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order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover and receive all the property and estate assigned wherever situated." That section conferred ample authority upon the bankrupt court until the discharge of the bankrupt; but that authority ceases after the discharge by the very terms of the section. And so it has been held in numerous cases. In re Jones, 6 B. R. 386; Cook v. Whipple, 9 id. 155; In re Dean, 3 N. B. R. 188. After the discharge of the bankrupt and while the discharge is in force, the bankrupt court has no more jurisdiction over him than over any other person. He can be compelled to act then, not summarily by motion or order under section 5104, or any other section of the Bankrupt Act, but simply in some regular judicial proceeding as a party thereto or as a witness therein. There is no question that a State court would have jurisdiction of such an action as this at the proper time, when sufficient facts shall exist which will require the exercise of its jurisdiction. Ward v. Jenkins, 10 Metc. 583; Stevens

v. Mechanics' Savings Bank, 101 Mass. 109; 3 Am. Rep. 325; Cook v. Whipple, 55 N. Y. 150; 14 Am. Rep. 202. Platt v. Jones. Opinion by Earl, J. (See 47 Am. Rep. -note.)

[Decided April 29, 1884.]

**

CORPORATION-DISSOLUTION-ACT 1874, CH. 324-REFUSING TO MAKE REPORTS.-Defendant, by his charter, is authorized "to establish a public exchange and mart for receiving deposits of and transferring earnest moneys, stocks, bonds and other securities * and for the procurement and making of loans on the same * * * guaranteeing the payment of bonds and other obligations." Held, that it was a "loan, mortgage, security, guaranty or indemnity company," and a corporation "having the power and receiving money on deposit" within the meaning of the act of 1874 (§ 1, ch. 324, Laws of 1874), requiring every such corporation to make a report semi-annually to the superintendent of the banking department; and that upon its refusal to make such reports, an action was properly brought by the attorney-general to dissolve the corporation. If this had been exclusively a de posit company, or a loan company, or a guarantee company, or a mortgage security company, thus confined to one kind of business, it could not be doubted that it would come within the act of 1874; but the fact that its powers are so general, it being allowed to do all these various kinds of business, certainly cannot take it out of the operation of the act. It is within the policy, and we think within the letter of the law, and hence the disposition made of the case by the court below was right; and its judgment should be affirmed, with costs. People v. Mut. Trust Co. Opinion by Earl,

J.

[Decided April 29, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONTRACT ATTORNEY EXAMINING TITLE-WANT OF PRIVITY-NO LIABILITY TO THIRD PERSON FOR NEGLI

GENCE.-A. applied to a money lender for a loan of $3,000, and offered his note therefor, secured by a mortgage on certain real property; B., the attorney of the money lender, examined the title to the real property and furnished the latter a certificate to the effect that A.'s title was good and the property unincumbered, and thereupon the loan was made on the terms proposed; subsequently and before the maturity of *Appearing in 20 Federal Reporter.

the note it was assigned to the plaintiff, who foreclosed the mortgage and sold the property, when it was found that it was iucumbered by a prior mortgage, so that the plaintiff did not realize the amount of his debt by $4,794.35. Held, that there was no privity of contract between B. and the plaintiff, and that he was not liable to the latter for the loss. This question has been decided by the Supreme Court in Savings Bank v. Ward, 100 U. S. 195. The case was this: A., an attorney employed by B. to examine and report on the title of the latter to a certain lot of ground, certified that it was "good," upon which certificate B. procured a loan from C., and gave a mortgage on the property as security. It turned out that B. had parted with the title to the property prior to the date of the certificate-a fact that in the exercise of reasonable care might have been learned from the records. The security having proved worthless, and B. being insolvent, C. lost his money, and brought suit against A. for damages. The court held in the language of the syllabus, "that there being neither fraud, collusion, nor falsehood by A., nor privity of contract between him and C., he is not liable to the latter for any loss sustained by reason of the certificate." The ruling is also maintained in Houseman v. Girard M. B. & L. Ass'n, 81 Penn. St. 256, in which it was held that the recorder of deeds is liable in damages for a false certificate of title, only to the party who employs him to make the search, and not his assignee or alienee. And in Winterbottom v. Wright, 10 Mees. & W. (Exch.) 109, it was held that although the maker of a carriage is liable to the person for whom he makes it, for any loss or injury arising directly from negligence in its construction, that he was not so liable to any third person who might use the same, for the reason that there was no privity of contract between them. Cir. Ct., D. Oregon, April 25, 1884. Dundee, etc., Investment Co. v. Hughes. Opinion by Deady, J.

ness.

PATENT TO ONE PARTNER-DISSOLUTION-RIGHT TO USE.-During the existence of a partnership between two persons one of them invented a machine upon which a patent was granted to him. The firm paid the fees and costs of procuring the patent and the expenses of an experimental trial of the invention and also the expenses of some litigation which ensued. It appeared however that all the outlay of the firm was more than repaid by the benefits arising from the free use of the patented machine in the partnership busiHeld, that upon these facts no implied license arises to the member of the firm not the inventor to make, use, and vend the patented machine after the dissolution of the partnership. In McWilliams Manfg. Co. v. Blundell, 11 Fed. Rep. 419, upon a substantially similar state of facts, it was held that the firm could make no claim to the patent, and after dissolution, an injunction to restrain infringement issued against the late partner. Our conclusion finds support in adjudged cases. Brickill v. Mayor, etc., of New York, 7 Fed. Rep. 479; Wade v. Metcalf, 16 id. 130. Nor does this view conflict with the decisions cited by the defendIn the nature of the case (the invention being a process) the presumed license in McClurg v. Kingsland, 1 How. 202, was unlimited, aud justly so under the circumstances. In Chabot v. American Buttonhole, etc., Co., 6 Fish. 71, the facts were not only substantially similar to those in McClurg v. Kingsland,

ants.

but there was the additional element of an express contract, the terms of which greatly strengthened the presumption of an unrestricted license. The subject matter of the patent in Slemmer's Appeal, 58 Penn. St. 155, was a process, which if legally the invention of one partner, was in fact the result of partnership labor, experiment, and development, and the dealings of the partners with each other had been of such a char

acter that it would have been grossly inequitable to deny to any of them the right to use the invention. In Kenny's Patent Button-holing Co. v. Somervell, 38 L. T. Rep. 878, the partnership was formed for the sole purpose of working the patented invention, and had been conducted for several years, during which time the partner whom it was attempted arbitrarily to enjoin had aided in perfecting the invention and vested his capital in the business. Cir. Ct., W. D. Penn., March 20, 1884. Keller v. Stolzenbach. Opinion by Acheson, J.

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MARYLAND COURT OF APPEALS ABSTRACT.*

TRUST-APPLICATION OF PURCHASE-MONEY-WHEN PURCHASER NOT BOUND TO SEE TO.-Where a wife is authorized and empowered by the will of her husband, to sell and convey the real estate situate in the city of Baltimore, of which he died seised, and to invest the in-proceeds in productive property in the city or county of St. Louis, in the State of Missouri, a purchaser from the widow of a part of said property is not bound to see to the application of the purchase-money. In the case of Wormley v. Wormley, 8 Wheat. 442, Judge Story says: "Where the trust is defined in its object, and the purchase-money is to be re-invested upon trusts which require time and discretion, or the acts of sale and re-investment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase-money; for the trustee is clothed with a discretion in the management of the trust fund, and if any persons are to suffer by his misconduct, it should be rather those who have reposed confidence, than those who have bought under an apparently authorized act." The case just cited seems to be directly in point. In the case now under consideration the sale was effected in Baltimore, and the trustee must seek for property located either in the city or county of St. Louis, where a re-investment is directed to be made. The execution of the power requires the exercise of a wide discretion, involves the consumption of much time, and presents to the purchaser the very serious obstacle of distance between the place of sale and that of re-investment. It is unnecessary to multiply the citations of authorities, because the very recent case of Van Bokkelen v. Tinges and Sargeant, trustees, 58 Md. 57, seems to determine the question. In that case the court, adopting the language of the notes to Elliott v. Merryman, 1 White & Tudor's Lead. Cases in Eq., 118, 119, said: "All the cases seem to agree, that where the disposition of the proceeds depends in any material particular, upon the discretion of the trustee, or where an interval must or may properly elapse between the sale and the application of the purchase-money, the purchaser will be freed from liability by a payment to the trustee, and will not be responsible for a subsequent misappropriation by the latter." And it is further added "that where a trustee is required to sell and re-invest for the same trusts or purposes, the purchaser will be discharged from responsibility for the application of the money paid by him to the trustee." Keister v. Scott. Opinion by Yellott, J.

CONSTITUTIONAL LAW-EMINENT DOMAIN-DIMINUOF WATER-POWER NOT A 'TAKING "-CONSEQUENTIAL DAMAGE-LANDS DAMAGED OUTSIDE OF STATE.-Remote and consequential damage, such as the diminution of water-power, accruing to land from improvements to the navigation of the water-ways of a State authorized by the Legislature thereof, do not amount to a "taking" within the meaning of the Constitution, and the Legislature is empowered to authorize such improvements without reference to such consequential damage to land within the State; but the Legislature has no power to cause such damage to the owners of land in other States. "Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. * * * We have examined the decisions of the courts of Illi nois, and others to which we have been referred by the plaintiffs in error, but in none of them was it decided that a riparian owner on a navigable stream, or that an adjoiner on a public highway, can maintain a suit at common law against public agents to recover consequential damages resulting from obstructing a stream or highway in pursuance of legislative authority, unless that authority has been transcended, or unless there was a wanton injury inflicted, or carelessness, negligence, or waut of skill in causing the obstruction." Transp. Co. v. Chicago, 99 U. S. 635. In this case the injury will be caused to property beyond the limits of Connecticut, and the question arises whether the doctrine which has been asserted is applicable to this state of facts. This question has never, so far as I can ascertain, been decided by the courts of this country. The question has arisen, whether by virtue of the right of eminent domain, one State can take or subject to public use land in another State, and the decisions have naturally been against such a power. Farnum v. Canal Corp., 1 Sumn. 46; Salisbury Mills v. Forsaith, 57 N. H. 124; Wooster v. Great Falls, etc., Co., 39 Me. 246; United States v. Ames, 1 Wood. & M. 76. In two cases which have recently arisen in Federal courts, and which involved the right of a State to regulate or to improve the navigation of a river wholly within its limits, the judges have carefully limited their decisions to the facts in the cases, Escanaba Co. v. Chicago, 107 U. S. 678; 2 Sup. Ct. Rep. 185; Huse v. Glover, 15 Fed. Rep. 296. Important suggestions which bear upon the question in this case are made by Judge Treat in Rutz v. St Louis, 7 Fed. Rep. 438, and by Mr. Justice McLean in Palmer v. Com'rs Cuyahoga Co., 3 McLean, 226. See McKeen v. Delaware Div. Can. Co., 49 Penn. St. 424. Cir. Ct., D. Conn., April 23, 1884. Holyoke Water-Power Co. v. Conn. River Co. Opinion by Shipman, J.

BANK MONEY DEPOSITED IN TITLE-OFFICERS--SUPERSEDED.-Where money is deposited in bank by a board of examiners, as such-in their official relation-and they are superseded in office by the appointment of a new board, the money so deposited belongs not to the former board but to the latter, and is subject to their check. In Lewis v. The Park Bank, 4 N. Y. 463, Platt, the chamberlain of New York city, deposited the funds of the city in the Park Bank; Devlin was appointed his successor, who designated the Broadway Bank as his depository, and upon a mandamus the Park Bank was required to pay to the Broadway Bank the money thus deposited by Platt. The court decided, it is true, that the Broadway Bank was not entitled to recover damages alleged to have been sustained by the delay of the Park Bank in paying over the fund, because it had no interest in the fund until it had been deposited; and until this was done the relation of debtor and creditor did not exist. And so in Swartwout v. Mechanics Bank of New York, 5 Denio, 555, where the plaintiff, collector *Appearing in 61 Maryland Reports.

for the port of New York, kept an account with the defendant in the name of Samuel Swartwout, collector, and the bank claimed the right to apply the money thus deposited to an indebtedness on the part of the United States to the bank, and the court held that if the money did in fact belong to the United States the plaintiff could not recover, but the mere fact that it was deposited in the name of the plaintiff collector was not sufficient to warrant the conclusion that the money belonged to the government. Carman v. Franklin Bank. Opinion by Robinson, J.

FRAUD-CONVEYANCE IN, OF CREDITORS-PLEADING -"HINDRANCE." (1) The motive or purpose with which a voluntary transfer of property is made by a party indebted at the time is not material. The legal effect of such a conveyance is, that without reference to the actual intent of the debtor, it is prima facie in fraud of creditors. This presumption of law may be repelled by proving that the grantor, at the time of the gift, was possessed of other means amply sufficient pay to all his debts, and the onus of so proving is upon those seeking to uphold the gift. Baxter and Wife v. Sewell, 3 Md. 334; Williams v. Banks, 11 id. 198; Whedbee v. Stewart, 40 id. 414. (2) In a bill in equity, brought to set aside a voluntary conveyance as in fraud of creditors, it is not necessary to aver that the grantor was not at the time of filing the bill, as well as at the date of the execution of the conveyance, possessed of ample means outside, to pay all his creditors. The date of the impeached conveyance is the particular time when the sufficiency of the debtor's means is to be inquired into. Bump on Fraud Conv. 284; King v. Thompson, 9 Pet. 204; Posten v. Posten, 4 Whart. 27. (3) It is a hindrance to creditors for a debtor to dispose of his real property and tangible chattels, which are readily subjected to execution, and compel them to rely upon merely personal obligations, with the risks and the necessity for numerous attachments usually incident to such a resource. Bullett v. Worthington, 2 Md. Ch. Dec. 99; Warner v. Dove, 33 Md. 586. Goodman v. Wineland. Opinion by Ritchie,

J.

WILL-DISCRETION OF TRUSTEE-WHEN COURT CANNOT INTERFERE—MEDICAL SERVICES TO CESTUI QUE TRUST-ENFORCEMENT OF CLAIM.-A testator gave his estate to his widow and son-in-law in trust for his children by a former marriage; the income to be invested until the youngest of them should come of age, and then said estate to be equally divided among such of his said children as should then be living, and the descendants of any deceased child, per stirpes. He further directed the trustees to allow, from time to time, so much of the income as they in their discretion should think proper, for the education and support of his minor children by said former marriage. One of said children died before arriving at age. On a bill filed against the trustees by a physician, to compel the payment by them of his bill for medical services rendered said child during his sickness, it was held, (1) that in the exercise of the discretionary power conferred on the trustees, a court of equity had no right to interfere, provided it was honestly and reasonably exercised; (2) that they must however act in good faith, having a proper regard to the wishes of the testator, and the nature and character of the trust reposed in them. Clark v. Parker, 19 Ves. 1; French v. Davidson, 3 Madd. 396; Kemp. v. Kemp, 5 Ves. 849; (3) that the proof in the case showed that the discretion reposed in the trustees by the testator had not been fairly and reasonably exercised; and a court of equity on application would have directed part of the income from the trust estate to have been applied to the support of the said minor child; and have directed further that he should be furnished with proper medical treat

ment during his sickness; (4) that as the proof showed that the services of the complainant were rendered in good faith, and his charges appeared to be fair and moderate, his claim should be paid out of the income, or the accumulated income in the hands of the trustees, if sufficient for that purpose. Pole v. Pietsch. Opiniou by Robinson, J.

CONTRACT-SPECIFIC PERFORMANCE-MISTAKE-REFORMATION.-If a contract respecting real property be in writing, and is certain, fair in all its parts, for an adequate consideration, and capable of being performed, it is as much a matter of course for a court of equity to decree specific performance of it, as it is for a court of law to give damages for a breach of it. Smoot v. Rea, 19 Md. 398. It is well-settled law in this State, as well as the established doctrine in this country, that it is competent for a complainant in a bill for specific performance to allege and prove by parol a mistake in a written contract, have it rectified, and specifically executed as reformed. Moale v. Buchanan, 11 G. & J. 314; 1 Story Eq., § 161, and note; Waterman on Spec. Perf., § 379. A written contract for a lease, which was intended to be for the term of ninety-nine years, renewable forever, contained no statement of the term for which the lease was to be made. A bill was filed by the lessors for a reformation and specific performance of the contract, and alleging that the length of the term of the demise agreed upon had been omitted from the written contract by mistake or oversight. Held, that the mistake having been established by the parol proof in the case, the complainants were entitled to have the contract reformed by the insertion of the words, "for the term of ninety-nine years, renewable forever," or words of like import; and when so reformed, to have the agreement specifically executed. Popplein v. Foley. Opinion by Miller, J.

COLORADO SUPREME COURT ABSTRACT.

MANDAMUS-COUNTY CLERK--COPYING RECORDS.While records of the county clerk's office are to be hours, the clerk is not to be compelled by mandamus open to any person for inspection during business to allow private parties to occupy his office for months, in order to make abstracts of the entire record of the county, for the sole purpose of securing future private emolument by the sale of abstracts thus obtained, and to continue to occupy it daily thereafter, abstracting the conveyances as they are filed. Buck v. Collins, 51 Ga. 391; Webber v. Townley, 43 Mich. 534; 5 N. W. by Helm, J. Rep. 971; see also 16 id. 314. Bean v. People. Opinion

[Decided Feb. 15, 1884.]

POSSESSION

EJECTMENT-TENANTS IN COMMON MISTAKE OF RECORDER.-(1) In an action of ejectment one tenant in common may recover possession of the Mahoney v. Van Winkle, 21 Col. 583; Hart v. Robertentire tract as against all persons but his co-tenants. son, id. 348. (2) Actual possession is prima facie evi· Rep. M. Co., 6 Col. 380, "entering upon premises in dence of title; as we said in Lebanon M. Co. v. Con. the actual possession of another for the purpose of performing the acts necessary to constitute location and possession amounts only to a trespass, and cannot form the basis for the acquisition of title." (3) It is immaterial to the defendants whether this action be brought in the name of the several co-owners of the claim or in the names of a portion thereof; and an amendment of the complaint so as to induce all the coowners claiming under the same title cannot prejudice the defendants. (4) The record does not show that the plaintiffs afterward joined were made parties without

their consent, and the presumption is, that being proper parties, they all consented to become plaintiffs, otherwise those not consenting would have been joined as defendants. (5) The certificate having been

correctly made out, a mistake of the recorder in recording the same cannot avail the defendants herein; the plaintiffs are not responsible for it. Myers v. Spooner, 55 Cal. 258. Weise v. Barker. Opinion by Beck, C. J. [As to (5) see 45 Am. Rep. 189--190.-ED.] [Decided Feb. 8, 1884.]

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

PROMISSORY NOTE-SEVERAL SECURED BY ONE MORTGAGE-ORDER OF PAYMENT-WHEN PRO RATA.

It is a general rule that where two or more notes, secured by a single mortgage, fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless some agreement or some paramount equity would require a different order of payment. Richardson v. McKim, 20 Kans. 350. and cases there cited: 2 Jones on Mort., ¶ 1699, and cases there cited. And where two or more notes, secured by a single mortgage, fall due on the same day, and the mortgage fund is not sufficient to pay the entire amount of the notes, the notes should be paid pro rata out of the mortgage fund, unless some agreement or paramount equity would require a different mode of payment. * * * And these rules apply, whether the notes are still held by the original mortgagee or are held by him and others, or entirely by others. Where T., as the agent of A., sold agricultural implements to M., and took several promissory notes in payment therefor, executed by M. to A. or order, to become due at different times, and also took a chattel mortgage executed by M. to A.on these agricultural implements to secure the payment of these notes; and in accordance with a previous agreement and understanding between T. and A., two of these notes were delivered to T. for his services and as a commission in effecting the sale, and the other notes were retained by A., some of which became due before and some of them at the same time as the notes delivered to T.; and afterward T. sold his notes to W., and transferred the same merely by delivery; and no assignment, written or otherwise, was ever made, either of the notes or the mortgage or any interest in the mortgage, except by a mere delivery of the said two notes, held, that the notes delivered to T. and then sold and delivered to W., and falling due at the same time or subsequently to those retained by A., are not entitled to priority of payment out of the mortgage fund over those retained by A, Altman-Taylor Company v. McGeorge. Opinion by Valentine, J. [As to first point see 121 Mass. 121; 27 Alb. L. J. 178, 397; 16 Eng. R. 275.--Ed.]

STATUTE OF FRAUDS-PAROL LEASE-PART PERFORMANCE.- Where the owner of a piece of land, through his agent and by parol, leases the land for the term of six years, held, that the lease is void under the act relating to frauds and perjuries. But where the lessee, by virtue of the lease, takes possession of the leased property, and continues in the possession thereof for over five years, and plants, cultivates and raises hedge fences thereon, breaks up the ground and cultivates the same, builds houses and digs wells on the land and pays all the taxes thereon, such lease will be taken out of the statute of frauds, by virtue of a part performance of the contract, and will be valid for the full term of the lease. That said lease was void under the statute of frauds, when it was originally made, and before any portion of the same was executed, we think *Appearing in 31 Kansas Reports.

there can be no doubt. Stat. of Frauds, Comp. Laws of 1879, ch. 43, §§ 5, 6; Wolf v. Dozer, 22 Kans. 436; Powers v. Clarkson, 17 id. 218; Carr v. Williams, id. 575, 582; Franklin v. Colley, 10 id. 260; Moore v. Wade, 8 id. 380. All parol leases exceeding one year in duration are void under said statute, unless partially performed, and are generally void, even then, as to the part not performed. Generally where a parol lease is made for a term not exceeding one year, and the lessee takes possession of the property, and pays a portion of the rent, but does nothing more than this, the lease will be considered valid, but valid only to the extent of creating a tenancy-at-will, or a tenancy from month to month, or a tenancy from year to year, according to the circumstances of the case. Sedg. & Wait on Trial of Title to Land, § 379, and cases there cited; Reeder v. Sayre, 70 N. Y. 180; Lounsbery v. Snyder, 31 id. 514; Schuyler v. Leggett, 2 Cow. 660. Mere possession or mere payment of rent will not, as a general rule, make a parol lease for more than one year valid for the full term. But parol leases exceeding one year, as well as other parol contracts with regard to real estate, may sometimes be taken out of the statute of frauds by a part performance of the contract, and by such part performance be made valid to their full extent. Tayl. Land. & Ten., § 32; Grant v. Ramsey, 7 Ohio St. 157. But parol leases for more than one year, in order to become valid by a part performance, should generally be such as would by such part performance become substantially a purchase of an interest in the real estate. Such, we think, is the present lease. Bard v. Elston. Opinion by Valentine, J.

HOMESTEAD-EFFECT OF WILL.-Where a husband and wife occupy a piece of land as a homestead, the title being in the husband, the husband may execute a valid will giving the entire property to his wife. And in such case, and as against an heir who does rot occupy the property as a homestead, the will will take effect immediately after the death of the testator and the probate of the will, although the will may state that the testator devises the property to his wife after paying all his legal indebtedness. The question as to how homestead property shall descend is discussed to some extent in the cases of Vandiver v. Vandiver, 20 Kans. 501, and Dayton v. Donart, 22 id. 256. The nature of a will is to some extent discussed in the case of Comstock v. Adams, 23 Kans. 514, 524. When death occurs the title of the property of the person dying must be transferred to some person. It cannot remain in the deceased; and the will simply designates where the title shall go. The title may go to one or more of the persons occupying the property as a homestead, or it may go to some other person. In the present case the will provided that the title should go to the only surviving person who occupied the property at the time as a homestead. The plaintiff says this is in contravention of the homestead-exemption laws, and says that the title should go to the son of the deceased, who did not occupy the property as a homestead, and who resided in another State. We are now speaking of the title to one undivided half only of the property; for it is conceded by all the parties that the title to the other undivided half went to the wife of the deceased. We think the will is valid. Martindale v. Smith. Opin ion by Valentine, J.

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superior, it is not enough that they are engaged in doing parts of the same work, or in the promotion of the same enterprise carried on by the master, not requiring co-operation, or bringing them together, or in such relations as that they may have an influence upon each other, but it is essential that at the time it is claimed such relation exists they shall be directly co-operating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation so that they may exercise an influence upon each other promotive of proper caution. (2) In a suit against a railway corporation to recover for negligence resulting in the death of a section foreman having charge and oversight of repairs upon a certain part of the road track, it is error to instruct the jury that such foreman is not engaged in the same line of duty with an engineer and fireman running with the defendant's locomotive engines, and therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, etc., of a fellow servant. Whether such persons were so operating and consociating is a question of fact for the jury, and not of law. Wabash Ry. Co. v. Elliott, 98 Ill. 481; Pennsylvania Co. v. Conlan, 101 id. 93; Chicago & Alton R. Co. v. Bonifield, 104 id. 223; Indianapolis & St. Louis R. Co. v. Morgenstern, 106 id. 216. In the last named case we said: "The definition of fellow servants may be a question of law, but it is always a question of fact, to be determined from the evidence, whether the particular case falls within the definition." (3) In an action to recover for an injury received from the falling or throwing of a piece of coal or slate from a passing locomotive upon a railroad, it is error to allow a witness to be asked and to testify what he considers a safe distance to retire from the track when the train is passing. Whether the line of danger from a passing train is at one distance rather than another depends upon facts, and not opinions. This does not fall within the rule as to expert testimony, and the allowance of such opinions to be given is to usurp the functions of the jury. Hopkins v. Indianapolis, etc., R. Co., 78 Ill. 32; Pennsylvania Co. v. Conlan, supra. (4) In a suit to recover for an injury of the plaintiff's intestate, received from a passing train while he was engaged in repairing the track, the defendant, a railway company, called as a witness one occupying the position of road master of a part of the road at the time of the injury, who testified that he had given the intestate instructions a number of times about getting out of the way of trains, etc. Plaintiff in rebuttal called several of the other men who worked with the deceased, and proved by them severally that the road master gave them no such instructions. Held, that the latter evidence was improper, as not tending to contradict the road master, he having testified only as to instructions given to the person who was injured. Chicago, etc., R. Co. v. Moranda. Opinion by Scholfield, J.

LICENSE-LIQUORS-PERMIT OF MUNICIPAL AUTHORITIES.-Where a permit to sell intoxicating liquors for medicinal purposes, etc., is granted to a druggist in pursuance of an ordinance by the authorities of an incorporated village, the village will not be permitted to insist it was not a sufficient warrant for the sale of liquors under it, in accordance with its terms. On a prosecution by the people a different question would be presented. But a municipal corporation will not be allowed to license an act to be done, and then collect a penalty for the doing of it as for an illegal act. Martel V. City of East St. Louis, 94 Ill. 67. Village of Genoa v. Van Alstine. Opinion by Scott, J.

BOUNDARY-CENTER OF STREAM-PRESUMPTION.— The general doctrine that grants of land bounded upon rivers or their margins, above tide-water, carry the ex

clusive right and title of the grantee to the center thread of the current, unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned. Village of Brooklyn v. Smith, 104 Ill. 429; Cobb v. Lavalle, 89 id. 331. Chicago and Pacific R. Co. v. Stein, 75 id. 41; Braxon v. Bressler, 64 id. 488; Chicago v. Laflin, 49 id. 172; Board of Trustees v. Haven, 11 id. 554; Same v. Same, 5 Gilm. 548; Middleton v. Pritchard, 3 Scam. 510. In Rockwell v. Baldwin, 53 III. 19, it was however said that this was but a presumption, for one man may own the bed of such a stream and another may own the banks; that where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it along or on the stream, the presumption must fail, and that the party must be controlled by the terms of his deed. Counsel for appellant insist this is conclusive of the present case, for here defendant's boundary is limited to the banks of the Desplaines river. The question of intention must be settled by the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed. Hadden v. Shoutz, 15 Ill. 582; Batavia Manuf. Co. v. Newton Wagon Co., 91 id. 239; Louisville and Nashville R. Co. et al. v. Koelle et al. 104 id. 460. See also Miller v. Beeler, 55 Ill. 63; Kamphouse v. Gaffner, 73 id. 453; Oxten v. Graves, 68 Me. 371; 28 Am. Rep. 75. Piper v. Connelly. Opinion by Scholfield, J.

MISSOURI SUPREME COURT ABSTRACT.*

JURISDICTION-CIVIL-NOT ACQUIRED BY USE OF CRIMINAL PROCESS-PRACTICE.-The criminal process of the State cannot be used to take a person from one county to another, so as to subject him to civil process in the latter county. Where it is so used the facts may be set forth by an answer in the nature of a plea to the jurisdiction, and will constitute a good defense. Capital City Bank v. Knox, 47 Mo. 334; Marsh v. Bast, 41 id. 493; Graham v. Ringo, 67 id. 324. Byler v. Jones. Opinion by Martin, Comr.

V.

CORPORATION-STOCKHOLDER'S LIABILITY--SET-Off. -In a proceeding under the statute by motion for execution against a stockholder, the stockholder is entitled to off-set against his liability any demand he may have against the corporation. Citing Briggs v. Penniman, 8 Cow. 387; Tallmadge v. Fishkill Iron Co., 4 Barb. 382; Matter of the Empire City Bank, 18 N. Y. 199; Agate v. Sands, 8 Daly, 67; 73 id. 620; Garrison Howe, 17 N. Y. 458; Mathez V. Neidig, 72 id. 100; Briggs V. Cornwell, 9 Daly, 436; Wheeler v. Millar, 90 N. Y. 354; Buchanan v. Meisser, 105 Ill. 638; Gauch v. Harrison, 12 Brad w. 457; Meisser v. Thompson, 9 id. 368; Grose v. Hilt, 36 Me. 22; Hillier v. Ins. Co., 3 Penn. St. 470, Lawrence v. Nelson, 21 N. Y. 158; Mathews v. Albert, 24 Md. 527; Boyd v. Hall, 56 Ga. 563; Sawyer v. Hoag, 17 Wall. 610; Scovill v. Thayer, 105 U. S. 152; Barnes v. McMullins, 78 Mo. 260; Webber v. Leighton, Mo. App.

a

502. Jerman v. Benton. Opinion by Martin, Comr. NEGOTIABLE INSTRUMENT — CHECK WHEN NOT upon ASSIGNMENT.-The drawing of a check bank the for part of drawer's deposit does not transfer to the holder a legal or equitable claim pro tanto to such money, nor create any lien thereon in his favor. St. John v. Homans, 8 Mo. 382; McGrade v. German Sav. Bk., 4 Mo. App. 330; Thomp son v. Riggs, 5 Wall. 563; Bauk v. Whitman, 94 U. S. 343; Christmass v. Russell, 14 Wall. 69; Bank v. Wil*Appearing in 79 Missouri Reports.

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