WEEKLY DIGEST

Of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of the Supreme, Circuit and District Courts of the United States, except those that are Published in Full or Commented upon in our Notes of Recent Decisions, and except those Opinions in which no Important Legal Principles are Discussed of Interest to the Profession at Large.

ARKANSAS..... COLORADO.....

CONNECTICUT

DELAWARE. GEORGIA.................

KANSAS..

KENTUCKY..

LOUISIANA

MARYLAND.

MICHIGAN..

MISSISSIPPI......

MISSOURI..........

MONTANA..

..80, 115 .14, 19, 90, 95 119 ..105 ........98

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.77.

.........8, 24, 56, 59, 83, 114 7, 23, 26, 33, 48, 74, 86, 103 .9, 29, 54 .2, 47, 50 109 ......16, 34, 43, 63, 96 ...32, 37, 45, 52, 94, 112 40, 73 NEBRASKA...4, 11, 25, 28, 65, 66, 71, 75, 76, 81, 87, 93, 104, 116 NEW JERSEY....1, 3, 21, 51, 70, 82, 84, 88, 89, 97, 102, 117, 120 .12, 57, 60, 68, 108 ..6, 106 5, 36, 111, 118 SOUTH DAKOTA...... .........10, 85 TEXAS.....8, 15, 18, 20, 27, 30, 31, 35, 38, 39, 41, 42, 44, 53, 55, 58, 62, 64, 67, 69, 72, 100, 101, 110, 113, 121

OKLAHOMA.....................

RHODE ISLAND........... SOUTH CAROLINA.

1. ADJOINING LANDOWNERS-Excavating for CellarsNegligence. Where one of two adjoining landowners has built a cellar wall on, and, in case of some rocks, projecting over, the line, he, on notice that the other is to excavate, is bound to shore up and protect his property, and, not having done so, cannot recover for the caving thereof, the other having used ordinary care in excavating and in breaking off the projecting rocks.LAFP V. GUTTENKUNST, Ky., 44 S. W. Rep. 964.

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2. ADMINISTRATION - Executors Discharge.-B bequeathed to S, a certain sum for life, and after S's death "to be equally divided among her children then living, and the descendants of any who may have died:" Held that, where the executors invested the money in certain stock in the name of the life legatee, subject to the provisions of the will, in compliance with an order of court, and secured an allowance of the amount so invested in their "first and final account," the adminis tration terminated.-SIECHRIST V. BOSE, Md., 39 Atl. Rep. 745.

Trusts 3. ADMINISTRATORS Sales. An adminis trator or guardian is prohibited from purchasing trust property at his own sale; and a sale by him to another, who does not pay any consideration, and who immediately transfers the property to the administrator or guardian, is void, and as much a violation of the fiduciary relation, and as great a fraud in the eye of the law, as if the sale had been made directly to himself.WEBB V. BRANNER, Kan., 52 Pac. Rep. 429.

4. APPEAL- Change of School Districts.-An appeal will not lie from the order of a county superintendent changing the boundaries or school districts or creating new districts. The method of reviewing such proceed. ings is by petition in error.-POLLOCK V. SCHOOL DIST. No. 42, Neb., 74 N. W. Rep. 393.

5. APPEALABLE ORDER - Injunction.-An order dis solving a temporary injunction restraining the sale of property under a chattel mortgage claimed by mortgagor to be void, under Rev. St. 1893, § 2464, by reason of a tender of payment of the debt and costs, is ap pealable.-SEABROOK V. MOSTOWITZ, S. Car., 29 S. E. Rep. 202.

6. ASSIGNMENT OF WAGES - Validity.-A written or der for a year's wages of a workman, employed as a molder, does not apply to wages earned under a new hiring with the same employer, after having quit for two months in the said year, since at law the assignment of the benefits of the new contract was the assignment of a mere possibility, and hence inoperative. -O'KEEFE V. ALLEN, R. I., 39 Atl. Rep. 752.

7. BANKS-Liabilities-Negligence of Cashier.-A loan of money to a bank on the representations of its cashier that he would loan it out on first mortgage on good real estate, and allow 6 per cent., must be considered as done with the full knowledge of the bank, in the ab sence of evidence to the contrary, where the entries of all dealing concerning the money had been made both on the bank's individual ledger and in the pass book of the creditor.-DEPOSIT BANK OF CARLISLE V. FLEMING, Ky., 44 S. W. Rep. 961.

8. BANKS-Powers of Cashier-Transfer of Note.-The firm of C & C was proprietor of the Milam County Bank, and carried on the banking business in the name of the firm and as the Milam County Bank. F, one of the partners, acted as cashier, and had the power, as such, by virtue of the custom of the bank, to transfer its paper by indorsement: Held, that where a note to the Milam County Bank, on being transferred to a third person, was indorsed, "F, Cashier," such indorsement was in the usual course of business, and transferred to the holder the legal title to the note.-ARNOLD V. SWENSON, Tex., 44 S. W. Rep. 870.

9. BILLS AND NOTES-Accommodation Note-Liability of Maker. In case a promissory note is executed with out any consideration actually passing from maker to the payee, and as an accommodation to the payee, for the express purpose of enabling the latter to pledge same as collateral security for an anticipated indebtedness to a third person, in pursuance of an agreement to that effect, same in the hands of the latter can be realized upon against the maker to the extent of the secured indebtedness of the payee and pledgor, and no further.-FORSTALL V. FUSSELL, La., 23 South. Rep. 273. 10. BILLS AND NOTES Days of Grace - Sunday.Comp. Laws, § 4492, providing that the apparent ma turity of a negotiable instrument is the next day after that which by its terms it becomes due when that is a holiday, does not make the last day of grace of a note made payable on Sunday four days after such Sunday, as the section does not apply to instruments entitled to days of grace.-MORRIS V. BAILEY, S. Dak., 74 N. W. Rep. 443.

11. BILLS AND NOTES-Indorsement-Transfer by As signment.-A negotiable promissory note may be transferred by a separate distinct assignment thereof, but in such case the transferee will not be protected as against the infirmities or defenses which might be shown as against the assignor.-GAYLORD V. NEBRASKA SAV. & EXCH. BANK, Neb., 74 N. W. Rep. 415. 12. BILLS AND NOTES — Promissory Notes Right to Possession. The maker of promissory notes is not the owner nor entitled to the immediate possession thereof unless the same have been paid or canceled by a decree of court, or for other reasons have become absolutely void and invalid as obligations in the hands of the payees or of third parties; and until such payment or decree, or for other reasons, such notes have become absolutely void, an action of replevin by the maker for

the recovery of the possession thereof will not lie.OLSON V. THOMPSON, Okla., 52 Pac. Rep. 388.

13. BOARD OF HEALTH Powers Nuisance.-Under the provisions of the acts of February 22, 1888, and March 29, 1892, the board of health of Asbury Park has no power to restrict the owners of a stable to the mode of laying a stable floor prescribed by an ordinance of the board. The owners have the alternative of resorting to any other method which will secure the sanitary condition of the stable, but by departing from the prescribed method they take the risk of creating a nuisance.-STATE v. BOARD OF HEALTH OF ASBURY PARK, N. J., 39 Atl. Rep. 706.

14. BUILDING AND LOAN ASSOCIATIONS-Stock-Withdrawal Value.-A member of a building association gave notice of withdrawal in May, and was informed that the association could not pay, whereupon he continued to pay his monthly dues and charges until October, when the association notified him that it was ready to pay the withdrawal value: Held, that he continued to be a member until October, and was entitled to the withdrawal value of October, and not that of May.-HAWLEY V. NORTH SIDE BUILD. & LOAN ASSN., Colo., 52 Pac. Rep. 408.

15. BUILDING ASSOCIATIONS - Payments on StockLien on Homestead.-In the absence of an agreement to the effect that a stockholder in a building and loan association may have his payments on stock applied to the extinguishment of his loan debt, he has no legal right to demand that such payments shall be so applied.-PIONEER SAV. & L. Co. v. EVERHEART, Tex., 44 S. W. Rep. 885.

16. CARRIERS-Damages-Evidence.-To entitle a pas senger to recover for being taken beyond her station, evidence of mental and physical suffering directly resulting from the wrong is enough. A showing of damages in dollars and cents is not required.-BELL V. GULF & C. R. Co., Miss., 23 South. Rep. 268.

17. CARRIERS-Duty to Carry Lawful Goods - Intoxi cating Liquors.-A railroad company will be enjoined from refusing to carry from another State into South Carolina intoxicating liquors in original packages, consisting of bottles packed in wooden cases, when tendered in car-load lots, with a release of liability for waste or breakage not resulting from its own negli. gence.-BLUTHENTHAL V. SOUTHERN RY. Co., U. S. C. C., N. D. (Ga.), 84 Fed. Rep. 920.

18. CARRIERS OF PASSENGER Unstamped Ticket.Where ticket to H and return stipulates that, to be good for return, it must be first signed and stamped by company's, agent at H, and passenger knows of this, and signing and stamping was not done, and he did not ask that it be, he cannot complain of refusal to accept it for passage, though the agent at ticket office to whom he showed it said at the time that it was all right.HOUSTON & T. C. RY. Co. v. AREY, Tex., 44 S. W. Rep.

894.

19. CHATTEL MORTGAGE Record-Validity.—A mortgagee, who neglects to comply with Mills' Ann. St. ch. 25, § 887, providing that, when a chattel mortgage given to secure more than $2,500 is recorded, to be valid against third persons, there shall be recorded annually a sworn statement that the mortgage was given in good faith, and the amount due thereon, has no rights against mortgagor's execution creditors, even though they have actual notice of mortgagee's interests.BURCHINELL V. GORSLINE, Colo., 52 Pac. Rep. 413.

20. CONSTITUTIONAL LAW - Municipal Courts - Jurisdiction.-Under Const. 1876, art. 5, § 1, declaring that the judicial power of the State shall be vested in certain specified courts, "and in such other courts as may be established by law," the legislature can neither invest municipal courts with jurisdiction exclusive of or concurrent with the State courts to try violations of the penal laws, nor invest municipal corporations with power to suspend any penal law of the State within the limits of such corporations.-COOMBS V. STATE, Tex., 44 S. W. Rep. 854.

21. CONSTITUTIONAL LAW-Tax Commissioners.-Act March 20, 1884, provides that if the local boards or offi. cers of incorporated towns for municipalities neglect or fail to levy the taxes for certain specified purposes of local government, or there is a vacancy in the local board or office, it shall be the duty of the governor to appoint and commission three resident freeholders, who shall assess and levy such taxes for such sums as they shall deem expedient: Held, that the act, in so far as it attempts to grant authority to commissioners appointed by the governor to levy taxes, is unconsti tutional, since it is the delegation of a power which the legislature may confer only on the local municipal bodies.-INHABITANTS OF TOWNSHIP OF BERNARDS, SOMERSET COUNTY, V. ALLEN, N. J., 39 Atl. Rep. 716.

22. CONTRACT-Breach-Rescission.-Defendant cannot, at the trial, without amendment, elect to rescind a contract and recover judgment thereon, when in his cross-complaint he has alleged a breach and damages therefor. When an action is based upon a rescission of the contract, the election to rescind must be clearly averred.-DETROIT HEATING & LIGHTING Co. v. STEVENS, Utah, 52 Pac. Rep. 379.

23. CONTRACT-Construction.-One agreeing to advance negotiable paper for $1,000, when needed, in buy. ing logs, "and for any other advancement required in the purchase of logs agreed upon by the two parties to this contract," etc., is not required to furnish more than $1,000 in negotiable paper, unless he chooses to do so.-VANSANT V. RUNYON, Ky., 44 S. W. Rep. 949.

24. CONTRACT-Fraud-Rescission.-When a person ignorant of his ownership of a valuable property right sells it for an inadequate consideration, and transfers it by an instrument in which it is not specifically mentioned, and under which title to it passes only by construction of loose and general terms, and the purchaser has full knowledge of it, and of its value, and of the owner's ignorance concerning it, equity will adjudge the rescission of the contract of sale as fraudulently obtained.-THAYER V. KNOTB, Kan., 52 Pac. Rep. 433.

25. CONTRACT-Public Policy-Limitations.-The statutes of this State provide in what time actions may be brought; and a contract which provides that no action shall be brought thereon, or for a breach thereof, unless within a time therein specified, which is different from the time which the statute fixes for bringing an action on such contract or for a breach thereof, is against public policy, and will not be enforced by the courts of this State.-MILLER V. STATE INS. CO. OF DES MOINES, IOWA, Neb., 74 N. W. Rep. 416.

26. CONTRACT-Res Judicata.-A recovery on a con. tract for boarding does not bar a suit on a separate contract for nursing and washing done for defendant while she was boarded.-SCHUSTER V. WHITE'S ADMR., Ky., 44 S. W. Rep. 959.

27. CORPORATIONS-Officers and Agents.-The em. ployment of counsel to give advice as to a debt owing by a corporation was within the scope of the authority granted its president and general manager by the by. laws, which gave the president direction of the affairs of the corporation, subject to the advice of the direc. tors, and made it the general manager's duty to take charge of and control all the company's business, and authorized him "to contract debts for the necessary operation of the business," without the order of the board of directors.-DALLAS ICE FACTORY & COLD STORAGE CO. v. CRAWFORD, Tex., 44 S. W. Rep. 875.

28. COURTS-Disqualification of Judge.-A judge who presided at the trial of an action, and rendered Judg. ment therein, is not, from that fact, disqualified, by section 37, ch. 19, Comp. St., to hear another suit, brought to vacate the judgment in the former one.CHICAGO, B. & Q. R. Co. v. KELLOGG, Neb., 74 N. W. Rep. 403.

29. CRIMINAL EVIDENCE-Homicide-Dying Declara. tions. Where a deceased person, at the time of his be ing wounded, stated to a witness that he could not live much longer, and that he was bound to die, decla ra

tions made under such dircumstances are admissible In favor of an accused as a dying declaration.-STATE V. ASHWORTH, La., 23 South. Rep. 270.

30. CRIMINAL EVIDENCE Theft Character.-Witnesses who have testified to the good character of defendant, charged with theft of cattle, cannot be asked if they had not heard him accused of theft of other cattle, though said theft occurred prior to that for which he was being tried, where they had not heard of such charge till after the theft at issue.-HOPPERWOOD V. STATE, Tex., 44 S. W. Rep. 841.

31. CRIMINAL LAW-Assault-Evidence.-A conviction of an aggravated assault was fully sustained, where it appeared that defendant fired a pistol at the prosecutor, while he was engaged in nailing up a gate to a field belonging to him, in order to prevent defendant from making use thereof.-ESTES V. STATE, Tex., 44 8. W. Rep. 838.

32. CRIMINAL LAW-Homicide-Killing Trespasser.The owner of a dwelling house may resist a trespass therein by force, but has no right to kill the trespasser unless necessary to prevent the commission of a felony on his person or property.-STATE V. TAYLOR, MO., 44 S. W. Rep. 785.

33. CRIMINAL LAW-Homicide-Principal and Acces. sory.-On trial for aiding in a murder, an instruction that, if the principal was guilty of murder, and defend. ant was present at the time and place of the shooting, and willfully, maliciously, feloniously, with malice aforethought, and not in his necessary or apparently necessary self-defense, advised the principal to do the shooting, or in any way aided the principal therein, he was guilty of murder, did not make defendant's guilt dependent wholly on the guilt of the principal.BASKETT V. COMMONWEALTH, Ky., 44 8. W. Rep. 970.

34. CRIMINAL LAW-Homicide-Self-defense.-Where it appeared that deceased had threatened the life of the accused, a charge that if the accused, "not being armed for the difficulty," was assailed by deceased shooting him, and the accused returned the fire, kill. ing his assailant, such killing was justifiable, is erroneous, as making the right of the accused to kill in self-defense dependent on his being armed.-SMITH V. STATE, Miss., 23 South. Rep. 260.

35. CRIMINAL LAW-New Trial.-Evidence that the prosecuting witness bet a suit of clothes that defendant would be convicted is no ground for a new trial.— REED V. STATE, Tex., 44 S. W. Rep. 833.

36. DAMAGES-Loss of Time.-The loss of time of plaintiff's employees, paid by him under contract, is not an item of "actual damages" sustained by reason of injury to property through a defect in a bridge, within Rev. St. § 1169.-PEARSON V. SPARTANBURG COUNTY, S. Car., 29 S. E. Rep. 193.

37. DEDICATION.-A common-law dedication, which can be established only by convincing evidence of intention of the donor to appropriate the land to public use and proof of acceptance by the public, is not shown by the fact that when a county building was constructed, the four feet of the lot nearest the street were not built on, but were paved as other parts of the sidewalk.-BAKER V. SQUIER, Mo., 44 S. W. Rep. 792.

38. DEEDS-Covenants in Restraint of Trade.-An agreement by the vendor, not to allow the sale of intoxicating liquors in any building owned by him or afterwards conveyed, in the same block, for a period of five years, is not such a restraint of trade as is against public policy.-ANDERSON V. ROWLAND, Tex., 44 S. W. Rep. 911.

39. DEEDS OF TRUST-Substitution of Trustee.-A provision in a deed of trust authorizing the cestui que trust "and his assigns" to appoint a substitute trustee, in case the trustee named fails to act, means that both he and his assigns have such power, severally and in suc cession, and does not require them to join in such act. -MILLER V. KNOWLES, Tex., 44 S. W. Rep. 927.

40. EASEMENT CONSTRUED-Railroad Right of Way.At the time a grant of a right to store and flood

water for mining purposes upon any of the land of a certain described tract was made, an easement to con vey water from certain courses to such land existed within the purview of the parties thereto: Held, that the grant so made excluded from the easement granted any right to lay pipes to conduct water across the tract except such as existed at or about the time the grant was made.-MONTANA ORE PURCHASING CO. V. BOSTON & M. CONSOL. COPPER & SILVER MIN. Co., Mont., 52 Pac. Rep. 375.

41. EVIDENCE-Impeachment.-Where, in a prosecu tion for giving away whisky on election day, a witness for the State testifies that he had not seen accused give away any liquor, and then the State shows that he had sworn differently on other occasions, accused may show that the witness had made statements, shortly after the alleged transaction, in accord with his testimony.-KEITH V. STATE, Tex., 44 S. W. Rep. 849.

42. EVIDENCE-Parol Evidence-Conversion of Notes. -A subscriber to stock of a corporation may show by parol that the subscription was obtained by fraudu. lent representations and promises not intended to be fulfilled.-TURNER V. GROBE, Tex., 44 S. W. Rep. 898.

43. EVIDENCE-Parol Evidence - Vendors' Liens.Where the agreement for a conveyance and the deed conveying the property merely show a sale subject to an existing lien, parol evidence is inadmissible, in the absence of fraud or mistake, to show that the grantees agreed to pay the debt represented by the lien.-MaxWELL V. CHAMBERLIN, Miss., 23 South. Rep. 266.

44. EXECUTION-Collateral Attack.-A purchaser at execution sale having notice of an unrecorded deed before the levy was made takes subject to the deed.HOLT V. HUNT, Tex., 44 S. W. Rep. 889.

45. EXECUTION SALE-Setting Aside.-Under Rev. St. 1889, § 4895, providing that the party in whose favor a judgment is rendered may have execution thereon, such party is not bound by proceedings under an exe cution issued by the clerk without authority from the party or his attorney, though it is the clerk's custom to thus issue executions on judgments rendered at the preceding term.-DAVIS v. MCCANN, Mo., 44 S. W. Rep. 795.

46. FEDERAL COURTS Jurisdiction-Constitutional Questions.-A plea in abatement on the ground that the parties were "improperly or collusively" joined for the purpose of making a case cognizable in the federal courts, in the meaning of Act March 3, 1875, § 3, raises no issue involving the construction or application of the constitution, so as to make the case appealable directly from the circuit court to the supreme court, under Act March 3, 1891, § 5.-MERRITT V. PRESIDENT, ETC., OF BOWDOIN COLLEGE, U. S. S. C., 18 S. C. Rep. 415.

47. FRAUDS, STATUTE OF-Sales.-Where the buyer agreed to pay for the goods on their delivery, and the goods were shipped to the place of the buyer's resi dence on the seller's order, and the buyer refused to pay a draft for the price, there was no such delivery as would take the case out of the statute of frauds, the contract being oral, and the value of the goods being in excess of 10.-FT. WORTH PACKING CO. V. CONSUMERS' MEAT Co., Md., 39 Atl. Rep. 746.

48. FRAUDULENT CONVEYANCE.-One who had dis posed of all his real estate, chattels and live stock, and owned no property liable to execution, after process was served upon him, without any consideration ex cept love and affection, assigned to his son a $300 check paid to him for his interest in some real estate: Held, that as against an antecedent creditor, the transfer was fraudulent and without sufficient consideration.FRANKLIN V. COOPER, Ky., 44 S. W. Rep. 976.

49. FRAUDULENT CONVEYANCES.-A sale, though fraud ulent and void as to creditors, is binding on the parties to it.-LILIENTHAL V. DRUCKLIEB, U. S. C. C., S. D. (N. Y.), 84 Fed. Rep. 918.

50. FRAUDULENT CONVEYANCES-Consideration-Hasband and Wife.-As against the husband's creditors,

whose rights accrued prior to a transfer of real prop. erty by the husband to the wife in payment of an alleged debt, the burden is on the wife to establish that she was a bona fide creditor of the husband.STOCKSLAGER V. MECHANICS' LOAN & SAVINGS INSTITUTE, Md., 39 Atl. Rep. 742.

51. FRAUDULENT CONVEYANCES-Deed by Indorser.Though a voluntary conveyance by one of all his property to the wife of his son, when contingently liable as indorser of the notes of his son, was not conclusive proof that such conveyance was made to defraud the holder of such notes, as such holder was not an existing creditor of such grantor, the fact of such contingent liability should be considered, with other facts, as tending to show actual fraud.-LONG BRANCH BANKING CO. V. DENNIS, N. J., 39 Atl. Rep. 689.

52. GARNISHMENT-Collateral Attack.-An attachment was begun against a prisoner at large on bail, and the surety on the bail bond was summoned as garnishee. It appeared that defendant had deposited money with the garnishee, indemnifying him against liability as his surety. The garnishee had not been released from liability on the bond, but plaintiff contended that the bond, by reason of certain irregularities, was a nullity: Held, that the garnishee was not liable.-HOLKER V. HENNESSY, Mo., 44 S. W. Rep. 794.

53. GARNISHMENT - Intermeddlers Parties. After one has instituted proceedings in garnishment, and obtained a judgment against the debtor, he has the right in such proceedings, where the garnishee does not object, to sue one who had taken defendant's prop. erty from the garnishee's possession by an attachment in a suit against the original debtor.-BELL V. STEWART, Tex., 44 S. W. Rep. 925.

54. GARNISHMENT-Payment of Claim.-Suit having been commenced against several non-resident defendants by attachment, and the garnishment of resident commission merchants as stakeholders, a judgment pronounced against them upon traverse of their answers will be reversed if the evidence substantially shows that they have paid and satisfied the plaintiff's demand.-TRIBETTE V. GWIN, La., 23 South. Rep. 285. 55. GARNISHMENT-Salary of Employee.-There was evidence that defendant drew his salary promptly when, and sometimes before, it was due, and with great regularity; and that the small sum due him when the writ was served was not intended by him to be left as a deposit, but was not drawn because he did not know the state of his account: Held, that the exemption had not terminated, since it was not left with his employers knowingly or voluntarily.-CHILDRESS V. FRANKS, Tex., 44 S. W. Rep. 868.

56. GIFT-Acceptance.-Where a father executes a deed for valuable lands to his daughter as a gift, and delivers it unconditionally to his son for her, her acceptance of the deed will be presumed, and it will ordinarily take effect from the time of the delivery to the son.-JONES V. KERR, Kan., 52 Pac. Rep. 429.

57. HOMESTEAD - Cancellation of Entry.-A homestead settler, who makes improvements upon a tract of government land, and whose entry is afterwards canceled, may remove the same after the land has been awarded to an adverse settler.-WINANS V. BEIDLER, Okla., 52 Pac. Rep. 405.

58. HOMESTEAD-Mortgage-Abandonment.-A mort. gage given on a homestead is void although the mort. gagors had formed the intention and were making preparations to abandon it.-CAYWOOD V. HENDERSON, Tex., 44 S. W. Rep. 927.

59. HUSBAND AND WIFE-Antenuptial Contract-Construction.-H and W, contemplating marriage, entered into an antenuptial contract, by the terms of which it was agreed that an 80-acre farm and the accumulations thereof, on the death of both of the parties to the con. tract, should be divided in equal shares among the five sons of W by a former husband and whatever children should be born to the parties to the contract: Held, that the word "accumulations" does not include

lands subsequently purchased and deeded to H, whether paid for from the products of the land mentioned in the contract or not; that the word "accumu. lations," as used in this connection, included only im. provements and betterments on the land itself, and whatever would pass with the original tract as a betterment or accretion.-HAENKY V. WEISHAAR, Kan., 52 Pac. Rep. 437.

60. INJUNCTION-Adequate Remedy at Law.-Where adverse claimants are residing upon a tract of land, and each claiming the same as a homestead by virtue of priority of settlement, and the land department makes a final award thereof, the losing party cannot properly claim the right to continue his residence upon the land for the purpose of bringing a suit in equity to declare a trust against his successful adversary, when he has already resided upon the land a sufficient length of time, under the law, to enable him to make final proof for the land.-BLACK V. JACKSON, Okla., 52 Pac. Rep. 406.

61. INSURANCE COMPANY - Foreign Insurance Com. panies-Licenses.-Under Rev. St. § 1955, requiring the insurance commissioner to revoke the license of a foreign insurance company to do business for failing to comply with the laws applicable to it, he may revoke a current license where fees for licenses granted for previous years have not been paid.-TRAVELERS' INS. CO. OF HARtford, Conn., V. FRICKE, Wis., 74 N. W. Rep. 372.

62. INTOXICAting LiquorS - Illegal Sale.-Where defendant sent to a brewery outside the county an order for beer, to be delivered to him and kept for the pur. chaser until called for, there was no sale by defendant within the county, so that a charge to the jury to find him guilty if they believed he was agent of the brewery was misleading.-NEWBURY V. STATE, Tex., 44 S. W. Rep. 843.

63. INTOXICATING Liquor-Illegal Sale.-In an action for illegal sale of liquor, defendant claimed the same was neither malt nor alcoholic. A building contractor testified he had drank malt liquors; that he had drank a great deal of the liquor in question; that he knew of the manufacture of malt liquors; and that from this experience, and from drinking the liquor sold by defendant, it was neither malt nor alcoholic: Held, that the testimony was properly excluded.-STEIN ADAMS, Miss., 23 South. Rep. 269.

V.

64. INTOXICATING LIQUORS - Jeopardy-Sales.-On a trial for the sale of intoxicating liquor, where the State showed three distinct sales constituting separate offenses, and defendant pleaded former jeopardy, but offered no evidence that he had been convicted of the sale charged, the admission of statements of jurors who tried defendant in a former case, wherein there was a conviction, that they did not convict him for the sale charged in the second indictment, was harmless error.-BRUCE V. STATE, Tex., 44 S. W. Rep. 852.

65. JUDGMENT-Attack-Res Judicata.-Though the record in which a judgment is pronounced discloses upon its face that the court had jurisdiction both of the subject-matter of the suit and of the parties thereto, still, a party made liable by such a judgment, who has never appeared in the action, and who was never given legal notice of the pendency of such action, may, in a proper proceeding, either as a cause of action or defense, show that the recitals of the record that he was served with the process of the court are false.EAYRS V. NASON, Neb., 74 N. W. Rep. 408.

66. JUDGMENT Vacation.-A party who seeks the vacation of a judgment after the term at which it was rendered must allege and prove that he has a valid cause of action or defense, and, to entitle him to relief, the court must adjudge that such cause of action or defense is prima facie valid.-GILBERT V. MARROW, Neb., 74 N. W. Rep. 420.

67. JUDGMENT AS EVIDENCE-Wrongful Levy.—A judg. inent in an action between T and S, enjoining 8 from renting or attempting to collect rent of premises, or in any way interfering with the premises or tenants, is

admissible in an action between T and a tenant, involving the right to rent, in which the tenant relies on payment to S, though knowing at the time thereof of the judgment.-THOMAS V. JUDY, Tex., 44 S. W. Rep. 890. 68. LANDLORD AND TENANT-Lease of School Lands.The governor, secretary, and auditor of Oklahoma, as the board for leasing the school, college, and public building lands of said territory, are not authorized, under the acts of congress and the rules prescribed by the secretary of the interior, to lease any of said lands for a longer period than three years, and, conse quently, cannot accept an application to lease a portion of such lands for a period of five years, and thereby compel the persons making such application to comply with the terms and conditions thereof.-RENFROW V. GRIMES, Okla., 52 Pac. Rep. 389.

69. LANDLORD AND TENANT- Lien on Crops.-A landlord who lends his tenant money, and becomes his security for supplies furnished him by another to enable him to make a crop on the rented premises, has no lien on said crop, as against other creditors of the tenant, for the money lent, or paid as such surety, although it was otherwise agreed between landlord and tenant.-KELLEY V. KING, Tex., 44 S. W. Rep. 915.

70. LANDLORD AND TENANT-When Relation Exists.By a written agreement, the defendants "leased, demised, and to farm let" unto the plaintiff a farm in this State for a term of five years, from April 1, 1893. The plaintiff agreed to cultivate the farm according to the rules of good husbandry, that he would not under. let, and that he would give to the defendants one-half of the products of the farm. The dwelling house in the occupancy of a third person was excepted from the lease: Held, that this agreement created the relation of landlord and tenant between the parties to this suit. -STATE V. WARNER, N. J., 39 Atl. Rep. 697.

71. LIFE INSURANCE-Conditions Premium.-Stipu. lations in a contract of life insurance providing for a forfeiture in case of default by the insured in paying premiums at a place and on a day specified are inserted for the benefit of the company, and may be waived by it.-HARTFORD LIFE & ANNUITY INS. CO. v. EASTMAN, Neb., 74 N. W. Rep. 394.

72. LIMITATION OF ACTIONS - Covenants against Incumbrance.-Limitation does not begin to run against the right of action of grantees in a deed, on the implied covenant of warranty against incumbrances, until the land is sold under the judgment which enforces the incumbrance.-SIEBERT V. BERGMAN, Tex., 44 S. W. Rep. 872.

73. LIMITATION OF ACTIONS - Part Payment.-Under Comp. St. Div. 1, §§ 53, 54, providing that, in case a pay. ment on a debt is made after maturity, the statutory limitation shall commence from the time of such pay. ment, a payment by a joint maker of a note after its maturity, without the assent of the co-maker, does not extend the period of limitation as to the latter.OLESON V. WILSON, Mont., 52 Pac. Rep. 372.

74. MALICIOUS PROSECUTION Justification.-If defendant, in an action for malicious prosecution, laid all the facts upon which he based his prosecution before a competent attorney, and fairly obtained his advice that such prosecution was legal, and he acted in good faith upon it, it is a defense to the action.-MESKER V. MCCOURT, Ky., 44 S. W. Rep. 975.

75. MANDAMUS.-For the disallowance of a claim against the State by the auditor, the law furnishes an adequate remedy by appeal. Mandamus will not issue to compel the auditor to issue a warrant for a claim which he was disallowed, and this whether the reasons given by him for its disallowance be good or bad.STATE V. CORNELL, Neb., 74 N. W. Rep. 398.

76. MANDAMUS - Issues Triable.-In an application for a writ of mandamus, the court will not try the title or right of possession to real or personal property, and, by allowing the writ, make it subserve the purpose of a writ of ejectment or replevin.-JONES V. WILLIAMS, Neb., 74 N. W. Rep. 397.

77. MANDAMUS-When Lies Loans. Where the dispute is one of law merely, mandamus is the proper rem edy to compel the lower court to dissolve an injunetion.-THOMAS V. ADSIT, Mich., 74 N. W. Rep. 381.

78. MARITIME LIENS Wharfage.-Persons who furnish wharfage and services in discharging, on the order of a broker, who merely states that he is the ship's agent, are placed upon inquiry as to the source of his authority, and are chargeable with notice that he was acting for the charterers, who were required by the terms of the charter party to pay these charges.-THE BURTON, U. S. D. C., D. (Mass.), 84 Fed. Rep. 998.

79. MASTER AND SERVANT-Negligence-Incompetent Co-employee.-An employer is liable for an injury resulting from the employment of an incompetent co-employee, though he had once been competent, and his incompetency was due to lack of practice.-CURRAN V. A. H. STANGE CO., Wis., 74 N. W. Rep. 377.

80. MASTER AND SERVANT-Railroads-Assault by Con ductor. Where it plainly appeared from the evidence, in an action against a railway company for damages for an assault on a passenger by the conductor of de fendant's train, that he used more force than was nec essary to repel an assault on him by plaintiff, it was not prejudicial to leave to the jury to decide whether or not such conductor used more force than was nec essary to protect himself in repelling such assault on him.-ST. LOUIS S. W. RY. Co. v. BERGER, Ark., 44 8. W. Rep. 809.

81. MORTGAGES-Delivery.-It cannot be inferred that a mortgage, although left in the custody of the mortgagee, was delivered as to one of two joint mort gagors upon the signing and acknowledgment by him, when it was the manifest intention of the parties that it should not take effect until execution by the other mortgagor.-HOAGLAND V. GREEN, Neb., 74 N. W. Rep.

424.

82. MORTGAGES-Foreclosure-Bond.-A condition in a mortgage bond, which provided that the obligors were to pay the obligee the proceeds of all sales of lands conveyed to the obligors, was not broken by a conveyance made by the obligors, not as an actual sale, but without consideration, and merely for the purpose of making the grantee a depositary of the title.-FOWLER V. TOVELL, N. J., 39 Atl. Rep. 725.

83. MORTGAGE-Foreclosure Sale - Defective Return. -A return of a sheriff on an order for the sale of land,. which fails to show that notice of the sale for the time and in the manner required by law was duly given, is irregular; and the irregularity is not entirely cured by an accompanying affidavit of the printer showing the essential facts omitted from the return. Where the sale was made at a wholly inadequate price, it is error to confirm it on such a defective return.-EVANS V. BUSHNELL, Kan., 52 Pac. Rep. 419.

84. MORTGAGES-Release - Bona Fide Assignee.-The mortgagee released a part of the mortgaged premises with notice of a subsequent mortgage upon the unre leased portion, but with an agreement with its holder that the first mortgage should be the first lien upon such unreleased part: Held, that the agreement cre ated a latent equity in favor of a third party, and that a subsequent bona fide assignee of the second mortgage held it free from this equity.-DE WITT V. KANIPER, N. J., 39 Atl. Rep. 698.

85. MORTGAGES-Right of Possession.-A grantee in a deed absolute, Intended as a mortgage, is not within the exception of Comp. Laws, § 4358, providing that "a mortgage does not entitle the mortgagee to the posses sion of the property, unless authorized by the express terms of the mortgage."-YANKTON BUILD. & LOAN ASSN. V. DOWLING, S. Dak., 74 N. W. Rep. 436. 86. MORTGAGES Trusts Limitations.-One of two purchasers of land, taking the deed in his own name, and agreeing to hold it for the other, having posses sion, until repaid what he had advanced on the price, is a mortgagee, and not a trustee; and limitations will run against his claim.-RATLIFF V. GROOM, Ky., 448. W. Rep. 968.

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