20.

Boundaries-Establishment by Agreement. Owners of adjoining land in dispute as to the boundary held bound by the line orally agreed on by them, when followed by possession with reference thereto.-Payne V. McBride, Ark., 131 S. W. 463.

21. Bridges-What Constitutes.-A bridge, at common law and under the statute, generally includes the abutments and approaches.State v. Illinois Cent. R. Co., Ill., 92 N. E. 814. 22. Brokers-Duty to Obtain Highest Price.An agent to sell, falsely representing that a certain amount was the value, and all that could be obtained, and secretly buying for himself, afterwards selling for the true value, held accountable for the excess.-Durand v. Preston, S. D.. 128 N. W. 129.

23. Cancellation of Instruments-Instruments Subject to Cancellation.-An instrument not invalid on its face, though void at law, may be a proper subject for cancellation in equity.McCracken v. McBee, Ark., 131 S. W. 450.

24. Carriers-Acts of Employees Off DutyAs affecting a carrier's liability for injury to a passenger, an employee traveling on a train off duty must be regarded as a mere passenger.-Penny v. Atlantic Coast Line R. Co., N. C., 69 S. E. 238.

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27.- -Freight Rates.-In determining reasonableness of freight rates, the various matters tending to influence the cost of the transportation should be considered.-State v. Illinois Cent. R. Co., Ill., 92 N. E. 814.

28.-Negligence. The carrier sued for injury to a passenger from derailment of a train held required to repel every imputation of the slightest negligence.-Sherman V. Southern Pac. Co. Nev., 111 Pac. 416.

29. Stock Yards Company.-A stockyards company owning tracks connecting its yards with trunk line railroads, which it operated alone with its own engines and crews, held a railroad company and a common carrier of freight subject to the provisions of TwentyFight Hour Law, 1906.-United States V. St. Joseph Stockyards Co., 181 Fed. 625.

punished for failure to comply with a judgment of a court, unless such failure be established with reasonable certainty.-Greenberg v. Polansky, 125 N. Y. Supp. 176.

33. Contracts-Acceptance.-A contract held complete on the mailing of the acceptance of the offer, or on sending a telegram accepting the offer.-Postal Telegraph Cable Co. v. Louisville Cotton Seed Oil Co., Ky., 131 S. W. 277.

34. Implied Contracts.-A promise is implied on principles of equity and natural justice, and no implication to pay arises where the circumstances are such that the implication will be inequitable.-Irwin v. Jones. Ind., 92 N. E. 787.

35. Offer and Acceptance.-To constitute a contract on the theory of an offer and acceptance, the offer itself must be complete and reasonably definite as to terms.-Northrup Colter, Mo., 131 S. W. 364.

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36. Courts-Jurisdiction.-A court having jurisdiction over the person of a party to a suit held to have jurisdiction to compel him to execute a conveyance of real estate situated in another state.-Joy v. Midland State Bank, S. D., 128 N. W. 147.

37. Right Given by Federal Statute.-A right given by a federal statute may be enforced in a state court, unless exclusive jurisdiction is reserved to the federal courts.-Bradbury v. Chicago, R. I. & P. Ry. Co., Iowa, 128 N. W. 1.

40.- -De Facto Corporations.-Before there can be a de facto corporation, there must be a valid law under which it may be formed, an attempt to incorporate, and exercise of powers. -Jennings v. Dark, Ind., 92 N. E. 778.

41. Directors.-The management and control of the affairs of a corporation rest with its board of directors, and as a general rule the courts will not interfere at the suit of a minority shareholder to override and control the discretion of the directors.-Red Bud Realty Co. V. South Ark., 131 S. W. 340.

43.-- Lien on Stock.--The statute giving to a corporation a lien on the stock in the name of a stockholder to secure such stockholder's indebtedness to the corporation, it may enforce such rights to secure payment of indebtedness of and repayment of any funds misappropriated by such stockholder.- Red Pd Realty Co. V. South. Ark., 131 S. W. 340.

41. Right of Receiver of Foreign Corporation. A receiver of a foreign corporation appointed by the court of the origin of the corporation and considered as a court or common law receiver held not vested with the legal title to the real estate of the corporation situated in South Dakota.-Joy v. Midland State Bank, S. D., 128 N. W. 147.

45. Subscription to Stock. No officer of a corporation has authority to release any subscriber to the capital stock from his subscription.-Beam V. Floyd County Farmers' Union, Ga., 69 S. E. 225.

46. Criminal Law-Instructions.-It was not necessary for the court to charge that, the evidence being circumstantial, it was unnecessary for defendant's evidence to be of as high a grade as that of the state.-State V. Callahan, Kan., 111 Pac. 445.

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47 . Damages-Discretion of Jury.--Since is practically impossible to prove with any degree of certainty the amount which a three year old child would have been able to earn during minority, had it not been injured, a wide discretion must be allowed the jury in determining the question under the circumstances of each particular case.-Flaherty v. Butte Electrie Ry. Co., Mont., 111 Pac. 348.

48. Personal Injuries-One sustaining a personal iniury may recover for impairment of the power to earn money, though only temporary-Blue Grass Traction Co. v. Ingles, Ky.,

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49.

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-Punitive Damages.-A person who has no cause of action independent of his claim for punitive damages cannot recover such punitive damages.-Sondegard v. Martin, Kan.. 111 Pac. 442.

50. Deeds-Validity.-A deed is void where, when executed, the grantor was incapable of understanding the nature of his act.-Caddell v. Caddell, Tex., 131 S. W. 432.

51. Descent and Distribution-Suit to Set Aside Deed. A complaint by an heir to set aside deed a of his ancestor should state whether the ancestor died testate or intestate, and, if testate, his devisees, and it should state that the ancestor was seized of an estate of inheritance at the time of his death and should describe the premises.-Thomas V. McKay, Wis., 128 N. W. 59.

52. Divorce-Alimony. -Where a marriage was void ab initio, a wife, suing for a divorce. was not entitled to temporary alimony: Sne knowing of the invalidity of the marriage.Dye v Dre, 125 N. Y. Supp. 242.

53. Custody of Children -The court, in making orders for the custody of minor children of divorced parents, must have principally in view the interests and welfare of the children.-Davis v. Davis, Ky., 131 S. W. 266.

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56. Duration Adverse Possession. A tax deed constituting a bare color of title, possession thereunder, and payment of taxes, held not to cut off the title of the owner.-Joy v. Midland State Bank, S. D, 128 N. W. 147.

37. Eminent Domain-Condemnation of Land. -A city under general authority only to condemn land for street purposes had no power to condemn part of a railroad's right of way for a street to be laid out longitudinally along the same.-- Portland Y. Light & Lower Co. v. City of Portland, 181 Fed. 632.

58. Estoppel-Clothing Another with Apparent Title.-Where the owner of goods placed them in possession of another and allowed him to hold himself out as their owner, and a third person took a mortgage on the goods, the actual owner held estopped to dispute the possessor's apparent title.-B. F. Avery & Sons V. Collins, Tex., 131 S. W. 426.

59. Evidence-Contracts.-A contract, when ambiguous as viewed in the light of the subject-matter, though plain in its literal sense, may by extrinsic evidence showing the circumstances characterizing its meaning be read differently from its literal sense. Klueter V. Joseph Schlitz Brewing Co., Wis.. 128 N. W. 43.

60.--Parol Evidence.-Where the true intent of parties is not expressed in a written contract, they may show that the real contract was not reduced to writing through mistake.Germer v. Gambill, Ky., 131 S. W. 268.

61. Falsification-Account Stated.--A bill to falsify an account stated must state the mistake with precision, and allege the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery was.-State v. Illinois Cent. R. Co., III., 92 N. E. 814.

62. Frauds, Statute of-Contracts Relating to Land.-A verbal contract for the sale of realty is not enforceable unless the purchaser takes possession, though the purchase money is paid in full, and the rule is the same where the consideration is personal services rendered and to be rendered.-Baxter v. Baxter, Ind., 92 N. E. 881.

63. Pleading.-The statute of frauds as a defense is waived if not specifically pleaded. El Dorado Ice & Planing Mill Co. v. Kinard, Ark., 131 S. W. 460.

64.To Whom Statute Available.-A stranger to an oral agreement for sale of goods held not entitled to defend in an action against him on the ground that such agreement was invalid under the statute of frauds.-Draper v. Wilson, Wis., 128 N. W. 66.

65. Fraudulent Conveyances-Preferences. That the value of property transferred by an insolvent to a preferred creditor exceeds the amount of the debt does not invalidate the transfer, if the value is reasonably proportioned to the debt.-Awalt V. Schooler. Tex.. S. W. 302.

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66. Garnishment-Funds Subject To.-Generally, a creditor's right to garnish a fund depends on the debtor's right to receive it from

69. Husband and Wife-Antenuptial Agreement. An antenuptial contract held to make the wife a creditor authorized to collect her claim in the mode applicable to creditors of estates. In re Warner's Estate, Cal., 111 Pac. 352. 70. Enforcement of Trust.-A suit by a wife against her husband to establish and enforce a trust as to her separate property is not barred by laches, where the delay in suing did not legally prejudice the husband.Title Ins. & Trust Co. v. Ingersoll, Cal., 111 Pac. 360.

or

72. Homicide-Self Defense.-Upon trial for murder, the commission of the homicide being proved, the burden of proving circumstances of that justify mitigation or it excuse devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed only amounts to man. slaughter, or that defendant was justified.

State v. Byrd, Mont., 111 Pac. 407.

73. Indemnity-Persons Entitled.-The general rule that, wherever the wrongful act of one persor. results in liability being imposed on another, the other may have indemnity from the person actually guilty of the wrong, is subject to the exception that as between actual tortfeasors the law will not enforce contribution or indemnity. Baltimore & O. R. Co. v. County Com'rs of Howard County, Md., 77 Atl. 930.

74. Injunction-Remedy at Law.-The ground on which an action is sought to be enjoined being available in defense of the action, held, injunction will not lie.-International Harvester Co. of America v. V. P. Still & Son, Miss., 53 So. 394.

75. Insurance Construction of Bond.-If a guaranty insurance bond is fairly open to two constructions, that construction should be adopted which is most favorable to insured.George A. Hormel & Co. v. American Bonding Co. of Baltimore, Minn., 128 N. W. 12.

76.-Duty t Insure. One under a duty to insure property of another is presumptively required to insure it for its full value.-Broussard v. South Texas Rice Co., Tex., 131 S. W. 412.

77. Interest-Unliquidated Damages. In an action for unliquidated damages, the jury may not allow interest on the damages awarded.Latham Mercantile & Commercial Co. v. Harrod, Kan., 111 Pac. 432.

78. Landlord and Tenant-Adverse PossesSere having been nothing to show a re

pudiation of the relation of landlord and tenant, held, the tenant could not acquire title against the landlord by adverse possession.— Emporia Lumber Co. v. Tucker, Tex., 131 S. W. 408.

79.-Voluntary Surrender of Lease.--A tenant of a farm required by the lease to do plowing in the fall held not entitled to recover for such plowing, where in the spring following he voluntarily surrendered the farm.-Boyd v. Gore, Wis., 128 N. W. 68.

80.

Where

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Libel and Slander-Damages. some of the things said of plaintiff, suing for libel, are shown to be true, their truth, if establishing misconduct, must be allowed to affeet the amount of the damages.-Keller American Bottlers' Pub. Co., 125 N. Y. Supp. 212. 81. Liens-Equitable Liens.-Where a stockholder wrongfully took corporate funds to discharge a lien upon his property, equity would impress upon such property still in his hands a lien for repayment of such money.-Red Bud Realty Co. v. South, Ark., 131 S. W. 340.

82. Life Insurance—Application.—An application for insurance in an old life insurance company calling for other insurance held not to require disclosure of accident policies and certificates in fraternal assessment orders and local societies.-Mutual Life Ins. Co. v. Ford, Tex., 131 S. W. 406. 83.

Burden of Proof.-In an action on a life policy, where the answer denied plaintiff's insurable interest, the burden was upon her to prove such interest.-Lawson v. Hotchkiss. 125 N. Y. Supp. 261.

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85.What Law Governs. The statute limitations in force when suit is brought governs the action, though it shortens or lengthens the limitation for enforcement of the right.Sansberry v. Hughes, Ind.. 92 N. E. 783.

86. Logs and Logging—Assignments of Contracts. A vendor of timber, who consented to the purchaser assigning the contract, without releasing the purchaser from liability, held entitled to hold the purchaser for the balance due on the contract.-Munn v. Crow, S. C., 6) S E. 229.

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87. Master and Servant-Assumption Risk. A servant working near unguarded machinery. which under the factory act should be guarded, does not assume the risk.-Anderson v. Pacific Nat. Lumber Co., Wash., 111 Pac. 337. 88. Dangerous Places.-It is negligence to w'nce an employee in a dangerone place wit sout warning when he is ignorant of the danger.Turner V. Atchison T. & S. F. Ry. Co., Kan.. 111 Pac. 433.

89.- Evidence as to Defective Tool-In a servant's action for injuries. evidence of similar action by the machine which injured plaintiff on the day after the accident held admissible. Cooley v. Eastern Wire-Bound Box Co., N. H., 77 Atl. 936.

90. Failure to Guard Machinery.--Liability for failure to provide safe-guard to machinery attaches if the failure is a contributing cause of the injury.-Alkire v. Cudahy Packing Co.. Kan., 111 Pac. 440.

91. Obligation of Master.-A master who undertakes to furnish material of any kind to be used by a servant as a means for the performance of his work must exercise ordinary care to select proper and suitable material.

Abilene Light & Water Co. v. Robinson, Tex., 131 S. W. 299.

92. Mechanics' Liens-Proceedings to Obtain. -Every step prescribed by the statute must be shown to have been substantially followed, or the lien does not exist.-Stoltze v. Hurd, N. D., 128 N. W. 115.

93. Mortgages-Foreclosure. An action on a note payable to an alleged corporation, under the name of which an individual conducts business, and on the mortgage securing the note, must be brought in the name of the actual owner of the note and mortgage. -Day v. Ewen, Ky.. 131 S. W. 283.

94. Foreclosure.-Although the mortgage contains a power of sale, the court need not follow its provisions as to advertising the sale in an action of foreclosure.-McLarty v. Urquhart, N. C., 69 S. E. 245.

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95. -Marketable Title.-Encroachment bay window of a house 2 feet over building line of street held not to make title unmarketable, so as to be ground for relieving the purchaser at foreclosure sale from his bid.-Ebert v. Hanneman, 125 N. Y. Supp. 237.

96. Municipal Corporations-Concurrent Corporations.-There cannot be at the same time within the same territory two distinct municipal corporations, exercising the same powers, jurisdiction, and privileges.-In re Sanitary Board of East Fruitvale Sanitary Dist., Cal., 111 Pac. 368.

97.

Nuisance-Injunction.-Before equity will restrain a thing complained of as a nuisance, which is not a nuisance per se, and not declared such by a judgment of a court, a case of pressing necessity must be shown.-Clinton Cemetery Ass'n. v. McAtee, Okl., 111 Pac. 392.

98. Payment-Application to Debts.-The court will direct payments to be applied in such manner as to give the creditor the best security for obligations remaining unpaid.-Zuelly v. Caspar. Ind., 92 N. E. 785.

99. Principal and Surety-Contract of Suretyship. A surety held bound by the construction placed on a building contract by his principal, where no fraud or collusion between the principal and owners appears.-Sanders v. Keller, Idaho, 111 Pac. 350.

100. Railroads-Crossing Accident.-Whether one before attempting to drive over a railroad track should stop held generally a question for the jury.Swalm V. Northern Pac. Ry. Co., Wis., 128 N. W. 62.

101.- -Duty in Approaching Crossing. It is the duty of an engineer to give signals and exercise vigilance in approaching crossings.Coleman v. Atlantic Coast Line R. Co., N. C., 69 S. E. 251.

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104. Religious Societies-Conveyances. conveyance to the trustees of an incorporated religious society and their successors held a conveyance in trust for the use of the members of the congregation who adhere to a particular faith.-German Evang. Luth. Trin. Cong. V. Deutsche, etc., Gemeinde, Ill., 92 N. E. 868.

105. Sales-Implied Warranty.-There is an implied warranty of merchantableness in case of sale of ice to be manufactured.-St. Louis Union Packing Co. v. Mertens, Mo., 131 S. W. 354.

106. Taxation-Assessment.-Failure to make sufficient publication of the completion of an assessment roll held not to invalidate a tax levied thereon.-Joseph Fahys & Co. v. Vaughn, 125 N. Y. Supp. 280.

method is such as to point out with certainty the land assessed. Reed v. Heard, Miss., 53 So. 400.

108.- -Description of Property.-Where property is not assessed by the acre, the omission of the number of acres in the description in the assessment roll is unimportant.-Joseph Fabs & Co. v. Vaughn, 125 N Y. Supp. 280.

109.- -Foreign Corporations.-Property of a foreign corporation may be taxed by a state for the privilege of exercising its functions therein, if the amount of the tax is dependent on and fixed by the value of the property in the state.-State V. Illinois Cent. R. Co., Ill., 92 N. E. 814.

110.- -Inheritance Tax.-The inheritance tax is a tax on the right of succession, and not on property. In re Bullen's Estate, Wis., 128 N. W. 109.

111. Injunction.-In a suit to enjoin the colletion of taxes on horses as taxable in nother county, statements in plaintiff's oath attached to his assessment statement held not admissible to prove that the property included in such statement included property taxable in other courties.-Morse v. Stanley County, S. D.. 128 N. W. 153.

112.- -Presumptions as to Assessment. There is no presumption that an assessment statement of property assessed in one county Covers any property except that situated in Such county.-Morse v. Stanley County, S. D., 128 N. W. 153.

113.

Theaters-Nuisance.-A theater is not a nuisance per se, and a declaration by a city would not make it a nuisance unless it was such in fact.-City of Chicago v. Weber, Ill., 92 N. E. 859.

114. Trial-Argument of Counsel.-Permitting counsel to draw an inference in his argument form failure of the opposite party to call witnesses held proper.-Sherman v. Southern Pac. Co.. Nev., 111 Pac. 416.

115. Special Findings.-Where there is not such conflict between special findings and a general verdict that both cannot stand, the general verdict will not be disturbed.-Baxter v. Baxter, Ind.. 92 N. E. 881.

117.- -Management of Estate.-The question whether any interest shall be charged against a trustee, and, if any, how much, held to depend on the circumstances of each case.-Title ins & Trust Co. v. Ingersoll, Cal. 111 Pac. 360

118. Vendor and Purchaser-Mistake as to Quantity Where, in the sale of land. both the purchaser and seller are of the belief that the tract contains a certain number of acres, on discovering that the acreage is deficient. the purchaser may recover for the deficiency.-Wolcott v: Moore, Ind., 92 N. E. 880.

119.Notice.-A purchaser of real estate is chargeable with constructive knowledge of all facts which are obvious or might have been known by proper diligence.-Marx v. Oliver, Ill., 92 N. E. 864.

120. Waters and Water Courses-Flowage Rights. Where flowage rights are established, the owner of the servient estate cannot impair such right, nor interfere or meddle with the territory SO as to diminish its capacity for storage.-Lepper v. Wisconsin Sugar Co., Wis., 128 N. W. 54.

121. Wills-Annulment.-In an action to set aside a will and probate, plaintiff has the burden of showing by a preponderance of the evidence that testator did not have testamentary capacity as claimed-Pepper v. Martin, Ind., 92 N. E. 777.

122.- -Construction.-Where the terms of a will are doubtful, the law favors a primary, rother than secondary, intent.-In re Long's Estate, Pa., 77 Atl. 924.

123.- -Mental Condition of Testator.-On an issue devisavit vel non, the jury may consider testator's condition immediately prior and subsequent to the execution of the will to determine his mental condition when he executed it. -Surface v. Bentz, Pa., 77 Atl. 922.

It must be confessed upon the record, that the leaves of legal literature in America are as thick as "the leaves in Vallambrosa," and differ from the latter in that they have all seasons for their own and seem not to enrich the soil of jurisprudence upon which they fall.

But whether they enrich that soil greatly or not, the record is indisputable, that our highly deciduous appellate courts do produce the "law's delay," a sort of cactus among the "wrongs which patient merit of the unworthy takes"; if, perchance that “patient merit" may be said, in the face of wide protest, to continue to exist.

We have referred to the Judicature Act of England to show that when a civil case gets into its Court of Appeal a quietus, if not universally, at least quite nearly so, is put upon the contentions of parties to a suit, whether error attended their procession in the trial court or not.

We followed this up by considering how far American legislation might go along the way blazed by this great statute. We concluded that there was something of an obstruction to a complete adoption of the English system in the constitutional guarantees for right of jury trial on all issues of fact.

We thought, however, that there was a large body of our litigation to which this obstruction did not apply. As to where it did apply we suggested that its operation could be confined to respondents in appeal and defendants in error. This is on the theory that the taking of an appeal or the suing out of a writ of error could be declared a submission to an appellate court of all questions of fact by way of waiver, even to the extent of authorizing the appellate tribunal to enter a more onerous judgment against an appellant or plaintiff in error than was the judgment appealed from. We wish to supplement this suggestion by further remarking, that it should be the absolute right of a respondent or defendant in error to demand of an appellate court, either before or after the cause is heard on assignments of error, as he may elect, that it render final judgment as fully as the lower court was thus empowered, and this to do from the record upon which the case stands.

We think, that our appellate courts are in admirable situation to thus proceed, because in this modern day, far more than in the common law times of our ancestry, a record verbatim et litteratim of everything transpiring in the trial court can be produced, since stenography, the typewriter and the printing press may all be brought to their aid.

As a final suggestion to such as may deem what we have declared for a too radical shaking off of the fetters which have made our courts look like Sissyphus rolling stones to the top of a hill to see them descend, while litigants stand like Tantalus-up to the chin in trouble and continually denied relief almost in reach-we propose something milder.

The scheme or plan of special findings of fact has been supposed to have been originated or encouraged by corporations, with whose attorneys the idea was prevalent that juries were disposed to find against them on what might be called "general principles." They, at least, have seemed always to favor interrogatories to, and special findings of fact by, juries.