within the meaning of the married woman's act giving her power to contract with reference to her separate estate. Land v. Shipp (Va.) 560 2. A deed of separation which attempts to dissolve the marital relations of husband and wife, release her dower right directly to him, and place upon her the support of herself and child, contains no element of jointure which will put the wife to an election, after her husband's death, whether she will claim dower in his lands or retain the consideration for the separation agreement, which in her situation is readily consumed in supporting herself and child. Id. 3. Payment of a mortgage in which a wife joined, out of the proceeds of a sale of the property under a subsequent mortgage upon the property executed by the husband alone after their separation, will not restore her right of dower to the whole land, but the claim will be valid only against the equity of redemption, as it was before the payment. Id. 4. A wife's right of dower in the equity of redemption in lands of her husband under a deed of trust in which she joined is not affected by their sale under a subsequent deed of trust in which she did not join, executed after the making of a void separation agreement by which she attempted to release her dower. Id. 1. The owner of property abutting on a city street near a street-railway turntable cannot recover damages under Ky. Const. § 242, authorizing compensation for property "injured," by reason of the location and operation of the street-railway turntable and the noises, smells, and disturbances that are reasonably incidental to the operation of a street railway in a city and borne by the public generally, but may recover for any substantial injury caused by such noises, smells, and disturbances so far as they are not fairly incidental to the usual operation of such a street railway and borne by the property owners generally along the line. Dower; release of; during coverture; as- Louisville R. Co. v. Foster (Ky.) signability. 5. A return of a sum of money paid to a wife in consideration of a deed of separation between herself and her husband, in which she attempted to release all her rights in his property, is not a necessary prerequisite to the maintenance of an action to enforce her right of dower in her husband's lands after his death, since such release was absolutely void, and can in no way affect her dower right. NOTES AND BRIEFS. DUE PROCESS OF LAW. See CONSTITUTIONAL LAW. DURESS. NOTES AND BRIEFS. Duress; in payment of taxes. EASEMENTS. Id. 560 263 Provision of Deed Restricting Bunding TION, 2. Of Public in Artificial Condition of Navigable Lake, see WATERS, 7. Of Appropriator in Gross, see WATERS, 13. ECCLESIASTICAL TRIBUNALS. Decisions of, see RELIGIOUS SOCIETIES. ELECTRIC LIGHTS. Impairment of Contract for Exclusive no right to use them in pamphlets for advertising his own business; and in case he does so, and the pamphlets are delivered to his employer by mistake, he can compel neither their return nor payment for them. Levyeau v. Clements (Mass.) 397 NOTES AND BRIEFS. harmful character of cigarettes. Austin v. State (Tenn.) 478 2. It is matter of common knowledge, not to be ignored by the courts, that the emis sion of a volume of dense black smoke from a single smokestack or chimney of a large furnace may, under some circumstances, work physical discomfort to the general public coming within its circle of distribution upon public thoroughfares, and may possibly also work injury to public interests in other respects. Moses v. United THE States (App. D. C.) 532 Engravings; right to use engraved plates without the consent of the party who has paid for making them. 397 As to Specific Performance, see SPECIFIC 1. The right to have an inspector at the polls, who is appointed by the executive committee of a political party, is a political right which cannot be enforced in a court of equity. Weaver v. Toney (Ky.) 105 2. Refusal to transfer an action upon an insurance policy to equity because of a demand in the answer for cancelation in the policy is not error where the answer raises the issue of fraud, which is properly triable at law. Welch v. Union C. L. Ins. Co. (Iowa) ESTATE TAIL. See REAL PROPERTY, 2, 3. 774 Presumptions and burden of proof. Sufficiency of Presumption to Make Conflict for Jury, see infra, 26, 27. 3. The law of another state will be presumed to be the same as that in which the action is brought, in the absence of any averment to the contrary. Williams v. Pope Mfg. Co. (La.) 816 4. The burden is upon one who assails a state's restrictive or prohibitory statute as an unwarranted interference with interstate commerce, to show that the commodity involved is a legitimate subject of commerce. Austin v. State (Tenn.) 478 6. The possessor of a water right owned by another who has mortgaged it will be presumed to have held as licensee or tenant of the mortgagor, until the mortgage is foreclosed. Smith v. Deniff (Mont.) 737 7. The presumption is that all veins disOf Insurer as to Fraud, by Medical Ex- covered in that part of a tunnel under a aminer's Certificate, see INSURANCE, 10. ESTOPPEL. Of Locator of Mining Claim to Assert its Invalidity, see MINES, 12. 1. An act not originally within the express or necessarily implied powers of a corpora tion cannot subsequently be made valid by estoppel. Best Brewing Co. V. Klassen (11.) 765 2. A city is not estopped to assert the iuvalidity of a contract by which it agreed to maintain for all time a bridge erected over railway tracks in a public street, which it was the common-law duty of the railway company to erect and maintain, by the fact that, as a result of a compromise, the bridge was erected at the joint expense of the city and the company, and that the city has maintained it for several years. State ex rel. St. Paul v. Minnesota Transfer R. Co. (Minn.) NOTES AND BRIEFS. 656 prior subsisting location of lode claims belong to the latter, in the absence of any proof to the contrary. Calhoun Gold Min. Co. v. Ajax Gold Min. Co. (Colo.) Documentary evidence. 209 8. A bank named as the payee of a negotiable draft and as consignee of a bill of lading attached furnishes evidence of its ownership by showing its possession of and exhibiting these documents. Tolerton & S. Co. v. Anglo-California Bank (Iowa) 777 9. A void order under which a city treasurer paid out money of the city as a loan is admissible to prove that the city actually loaned the money, although the order would afford no protection to the treasurer because it did not show the purpose for which it was drawn, as required by Minn. Spec. Fergus Falls Hotel Co. (Minn.) Laws 1883, chap. 5, § 31. Fergus Falls v. Parol. 170 10. Parol evidence is competent to show the contract under which grain was delivered and received, although the transaction was evidenced by load checks, where the custom is to give a check as each load is drawn, and, when the delivery is completed, to give a receipt for the entire amount, evidencing the contract. Anderson v. Portland Flour 1. The court takes judicial notice of the ing Mills Co. (Or.) 235 11. Warehouse receipts are not brought | riage made by one party in the absence of within the rule that parol evidence is not the other, and in no way connected with him, admissible to establish liability upon com- is inadmissible to prove the promise of marmercial paper, by a statute making them riage or assent thereto, in an action for negotiable so that indorsement will transfer breach of promise of marriage. Hahn v. title. Id. Bettingen (Minn.) 669 21. Upon the question whether dealings with persons who ineffectually attempted to form a corporation were with the corporation or with the individuals, evidence is ad rate agent at the time, of the understanding of the person dealing with the concern, and of affidavits filed by the corporate officers with the secretary of state, claiming to be a partnership. Slocum v. Head (Wis.) Relevancy and materiality. 12. Parol evidence may be introduced to show that the true consideration for a transfer of land was not that named in the deed, but the payment of a debt of the grantor to the grantee, and that both parties under-missible of statements made by the corpostood that the money paid by the grantee was to be repaid to him by the grantor. Stone v. Minter (Ga.) 356 13. Oral evidence that no ore had been discovered on mining claims at the time of their location is inadmissible in case of a conflict between those claims and a subsequent tunnel-site location, where patents for the claims have been issued. Calhoun Gold Min. Co. v. Ajax Gold Min. Co. (Colo.) 209 Opinions. 14. A professor of physics of twenty-four years' experience, who has traveled 10,000 miles and made experiments on the effect of a moving train on the air around it, cannot express the opinion, as an expert witness, that the tendency of a train of a certain length moving at a certain speed would be to suck persons standing near it under its wheels, if he is not shown to have any knowledge of that fact by reading, experiment, or observation. Graney v. St. Louis, I. M. & S. R. Co. (Mo.) 153 15. An expert witness cannot give his opinion as to one of the disputed facts of the Id. 16. Witnesses cannot testify that smoke from a certain chimney is of such a character as to be dangerous to health, life, or property of persons living in the vicinity or to the public at large, or that it constitutes a public nuisance, since this would not be to state facts, but opinions. Moses v. United States (App. D. C.) case. Privileged communications. 532 17. A communication in regard to a contract, made by a client to his attorney in the presence of the other party to the contract, is not a privileged communication, within Ga. Civ. Code, § 5271, providing that no attorney shall be competent or compellable to testify in any court in regard to any matter, knowledge of which he may have acquired from his client by virtue of his relation as attorney. Stone v. Minter (Ga.) 356 18. Privileged communications which cannot themselves form the basis for an action of slander are not admissible for the purpose of showing malice in other communications. Shinglemeyer v. Wright (Mich.) Acts and declarations. 129 19. Declarations of an assured touching the condition of his health about the time of the issuance of the policy are admissible upon the issue of fraud in its procurement. Welch v. Union C. L. Ins. Co. (Iowa) 774 20. Testimony as to preparations for mar 324 22. The operation of a train with a coach in front may be shown to be unsafe, in an action to recover for injuries to a passenger by the derailment of the train. Louisville & N. R. Co. v. Weaver (Ky.) 381 23. Evidence that no smoke-consuming appliance known will prevent the emission of all black smoke from furnaces burning soft coal is immaterial upon a prosecution for violation of a statute declaring such emission to be a nuisance. Moses v. United States (App. D. C.) 532 24. Evidence that certain neighbors may not have sustained injury to property or health from the smoke of a chimney is not admissible in support of a defense to a prosecution for the violation of a statute which declares the smoke a public nuisance. Weight; sufficiency. Id. to 25. The presumption of intention charge legacies on real estate, arising from the absence of personalty from which to pay them, is not overcome by the fact that the real estate is all devised to testatrix's husband, part in fee and part for life with remainder to a stranger, and that the husband is residuary legatee. Re Lutz (Mo.) 847 26. The presumption of negligence on the part of a railroad company in case property is set on fire by sparks from a locomotive is not sufficient to make a conflict of evidence which will take the case to the jury, when there is undisputed proof of due care in the construction and operation of the locomotive. Louisville & N. R. Co. v. Marbury Lumber Co. (Ala.) 620 united efforts of the conductor and motor- | expenses, where he leaves no widow, or chilman. Bowie v. Birmingham Railway & E. dren and his estate is valued at $6,000. Oo.. (Ala.) 632 O'Reilly v. Kelly (R. I.) 29. An allegation in a complaint, that a boy was sucked under a train by its velocity, is not supported by evidence that the wind turned him around and made him fall, and that he rolled under the cars. Graney v. St. Louis, I. M. & S. R. Co. (Mo.) 153 NOTES AND BRIEFS. Evidence; judicial notice of scientific facts. 154 Necessity of Bond on Appeal in Will voke Administration, see APPEAL 1. Administration granted during the time of a will contest under Mo. Rev. Stat. 1889, § 13, continues during the pendency of an appeal from the circuit court to the supreme court. State ex rel. Hamilton v. Guinotte (Mo.) 787 2. A probate court loses jurisdiction over the administration of a decedent's estate when suit is brought in the circuit court, under Mo. Rev. Stat. 1889, § 8888, to contest a will, and it therefore cannot revoke the appointment of an administrator pendente lite while an appeal from the decision of the circuit court is pending. Id. 3. The administrator of one who, during the owner's lifetime, died in possession of chattels under an agreement by which she was to have the use of them during her life and that of the owner, has no title which will support an action for their possession against a third person who wrongfully took possession of them after the death of the bailee, but such action must be brought by the owner. Salter v. Sutherland (Mich.) 140 4. Flowers to the value of $15 ordered by the housekeeper of a deceased person may be charged to his estate as necessary funeral NOTES AND BRIEFS. 483 EXPRESS COMPANIES. side of the state of its origin, though it be An express company doing business outnot a corporation, but a partnership entitled to do business there without permission, and as free from the control and visitorial power of the state as any other individual or partnership, is subject, as a common carrier, to public control and regulation, and therefore may be compelled to give information to the state as to all its property and business within the state, as a basis for such public regulation of its business, but not as to its property out of the state nor as to its interstate business, except so far as necessary to enable the state authorities to discharge their duties as to its business and property within the state. State ex rel. Railroad & W. Com. v. United States Exp. Co. (Minn.) FALSE IMPRISONMENT. 667 Liability of Sureties on Mayor's Bond, see BONDS, 2. One who charges another with crime is not liable for false imprisonment on account of an arrest made by an officer without any request from him, and when the person arrested sent for the officer for the express purpose of having the accusation repeated Injunction against Malicious Erection, see BUILDINGS. Prohibition of Malicious Construction, see CONSTITUTIONAL LAW, 26. 1. Maliciously to erect an unsightly high board fence on one's own property in such a way as to obstruct the passage of light and air and obstruct the view to and from a neighbor's dwelling, by reason of which its value is injured and the use of the house as a dwelling place will have to be abandoned, is not an actionable wrong. Metzger v. Hochrein (Wis.) 305 2. One who builds a fence 8 or 9 feet high, darkening the windows of his neighbor's house and impairing its rental value, will be deemed to have been actuated by malevolence in building that part of the fence which is more than 5 feet high, so as to bring it within the terms of a statute authorizing an injunction against a structure erected to spite or injure a neighbor, where he admits that a fence 5 feet high would serve every purpose, and that he would not have built the fence as high as he did if his neighbor had helped him build a division fence, and had put an eaves trough upon her house to prevent water running from her roof upon his premises, as he requested her to do. Karasek v. Peier (Wash.) 345 3. A fence is a "structure," within the meaning of Ballinger's (Wash.) Anno. Codes & Stat. § 5433 (2 Hill's Anno. Stat. & Codes, § 268), providing that an injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure, or annoy an adjoining proprietor, and that, where such a structure has been erected, a mandatory injunction will lie to compel its removal. Id. 4. No restraint of an act not prohibited by any law is authorized by Ballinger's (Wash.) Anno. Codes & Stat. § 5433 Hill's Anno. Stat. & Codes, § 268), providing for an injunction against the malicious erection or maintenance of any structure to spite, injure, or annoy a neighbor, although the legislature does not expressly declare such structure illegal, since it does so in legal effect by providing a remedy against it. Presumptions, etc., as to Railroad's Negligence, see EVIDENCE, 5, 26. 27. Sufficiency of Allegation of Railroad's Negligence, see PLEADING, 2. Placing Cotton Near Railroad Track, see PROXIMATE CAUSE; RAILROADS, 3. FIREWORKS. Liability for Explosion of, see NEGLI- Bombs are not within the prohibition of N. J. Gen. Stat. p. 1478, prohibiting the vending, burning, or exploding of firecrackers, squibs, turpentine balls, or fire serpents. Sebeck v. Plattdeutsche Volksfest Verein (N. J. Err. & App.) NOTES AND BRIEFS. 199 (2 FORECLOSURE. See MORTGAGE, Id. NOTES AND BRIEFS. Fences; malicious; liability for making. 305 Statute against malicious structures. 345 FINE. Excessiveness of, for Gaming, see CRIM- |