showing the non-residence of defendant.-BATES v. CULLUM, Penn., 35 Atl. Rep. 861. 74. MANDAMUS-Demand of Performance.-As a general rule, mandamus will not issue at the suit of a private individual to compel a public officer to do any official act until a demand has been made upon him to do it. But a formal demand is unnecessary where the conduct and action of the respondent is equivalent to a positive refusal.-STATE V. BUSHHAUSEN, Neb., 68 N. W. Rep. 950. 75. MARRIED WOMEN'S SEPARATE ESTATE-Husband's Creditors. The acts of 1887 and 1893, enlarging the capacity of married women to contract, and to acquire and dispose of property, do not affect the rule that where a married woman claims, as against her husband's creditors property which was conveyed to her during coverture, she must prove that such property was purchased with her own means, or that it was a gift to her from her grantors.-JACK V. KINTZ, Penn., 35 Atl. Rep. 867. 76. MASTER AND SERVANT-Negligence.-A railroad employee, while wiping an engine in the daytime, placed one hand upon the tire of one of the driving wheels, upon which was a sliver six inches long, and projecting over half an inch beyond the outer edge of the tire, and was injured by a small splinter of this sliver. It was shown that such slivers and splinters were frequently formed upon engine tires, and that they are ordinarily permitted to remain until the wheels are turned anew: Held, that the railroad company was not liable, as the injury could not have been foreseen or reasonably anticipated.-MCCAIN V. CHICAGO, B. & Q. R. Co., U. s. C. C. of App., Eighth Circuit, 76 Fed. Rep. 125. 77. MASTER AND SERVANT-Negligence.-In an action for the death of plaintiff's husband, it appeared that he was killed by the caving in of defendants' mine shaft, which he was employed in sinking; that he was a practical miner, and had worked in the shaft from the surface, and knew the character of the ground; that he voluntarily prosecuted the work, without informing the defendants, who had not been in the shaft, that it was dangerous: Held, that defendants were not chargeable with negligence.-STILES V. RICHIE, Colo., 46 Pac. Rep. 694. 78. MINES AND MINING-Location.-In locating mining claims it has become the settled law that section 2324 of the United States Revised Statutes must be complied with.-BROWN V. LEVAN, Idaho, 46 Pac. Rep. 661. 79. MINES AND MINING-Retrospective Laws.-The act of April 8, 1893, amending Mills' Ann. St. § 3346, relating to the partition or sale, if partition cannot be had, of lands held in tenancy in common or joint tenancy, etc., and declaring that the provisions of that section shall not apply to lode mines or lode-mining claims when it appears that the property cannot be partitioned without prejudice to the owners, is prospective merely, and does not affect actions for the partition of property commenced before the passage of such act.BROWN V. CHALLIS, Colo., 46 Pac. Rep. 679. Where 80. MORTGAGES-Accord and Satisfaction. there is a bona fide dispute between the maker and the payee of promissory notes as to the date from which interest is payable under the terms of the notes, which are ambiguous, and the maker pays the amount he admits to be due, on the express condition that the notes and mortgages securing the same shall be canceled and surrendered, and the payee accordingly receives the money and cancels and surrenders the securities, the transaction amounts to a valid accord and satisfaction of the debt, and the payee cannot thereaf ter maintain an action to recover the balance of interest claimed by him to be due.-STORCH V. DEWEY, Kan., 46 Pac. Rep. 698. 81. MORTGAGE Foreclosure- Defenses.-An answer to a complaint in an action to foreclose a mortggage, pleading an agreement of the mortgagee to receive a portion of the mortgaged premises in payment, and an offer to comply with the agreement by the mortgagor does not state any defense where it is admitted that the premises are subject to other incumbrances. -CHRISTMAS V. HAYWOOD, N. Car., 25 S. E. Rep. 861. 82. MORTGAGE-Foreclosure Sale-Redemption.-Under the Minnesota law, the effect of a redemption by lienholders from a foreclosure sale under a prior mortgage is to vest in them the title to the premises, discharged of the lien of the mortgage.-CURTIS v. CUTLER, U. s. C. C. of App., Eighth Circuit, 76 Fed. Rep. 16. 83. MORTGAGE-Parol Evidence.-Parol evidence is admissible to show that an instrument reciting the receipt of the transfer of certain lots for a certain price, payable in lumber, and containing an agreement to reconvey to the grantors on payment of their bill to the grantee, and that the parties should sell the lots within 90 days, was intended for a mortgage, and not an absolute sale of the lots, rendering the grantee liable for the price.-STITH V. PECKHAM, Okla., 46 Pac. Rep. 664. 84. MUNICIPAL CORPORATIONS-Assuming Illegal Indebtedness.-Where a town by ordinance expressly recognized and assumed an indebtedness created in good faith for public improvements made while acting under an illegal organization, the ordinance is not invalid because it delegated to the mayor and clerk the duty of taking up the warrants evidencing such indebtedness and directed them to issue new ones in their stead.-STATE V. WINTER, Wash., 46 Pac. Rep. 644. 85. MUNICIPAL CORPORATION - Ordinance.-It is no objection to the validity of a city ordinance that it prohibits acts and omissions made penal by the laws of the State, provided the legislature has expressly authorized such municipal legislation; and, while the ordinance keeps within the limits of the State law, it may be valid, notwithstanding it does not cover the whole ground occupied by the statute.-CITY OF KANSAS CITY V. GRUBEL, Kan., 46 Pac. Rep. 714. 86. MUNICIPAL CORPORATION-Regulations as to Use of Water. A city of the second class having less than 5,000 inhabitants and owning and maintaining waterworks has not the power to require an inhabitant, as a condition precedent to the use of water, to purchase and place in position at his own expense a water meter.-ALBERT V. DAVIS, Neb., 68 N. W. Rep. 945. 87. MUNICIPAL CORPORATIONS-Street-Negligence.Evidence that a street through a city of the second class has been generally traveled by the public as a thoroughfare, and has been taken charge of and kept in repair by the municipal officers, and recognized as a public street, is sufficient, prima facie, to show that such street has been duly laid out and accepted as a public highway, and that the city is liable for its negligence in failing to maintain the same in a reasonably safe condition for public travel.-CITY OF ABILENE V. WRIGHT, Kan., 46 Pac. Rep. 715. 88. NATIONAL BANKS-Cashier-Bond-Construction. -A bond conditioned for the proper performance by a cashier of his duties "for and during all the time he shall hold the said office" binds the sureties for all such time, irrespective of the fact that he is reappointed at the beginning of each year.- WESTERVELT V. MOHRENSTECHER, U. S. C. C. of App., Eighth Circuit, 76 Fed. Rep. 118. 89. NATIONAL BANKS-Liability as Stockholder.-Defendant, who was the owner of stock in a national bank, which, under its by-laws, was transferable only on the books of the bank, sold the same, and, after executing a written assignment to the purchaser, and a power of attorney in blank to make the transfer, indorsed on her certificate of stock, delivered the certifi cate to the president of the bank, who promised to make the proper transfer on its books, but failed to do so, though the certificate was thereafter treated and used by the bank as the property of the purchaser. The bank subsequently became insolvent, and the re ceiver brought an action against defendant to recover an assessment made on the stock: Held, that defend. ant, having done in good faith all that a prudent person would be required to do towards the transfer of the stock, could not be held liable as a stockholder.COX V. ELMENDORF, Tenn., 37 S. W. Rep. 387. 90. NEGLIGENCE Dangerous Premises.-Where an owner of premises has reason to apprehend danger from the peculiar situation and condition of certain of their appurtenances and their openness to accident, the question whether he has exercised due care or not, as well as that of the contributory negligence of a person injured thereon, becomes one for the jury, to be determined upon all the facts and circumstances of the case.-KINCHLOW v. MIDLAND ELEVATOR CO., Kan., 46 Pac. Rep. 703. 91. NEGOTIABLE INSTRUMENTS - Assignment.-Rev. St. 1895, art. 307, declaring that any person to whom a negotiable instrument has been "assigned" may maintain any action in his own name which the original obligee might have brought, and, if he obtained such instrument before maturity, for value, and "without notice of any discount or defense against it, then he shall be compelled to allow only the just discounts against himself," is available to any bona fide transferee, before maturity, whatever the form of the transfer, and whether it be written or verbal.-WORD V. ELLWOOD, Tex., 37 S. W. Rep. 414. 92. NEGOTIABLE INSTRUMENT-Fraud.-The mere fact that a negotiable note is acquired under suspicious circumstances will not invalidate it in the hands of the holder, unless the circumstances are such that bad faith can be reasonably inferred.-LANCASTER COUNTY NAT. BANK v. GARBER, Penn., 35 Atl. Rep. 848. 93. NEGOTIABLE INSTRUMENTS Illegal Considera. tion -In an action on notes, it appeared that they were made for the price of furniture sold with knowl. edge that it was to be used in fitting up a house of prostitution; that the payments would have to be made from money derived therefrom; and that the payments were to be made as defendant might be able from the business, extending over a number of years: Held, that the contract and notes were void, as based on an illegal consideration.-REED V. BREWER, Tex., 37 S. W. Rep. 418. -- 95. PARTNERSHIP Evidence.-On the issue as to whether a business was carried on by defendants as partners, the admissions of one of them to the effect that the business belonged to him and his codefendants could not be considered in determining the liability of the other defendants, or the relation of either of them to the others.-STIEWEL V. BORMAN, Ark., 37 S. W. Rep. 404. 95. PARTNERSHIP — Managing Partner.-A managing partner, intrusted with the sole charge of the business and effects of the firm, may, in case of its insolvency, make a valid assignment of its property for the benefit of its creditors, without having obtained the consent of a copartner who is a non-resident of the State where the business was carried on, and absent therefrom. The assent of the absent partner to the assignment in such case will be presumed.-H. B. CLAFFLIN Co. V. EVANS, Ohio, 45 N. E. Rep. 3. acts of the agent in excess of, or contrary to, the latter's authority in the premises.-LITTLETON V. LOAN, MERCANTILE & STOCK ASSN., Ga., 25 S. E. Rep. 826. - 98. PRINCIPAL AND SURETY Agreement between Debtors. One of two principal debtors cannot, by agreement with his codebtor, without consent of the creditor, change the character of his liability from principal to surety; and where, on dissolution of a partnership, one partner assumes the indebtedness of the firm, the other partner cannot require a creditor to bring suit, or to release him from liability under Sayles' Civ. St. arts. 3660, 3661, providing that a surety may, by serving notice on the creditor, compel him to bring action on the debt, on penalty of the surety be ing discharged.-A. F. SHAPLEIGH HARDWARE Co. v. WELLS, Tex., 87 S. W. Rep. 411. 99. PRINCIPAL AND SURETY-Bank Deposit.-Though the principal on a note payable to a bank has, after maturity thereof, a deposit in the bank sufficient to pay it, the omission of the bank to appropriate it to payment of the note does not discharge the surety.HOUSTON V. BRADEN, Tex., 37 S. W. Rep. 467. 100. RAILROAD COMPANY-Injury to Licensee in Yards. -Mere permission by, or implied license from a railway company for children to enter its yard for the purpose of carrying meals to their fathers, there being a perfectly safe way for the children to pass and repass without going under freight cars standing upon tracks in the yard, will not subject the company to liability for injuries caused to one of these children by pushing upon him a car under which he had suddenly gone for the purpose of getting a ball which had been thrown there, but for the throwing of which the company was in no way responsible; and it not appearing that the company's servants by whom the car was put in motion knew, had reason to know, or were in a position to discover, that the child was under it at the time.-SAVANNAH, F. & W. Rr. Co. v. WALLER, Ga., 25 S. E. Rep. 823. 101. RAILROAD COMPANIES - Negligence-Knowledge of Defects.-A brakeman whose attention is directed to his duty of coupling cars at a place where a weigh. ing platform is maintained by consent of the railroad company, and who is injured by striking his foot against a plank projecting above the surface of the platform, is not negligent in failing to observe the defect, of the existence of which he had no previous knowledge.-GULF, C. & S. F. RY. Co. v. HOCKADAY, Tex., 37 S. W. Rep. 475. -- 102. RAILROAD COMPANY Receivers Recovery of Damage.-Damages to stock shipped under a contract with the receivers of a railroad after its sale, but before delivery to the purchaser, cannot be recovered of the company or purchaser in the absence of a showing that the receiver derived funds from the operation of the road, and turned them over to the company or purchaser, or made permanent improvements on the property therewith.-HOLMAN V. GALVESTON, H. & S. A. RY. Co., Tex., 87 S. W. Rep. 464. 103. RAILROAD COMPANY - Street Railway gence. That one driving along a street, after crossing a street-car track, stopped so near it, to converse with a person, that there was not room enough for a car to pass, is not negligence contributory to the collision, but merely a "condition."-REDFORD V. SPOKANE ST. RY. CO., Wash., 46 Pac. Rep. 650. Negli 104. RAILROAD COMPANY -Street Railway Compan. ies. Where a street railway company, in laying its tracks, has failed to conform to the grade of the streets, according to an express condition of the grant of the right to use such streets, the municipality may change such tracks to the proper grade, and recover the cost thereof from the company.-BOROUGH OF SHAMOKIN V. SHAMOKIN ST. RY. Co., Penn., 35 Atl. Rep. 862. 105. RAILROAD MORTGAGE Priorities.-A surety upon a supersedeas bond given by a railroad company while apparently solvent and not in default in interest, if compelled, after the insolvency of the company, to pay the judgment appealed from, is not entitled to be repaid from the proceeds of the property of the company in preference to the mortgage thereof.WHITELEY V. CENTRAL TRUST CO. OF NEW YORK, U. S. C. C. of App., Sixth Circuit, 76 Fed. Rep. 74. 106. RELIGIOUS SOCIETY - Laws of the Church.-In adjudicating disputes between warring church parties. the court can look into the rules of a church organization to ascertain the church law; and, if that be not in conflict with the law of the land, all that can be done is to protect the rights of parties under the law they have made for themselves.-LONG V. HARVEY, Penn., 35 Atl. Rep. 869. 107. REMOVAL OF CAUSES-Nominal Party.-A defendant whose only interest in the property in suit is the ownership of an option to buy it on condition that a clear title be given, and that he shall pay a certain sum within a given time, is a nominal party merely, whose joinder does not affect the right of removal.GARRARD V. SILVER PEAK MINES, U. S. C. C., D. (Nev.), 76 Fed. Rep. 1. 108. SALE-Implied Warranty - Manufacturer of Ma. chinery. The manufacturer of machinery for a spe cial purpose impliedly warrants that it is reasonably suitable for the purpose for which it is to be used, and free from such latent defects as can be prevented by the use of the usual approved methods of manufacture.-TENNESSEE RIVER COMPRESS CO. V. LEEDS & Co., Tenn., 37 S. W. Rep. 389. 109. SALE-Rescission for Fraud. Where a debtor in the possession of goods fraudulently obtained transfers them to a creditor in satisfaction of a pre-existing debt, the transferee is not a bona fide purchaser for value as against the person from whom the debtor obtained them.-AMES IRON WORKS v. KALAMAZOO PULLEY CO., Ark., 37 S. W. Rep. 409. 110. SLANDER-Evidence of Confession.-In an action by a married woman for slander, based on statements by defendant that plaintiff had been criminally intimate with a certain man, evidence of a statement made by plaintiff's husband to a witness, that plaintiff had confessed such intimacy to him, is not admissible, where such statement was not made in the presence of the wife, though she had referred the witness to her husband for an explanation of why she was crying at the time about which the witness had inquired; it not appearing that such reference had any connection with the subject of the confession or with the conduct of the wife, and it not being shown when the state. ment showed the confession to have been made.ROBERTSON V. HAMILTON, Ind., 45 N. E. Rep. 46. 111. SLANDER- Professional Character.- When slanderous words affect professional character by imputation of misconduct, strict proof that the slandered person has been admitted into his profession is not required, and it will be sufficient to prove that he has practiced it; but, when the words spoken deny the right to practice that profession, it seems that the right must be established by proof.-RITCHIE V. WIDDEMER, N. J., 35 Atl. Rep. 825. 112. SUNDAY LAWS-Running Railroad Trains.-Code, § 1973, making it a misdemeanor to run railroad trains (with certain exceptions) between certain hours on Sunday, is not unconstitutional as applied to trains carrying freight between points in different States.STATE V. SOUTHERN RY. Co., N. Car., 25 S. E. Rep. 862. following judgment was entered by the clerk: Held, that the judgment was a nullity. A verdict was re turned into court on the last day of the term, and, the judge not being present, was, by consent of parties, received by the clerk. At the next term the judge ordered the entry of judgment nunc pro tunc: Held that, as between the parties, the judgment was operative as though entered at the former term. It was not essential to the validity of such judgment that notice of the entry should have been given.-FERRELL V. HALES, N. Car., 25 S. E. Rep. 821. 116. TRUST AND TRUSTEE Administrators.-In an ac. tion to establish a trust, and to follow the trust funds into the hands of the trustee's administrators, and to compel them to apply such funds to the satisfaction of plaintiff's judgment before satisfying any other claims against the estate, the mere fact that the evidence does not warrant the court in following the trust fund, and impressing upon it a lien, does not preclude it from rendering a judgment against defendants for such sum as it may find to be due.-MCCLURE V. BOARD OF COM'RS OF LA PLATA COUNTY, Colo., 46 Pac. Rep. 677. 117. VENDOR AND PURCHASER-Fiduciary Relations.— If one who has made a contract to purchase land proposes to sell a portion thereof to a third party, who accepts the offer, the transaction creates the relation of vendor and vendee, and establishes no fiduciary relation. MACKENZIE V. SEEBERGER, U. S. C. C. of App., Eighth Circuit, 76 Fed. Rep. 108. 119. VENDOR'S LIEN Enforcement against Mortgagee.-One who makes an absolute conveyance of land, retaining a vendor's lien only in the purchasemoney notes, cannot enforce it against one who, without notice of it, makes the purchaser a loan, and takes as security a trust deed on the land, of which the vendor has knowledge, but makes no complaint till a year after.-COWAN V. MURCH, Tenn., 37 S. W. Rep. 393. 120. WILLS - Bequest.-Where no demand for pay. ment of legacies is made till after the death of the life tenant, who is also executrix, interest on the legacies cannot be had against the remainder-men.-ADAMS V. ADAMS, N. J., 35 Atl. Rep. 827. 121. WILLS Nature of Estate Devised. - Testator gave his residuary estate to his wife for life, and after her death "the estate to be held in trust for my two nieces, share and share alike. To be held in trust until both are of legal age:" Held, that the nieces took INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- CORRESPONDENCE AND BOOK REVIEWS A separate subject-index for the Digest of Current Opinions" will be found on page 521, follow- liability for damages occasioned by, 423, 427. a cause of action for personal injuries to a railroad venue of, for injuries to land, 198. distinction as to venue between local and transi- for inducing one to enter into a marriage contract, privilege of citizens of another State in the matter ADJOINING PROPERTY OWNERS, liability for destroying lateral support which liability of decedent's estate for services by one of ADOPTION, rights of adopted child as to inheritance, 278. ALIEN LAND LAW, the treaties of the United States and alien land the statutes of Illinois, 211. the treaties of the United States with foreign operation and effect of treaties, 215. aliens and alien disabilities, 218. the statutes of other States of the union, 220. AMERICAN BAR ASSOCIATION, nineteenth annual meeting of the, 189. priority of chattel mortgage on, over the lien of a colt three months old, following its dam, driven ANIMAL-Continued. liability for damage done by dogs, 458. joint action will not lie against the separate the dog in law, 459. ARREST, validity of statute providing for arrest and im- ARSON, what constitutes the crime of, 286, 288. an assignment by public officer of his salary or an assignment which gives the assignee discre- provision in a lease forbidding assignment of the not liable for punitive or vindictive damages on elevators as carriers of passengers, 281. an employee riding on train as a passenger, is not cannot by contract with a passenger whose ticket bicycles as baggage, 363, 377, 457. can the liability of a carrier of passengers be lim- liability of carrier for damages occasioned by act where a carrier through its negligence fails to validity of Illinois law requiring the raising of flags seizure of the papers of one indicted, to be used as validity of statutes providing for special juries, 209. validity of statute prohibiting parade by unauthor privilege of citizens of another State in the matter CONTRACT, effect where performance is not permitted by one validity of lobbying contracts as in derogation of the legal effect of a promise to pay a specific kind by which one undertakes, in a consideration of |