fendant killed deceased by throwing a stone, which struck deceased on the temple, evidence of a witness who was present, that he heard the lick, and asked R, who was standing two steps from defendant, what it was, and R stated that defendant hit deceased with a rock, was admissible as res gestæ, though it did not appear that the defendant heard R's statement; he being present within hearing distance from R at the time.-STATE V. MCCOURRY, N. Car., 38 S. E. Rep. 883.

32. CRIMINAL LAW-Forgery Indictment.-The indictment charged forgery in uttering a false and fictitious note, dated April 28, 1897, purporting to have been made by R. J. McIntyre to Eddie Bunney for $260, gold coin, payable one year after date. The note offered in evidence corresponded with such descrip tion, except that it contained a provision for interest, and for payment of attorney's fees if collected by suit. Held, that there was no material variance, since the description in the indictment was correct, as far as it went, and sufficient to identify the instrument, and the fact that there were conditions in the instrument not inconsistent with, but in addition to, those mentioned in the description, was immaterial, since an indictment is sufficient, without containing a copy of the instrument alleged to be forged.-PEOPLE V. TERRILL, Cal., 64 Pac. Rep. 894.

33. CRIMINAL LAW-Former Jeopardy.-On a trial for forgery, the court excluded the instrument claimed to be forged, on the ground of variance with the indictment, and directed a verdict for defendant; and a verdict was returned of "not guilty, on the ground of a material variance between the note set forth in the indictment and the note offered." Held, that defendant could not be again tried for the offense, since by the verdict he was acquitted, and it was immaterial what reason the jury gave for the acquittal, or that there was in fact no material variance. -PEOPLE V. TERRILL, Cal., 64 Pac. Rep. 894.

34. CRIMINAL LAW-Fraudulent Use of Mails-Indictment.-An indictment for a fraudulent use of the mails, in violation of Rev. St. § 5480, as amended by Act March 2, 1889 (1 Supp. Rev. St. p. 694), not charg ing a scheme to defraud the public generally, or a class not capable of being resolved into individuals, but clearly importing an intention to defraud definite individuals, is bad, if it does not describe them by name, or give a good and true reason for the omission. -LARKIN V. UNITED STATES, U. S. C. C. of App., Sev. enth Circuit, 107 Fed. Rep. 697.

35. CRIMINAL LAW-Homicide-Insanity as Defense. -Where deceased had seduced a sister of defendant, and then married her, the testimony of the county clerk that defendant said when deceased procured the license to marry that he "didn't believe in settling it that way" was testimony in chief, though it contradicted the defendant, who denied that he had made the statement, and should not have been admitted for the commonwealth after defendant had closed his testimony.-ABBOTT V. COMMONWEALTH, Ky., 62 S. W. Rep. 715.

36. CRIMINAL LAW-Homicide Second Degree.Where, in a prosecution for homicide, the court was requested to charge that, if the prisoner killed deceased with a deadly weapon, malice would be presumed, and ordinarily the verdict would be murder in the second degree, but, unless the weapon had been prepared for the purpose, its use would not neces sarily be evidence of malice, such instruction was properly given, as modified, by adding that it would be sufficient to constitute murder in the second degree, but not express malice.-STATE V. MCCOURRY, N. Car., 38 S. E. Rep. 883.

strained by force or fear, and that in making their verdict they should take into consideration all the facts and circumstances.-NEACE V. COMMONWEALTH, Ky., 62 S. W. Rep. 733.

38 CRIMINAL LAW-Right to Continuance-Absence of Witnesses-Diligence.-Defendant was indicted for horse theft, and sought a second continuance on account of the absence of three witnesses, by whom alone he could prove that he traded for the horse, and the absence of an attorney whom he had employed to defend him, and to whom he claimed to have given a bill of sale which he received at the time he made the trade. On a former application defendant stated that there were several witnesses by whom he could prove the same facts, and it appeared that the attorney employed had been elevated to the bench, and could no longer act for defendant, but that there had been two terms of court since such attorney's appointment, and no process had been issued to require his attendance as a witness, or effort made to secure the bill of sale. Held, that no diligence was shown to obtain either the witnesses or the bill of sale, and hence defendant was not entitled to a continuance.- PEREZ V. STATE, Tex., 62 S. W. Rep. 748.

29. CRIMINAL LAW-State's Evidence-Nolle Prose qui. -Where a prisoner awaiting trial under indictment agreed with the sheriff and county attorney that he would testify against others, and that in consideration thereof he should not be prosecuted, he is not entitled to a discharge from jail until he has given such testimony, even though he is unable to furnish bail.EX PARTE GIBSON, Tex., 62 S. W. Rep. 755.

40. CRIMINAL TRIAL-Homicide-Change of Venue.Pen. Code, § 1033, directs a grant of a change of venue in a criminal case on a showing that a fair trial cannot be had or a jury cannot be obtained. Defendant, who was a man of bad repute, made an assault on a person who had filed au information against him, and fired several shots into his house. The sheriff went to the house of defendant, and was shot by him. A mob was formed, composed of persons of standing in the community, and mob violence was only prevented by prompt removal of defendant to another county. The defendant was denounced in the pulpit and by the press, and public opinion was unanimous that the death penalty should be inflicted. Sixty-eight jury. men were examined on their voir dire, and all but eight had formed an opinion as to defendant's guilt, and three of these were excused. Held, that it was error to refuse a change of venue. -PEOPLE V. SUESSER, Cal., 64 Pac. Rep. 1095.

41. DECEDENTS-Estates-Fraudulent Conveyance.Owing to the provisions of sections 3922, 3923, Rev. St. 1898, creditors of an insolvent estate may not bring an action in their own names to set aside a conveyance made by the decedent in his lifetime, without first having made the demand on the administrator to bring such suit, required by said sections, and having been met with a refusal by him.-FEHRINGER V. COM. MERCIAL NAT. BANK OF OGDEN, Utah, 64 Pac. Rep. 1108.

42. DEEDS - Construction Calls for Swamps.Where a conveyance of realty calls for a swamp, and thence along the swamp, grantee's title extends only to the banks of the swamp, and not to the run of the swamp, since the rule that a call in a deed for the banks of a stream takes the title to the middle of the stream does not obtain where the call is for a swamp. -ROWE V. CAPE FEAR LUMBER Co., N. Car., 38 S. E. Rep. 896.

43. DEED-Mortgage.-A bill of sale of a house situated on mining ground, given to the party furnishing the lumber for the erection of the house, without a transfer of possession, amounts to nothing but a mortgage securing the debt, and does not pass title.AZZALIA V. ST. CLAIRE, Utah, 64 Pac. Rep. 1106.

44. DEED-Reservation of Title-Judgment Creditor. -A father conveyed land to his son, reserving title

thereto in himself until payment of the purchase money. A part thereof was paid, when the son reconveyed it, some of the personal property sold therewith having been changed in the meantime. The father undertook to sell the land under the power contained in the original contract of conveyance, and repurchased from the vendee at such sale. After the original conveyance, a judgment was obtained by plaintiff against the son. Held, that plaintiff had no lien superior to those claiming under the father, since he had never parted with the title to the land.-TAYLOR V. CAPEHART, N. Car., 38 S. E. Rep. 890.

45. DIVORCE-Agreement Relieving Husband of Obligation to Pay Alimony.-Where a husband and wife had separated and were dealing at arm's length, an agreement between them for a dismissal of a divorce suit brought by the wife, and for a division of their personal property, with a stipulation that neither should have any interest in the real estate belonging to the other, was valid; and it being further stipulated that if either of said parties shall hereafter institute divorce proceedings against the other, or further prosecute the divorce suit above named, it shall not vary the property rights of either of said parties," the agreement relieved the husband of the obligation to pay alimony upon a divorce being subsequently ob tained by the wife.-PARSONS V. PARSONS, Ky., 62 S. W. Rep. 719.

46. EASEMENTS-Partition-Rights to Existing Passways. Each of the several parcels of land allotted in a partition proceeding is subject to the benefits and burdens of existing passways as between it and the other parcels, though there be no reference to passways in the deeds of partition; and a subsequent purchaser of a part of one of the lots takes it subject to an existing passway between it and that part of the lot retained by the vendor.-MUIR V. Cox, Ky., 62 S. W. Rep. 723.

47. ELECTIONS-Statement of Expenses - Forfeiture of Office.-Purity of Elections Act (St. 1893, p. 13) section 4, declares that one elected to an office shall forfeit it if he neglects to file a statement of election expenses, as prescribed by section 3, which provides that he shall give an itemized statement, showing in detail all moneys expended by him in aid of his elec tion, giving the names of persons to whom such moneys were paid, and the specific nature of each item; and section 13 provides that on the trial under the act of the right to an office, if it appear that the offenses complained of were trivial, unimportant, and limited in character, the candidate shall not be deprived of his office by reason thereof. Held, that an election was not rendered void by the candidate putting down as a single item, "sundries and incidentals, $22.65;" the statute providing that the candidate may expend $100 for necessary incidentals, and dispensing with vouchers for expenditures in amounts less than $5.-LAND V. CLARK, Cal., 64 Pac. Rep. 1071.

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48. EQUITY Action on Contract - Enforcement of Legal Liability.-A right of action against a city to recover rentals alleged to be due it under a contract with a water company is at law, and the fact that the company has made an equitable assignment of the contract by way of mortgage does not give the assignee the right to sue thereon in equity, merely because his own interest is equitable, and he cannot, by joining the city as defendant, have its rights determined in a suit to foreclose the mortgage. The city is entitled to have its rights and obligations under such contract determined by a trial in a court of law. -CITY OF EAU CLAIRE V. PAYSON, U. S. C. C. of App., Seventh Circuit, 107 Fed. Rep. 552.

49. EQUITY-Enforcement of Trust-Assignee of Solv. ent Corporation.-A suit in equity cannot be main. tained by one claiming to be a contract creditor of a solvent corporation against an assignee to whom the corporation has conveyed its property in trust to b converted into money and its debts paid therefrome.

In such case a court of equity has no jurisdiction to administer the fund in the hands of the trustee for the benefit of creditors, the trustee being merely an agent for the corporation, which owns the property or fund; nor has the creditor, who has no lien on such property or fund, any right of action against the trustee.— AMES & HARRIS V. SABIN, U. S. C. C., D. (Oreg.), 107 Fed. Rep. 582.

50. EVIDENCE-Expert Opinion-Machinery. - Where the facts touching the question whether a machine was impracticable and unsafe cannot be fully communicated to the jury, expert opinion is competent.HUTCHINSON COOPERAGE CO V. SNIDER, U. S. C. C. of App., Seventh Circuit, 107 Fed. Rep. 363.

51. EXECUTORS AND ADMINISTRATORS - Conveyance of Property Rights of Creditors.-Under Code, § 1442, providing that any conveyance of real estate by an heir at law, made within two years after the death of the intestate, shall be void as to estate creditors, but that conveyance made thereafter shall be valid as to bona fide purchasers without notice, land so inherited is liable for the debts of the ancestor, though conveyed after the expiration of two years, for full value, to a grantee who has knowledge of such debts.HOOKER V. YELLOWLEY, N. Car., 38 S. E. Rep. 889.

52. EXECUTORS AND ADMINISTRATORS Liability of Heir Who Has Sold Estate Descended.-Under Ky. St. § 2087, providing that, "when the heir or devisee shall alien before suit brought the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation to the creditors of the decedent or testator," the administrator is not a necessary party to an action to enforce the liability of the heir; and, where the administrator was joined with the heir, the court erred in refusing to permit plaintiff to dismiss as to the administrator, and in then sustaining a demurrer to the jurisdiction, and dismissing the action as to both defendants, because the administrator resided in another county.LANCASTER V. WOLFF, Ky., 62 S. W. Rep. 717.

53. EXECUTORS AND ADMINISTRATORS - Liability of Sureties. Where the surety on an administrator's bond, to whom real estate inherited by the latter from his intestate has been mortgaged as security, defeats a suit on the bond for a debt of the intestate by pleading limitations, he cannot resist a suit by the creditor to enforce payment from mortgaged real estate on the ground that he is solvent, and that the administrator's bond, as representing the personalty, must be exhausted before the realty.-HOOKER V. YELLOWLEY, N. Car., 38 S. E. Rep. 889.

54. ILLEGITIMATE CHILD Adoption. Under Civ. Code, § 230, providing that the father of an illegiti mate child, by publicly acknowledging it as his own and receiving it into his family, adopts it and makes it, for all purposes, legitimate from the time of its birth, the acknowledging of an illegitimate child by a father without receiving it into his family is not suffi cient for its adoption, and such child can confer no right to administer her father's estate.-GARNER V. JUDD, Cal., 64 Pac. Rep. 1076.

55. INJUNCTION Exclusive Priveleges Ferry. A free bridge over a river became impassable, and the supervisors licensed plaintiff to establish and operate a ferry for five months. The ferry was established when defendants, without license, set up a ferry a short distance from plaintiffs, for their own use, and for the use of such persons as chose to cross there, and received pay when voluntarily offered. Held, that plaintiff, having given bond and procured license, was entitled to the protection of the law, and that defend. ants should be enjoined from operating their ferry, and required to compensate plaintiff for the tolls which they had diverted from him.-MCINNIS V. PACE, Miss., 29 South. Rep. 835.

56. INSURANCE-Agreement to Pay Premiums-Mort. gagee. A fire policy containing a mortgage clause, which stated that the mortgagee should pay prem

iums in case of the failure of the mortgagor so to do, was delivered to the mortgagee, and transmitted by him to the mortgagor. Afterwards the agents effect. ing the insurance told the mortgagee that they had not received the premium, and would cancel the policy if not paid for; and the mortgagee told them that the mortgagor would pay, and not to cancel the policy, as the mortgagee would pay it if the mortga gor did not; and the policy was not canceled, in reliance on such promise. Held to constitute a valid contract not to cancel the policy, which would render the mortgagee liable for the premium. - COLBY V. THOMPSON, Colo., 64 Pac. Rep. 1053.

57. JUDGMENT-Default Res Judicata.-Where an action is brought to recover the accrued interest upon a promissory note which stipulates for the payment of interest in annual installments, a judgment by default in favor of the plaintiff in such action is not res judicata in a subsequent action brought by the same plaintiff against the defendant to recover the princi. pal due upon said note, and in such subsequent action the defendant is not estopped from setting up a want of consideration for the note sued on.-CROWDER V. RED MOUNTAIN MIN. CO., Ala., 29 South. Rep. 847.

58. JUDGMENT-Res Adjudicata-Estoppel.-Pending an appeal from a judgment allotting to a debtor a homestead in property upon which an execution has been levied, S, who had purchased the property from the debtor, deposited a part of the purchase price with W, under an agreement that if the judgment should be affirmed the money should be paid to the vendor, but if there should be a reversal the money should be returned to him. Before the appeal was disposed of, the execution creditor brought suit and attached the money in the hands of W; and the court adjudged that the money be paid to plaintiff, but that his execution lien on the property be discharged. Thereafter the judgment allotting homestead was reversed. Held, that the judgment under which plaintiff received the money, being valid, is a bar to the enforcement of the execution lien, though the judgment may have been erroneous. - SCOTT V. LOUISVILLE BANKING CO., Ky., 62 S. W. Rep. 713.

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59. JUDGMENT Res Judicata Second Appeal. Where a case has been reversed on appeal, and tried a second time in accord with the supreme court's decision, the supreme court will dismiss the second ap. peal as res judicata; the only error alleged being error in the former decision of the supreme court.-KRAMER V. SOUTHERN RY. CO., N. Car., 38 S. E. Rep. 872. 60. LIMITATION OF ACTIONS Mortgages Contract Parol Evidence Pleadings-DismissalAmendment-Answer-Sufficiency.- Where a grantee of real estate agrees in writing with his vendor and the indorser of a mortgage note to assume such indebtedness, and the mortgagee brings suit to be subrogated to the rights of the holder and indorser under such agreement, the grantee, who contends that the written contract does not contain the entire agree. ment, cannot show a prior oral agreement that the grantee should only assume the mortgage on receipt of a certain sum from his vendor, since the oral agree. ment was made before the written instrument, and with only one of the parties to the written contract.WOODCOCK V. BOSTIC, N. Car., 38 S. E. Rep. 881. 61. MASTER AND SERVANT - Employment Right to Discharge.-The making of an improv'dent contract by an electrical engineer with his assistants, which is corrected, at his employer's request, as soon as made, does not, as matter of law, justify his discharge, but is to be considered on the question of his alleged mis. conduct in acting against the employer's pecuniary interest and in failing to render faithful service.-NEW YORK INSULATED WIRE Co. v. BROADNAX, U. S. C. C. of App., Second Circuit, 107 Fed. Rep. 634. 62. MASTER AND SERVANT Fellow Servants-Nonliability Rule-Origin.-The doctrine that a master is not liable for injuries to a servant, caused by the neg. ligence of a fellow-ser ant, was not a part of the com.

mon law existing at the date of our separation from England, and hence the courts of one state cannot presume that such rule exists in another state, so as to throw on a plaintiff who has been injured in such other state by the negligence of a fellow-servant, the burden of proving that the rule has been abrogated by statute.-WILLIAMS v. SOUTHERN RY. CO., N. Car., 38 S. E. Rep. 893.

63. MASTER AND SERVANT - Injuries to Brakeman Appliances.-A brakeman was set to work in switching with a road engine regularly used for that purpose, but unprovided with any special hand hold in front, necessary in his work. No particular projection was used, and the use of any particular one was not forbidden. The brakeman, however, used the figure plate, which was adapted thereto, and most conven. ient for a man of his size. It had been loose for 24 hours, but was apparently all right when he took hold of it. It gave way, however, and he was thrown under the cowcatcher and injured. Held, that the company owed him the duty of inspecting the plate commensurate with the purpose for which it must be assumed that it knew it was used,jand hence, on proof of the foregoing facts, it was error to nonsuit him in an action for damages, enough being shown to require some proof of inspection to overcome the presumption of negligence.- DUNN V. NEW YORK, N. H. & H. R. Co., U. S. C. C. of App., Second Circuit, 107 Fed. Rep. 666.

64. MASTER AND SERVANT-Injuries to Servant-Nonsuit.-Plaintiff, a weaver, was injured while assisting in the repair of a loom which he operated, by a sliver of steel flying from a hammer and striking him in the eye. There was no evidence that the hammer was ap parently defective, or was being negligently used. Held, that the plaintiff was properly nonsuited, since the injury was caused by a latent defect in the hammer, for which the defendant was not liable.-MARTIN V. HIGHLAND PARK MFG. Co., N. Car., 38 S. E. Rep. 876. 65. MUNICIPAL CORPORATIONS Defective Sidewalks -Negligence.-Plaintiff was injured by stepping into a hole in a sidewalk, caused by a plank being broken several days before. There were several churches and a school house on the street, and it was much traveled by those attending the churches and school as well as by those living along the street. The planks of the walk were raised 10 or 12 inches from the ground, and a driveway crossed the walk, where the plank was broken by a loaded wagon. Held, that the question of the negligence of the city in not discovering the defect and repairing the walk was for the jury. -LAURIE V. CITY OF BALLARD, Wash., 64 Pac. Rep. 906. 66. MUNICIPAL CORPORATIONS — Liability for Injury to Property in Making Improvements.-Under Const. § 242, providing that municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed, a city is liable for injury to private property in the construction of a sewer.-THOMAN V. CITY OF COVINGTON, Ky., 62 S. W. Rep. 721.

67. MUTUAL BENEFIT INSURANCE-ReinstatementWaiver of Forfeiture.-The laws of a mutual benefit insurance order authorized the reinstatement of a member only on satisfactory evidence of his good health. A member, who had forfeited his membership by non payment of his dues, while seriously sick and on his deathbed remitted to the proper officers of the order the amount necessary for his reinstatement. In the letter accompanying the remittance nothing was said as to his bealth, and the officers had no knowledge as to his physical condition. Held, that the receipt of the money was not a waiver of the forfeiture, and did not reinstate the member, since, even if the officers could waive a forfeiture in contravention of the laws of the order, a waiver was not shown by their receipt of the money while ignorant as to his sickness.-SUPREME LODGE K. P. v. QUINN, Miss., 29 South. Rep. 826.

68. NEGLIGENCE-Dangerous Property Place Attractive to Children.-Where a complaint alleged that defendant had a piece of cement tubing, weighing from 500 to 700 pounds, 2 feet in length and 4 1-2 feet in diameter, which was so topheavy that it frequently tipped over from its side to its end, on land adjacent to the street, and not separated therefrom by any fence or other guard, so that, to defendant's knowl. edge, children were enticed to play with it, because it rolled easily, and that, while plaintiff's intestate and other children were so playing, the pipe tipped over and fatally injured plaintiff's intestate, it stated a cause of action.-KOPPLEKOM V. COLorado CEMENT PIPE CO., Colo., 64 Pac. Rep. 1047.

69. PAYMENT-Money.-Where plaintiffs sent an account against defendant to an attorney for collection, and in the settlement of another controversy money belonging to the defendant came into the possession of the attorney, and was deposited in the bank in his name, and it was agreed between the attorney and defendant that the attorney should send his own check to plaintiffs in payment of the account, it was error to charge that the agreement did not constitute pay. ment, since the money was appropriated to the debt, and accepted by plaintiff's authorized agent.-MILLHISER V. MARR, N. Car., 38 S. E. Rep. 887.

70. PHYSICIANS AND SURGEONS-Certificate-Record. ing.-Laws 1885, p. 296, § 1 (Mills' Ann. St. § 3550), provides that the certificate of the state board of medical examiners to the effect that the person holding it was a graduate in medicine from a legally chartered medical school, in good standing. shall be conclusive as to the rights of such person to practice medicine in this state; and section 3554 declares that every person holding such a certificate shall have it recorded in the office of the county clerk of the county in which he resides. Held, that where a physician possessed a certificate of the state board, entitling him to prac tice medicine, the fact that the certificate was not recorded in the county in which he rendered services constituted no defense to an action for compensation, since the issuance of the certificate was conclusive of his right to practice, and the statute did not make the recording of it a condition precedent to the right to recover for services.-RILEY V. COLLINS, Colo., 64 Pac. Rep. 1052.

71. PLEADING and PRACTICE-Personal Injuries.-Injury to eyesight may be proved under a complaint alleging that plaintiff was hurled forward with such force as to bruise her knee, wrench her arm, and "otherwise seriously and grievously injure her."BROOKLYN HEIGHTS R. Co. v. MACLAURY, U. S. C. C. of App., Second Circuit, 107 Fed. Rep. 644.

72. PLEADING AND PRACTICE Trial-Misconduct of Counsel in Argument.-It was improper to permit counsel for plaintiff, in an action against a railroad company to recover damages for personal injuries, to say, in argument to the jury: "The railroad can ap peal this case, but the plaintiff is a poor man, and has no money to appeal with, and will have to accept what you do;" but this error alone would not be suffi cient to authorize a reversal.-LOUISVILLE, ETC. RY. Co. V. MORGAN, Ky., 62 S. W. Rep. 736.

73. PRINCIPAL AND SURETY-Sureties in Sheriff's Bond-Homestead.-A surety in a sheriff's bond is not entitled to the exemption of a homestead as against a judgment on the bond in favor of the commonwealth, and is therefore not entitled to the exemption as against the claim of a co-surety for contribution on account of the payment of such judgment.-HUTSON'S ADMR. V. COMBS, Ky., 62 8. W. Rep. 709.

74. RAILROADS - Injuries to Servant.-Where a serv. ant of a railroad company operating lines in North Carolina was injured in Tennessee by the negligence of a fellow-servant, an action for such injuries was an action in contract, and not in tort, and hence, in the absence of any showing as to where the contract was

made, the North Carolina court had jurisdiction of the action, and the fellow-servant act of 1897 of that state applied to it, making the railroad company liable.-WILLIAMS V. SOUTHERN RY. CO., N. Car., 38 S. E. Rep. 893.

75. RAILROADS-Persons on Track-Negligence.-Intestate was found early in the morning beneath a trestle on defendant's road severely injured, and died soon thereafter. There was grease on his clothes, appar. ently from an engine. There was evidence that a train of defendant passed the trestle during the night. Held that, if intestate was on the trestle and was struck by the train, it was negligence in defendant not to have seen him at the time; and if defendant's train knocked the intestate off the trestle, and the em ployees knew it had done so, and went on without stopping to look after and care for him on a cold winter night, it was negligence sufficient to make defend. ant liable. WHITESIDES v. SOUTHERN RY. CO., N. Car., 38 S. E. Rep. 878.

76. RECEIVERS Parties Partnership Liability. Where a contract liability was incurred by a copartnership long before the appointment of a receiver of the partnership assets, the copartners were necessary parties to a suit on such contract, and a complaint against the receiver alone was demurrable.-FLYNN V FURTH, Wash., 64 Pac. Rep. 903.

77. SHIPPING-Injury to Vessel-Fault of Master.-Recovery cannot be had for injury to a boat by its grounding on an obstruction at a dock, on the going down of the tide, where the master, though notified that there was an obstruction, and directed to breast the boat off from the dock, for which purpose a breast. ing plank had been fastened to the dock, failed to do so.-LEO v. MCCOLLUM, U. S. D. C., E. D. (N. Y.), 107 Fed. Rep. 742.

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78. SHIPPING Sale of Yacht Appurtenances Agency Scope of Agent's Authority. A naptha launch used by the owner as a tender, in connection with a 30-foot yacht owned by him, but which could not be carried on the yacht, did not accompany it on its trips, and was not a part of the usual equipment of such yachts, did not by such use, merely as a matter of convenience, become an appurtenance of the yacht, which passed by a sale of the latter. Agents who are authorized by the owner to sell a yacht are not thereby given any authority, either actual or apparent, to sell a naptha launch, sometimes used as a tender to the yacht, but which was not legally an appurtenance thereto, but a separate vessel, and, in the absence of actual authority, they cannot bind the owner by a sale of the launch.-FORREST V. VANDERBILT, U. S. C. C. of App., Third Circuit, 107 Fed. Rep. 734.

79. SLANDER AND LIBEL-False Notice to Creditors' Protective Association.-If a notice given by defendant brewing company to a brewers' protective asso. ciation of which it was a member, to the effect that plaintiff, one of its customers, was indebted to it, was false, and was given for the purpose of extorting from plaintiff a debt which he had settled, or for the purpose of disabling plaintiff from dealing with other members of the association, and keeping him in its power, after the debt had been raid, there was legal malice authorizing the recovery of damages.-JOHN BRENNER BREWING CO. v. MCGILL, Ky., 62 S. W. Rep. 722.

80. SURETIES-Replevin Bond-Indemnity.- Sureties on an undertaking in replevin have no remedy at law or in equity upon a contract to indemnify them against loss on account of their suretyship until such loss has occurred; nor has the defendant in the replevin suit who recovered a judgment against the plaintiff therein, though the sureties and judgment debtor be insolvent, and the judgment be otherwise uncollectible. HENDERSON ACHERT LITHOGRAPHIC Co. v. JOHN SHILLITO CO., Ohio, 60 N. E. Rep. 295.

81. SURETIES AND SURETYSHIP-Official Bonds-Liabilities.-Under Gen. Stat. 1883, § 647 (Mills' Ann. Stat.

§ 910), providing that an assessor shall give bond for the performance of his duties, the sureties on an assessor's official bond are not liable to his successor for fees received by their principal holding over after the expiration of his term, though his bond, in addition to requiring the faithful performance of his duties, requires him to deliver to his successor all the belongings of his office, such latter requirement being surplusage. PEOPLE V. JACKSON, Colo., 64 Pac. Rep. 1051.

82. TAXATION-Assessment Loans. Under Const. art. 13, § 1, providing that "moneys, credits, dues," etc., shall be taxed, loans are taxable, though secured by property exempt from taxation.-SECURITY SAV. BANK V. CITY AND COUNTY OF SAN FRANCISCO, Cal., 64 Pac. Rep. 898.

83. TAXATION-Personalty-Seat in New York Stock Exchange.-A seat in the York Stock Exchange is not personal property, within Laws 1896, ch. 908, § 2, subd. 4, defining personal property for purposes of taxation, and is not taxable to a non-resident under section 7, providing that personal property of a non-resident shall be taxed to the extent" as if owned by a resi dent. The value of a seat in the New York Stock Exchange is capital invested in business in the state, but is not taxable, as the taxing statute does not cover it. -PEOPLE V. FEITNER, N. Y., 60 N. E. Rep. 265.

84. TELEGRAPH-Delay in Delivery of Money-Dama. ges-Mental Distress.-In an action against a telegraph company to recover damages for the failure to promptly deliver money transmitted through such company to the plaintiff, the fact that plaintiff was evicted from her house because of her failure to re. ceive such money, and the injury to her reputation generally because of such eviction, are consequences too remote to be considered as elements of damages. Mental distress, unaccompanied by physical injury, is not a proper element of damages recoverable from a telegraph company for a failure to promptly deliver money sent through its agency to plaintiff.-STANSELL v. WESTERN UNION TEL. Co., U. S. C. C., S. D. (Cal.), 107 Fed. Rep. 669.

85. TRESPASS

Cutting Trees on Another's Land Penalty-Instructions.-One who cuts trees on the land of another, but who at the time of such cutting is under the honest belief that the land is his own, or that it is the land of a third person who has consented to such cutting on his land, is not liable for the penalty prescribed by statute (Code, § 4137). GLENN V. ADAMS, Ala., 29 South. Rep. 836. 86. TRIAL Continuance Absent Witnesses. -An application for a continuance in a crim. inal case on account of absent witnesses is addressed to the discretion of the trial court, and its refusal is not revisable on appeal, unless it is plainly shown that there was an abuse of such discretion by the trial court. Thus, where an application for a continuance is made by the defendant in a criminal case on ac. count of the absence of some of his witnesses, and the state limits the showing made by the defendant as to what the absent witnesses would testify if present, and there are disclosed no facts which show that the absence of the witnesses is prejudicial to the defend. ant, the refusal of the application for a [continuance is not erroneous.- HUSKEY V. STATE, Ala., 29 South. Rep. 838.

87. TRUSTS AND TRUSTEES-Conveyances by Trustee. -Where two grantors, each owning an individual molety in realty, convey it to one of them in trust for the other and certain third parties, imposing no active duties on such trustee, such conveyance, under the statute of uses, passes both the legal and equitable estate of the grantors to such third persons, leaving the trustee without any title which he can convey as against the latter.-JORDAN V. PHILLIPS & CREW Co., Ala., 29 South. Rep. 831.

88. USURY-Buflding and Loan Associations - Mortgages. A contract with a building and loan associa

tion, requiring a fixed monthly payment of dues, and a monthly payment of interest, and a certain premium, aggregating an amount greater than the legal rate of interest, is usurious, the premium being merely additional interest.-SOUTHERN HOME BUILDING & LOAN ASSN. v. TONY, Miss., 29 South. Rep. 827.

89. VENDOR AND PURCHASER-Payment-Receipts.Where defendant sold land to plaintiff by agreement in form of a lease, deed to be given on payment of 72 monthly installments of $45.07 each, and a note of $1,350, payable 9 years from date, receipts given by defendant to plaintiff 9 years thereafter, at a time subsequent to any payments on the 72 installments and when all payments were on the note, and reciting, "I received $55 rent in advance" for said premises, will, in the absence of explanation or proof of mistake, be conclusive of payment of all the previous installments. JOHNSTONE V. MULCAHY, Cal., 64 Pac.

Rep. 1077.

90. WATERS AND WATER COURSES-Nuisances - Dam -Abatement.-Where a lower riparian owner erects a dam which throws the water back on an upper owner, it is a nuisance, which the latter may abate to the extent necessary to stop the refluence, if he can do so without a breach of the peace.-LILES V. CAWTHORN, Miss., 29 South. Rep. 834.

91. WILLS-Charitable Use-Erection of a Church. Testator directed that a large part of his property should be converted into money, to be designated as the "general fund," and directed that such fund should be applied to the building of a stone church and school house of convenient size, two stories high, and about 60 feet long by 40 feet wide, etc.; the building to cost about $2,000, and to be paid out of the "general fund." After his death the amount available in such fund was $4,000, but it was found that the testator's entire estate was not sufficient to erect a stone building of the dimensions mentioned. Held, that the provision for the size of the building was directory merely, and that, in the absence of proof that a building could not be constructed of stone of sufficient size and suitable for the purposes contemplated, by the use of the entire amount of the "general fund," it would not be held that such provision of the will was inoperative, or insufficient for its purpose.-PAINE V. FORNEY, N. Car., 38 S. E. Rep. 885.

92. WILL-Construction.-A will in which the testator devises all of his real and personal property to his wife, to have and control it as he would do if living, and "to sell and convey any property she may choose for her support or comfort, as she may see proper, during her natural life; and at her death, what may be left of my said estate, the same to be divided according to law in such cases made and provided,”gives to his wife an estate for life in all of his property, with the absolute right of disposition of the same without restraint or control by the courts; and her right of disposition is not limited to the necessi ties for her support and comfort.-CAIN V. CAIN, Ala., 29 South. Rep. 846.

93. WILLS-Devise to Class- Beneficiaries - Particu lar Estate.-Where testator devised a tract of land to his son's children, to be divided among them after the death of such son, only those children who were born at the time of testator's death were entitled to a sbare of the land, since there was no provision for an intermediate estate, but the title passed to the devisees immediately on the death of the testator.-WISE v. LEONHARDT, N. Car., 38 S. E. Rep. 892.

94. WRIT OF REVIEW-Trustee-Deposit in Court. Under the provisions of section 4839, Rev. St., when it is admitted by the pleading of a party or shown upon his examination that he has in his possession or under his control money that he is holding as trustee for others, who apply to the court for an order requiring the holder thereof to turn the same into court, the court has jurisdiction to grant such application, and to make an order requiring the money to be deposited in court.-REID V. STEELE, Idaho, 64 Pac. Rep. 892.