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whether the process is void because of jurisdictional defects.-STATE V. BILLINGS, Minn., 57 N. W. Rep. 206. 63. HABEAS CORPUS Validity of Commitment.Where prisoners are committed for removing mortgaged property, by a justice of the peace, who has jurisdiction of the crime charged, and the commitment is in good form, neither the Supreme Court nor the judge of the Circuit Court, on application for a writ of habeas corpus to secure their absolute discharge, can pass on the sufficiency of the alleged mortgage, or its admissibility as evidence in a trial of the case.-Ex PARTE PERDUE, Ark., 24 S. W. Rep. 423.

64. HOMESTEAD-An instrument executed by testator's widow recited that in consideration of $50,000, the amount of her legacy, paid her by one of the heirs, she conveyed to him all her interest in testator's estate; that such instrument was a conveyance of her interest both as legatee and as widow or heir if the will were revoked: Held not to bar her right to a probate homestead, as a widow's right to probate homestead is not an interest in land, and consequently was not embraced in the conveyance.-IN RE VANCE'S ESTATE, Cal., 34 Pac. Rep. 1087.

65. HOMESTEAD- Lien-Unacknowledged Contract.Sayles' Civil St. art. 3174, provides that, in order to create a lien on a homestead for improvements erected thereon, there must be a contract in writing, signed by the husband and wife, and acknowledged by her, as is required in making a sale of the homestead, and that such contracts "shall be recorded in the county clerk's office:" Held; that it was not the intent of the legislature to allow such contracts to be recorded without the acknowledgment of the husband, which is required by the general statute relative to registration. --KALAMAZOO NAT. BANK V. JOHNSON, Tex., 24 S. W. Rep. 350.

66. HOMESTEAD Mortgage Foreclosure. 1 - Under Civil Code, § 1265, providing that, upon the death of one of the spouses, the homestead rests in the survivor if it had been selected from community property, the children of homesteaders, upon the death of their father, acquire no interest by succession as his heirs at law in a homestead so selected, and hence no equity vests in them to redeem from the foreclosure of a mortgage on such homestead.-COLLINS V. SCOTT, Cal., 34 Pac. Rep. 1085.

67. HUSBAND AND WIFE-Agent of Wife.-A husband, when acting as agent for his wife, has no authority, merely by virtue of his appointment as agent, whether the agency be general or special, to receive in payment of a debt due to her real estate, and take the conveyance to himself individually, instead of to his wife; nor is the wife's debtor justified in accepting the bare word of the husband that his wife has authorized him so to do. Unless she has in fact given such authority, a conveyance by the debtor to the husband will con stitute the husband a trustee for the debtor to hold or dispose of the title.-WILLIAMS V. ROBERTS, Ga., 18 S. E. Rep. 545.

68. HUSBAND AND WIFE - Community Property.Where the undivided half interest of E in a land certificate held by him as community property descended to L and V, a conveyance by the widow and V of an undivided half interest, in consideration of the locating of the land and procuring a patent, was valid without L joining, since the grantors owned a larger interest then they conveyed.-LEMONDS V. STRATION, Tex., 24 S. W. Rep. 370.

69. HUSBAND AND WIFE-Gift.-A wife can make gift of her separate land to her husband by joining with him in a deed of the land to a third person, and causing such third person to reconvey to her husband.-RILEY V. WILSON, Tex., 24 S. W. Rep. 394.

70. INJUNCTION-Dissolution Damages.-Code 1892, $572, providing that 5 per cent. damages shall be allowed on the dissolution of an injunction to "stay proceedings on a judgment for money,' ," or "to stay sales under deeds of trust or mortgages with power of sale,"

does not authorize the allowance of such damages on the dissolution of an injunction to restrain the confirmation of a sale of land, made under a decree of foreclosure of a trust deed.-Fox v. MILLER, Miss., 14 South. Rep. 145.

71. INJUNCTION Exemplary Damages.-Exemplary damages cannot be recovered for the malicious suing out of an injunction.-SHACKELFORD COUNTY V. HOUNS-FIELD, Tex., 24 S. W. Rep. 358.

72. INJUNCTION-Proceedings at Law.-It is not necessary, in all cases where a temporary injunction is sought in an action, that the plaintiff should ask for a permanent injunction in his complaint. Other equivalent relief may be sought, appropriate to the nature of the case, and it is enough that it be made to appear that the defendant is threatening to do some act in violation of plaintiff's rights, in respect to the subject of the action, and tending to render the judgment ineffectual.-HAMILTON V. WOOD, Minn., 57 N. W. Rep. 208. 73. INSURANCE-Application-Condition.- Where an application for a fire insurance policy on a cotton gin recites that the representations therein contained are the basis on which the insurance is effected, and both the application and the policy expressly state that the representations in the application are warranties, and that the insurance shall be void if the insured has made any misrepresentations, the failure of the insured to keep a barrel of water and two buckets in the same room and within ten feet of the gin stand, as he had agreed to do in the application as a condition of insurance, will bar a recovery for a loss sustained. --SOUTHERN INS. Co. v. WHITE, Ark., 24 S. W. Rep. 425. 74. INTOXICATING LIQUORS-Local Option--Mandamus. -After the precincts of a county had adopted the local option law, the commissioners' court ordered an elec tion for the whole county under the law. At the suit of two liquor dealers, the District Court entered a rule requiring the commissioners to show cause why they should not be prohibited from making any decision as to the result of the election, basing its action on the ground that the election would be void if the electors of said precincts were allowed to vote: Held, that the Supreme Court would not issue a mandamus compelling the district judge to vacate his order, thus substituting its judgment for that of the district judge; and especially where there was a right of appeal.-STATE V. MORRIS, Tex., 24 S. W. Rep. 393.

75. JUDICIAL NOTICE-Venue.-Evidence that an of fense was committed in a named town, without prov ing the State or county, is not sufficient proof of venue since judicial knowledge of the location of towns is limited to such places as are recognized by general statute; and, in the absence of such a statute and of evidence, a court cannot know that a named place is in a particular county. FIELDS V. STATE, Tex., 24 S. W. Rep. 407.

76. LIFE INSURANCE-Application- Estoppel.-When an applicant for life insurance, in answer to a question, states the facts fully and truthfully, and the agent of the company, authorized to ask the question and write the answer, putting his own construction on such facts, deduces therefrom an erroneous answer, which he writes down, assuring the applicant that it is the proper answer upon the facts stated, and the one the insurer wants, the insured is not precluded by his warranty in the application from showing the facts and circumstances under which the answer was made, and when so shown the insurer is estopped from questioning the truth of the answer. --MUTUAL BEN. LIFE INS. Co. v. ROBISON, U. S. C. C. of App., 58 Fed. Rep. 723.

Held, that the maker's letter was such a promise as prevented the bar of the statute as to the former note, under Code, § 172, requiring such promise to be contained in some writing signed by the party to be charged thereby.-TAYLOR V. MILLER, N. Car., 18 S. E. Rep. 504.

78. LOST INSTRUMENTS-Possession.-In an action on a note made by his father-in-law, payable to plaintiff's order, and not indorsed by him, but taken from his possession, and claimed by his wife, the jury having found plaintiff's ownership, it is no hardship to defendant to permit plaintiff to recover on giving indemnity, as provided in cases of lost notes.-HOIL V. RATHBONE, Mich., 57 N. W. Rep. 183.

79. MALICIOUS PROSECUTION.-In the absence of sat isfactory and clear proof of malice, and want of prob able cause for the prosecution, no recovery can be had for indemnity, both being the essential ingredients of a malicious prosecution.-GARNIER V. BERNARD, La., 14 South. Rep. 189.

80. MANDAMUS — Assignment of Dower. — Mandamus will not lie against a probate judge to compel the ap pointment of commissioners to lay off dower, the remedy being by appeal.-PULLING V. DURFEE, Mich., 57 N. W. Rep. 187.

81. MASTER AND SERVANT-Contributory Negligence. -A brakeman who wilfully and unnecessarily violates a reasonable precautionary rule, known to him, or which he must be taken to have know, cannot recover for an injury, of which such violation of the rule is the direct, efficient cause.-JOHNSON V. CHESAPEAKE & 0. RY. CO., W. Va., 18 S. E. Rep. 573.

82. MASTER AND SERVANT-Dangerous Appliances.-A railroad company having erected on its right of way a derrick which, under certain conditions, was danger ous, it was its duty to see that it was properly taken care of, and, for any injury directly resulting from such derrick being negligently left in condition to cause damage, the company is primarily or presump. tively liable.- GATES V. CHICAGO, M. & ST. P. RY. Co., S. Dak, 57 N. W. Rep. 200.

83. MECHANIC'S LIEN-Parties. In an action by a subcontractor to enforce a lien against a building for which he has furnished materials, the contractor is a necessary party.- ESTEY V. HALLACK & HOWARD LUM BER CO., Colo., 34 Pac. Rep. 1113.

85. MORTGAGE-Life Estate.-Under the provision of section 17, ch. 36, Comp. St., if the homestead was se lected from the separate property of either husband or wife it vests on the death of the person from whose property it was selected in the survivor for life, and afterwards in his or her heirs, forever, etc. This life estate the survivor may mortgage, and the purchaser under the decree of foreclosure will acquire the life estate.-NEBRASKA LOAN & TRUST Co. v. SMASSALL, Neb., 57 N. W. Rep. 167.

86. MORTGAGE ON FIXTURES.-As a boiler and engine, with the shafting and pulleys appurtenant thereto are personalty, in that they are movable, the county court has jurisdiction of an action to foreclose a mortgage on such machinery, executed by the owner thereof to secure the payment of a note.-AMES IRON WORKS V. DAVENPORT, Tex., 24 S. W. Rep. 369.

87. NUISANCE-Joinder of Causes.-A cause of action for injuries resulting from noxious vapors from a cesspool or stagnant water suffered to remain on his premises by the owner, in an excavation thereon made by him, may be united with one for damages from depositing dirt or rubbish removed from such excava、

tion, and deposited in the street in front of the adjoin ing premises.-ALDRICH V. CITY OF MINNEAPOLIS, Minn., 57 N. W. Rep. 221.

88. NUISANCE Obstruction of Highway.-Where a railway company takes and occupies a part of a coun ty road without having condemned it, yet with the consent of the county court duly given, but on the condition that the company shall restore the county road to its former state, or to such state as will not unnecessarily impair its usefulness, and fails to com. ply with the condition, the railway company may be proceeded against by indictment for maintaining a nuisance, and fined for obstructing and injuring the county road.-STATE V. OHIO RIVER R. Co., W. Va., 18 S. E. Rep. 582.

89. OFFICE AND OFFICERS-Removal.-The governor has no power, under chapter 95 of the Law of 1893, to remove the trustees of the Agricultural College and Experimental Station from office.-STATE V. MILLER, N. Dak., 57 N. W. Rep. 193.

90. PARTITION-Pleadings.-Where the pleadings con. tain no proper prayer therefor, it is error to decree affirmative relief.-HARRISON V. BREWSTER, W. Va., 18 S. E. Rep. 568.

91. RAILROAD COMPANY Crossings.-On the issue whether one used proper care, before trying to cross the track, to discover if a train were approaching, it is error to charge that one approaching the track is not bound to stop, and look and listen for trains, before trying to cross; this being, in each case, a question for the jury.-GULF, C. & S. F. RY. Co. v. DANIELS, Tex., 24 S. W. Rep. 337.

92. RAILROAD COMPANIES — Crossing-Negligence.Where a railway company has recognized and ac quiesced in the use of a private wagon crossing over its tracks, and adopted the usual signals therefor on the approach of its trains, it cannot lawfully discontinue the same without notice; and a negligent omis. sion to give them, resulting in an accident, will subject the company to an action.-WESTAWAY V. CHICAGO, ST. P. M. & O. RY. Co., Minn., 57 N. W. Rep. 222.

93. RES JUDICATA-Identity of Issues.-A verdict and judgment are conclusive in a subsequent suit between the same parties only when the controversy is the same in both suits, and the matter in issue in the sec ond suit was directly, and not collaterally or inferen. tially, decided in the first one.-FAIRES V. MCLELLAN, Tex., 24 S. W. Rep. 365.

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94. SALE Conditional Sale.-Defendant bought harvesting machine called a "binder," upon the con dition that if it did not work to his satisfaction he might return it: Held, that his right to reject was ab solute, and his reasons could not be investigated.-D. M. OSBORNE & Co. V. FRANCIS, W. Va., 18 S. E. Rep. 591.

95. SALES-Representations.-In an action by a buyer to cancel the sale on account of false representations made by the seller's agent, evidence of such repre sentations is not inadmissible on the ground that they vary or contradict the bill of sale.-HALSELL V. MUSGRAVES, Tex., 24 S. W. Rep. 358.

96. SALE-Warranty.-A breach of warranty may be the subject of counterclaim, or it may be set up as a defense by way of recoupment, in an action for the purchase price of property sold with warranty.-C. AULTMAN & Co. v. TORREY, Minn., 57 N. W. Rep. 211.

Central Law Journal.

ST. LOUIS, MO., MARCH 16, 1894.

Two more courts of last resort have recently declared themselves against the abominable doctrine. that recovery may be had against a telegraph company for mental suffering occasioned by failure or delay in the delivery of a telegram, viz: the Supreme Court of Florida in International Ocean Tel. Co. v. Saunders, 14 South. Rep. 148, and the Supreme Court of Wisconsin in Summerfield v. Western Union Tel. Co., 57 N. W. Rep. 973. Judge Taylor of the Florida

court renders a very lucid and exhaustive opinion, wherein he arrives at the conclusion that where the failure of a telegraph company to promptly send or deliver a telegram according to its contract results in no other damage than mental pain and suffering the only recovery that can be had would be nominal damages or at most the price paid for the transmission of the message. In view of the condition of the authorities upon this vexed question the unanimous conclusion of courts is hardly to be expected and therefore it will not be surprising to state that Mabry, J., dissented in the Florida case and that in the Wisconsin case, Cassoday, J., dissented in a vigorous opinion, declaring that the Wisconsin court has held in a long line of decisions that compensatory damages may include not merely pecuniary loss or physical injury but also mental suffering. It is too late now to hope for an agreement of courts upon this question and it must be put down as one of the unsettled problems of the law.

The State of Minnesota, or rather its Supreme Court, unlike its sister, South Carolina, does not consider favorably the idea of engaging in business, as a State. In the late case of Rippe v. Becker, 57 N. W. Rep. 331, it refused to engage in the elevator business, declaring that a recent statute entitled "an act to provide for the purchase of a site and for the erection of a State elevator or warehouse at Duluth for public storage of grain," etc., is not an exercise of the police power of the State to regulate the business of reVol. 38-No. 11.

ceiving weighing and inspecting grain in elevators, and that it has no relation to the regulation of the business but provides for the State itself engaging in carrying it on; that the police power of the State to regulate a business is to be exercised by the adoption of rules and regulations as to the manner in which it shall be conducted by others and not by itself engaging in it and that the act in question is in violation of the constitution, providing that "the State shall never tract any debts for works of internal improvements or be a party in carrying on such works."

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It is very clear that, as Judge Mitchell says, "the evident, sole purpose of the acts to provide for the State erecting an elevator and itself going into the grain elevator business.' The declaration of the court that the authority in a State to regulate a given traffic or trade under the police power does not involve and imply the right in the State to engage in such traffic or trade itself, is undoubtedly correct, though opposed to the view of the South Carolina courts in upholding the statute authorizing a traffic in intoxicants carried on exclusively by the State. The acts of both States are certainly repugnant to general principles of constitutional law, though the Minnesota Act is declared to be obnoxious to the express clause of the constitution only.

NOTES OF RECENT DECISIONS.

WATER COMPANIES-FAILURE TO FURNISH WATER TO EXTINGUISH FIRES.-In Howsmon v. Trenton Water Co., the Supreme Court of Missouri hold that a water company which contracts with a town to furnish water adequate to extinguish all fires, and agrees to be liable for damages for injuries by fire caused by its failing so to do, cannot be sued on such contract by a citizen, though he and other citizens pay a special tax to the company under the contract. Brace, J., says: It is well-established law in this State, by a line of decisions extending from the year 1847 to the present date, "that a person for whose benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name." Ellis v. Harrison, 104 Mo. 270, 16 S. W. Rep. 198; State v. Laclede Gaslight Co. (Mo. Sup.), 14 S. W. Rep. 974; Fitzgerald v. Barker, 70 Mo. 685; Rogers v. Gosnell, 58 Mo. 589, 51 Mo. 466; Meyer v. Lowell, 44 Mo. 328; Robbins v. Ayers, 10 Mo. 539; Bank v. Benois, 10

Mo. 521. And such is now the prevailing doctrine in America, by the great weight of authority. 3 Amer. & Eng. Enc. Law, p. 863, note 5. This doctrine, originally an exception to the rule that no claim can be sued upon contractually unless it is a contract between the parties to the suit, has become so general and far-reaching in its consequences as to have ceased to be simply an exception, but is recognized, within certain limitations, as an affirmative rule. The foregoing cases from this court are in har mony with the rule as laid down in Lawrence v. Fox, 20 N. Y. 268, that "an action lies on a promise made by the defendant upon valid consideration to a third person, although the plaintiff was not privy to the consideration. Such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party nor cognizant of it when made." Meyer v. Lowell, supra. "It is not every promise, however, made by one to another from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited." Simson v. Brown, 68 N. Y. 355; Vrooman v. Turner (1877), 69 N. Y. 280; Wright v. Terry, 23 Fla. 160, 2 South. Rep. 6; Austin v. Seligman, 18 Fed. Rep. 519; Burton v. Larkin, 36 Kan. 246, 13 Pac. Rep. 398, and cases cited. In other words, "the rule is not so far extended as to give to a third person, who is only indirectly and incidentally benefited by the contract, the right to sue upon it." But "the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated." Burton v. Larkin, supra; Johannes v. Insurance Co., 66 Wis. 50, 27 N. W. Rep 414. In the opinion delivered by Allen, J., in Vrooman v. Turner, supra, it was said: "Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but, in every case in which an action has been sustained, there has been a debt or duty owing by the promisor to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent of the third party, who, by bringing his action, adopts his acts, or upon the doctrine of a trust, the promisor being regarded as having secured money or other thing for the third party, is not material. In either case there must be a legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit." An examination of the very many cases decided before and since it was held in that case satisfies us that the rule has been confined to such cases in this State, as well as elsewhere, and upon that principle when this case was before the Kansas City Court of Appeals in an action by another party. Phoenix Ins. Co. v. Trenton, Water Co., 42 Mo. App. 118. It was, in effect, held that the plaintiff had no cause of action against the water company, because the town of Trenton was under no obligation to the plaintiff to furnish an adequate supply of water and power to extinguish the fire by which the premises were consumed; and in support of its position the following additional cases were cited: Davis v. Water-works Co., 54 Iowa, 59, 6 N. W. Rep. 126; Nickerson v. Hydraulic Co., 46 Conn. 24; Ferris v. Water Co., 16 Nev. 44; Fowler v. Waterworks Co., 88 Ga. 219, 9 S. E. Rep. 673; and Atkinson v. Water-works Co., 2 Exch. Div. 441. The last of these cases is not in point, since the action in that case was

for the breach of a public statutory duty, and the court held that the action would not lie, because the statute gave no right of action to the plaintiff. The cause of action in each of the other cases was for a breach of duty which it was alleged the defendants owed the plaintiff under a contract with the city, to which the plaintiff was not a party, whereby they agreed to furnish an adequate supply of water and power to extinguish fires in the town or city; to which it was replied in the Connecticut case (decided in 1878): "Whatever benefit the plaintiffs could have derived from the water would have come from the city, through its fire department. The most that can be said is that the defendants were under obligation to the city to supply the hydrants with water. The city owed a public duty to plaintiffs to extinguish their fire. The hydrants were not supplied with water, and so the city was unable to perform its duty. We think it is clear there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim." In the Iowa case (decided in 1880) it was replied: "The city in the exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires, and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. . It cannot be

claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order are liable to a citizen for loss or damage sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city, and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government." In the Nevada case (decided in 1881), after citing 69 N. Y. supra, with approval, and quoting therefrom, it was replied: "The board of trustees of the town, in the exercise of a discretionary power conferred upon them by the legislature, contracted for a supply of water for the extinguishment of fires. The plaintiff, in common with the other residents of the town, enjoyed the advantages of this contract. He had an indirect interest in the performance of the contract by the water company, as had all of the property holders of the town; but such an interest is not sufficient to constitute the privity, either directly or by substitution, which must exist to give him a right of action upon the contract." In the Georgia case (decided in 1889), in an opinion by Bleckley, C. J., it was replied: "The present case is not based upon the breach of a statutory duty but solely upon a failure to comply with a contract made with the municipal government of Athens. To that contract the plaintiff was no party, and the action must fail for the want of the requisite privity between the parties before the court. There being no ground for recovery treating the action as one ex contractu, it is better founded treating it as one ex delicto? We think not. The violation of a contract entered into with the public, the breach being by mere omission or nonfeasance, is no tort, direct or indirect, to the private property of an individual, though he be a member of the community and a tax payer to the government. Unless made so by the statute, a city is not liable for failing to protect the in habitants against the destruction of property by fire. Wright v. City Council of Augusta, 78 Ga. 241, 2 S. E. Rep. 693; 7 Amer. & Eng. Enc. Law, p. 997 et seq."