condition with its load upon it, have a common origin. Both spring from the duty of protection which the master owes to the servant. There is no ground for saying that one of these duties may be delegated so as to relieve the master from all liability, and that the other may not; nor is there reason in saying that the person who inspects the car itself, its appliances and instrumentalities, with reference to the safety of those engaged in its transportation, is not a fellow servant, while he who inspects the loaded car for a like purpose, and to see whether it affords proper facilities for the performance of the duties which must necessarily be performed in its transportation, is a fellowservant. In the present case both duties were delegated to the same person, both are performed with reference to the same end, and the person to whom delegated must be held in the performance of each to occupy the same relation to plaintiff and defendant. It certainly cannot be said that with reference to stationed machinery, belting, shafting, and gearing the master must, at his peril, provide the necessary guards and coverings, and arrange the surroundings so as to render the place reasonably safe, yet, as to a train of cars between which a brakeman is required in the ordinary discharge of his duties to go while one section is being driven against a standing section or car, so loaded as to render the position of the brakeman one of greatly increased hazard to life and limb, and, in case of injury, the master may escape liability. NEW JERSEY....... PENNSYLVANIA......................... .. 27, 49, 54, 68, 89, 103, 104 .................................4, 34, 35, 37, 47, 51, 66 ..22, 36, 55, 100 ...6, 7 TEXAS, 8, 9, 10, 11, 12, 13, 14, 17, 19, 23, 24, 28, 29, 30, 32, 38, 39,40, 43, 45, 46, 52, 53, 57, 59, 63, 64, 71, 86, 93, 94, 97, 101, 107 UNITED STATES C. C....... ..2, 80, 81, 85, 95, 96, 99, 110 ..3, 73, 79, 98 ..16, 31, 67, 69, 112, 113 .20, 21, 65, 109 1. ADMINISTRATION - Claims-Payment.-In the final settlement of an estate of a decedent, whether origin. ally in the county court or upon appeal in the District Court, the administrator is entitled to no credit for payment of provable claims against the estate of his decedent, which originating before his death, have not been presented or allowed as provided by law.HUEBNER V. SESSEMAN'S ESTATE, Neb., 56 N. W. Rep. 697. UNITED STATES C. C. OF APP. 2. ADMINISTRATION-Purchase of Estate by Administrator. The consent of the heir and sole devisee of an estate that the administrator should purchase the property, and the acceptance and retention by the heir of a promissory note made by the administrator in payment of the purchase price, is a complete authori. zation and ratification of the transaction, the validity of which cannot be questioned, where neither the purchase price was inadequate, nor the sale procured by unfair means.-MILLS V. MILLS, U. S. C. C. (Oreg.), 57 Fed. Rep. 873. 3. APPEAL-Bond-Practice.-A judgment of affirm. ance by the Supreme Court fixes the liability of the principal and sureties on a supersedeas bond, as it shows conclusively that the principal did not prosecute his appeal to effect; and where the mandate has been filed in the lower court it is not necessary for that court to make an order that the judgment be executed, before suit can be maintained on the bond.-DAVIS V. PATRICK, U.S. C. C. of App., 57 Fed. Rep. 909. 4. APPEAL Service.-An appellant has a right to disregard an objection to the case on appeal, not served on him within five days after the service of such case on appellee, as required by statute; and appellant's failure to send the case to the judge for settlement after the service of such an objection is not an admission of the facts therein stated.-CUMMINGS V. HUFFMAN, N. Car., 18 S. E. Rep. 170. 5. ASSIGNMENT FOR BENEFIT OF CREDITORS-Attachment. Though Gen. St. ch. 24, § 10, provides that no deed of trust or mortgage conveying a legal or equitable title shall be valid against creditors until acknowledged and lodged for record, a general assignment for benefit of creditors, duly executed and delivered to the assignee, vests in him an equitable title, though not yet recorded; and a creditor then attaching acquired only an equitable right to which an equity prior in point of time is superior.-FIRST NAT. BANK OF CovINGTON V. D. KEEFER MILLING CO., Ky., 23 S. W. Rep. 675. 6. ASSIGNMENT FOR THE BENEFIT OF CREDITORS— Preferences.-Defendant allowed notes to go to protest, and judgment to be taken against him by default, in January; was consciously insolvent in February, when he executed mortgages for $12,000 to members of his family to secure previously incurred debts; denied the execution of the mortgages in April, but put them on file a few days before making an assignment for the benefit of creditors, in May; and his liabilities were $36,000, his assets, $26,000, and his preferred debts, including the mortgages, were $23,000: Held, that defendant contemplated the assignment when he executed the mortgages, and that the assignment and mortgages, together, constituted an assignment with preferences..--MANN V. POOLE, S. Car., 18 S. E. Rep. 145. 7. ASSIGNMENT FOR BENEFIT OF CREDITORS-Acceptance and Release.-An assignment by a copartnership of all the firm's property, for the benefit of its creditors, and containing provisions requiring releases by such as accept the assignment, is not void, as a partial assignment, though it does not include the individual property of the partners.-ARMSTRONG v. HURST, S. Car., 18 S. E. Rep. 150. 8. BOUNDARIES - - Conflicting Surveys.-Where, in a conflict as to the boundaries between two surveys, it appears that the later survey was not made on the ground, but in the surveyor's office, and from his memory of a former survey, and that it called for certain trees as an established corner of an adjoining while in fact the trees were not on such sursurvey, vey, the former survey must control.-FENLEY V. FLOWERS, Tex., 23 S. W. Rep. 749. 9. CARRIERS - Delay in Delivery.-Mere delay of a carrier in delivering goods is not a conversion thereof, and the consignee cannot refuse to accept them, and recover their total value, though at the time of delivery he had no use for the goods.-BAUMBACH V. GULF, C. & S. F. RY. Co., Tex., 23 S. W. Rep. 693. 10. CARRIERS-Delay in Transportation.-Where, in an action to recover for a loss sustained through defendant's alleged negligent delay in transporting plaintiff's sheep over its road to Chicago, it appeared that plaintiff had sold sheep in Chicago for nine years, and that during the whole time he had received daily accounts of sales and current prices, and private telegrams, from persons interested with him in Chicago in such business, it was competent for him to testify as to the market value of sheep in Chicago on certain days, months prior to the institution of the suit.— TEXAS & P. RY. Co. v. DONOVAN, Tex., 23 S. W. Rep. 735. 11. CARRIERS-Failure to Deliver Freight-Penalty.Where, in an action to recover the penalty authorized by Gen. Laws Called Sess. 17th Leg. p. 35, for failure to deliver freight on tender of the amount shown to be due by the bill of lading, it was admitted by both parties that the bill contained the words, "Weight subject to correction," and it was claimed by defendant that more was due than tendered, the court erred in charging that the jury could only consider evidence as to the true weight if they believed that such words were in the bill, as the burden of proof was on plaintiff to show that he tendered the full amount.-GULF ETC. R. Co. v. NELSON, Tex., 23 S. W. Rep. 732. 12. CARRIERS-Illegal Freight Charges-Penalty.-In an action to recover the statutory penalty for detaining goods after the amount of freight has been tendered, the party seeking recovery must bring himself strictly within its terms; and, since the statute basis the amount of penalty recoverable on the amount of freight designated in the bill of lading, there can be no recovery where there are no figures or data given in the bill, and none referred to, from which the amount of freight can be calculated.-TEXAS & P. R. Co. v. WOOD, Tex., 23 S. W. Rep. 744. 13. CARRIERS Live Stock-Injury.-Where cattle have been delivered to and accepted by a railroad company for immediate shipment, the railroad company is liable as a common carrier for damages to the cattle from the time of delivery to it, though Rev. Stat. Tex. art. 283, provides that the shipment shall be considered as having commenced from the time of signing the bill of lading, and that the liability of the common carrier shall attach as at common law from after such sign. ing.-INTERNATIONAL & G. N. R. Co. v. DIMMITT COUNTY PASTURE Co., Tex., 23 S. W. Rep. 754. 14. CARRIERS OF PASSENGERS-Platforms.-Plaintiff, a passenger alighting from defendant's train on its regular depot platform, stepped from the last step of the car onto a railroad spike. The head of the spike had a thin, sharp edge, which injured the ball of plaintiff's foot: Held, that defendant was liable for the injury.-FT. WORTH & D. C. RY. Co. v. DAVIS, Tex., 23 S. W. Rep. 737. 16. CHATTEL MORTGAGE Sale-Estoppel.-Where a sheriff selling property under a chattel mortgage, receives, by direction of the mortgagee's attorney, a deposit of money as security for certain bids, and thereafter transfers such deposit to the mortgagee, the latter's acceptance thereof is a ratification in toto of the attorney's action, even if originally beyond his authority, and estops the mortgagee from thereafter holding the sheriff liable for the amount of the bid, the purchaser having failed to pay the same.-TEAGUE V. MADDOX, U. S. C. C. of App., 14 8. C. Rep. 46. 17. CONSTITUTIONAL LAW Criminal Law-Titles of Laws.-Under Const. art. 3, § 36, providing that no law shall be amended by reference to its title, the title of an act for the amendment of a provision of the Penal Code is sufficient, which contains a statement of the article, chapter, title, and name of the Code to be amended, without naming the crime to which the amendment relates.-NICHOLS V. STATE, Tex., 23 S. W. Rep. 680. 18. CONSTITUTIONAL LAW-Druggists.-Rev. St. 1889, § 4622, providing that druggists shall produce in court, or before any grand jury, all prescriptions com pounded by them, "whenever thereto lawfully required, and on failing, neglecting or refusing so to do shall be deemed guilty of a misdemeanor," is constitutional.— STATE V. DAVIS, MO., 23 S. W. Rep. 759. 19. CONTRACT-Change of Venue. Where an action based on a written contract, which specifies the place of its performance, is commenced in the county specified in the contract, the venue will not, on the application of defendant, be changed to the county of defendant's residence, under Rev. St. art. 1198, subd. 5, which provides that where a person has contracted, in writing, to perform an obligation in any particular county, suit may be brought either in such county, or where defendant has his domicile.-BURLESON V. LINDSEY, Tex., 23 S. W. Rep. 729. 21. CONTRACT-Legality.-The questions whether an insurance company had the power, under its charter, to enter into a contract of insurance with a married woman on the life of her husband, loss payable directly to their children, or whether a married woman without a separate estate had the power to enter into such a contract at the time it was made, will not be considered, after the company has voluntarity paid the loss, in a proceeding by the children to compel their guardian to account for the insurance moneys received by him.-TAYLOR V. HILL, Wis., 56 N. W. Rep. 738. 22. CONTRACT-Rescission by Purchaser.- Where the defenses to an action on contract were a denial of the contract and an allegation that plaintiff had waived the contract if one had been made, and the court affirmed without qualification plaintiff's point, which was constructed with reference to the contract, and ignored the subject of waiver, it was error for the court to refuse defendant's point, which stated the facts hypothetically, including the evidence of waiver; and such error was not cured by a statement in the general charge that, if "there has not been anything done by plaintiff to do away with the contract or waive it in any way" subsequent to demand on the contract and the bringing of suit, he should recover. JESSOP V. IVORY, Penn., 27 Atl. Rep. 840. 23. CONTRACTS Statute of Frauds Performance.Plaintiff, defendant, and another agreed to erect a windmill at a well on the land of a third person, in consideration of which they were to have the use of the machinery and water for three years for their stock, and were to share equally the expense of the machinery. Plaintiff alleged that, after the mill had been erected and the water used about a year, defendant fenced in the well, and cut of plaintiff's stock from the use of it: Held, that plaintiff could recover damages, for the contract was not obnoxious to the statute of frauds because not to be performed within a year; the consideration having been paid, and action having been taken on the contract. -WESTFALL V. PERRY, Tex., 23 S. W. Rep. 740. 24. CONTRACTS-Time of the Essence. A party to a contract, who causes a delay in the time of its performance, cannot claim that time was of the essence of the contract, and that he is no longer bound by the contract because of the delay. MCLANE V. ELDER, Tex., 23 S. W. Rep. 757. 25. CONTRACT OF SEPARATION-Public Policy.-A contract intended to facilitate the procuring of a divorce at the suit of either of the parties thereto is void.WILDE V. WILDE, Neb., 56 N. W. Rep. 724. 26. CORPORATIONS-Ultra Vires Contract.-Two cotton compress companies made an agreement to consolidate, which was outside of their powers, and pending the procurement of a charter for the consolidated company both plants were put into the hands of a "governing committee" to manage. Subsequently the stockholders of one company voted against consolidation, and it was proceeding to act in disregard of the agreement, when the other company obtained an injunction against it to restrain any interference with the action of the "governing committee:" Held, that the court erred in granting and perpetuating such injunction, as it in effect specifically executed an ultra vires contract, and turned over the property of the defendant company to persons not parties to the suit.-GREENVILLE COMPRESS & WAREHOUSE Co. v. PLANTERS' COMPRESS & WAREHOUSE CO., Miss., 13 South. Rep. 879. 27. COSTS-Release.-A decree was rendered awarding costs of suit to complainant, and directing execution therefor. For a consideration of $25 complainant gave S, one of the two defendants, a receipt reciting that S was released from all liability for costs: Held, to release S only, and that his codefendant's property was liable for the balance of the costs.-EDMUNDS V. SMITH, N. J., 27 Atl. Rep. 827. 28. COURTS - Jurisdictional Amount. In actions sounding in damages for tort, the amount claimed in the petition determines the jurisdiction of the court, unless the question of jurisdiction is raised by an allegation that plaintiff fraudulently alleged an excessive amount for the purpose of giving the court jurisdiction.-SOZAYA V. PATTERSON, Tex., 23 S. W. Rep. 745. 29. COVENANT OF WARRANTY-Limitation of Action.When another is in possession of land conveyed, the covenant of warranty is broken immediately, and the statute at once begins to run in favor of the warrantor. -EUSTIS V. COWHERD, Tex., 23 S. W. Rep. 737. 30. CRIMINAL EVIDENCE - Burglary - Confessions.The statement, made by one while in jail on the charge of burglary, that a certain article with which the building was broken into, and a certain article taken therefrom, would be found in a certain place under a buildIng, is, in connection with evidence that they were so found, admissible against him, under Code Crim. Proc. art. 750, making the confession of one in confinement admissible, where, in connection therewith, he made statements of facts, that are found to be true, which conduce to establish his guilt.-DAVIS V. STATE, Tex., 23 S. W. Rep. 687. 81. CRIMINAL EVIDENCE-Conspiracy.-The acts and declarations of one conspirator after the completion or abandonment of the criminal enterprise are not admissible to prove the conspiracy, as against a coconspirator.-BROWN V. UNITED STATES, U. S. S. C., 14 S. C. Rep. 37. 32. CRIMINAL EVIDENCE- Forgery. Where a substantial defense is in issue, evidence that defendant had admitted that he was in fear of persons against whom he had agreed to turn State's evidence in certain criminal cases involving both him and them is prejudicial.-BURGE V. STATE, Tex., 23 S. W. Rep. 692. 33. CRIMINAL LAW-Constitutional Law - False Pretenses. An indictment which charged that defendant obtained $400 from complainant "by means, and use of a cheat, a fraud, trick, deception, false and fraudulent representations and statements, and false promises," is insufficient, though in the form prescribed by Rev. St. 1889, § 3826, as such section violates Const. art. 2, § 22, which declares that "in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation."-STATE V. KAIN, MO., 23 S. W. Rep. 763. 34. CRIMINAL LAW Confession. Where an officer holds out a hope to a prisoner, whom he is taking before the examining magistrate, that a confession may lighten the punishment, and the magistrate, after committing the prisoner, admonishes him to tell the truth, if he tells anything, a confession made by the prisoner while being conveyed from the magistrate's office to the jail by the same officer is inadmissible in evidence, though no inducement was then held out to him, in the absence of any showing that the influence previously exerted had been removed.-STATE V. DRAKE, N. Car., 18 S. E. Rep. 166. 35. CRIMINAL LAW-Games of Chance-Tenpins.-The game of ten-pins is not a "game of chance," within the meaning of Acts 1891, ch. 29, which makes it а misdemeanor for any person to play a "game of chance at which money, property or other thing of value is bet."-STATE V. DE KING, N. Car., 18 S. E. Rep. 169. -- 36. CRIMINAL LAW Homicide. Defendant testified that he found deceased in his stable near midnight, and, having pursued him for the purpose of identification, was attacked by him, and shot in self-defense: Held, that defendant could prove that a part of one of his harnesses had been previously stolen, and had been in possession of deceased, who had traded it to another, with a promise, to supply the missing part, to show deceased's intent.-COMMONWEALTH V. PIPES, Penn., 27 Atl. Rep. 839. 37. CRIMINAL LAW-Power of Court to Direct Verdict. -Though the evidence for the State in a criminal case is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State's evidence; and it is error for it to direct the clerk to enter a verdict of guilty.-STATE V. RILEY, N. Car., 18 S. E. Rep. 168. 38. CRIMINAL LAW-Theft.-Where defendant contends that he bought the cattle he is accused of stealing, a charge that if the jury believes that he bought said cattle, or has a reasonable doubt that he stole them, the jury will acquit him, sufficiently states the issue.MATTHEUS V. STATE, Tex., 23 S. W. Rep. 690. 39. CRIMINAL LAW-Theft-Principal and Accessory.— Where defendant made preparations for killing and dressing hogs while his confederates were stealing them, he is guilty as principal in the theft.-MONTGOMERY V. STATE, Tex., 23 S. W. Rep. 693. 40. CRIMINAL PRACTICE-Bail-Res Judicata.-Where a person indicted for murder is admitted to bail, and the cause is afterwards dismissed, he is, in case he is again indicted, entitled to bail, even in the absence of any statute on the subject, since his right to bail is res judicata.-AUGUSTINE V. STATE, Tex., 23 S. W. Rep. 689. 41. CRIMINAL PRACTICE-False Pretenses.-An indictment charged that defendant did "unlawfully and feloneously, with intent to cheat and defraud, obtain from one F $14.60, lawful money of the United States, of the value of $14.60, the money of F, by means and by use of a cheat, a fraud, a trick, a deception, a false and fraudulent representation and statement and false pretense, a bogus written instrument:" Held, that the indictment was defective, as not informing defendant of the nature of the charge against him. - STATE V. CHAPEL, Mo., 23 S. W. Rep. 760. 42. CRIMINAL PRACTICE Indictment Record.Where an indictment is signed by the prosecuting attorney, and is indorsed "a true bill," and "filed" (with date of filing), by the foreman of the grand jury and the clerk of the court, respectively, but no record entry is made that defendant was in custody or on bail, there is a sufficient record that the indictment was duly returned and presented in open court,thought the clerk made no separate minutes of the filling.STATE V. LORD, Mo., 23 S. W. Rep. 764. 43. CRIMINAL PRACTICE- Recognizance.-A recognizance, on appeal from a conviction for selling goods on Sunday, merely reciting that defendant stands charged with the offense of selling goods on Sunday, is insufficient, as failing to recite an offense, since the sale, to constitute an offense, must be made by a person belonging to one of the classes enumerated in Pen. Code, art. 186, declaring the offense.-HENDERSON V. STATE, Tex., 23 S. W. Rep. 692. 44. CRIMINAL PRACTICE - Recognizance-Sureties.The sureties on a recognizance for the appearance of defendant in a criminal case are not relieved from lia bility either by the insufficiency of the indictment, or because of a variance, as to the description of the of fense, between the indictment and the scire facias issued on the failure of defendant to appear.-STATE V. LIVINGSTON, Mo., 23 S. W. Rep. 766. 45. DEATH BY WRONGFUL ACT-Receiver.-A receiver is not a "proprietor, owner, charterer or hirer," within Rev. St. art. 2899, giving a right of action for injuries resulting in death, caused by the negligence of the proprietor, owner, charterer, or hirer of a railroad, or by the negligence of their servants or agents.-BROWN V. RECORD, Tex., 23 S. W. Rep. 704. 46. DEED-Burden of Proof.-Where the proper affidavit is filed, charging that a deed offered in evidence is forged, the party offering the deed must establish by prima facie evidence the execution of the deed by the person whose act it purports to be, and then the burden of proof shifts to the person assailing the genuineness of the deed.-TRINITY COUNTY LUMBER Co. v. PINCHARD, Tex., 23 S. W. Rep. 720. 47. DEED-Description-Reformation.-The fact that the former owners of a large body of land have sold two small parcels thereof so as to divide it into three separate tracts will not vitiate a description of the land in a subsequent deed as "those tracts or parcels of land lying in one body," where the specific boundaries, following such description, clearly show the intention of the parties to include in the deed the three tracts remaining unsold.-BRITISH & AMERICAN MORTG. Co. v. LONG, N. Car., 18 S. E. Rep. 165. 48. DIVORCE - Alimony-Allowance to Defendant.The statute which provides that if the wife have not sufficient estate of her own she may, on a divorce ob tained by her, have such allowance out of that of her husband as shall be deemed equitable, does not deprive the wife of alimony merely because she did not institute the suit for divorce. When, therefore, a husband has sued for and obtained a decree on the mere statutory ground of having lived apart from his wife for five years, and it appears that defendant had given him no cause to desert her, and was herself entitled to bring suit, she may be allowed alimony.-LACEY V. LACEY, Ky., 23 S. W. Rep. 673. 49. DIVORCE-Cruelty.-Refusal of a husband to live with his wife is not extreme cruelty, in the absence of proof that it has had, or tends to have, a serious effect on her health.-BURTON V. BURTON, N. J., 27 Atl. Rep. 825. 50. EJECTMENT-Certificate of Entry.-The holder of a receiver's certificate cannot, after the entry upon which the paper was issued has been cancelled, maintain an action of ejectment against a party claiming under the United States, for he has only an equitable title; and this, notwithstanding section 411 of the Code of Civil Procedure, making such certificate proof of title equivalent to a patent against all but the holder of an actual patent:-HEADLEY V. COFFMAN, Neb., 56 N. W. Rep. 701. 51. EMINENT DOMAIN-Condemnation Proceedings.— Where a petition by a tenant in common for the assess ment of damages for a right of way taken by a railroad company enumerates all persons who have any interest in the land, as required by Code, § 1944, and such persons voluntarily come into court, and make themselves parties, a demurrer to the petition for defect of parties will not be sustained, though such persons were not joined in the petition either as parties plaintiff or defendant.-HILL v. GLENDON & GULF MIN. & MANUF'G CO., N. Car., 18 S. E. Rep. 171. 52. EVIDENCE Ancient Instruments.-An indorsement on a land certificate made in 1839 by a county sur. veyor, with whom, there was evidence, the certificate was deposited at that time, is admissible in evidence as an ancient instrument, though the indorsement was canceled, apparently, by the surveyor. HOLT V. MAVERICK, Tex., 23 S. W. Rep. 751. 53. EVIDENCE- Proof of Handwriting.-In proof of handwriting by comparison, a paper proposed to be used as a standard cannot be proved to be an original and genuine signature by the opinion of a witness, derived solely from his general knowledge of the handwriting of the person whose signature it purports to be.-STEINER V. JESTER, Tex., 23 S. W. Rep. 718. 54. FRAUDS, STATUTE OF-Postnuptial Settlement.Marriage is not such a part performance, on the part of the wife, of an antenuptial parol contract, as will take the contract out of the statute of frauds, and make it the legal duty of the husband to make a postnuptial settlement in conformity to his antenuptial parol promise.-MANNING V. RILEY, N. J., 27 Atl. Rep. 810. 55. FRAUDULENT|CONVEYANCES.-In an action for defrauding plaintiff out of its claim against one of the defendants by his collusive and fraudulent confession of judgment in favor of his co-defendant, who seized and sold all his property thereunder, it is not enough to show that defendant was guilty of falsehood and fraud in incurring his indebtedness to plaintiff, but it must further appear that the judgment confessed in favor of his co-defendant did not represent an honest debt, and that such debt was contracted for the purpose of defrauding plaintiff. - MERCHANTS' & MANUFACTURERS' NAT. BANK OF PITTSBURGH V. TINKER, Penn., 27 Atl. Rep. 838. 56. GARNISHMENT-Foreign Corporation.-An insurance company, having sustained a loss in this State which is adjusted and payable here, cannot be garnished in another State, where it has neither property nor money of the debtor subject to the process of the court.-AMERICAN CENT. INS. Co. v. HETTLER, Neb., 56 N. W. Rep. 712. 57. GIFT-Land Certificate.-A mere declaration by a minor, since deceased, that he wanted his stepmother to have all his father's land, is not sufficient to show a gift by the minor to her of an unlocated land certificate owned by the father at his death.-HARVEY V. CARROLL, Tex., 23 S. W. Rep. 713. 58. HIGHWAYS Establishment. -The provision of section 7, ch. 78, Comp. St., that roads must not be established through any burying ground, or any garden, orchard, or ornamental ground, etc., without the consent of the owner, applies only to roads established under the general provisions of the road law.-HOWARD V. BROWN, Neb., 56 N. W. Rep. 713. 59. HOMESTEAD - Extent. Where the owner of a block, on one end of which he has built a home, divides the rest into lots, and sells one of them, dividing the residence lot from the others, the latter are not part of the homestead.-CULLUM V. PRICE, Tex., 23 S. W. Rep. 711. 60. INJUNCTION-Judgment.-A petition in equity to enjoin the enforcement of a judgment of a justice of the peace, which does not aver facts from which it appears (1) that the plaintiff has a meritorious defense to the cause of action on which the judgment is based, and (2) that his failure to interpose such defense in the justice court, and to avail himself of an appeal or proceedings in error, was not due to any neglect or default on his part does not state a cause of action.LANGLEY V. ASHE, Neb., 56 N. W. Rep. 720. 61. INSURANCE-Condition-Limitation of Action.-An insurance policy contained a condition that no action thereon should be maintained unless brought within 6 months after the occurrence of the fire, and by another clause it was stipulated that the loss should not become payable until 60 days after the proofs of loss are received by the company: Held, that a suit upon the policy may be brought within 6 months from the expiration of the 60 days.-FIREMAN'S FUND INS. Co. OF CALIFORNIA V. BUCKSTAFF, Neb., 56 N. W. Rep. 697. 62. INSURANCE-Occupancy of Building.-A policy of insurance provided that it should be void if the premises became vacant or unoccupied without the written consent of the company should be indorsed. The tenant occupying the insured building partially moved out the day before the fire, leaving in the build. ing a portion of his furniture: Held, that the premises were not vacant or unoccupied, within the meaning of the policy.-LIVERPOOL & LONDON GLOBE INS. Co. v. BUCKSTAFF, Neb., 56 N. W. Rep. 695. 63. JUDGMENT.-A consent judgment will not be declared void on the ground of fraud in an action brought by the party against whom it was rendered nearly 20 years afterwards, where the fact constituting the allege dfraud were open to the observation of such party during the whole time.-CITY OF GOLIAD V. WEISIGER, Tex., 23 S. W. Rep. 694. 64. JUDGMENT-Res Judicata.-A judgment in favor of a tenant in common for a trespass on land does not prevent his cotenant from recovering from the trespasser the damages he has sustained by the trespass.— GILLUM V. ST. LOUIS, A. & T. RY. Co., Tex., 23 S. W. Rep. 716. 65. LANDLORD AND TENANT-Lease by Chattels.- A mortgage of leased chattels, executed by the lessee, is, in legal effect, an assignment of the lease; and the mortgagee is bound by all the terms of the lease, and is likewise estopped from disputing the lessor's title.NEUBAUER V. GABRIEL, Wis., 56 N. W. Rep. 733. 66. LIFE INSURANCE-Insurable Interest.-Where no ties of blood or marriage exist, one can have an insurable interest in the life of another only when he is a creditor of or surety for each other; and a policy of life insurance procured by a religious society, sup. ported largely by voluntary contributions, on the life of one of its members, is void as a wagering contract. TRINITY COLLEGE V. TRAVELERS' INS. Co. OF HARTFORD, N. Car., 18 S. E. Rep. 175. 67. MANDAMUS TO LOWER COURT.-Mandamus will not lie from the United States Supreme Court to the Circuit Court to compel the vacation of orders by which the latter court, in a summary proceeding and after hearing, but without undertaking to determine the title, recognizes as the proper incumbents, a district attor ney and marshal who have been commissioned by the president during a vacation of the senate, and requir ing the former incumbents, who refuse to surrender their offices, to turn ove the property and prisoners under their control, respectively.-IN RE PARSONS, U. S. S. C., 14 S. C. Rep, 50. 68. MANDAMUS TO MUNICIPAL OFFICERS-Payment of Taxes. A peremptory mandamus will issue for the payment of State and county taxes by a city where it has collected sufficient moneys for city, county, and State purposes to pay such taxes.-SHIELDS V. MAYOR, ETC., OF CITY OF PATERSON, N. J., 27 Atl. Rep. 803. 69. MARINE INSURANCE-Subrogation.-An insurer of a carrier against loss of cargo, under a policy for the benefit of whom it may concern, is not subrogated to the shipper's rights against the carrier by reason of paying the loss to the shipper, upon the carrier's order; nor does any right of subrogation arise by reason of the fact that the carrier attached the insurance certificate to the bill of lading, and delivered it therewith to the shipper on receiving the cargo. WAGER V. PROVIDENCE INS. Co., U. S. S. C., 14 S. C. Rep. 55. 70. MARRIED WOMAN-Separate Property.-A married woman may, in this State, bargain for and purchase personal property, sell the same, and do all acts in relation to such property as though she were single.FARWELL V. CRAMER, Neb., 56 N. W. Rep. 716. 71. MASTER AND SERVANT-Contributory Negligence. -While a servant may hold his master liable for the results of defective and dangerous appliances, still if the immediate duty of keeping such appliances in order rests on such servant, and he is injured through his neglect to keep them in proper order, or through the neglect in relation thereto of servants immediately under him, and whose acts in regard to the appliances he is bound to oversee, he cannot recover.-MAES V. TEXAS & N. O. RY. Co., Tex., 23 S. W. Rep. 725. 72. MASTER AND SERVANT- Defective MachineryNegligence.-In an action by an engineer against his employer for injuries from the explosion of a boiler, plaintiff introduced evidence that the hammer test used by defendant in trying the boiler's strength was not effective, or the test usually applied: Held, that evidence in rebuttal that the hammer test was the one generally used by mill men in the vicinity was admissible to show that it was the test usually employed by persons operating similar machinery.-JONES V. MALVERN LUMBER CO., Ark., 23 S. W. Rep. 679. 73. MASTER AND SERVANT-Unsafe Working Place.-A master is liable to his servant for injuries resulting from the unsafe condition of his working place, although that condition is brougnt about by negligence of fellow servants of the injured person, acting under the master's orders. NORTHWESTERN FUEL Co. v. DANIELSON, U. S. C. C. of App., 57 Fed. Rep. 915. 74. MECHANIC'S LIENS-Assignee of Claim.-The transfer by a material; man to another party of his account for materials furnished for the construction of a building, before the filing of his claim for a lien, destroys the right to a lien, and confers no authority upon the assignee to file and enforce a mechanic's lien for such materials. The assignee, after such assignment, cannot perfect the lien by complying with the requirements of the statute.-NOLL V. KENNEALLY, Neb., 56 N. W. Rep. 722. 75. MORTGAGE- Assignment of Land Contract. — A contract of lands absolutely and formally assign another in writing, but designed as a security for a debt, is but a mortgage, and, when the debt is paid, the lien of the assignee will cease.-SHARMAN V. SHARMAN, Neb., 56 N. W. Rep. 704. 76. MORTGAGE FORECLOSURE-Consideration.-Where certain mortgages given by a married woman to secure firm debts of the firm of which her husband was a member were introduced in evidence, a recital in the mortgages of the amount of consideration for which each was given, "in hand paid," is not overcome by proof that the mortgaged property was her separate estate, and that the debt was that of a firm of which her husband was a partner.- SCHUSTER V. SHERMAN, Neb., 56 N. W. Rep. 707. 77. MORTGAGE FORECLOSURE-Usury.- A purchaser of the equity of redemption, being neither surety nor privy, who assumes a mortgage as a part of the purchase price of land, cannot set up the usurious contract of his grantor, and plead usury in such contract.MCKNIGHT V. PHELPS, Neb., 56 N. W. Rep. 722. 78. MUNICIPAL CORPORATIONS-Defective Sewers.-A municipal corporation is liable for damages sustained by a citizen, resulting from an obstruction in a public sewer caused by sand, filth, and refuse negligently permitted by the city to be and remain in the streets to such an extent that the water was dammed up, and forced back upon the premises of said citizen, or from the imperfect and unworkmanlike manner in which the work of building the sewer or connections was actually performed.-HESSION V. MAYOR, ETC., OF WILMINGTON, Del., 27 Atl. Rep. 830. 79. MUNICIPAL CORPORATIONS-Governmental Acts of Agents. Where the mayor and police of a city close a circus that is being held on ground claimed to have been dedicated as a public graveyard, they act for the city in its governmental, not its corporate, capacity, and the maxim "respondeat superior" does not apply, so as to make the city liable in damages for their action.-CITY OF KANSAS CITY V. LEMEN, U. S. C. C. of App., 57 Fed. Rep. 905. 80. NATIONAL BANKS Appointment of Receiver.The power vested in the comptroller of the currency by Act June 30, 1876 (19 Stat. 63), authorizing him, whenever he becomes satisfied of the insolvency of a national bank, to appoint a receiver, is discretionary; and his decision as to such insolvency, for the purpose of such an appointment, is final, and not reviewable by the court.-WASHINGTON NAT. BANK OF TACOMA V. ECKLES, U. S. C. C. (Wash.), 57 Fed. Rep. 870. 81. NATIONAL BANKS — Receiver Note Defenses. In an action at law by the receiver of a nation bank on a note, the maker may plead as set-off any debt of the bank to him existing at the time of its Equitable |