREDITORS-Estoppel.-A cred. itor who, without injury as to his rights, filles his claim with the assignee under a deed of assignment, and

after thus becoming a party to the assignment proceedings, remains so for a considerable time, elects his remedy, and is estopped from bringing a garnishment proceeding against the assignee on the ground that the assignment is void because of the assignee's failure to sign his bond.-KEITH V. ARTHUR, Wis., 73 N. W. Rep. 999.

6. ATTACHMENT LEVY-Notice of Levy.-The notice of the levy of attachment, required by the statute to be filed in the county recorder's office, must describe the property sufficiently to identify the property so that a purchaser can tell from the notice itself what property he is buying.-FIRST NAT. BANK OF HAILEY V. SONNELITNER, Idaho, 51 Pac. Rep. 993.

7. BILLS AND NOTES-Blank Indorsement.-Where the only evidence of plaintiff's title to the bill sued on is a blank indorsement by the payee, plaintiff must, if his ownership be denied by answer, fill the blank with words of assignment to himself, in order to show a prima facie right to recover.-BARRET v. FORT PITT NAT. BANK OF PITTSBURG, PA., Ky., 44 S. W. Rep. 97.

8. BILLS AND NOTES-Consideration.-A note given to a father for property that had been previously deliv ered as an advancement is without consideration. MARSH V. CHOWN, Iowa, 73 N. W. Rep. 1046.

9. BILLS AND NOTES-Bona Fide Holder.-Where a purchaser of real estate at a trustee's sale passed, to one of the two trustees, a negotiable note of another, payable to the purchaser's order, and indorsed by him in blank, and afterwards said trustee, without the consent or knowledge of his co-trustee, sold said note, before its maturity, to one who took it in good faith, for full value, and without notice that it belonged to a trust estate, such purchaser acquired a valid title to the note.-BARROLL V. FOREMAN, Md., 39 Atl. Rep. 273. 10. BILLS AND NOTES-Payment-Burden of Proof.—A note which is not governed by the law merchant, and which is given by a debtor for an existing debt, is not a payment of such debt, unless it is so agreed between the parties.-RHODES V. WEBB JAMESON CO., Ind., 49 N. E. Rep. 283.

11. BILLS AND NOTES-Presentation.-A note, not designating the place of payment, need not be presented at the residence of the maker, when due, in order to bind him for interest after maturity.-WESTCOTT V. PATTON, Colo, 51 Pac. Rep. 1021.

12. BONA FIDE PURCHASERS-Notice-Good Faith.Purchasers of land erroneously patented as agricultural land are not bona fide purchasers without notice, when they knew at the time they purchased the same that it was mineral land; and purchasers who located and worked mineral claims thereon prior to acquiring any interest therein are not purchasers in good faith.— UNITED STATES V. CENTRAL PAC. R. Co., U. S. C. C., N. D. (Cal.), 84 Fed. Rep. 218.

13. CARRIERS OF GOODS-Joint Rates-Unjust Dis. crimination.-A petition alleging that two railroad companies voluntarily established joint rates, and charged plaintiff a rate in excess of the same joint rates on like shipments, at the same time, which were made to other points, for like distances, over their lines of road, makes a prima facie case, showing that they have violated Acts 22d Gen. Assem. ch. 28, as to discrimination.-BLAIR V. SIOUX CITY & P. RY. Co., Iowa, 73 N. W. Rep. 1053.

14. CHATTEL MORTGAGES-Consideration.-An existing indebtedness is ample consideration, as between the parties, for a chattel mortgage securing its pay. ment.-JOHNSTON V. ROBUCK, Iowa, 73 N. W. Rep. 1062. 15. CHATTEL MORTGAGES-Fraudulent as to Creditors. -A mortgage of a stock of merchandise was fraudulent as against attaching creditors of the mortgagor, where there was an implied understanding between the mortgagor and mortgagee that the mortgagor might deal with the mortgaged property, and apply the proceeds thereof to his own use, as he had done before such mortgage was made, and the mortgagee knew or had means of knowledge of the manner in which the mortgagor was dealing with such stock, and no objection

was made by him, nor any effort to have such prop erty or its proceeds applied to the payment of the mortgage debt, nor any adequate explanation of such transaction consistent with the integrity of such mort gage.-BANK of Kaukauna V. JOANNES, Wis., 73 N. W. Rep. 997.

16. CONSTITUTIONAL LAW - Interstate CommerceAnti Cigarette Law.-Under Const. U. S. art. 1, § 8, conferring on congress the exclusive right to regulate commerce between the several States. Acts 26th Gen. Assem. ch. 96, prohibiting the sale of cigarettes within the State by all persons save jobbers doing an interstate business, is unconstitutional and void, in so far as it amounts to a regulation of interstate commerce. -MCGREGOR V. CONE, Iowa, 73 N. W. Rep. 1041.

17. CONSTITUTIONAL LAW-Appeal-Stay of Execution. -A State statute (Pen. Code Cal. §§ 1227, 1243) is not in violation of the federal constitution merely because it does not provide that an appeal from an order directing execution, made after a final judgment of convic tion, shall of itself operate to stay the execution of such judgment.-IN RE DURRANT, U. S. C. C., N. D. (Cal.), 84 Fed. Rep. 317.

18. CONTRACTS-Consideration.-An agreement was made by H and his associates with T by which T was to go to another State, and locate placer mines, and H and his associates to pay his expenses. After T had been at work some time, he wrote that he understood they were annoyed by the delay, and that, if they were dissatisfied, he would return the full amount advanced: Held, that such promise was without consideration where he had faithfully done what he agreed to do.TEMPLIN V. HOBSON, Colo., 51 Pac. Rep. 1019.

19. CONTRACTS-Fraud.-Where, in an exchange of real estate, one party fraudulently and intentionally took advantage of the illiteracy of the other party, and, on objection being made by the other that the contract did not give the agreed remedy if the money was not paid within the prescribed time, represented that the instrument contained all the oral agreements previously made, the contract will be reformed.-WILLIAMS V. HAMILTON, Iowa, 73 N. W. Rep. 1029.

20. CONVERSION-Refusal on Demand.-Defendants, apparently having possession and control of the goods of the plaintiffs, and with full knowledge of all the facts in relation thereto, having refused, upon demand of the plaintiffs, to surrender the same or permit the plaintiffs to take them, asserting title and right of pos session in themselves, cannot, in a subsequent suit by the plaintiffs for conversion, assert as a defense that it was not in their power to deliver the goods, and that their consent to a removal would not have availed the plaintiffs in obtaining possession.-BANK OF TOPEKA . MILLER, Kan., 51 Pac. Rep. 964.

V.

21. CORPORATIONS-Consolidation.-A foreign corporation which has attempted to consolidate with an Illinois corporation does not thereby become liable at law for the latter's debts, since there is no statutory authority for such consolidation.-KAVANAGH V. OMAHA LIFE ASSN., U. S. C. C., N. D. (Ill.), 84 Fed. Rep. 295.

22. CORPORATIONS Lien of Judgment.-A corpora tion organized with power to construct and operate a street railway is not a commercial railroad, within Code 1873, § 1309, making the lien of judgments against them for injuries to persons or property superior to that of mortgages, though its franchise does not limit its operations to the city, and it is authorized to carry freight, baggage, and express matter; it not appear ing that it has done or intends to do any business ex cepting that which is usually and properly done by street-railway corporations.-FIDELITY LOAN & TRUST Co. v. DOUGLAS, Iowa, 73 N. W. Rep. 1039. 23. CRIMINAL EVIDENCE Other Offenses.-In a crim inal prosecution, for enticing into a house an unmar ried female of previous chaste character, and under the age of 18 years, for the purpose of prostitution, it is error to permit other young girls to testify that defendant had asked each of them to go to her house for