upon that property to secure his just claim, which will be unassailable by the other creditors of his debtor.JOHNSON V. TRUST COMPANY OF AMERICA, U..S. C. C. of App., Eighth Circuit, 104 Fed. Rep. 174. 51. FRAUDULENT CONVEYANCES-Husband and Wife. -Where, in an action to set aside a conveyance by decedent to his wife as in fraud of creditors, the balance of decedent's account with plaintiff at the time of the execution of the conveyance was in his favor, and the only debt owing to plaintiff at the time of decedent's death was contracted subsequent to the conveyance, evidence relating to such subsequent transactions was inadmissible and immaterial.-GONZALES V. ADOUE, Tex., 58 S. W. Rep. 951. 52. GAMING-Marginal Stock Contracts. -Const. art. 4, § 26, providing that all contracts for the sale of shares of stock in corporations or associations on margins, to be delivered at a future day, shall be void, and that the money paid on such contracts may be recovered, is not unconstitutional, as in conflict with Const. U. S. Amend. art. 14, § 1, in abridging the privi leges and immunities of citizens of the United States, and depriving persons of liberty and property with. out due process of law, in that it denies to persons making margin contracts the equal protection of the laws, since it was within the police power of the State to prohibit such contracts, as detrimental to the gen. eral welfare.-PARKER V. OTIS, Cal., 62 Pac. Rep. 571. 53. GARNISHMENT AGAINST A COUNTY.-In the absence of statutory authority, a county cannot be subject to garnishment proceedings. CITY OF SHERMAN SHOBE, Tex., 58 S. W. Rep. 949. ་. 54. GIFTS-Promissory Note.-Where a father gives a note to his son as the share of the latter in the father's estate, and after the death of the father the son negotiates it to a person who knows the facts, the latter cannot enforce the note against the estate of the father, the note being but a promise to make a gift in the future, and being without consideration.-CON. RAD V. MANNING, Mich., 83 N. W. Rep. 1038. 55. HIGHWAYS-Obstructions-Bill in Equity.-Where an obstruction of a public road compelled abutting owners to travel much further in reaching certain necessary points than previously, they might maintain a bill in equity to enjoin the obstruction.-HILL V. HOFF. MAN, Tenn., 58 S. W. Rep. 929. 56. HOMESTEAD-Abandonment.-The north half of a lot was occupied as a residence by the owner and his family, and was separated from the south half by a fence, the south half being used for stalls for the owner's horses and as a camp yard for his customers. He and his wife intending to erect a business house on the south half of the lot, had a cellar dug thereon, and mortgaged it, with other property, to secure money to construct the building. The mortgage did not cover the north half of the lot, and both testified that their intention was to confine the residence homestead to that portion. Held, that the execution of the mortgage constituted an abandonment of the south half of the lot as a part of the residence homestead.O'BRIEN V. WOELTZ, Tex., 58 S. W. Rep. 948. 57. HUSBAND and Wife-Alienating Husband's Affec. tions-Evidence. Under Comp. Laws, § 10,213, prohibiting a husband or wife from testifying to a com. munication made during the existence of the marriage relation after the termination thereof, a divorced wife cannot testify in an action against the father of her husband for alienating the husband's affections, as to the contents of a lost letter written by the husband to wife during the continuance of the marriage relation. -DERHAM V. DERHAM, Mich., 83 N. W. Rep. 1005. 59. INJUNCTION-Supreme Court-Jurisdiction.-This court, in the exercise of its original jurisdiction, can issue a writ of Injunction only upon an information therefor filed by the attorney-general, or under his authority, and by leave of court first obtained, and in the name of the State.-ANDERSON V. GORDON, N. Dak., 83 N. W. Rep. 998. 60. JOINT TORT FEASORS.-Where several persons are sued as jointly liable for a tort, the failure to hold one more of them will not militate against the liability of those who are guilty.-WYSS V. GRUNERT, Wis., 83 N. W. Rep. 1095. 61. JUDICIAL NOTICE.-The court will take judicial notice of the manner in which ordinary railroad business is conducted, and that a "clearance" or "clearance card," as the term is commonly used by railroad men, is a letter given an employee on quitting the service of the company, showing a voluntary quittance or the cause of his discharge, his length of service, capac ity, etc., and that it isnot necessarily a letter of recommendation, such as would tend to secure him further employment.-MCDONALD V. ILLINOIS CENT. R. Co., Ill., 58 N. E. Rep. 463. 62. LOST INSTRUMENTS—Action to Recover-Indem. nity. A court of law, especially one which is vested with jurisdiction both at law and in equity-has power to require a plaintiff to give a bond of indemnity as a condition precedent to a recovery in a action brought therein on a lost negotiable instrument.-FIRST NAT. BANK OF DENVER V. WILDER, U. S. C. C. of App., Eighth Circuit, 104 Fed. Rep. 187. 63. MALICIOUS PROSECUTION-Instructions-Probable Cause. When the question of probable cause is in issue in an action for malicious prosecution, it should be submitted to the jury to find specially on the facts, or the jury should be instructed hypothetically within the range of the facts which the evidence tends to establish as to what would constitute probable cause. -ERB V. GERMAN-AMERICAN INS. Co. OF NEW YORK, Iowa, 83 N. W. Rep. 1053. 64. MANDAMUS-Primary Elections. A peremptory writ of mandamus will not issue where it is too late to benefit the party asking for it.—PEOPLE V. JEFFERS, Ill., 83 N. W. Rep. 318. 65. MARRIAGE-Breach of Marriage Promise.-Where, in an action for breach of marriage promise, plaintiff alleged an express agreement, and defendant claimed that a letter written by her in response to his offer of marriage had been a conditional acceptance, and plaintiff testified that she accepted his offer in her let. ter, even if such acceptance was conditional, there be ing testimony that it was subsequently agreed that they should be married at a certain time, it was proper to submit to the jury the question as to whether there was an express contract.-OLMSTEAD V. Hoy, Iowa, 83 N. W. Rep. 1056. 66. MASTER AND SERVANT-Authority to Employ Surgeon for Injured Servant.-The employment of a surgeon for an injured employee is not within the scope of the duties of a foreman employed by a contractor to superintend workmen engaged in constructing a building, and such employment does not render the master liable for the surgeon's bill.-GODSHAW v. J. N. STRUCK & BRO., Ky., 58 S. W. Rep. 781. 67. MASTER AND SERVANT-Contributory Negligence. -Where trainmen noticed and endeavored to repair a freight car door, which was hanging by one top corner only, and, failing to repair it, continued to use the car without reporting its condition, the railway company is responsible for their negligence, resulting in the death of a section foreman, who was struck by the door swinging outward with the motion of the train in passing him, though the condition of the car was not communicated to any employee of the company occupying the position of master or vice-principal.CHICAGO, ETC. R. Co. v. CULLEN, Ill., 58 N. E. Rep. 455. 68. MASTER AND SERVANT-Wrongful Discharge-Contract.-Plaintiff was engaged by the defendant to man age a branch of its business for a year under a con. tract, with the right to defendant to terminate such employment at any time for conduct unsatisfactory to the officers of the company, or for other cause. Plaintiff was afterwards discharged, because of no fault found with him or with his management, but because the company had abandoned another branch business, and its manager there had much more experience than plaintiff, and it was thought advantageous to place him in charge. Held, that the discharge for the purpose of employing a man with more experience was within the terms of the contract.-TEICHNER V. POPE MFG. CO., Mich., 83 N. W. Rep. 1031. 69. MINING CLAIMS Right of Allen to Inherit.-The right of an alien to inherit a mining claim located upon government land, as against every person but the United States, is determined by the laws of the State in which the claim is located.-LOHMANN V. HELMER, U. S. C. C., D. (Oreg.), 104 Fed. Rep. 178. 70. MORTGAGES - Foreclosure Conclusiveness of Judgment. Where a bill for the foreclosure of a trust deed avers that a defendant claims to have some interest in, or lien on, the premises, and also sets up a cer. tificate of sale under which defendant claims, and the latter answers by general dental, he cannot question a judgment foreclosing all his interest in the premises adverse to plaintiff, as he is estopped by his answer from claiming any interest in the premises.-KEHM V. MOTT, III., 58 N. E. Rep. 467. 71. MUNICIPAL BONDS - Street Improvement.-Acts 20 Gen. Assem. Iowa, ch. 20, § 1, declares that cities may improve streets, etc., and assess the cost on abutting property, and provides that such assessment shall constitute a sinking fund for the payment of the improvement of the street on which the property abuts, "and should be used and appropriated for no other purpose," and, to provide for defraying the cost of such improvements in the first instance, the city may issue bonds, all of which shall express on their face the name of the street to defray the cost of which they were issued, and that the proceeds of such bonds shall be used for no other purpose than the payment of the cost of improving the particular street therein named. Held, that a city, having issued such bonds, was charged, as a trustee, with the duty of collecting and applying thereon the assessments on the property abutting on the particular street therein named.VICKREY V. CITY OF SIOUX CITY, U. S. C. C., N. D. (Iowa), 104 Fed. Rep. 164. -- 72. MUNICIPAL CORPORATIONS Boards of HealthPolice Power.-Where a village charter declared that the council should have all the authority conferred on boards of health by the general laws of the State so far as applicable, and authorized the council to appoint a board of health, and, acting on the advice of the board, the council caused the level of a lake, the outlet of which was within the corporate limits of the village, to be raised so that plaintiff's land was flooded, no action would lie against the village, since the coun. cil, in raising the lake, acted as representatives of the State.-MURRAY V. VILLAGE OF GRASS LAKE, Mich., 83 N. W. Rep. 995. 73. MUNICIPAL CORPORATIONS-Change of GradeMeasure of Damages.-In an action to recover damages for injury to abutting property by cutting down the grade of a street, there can be no recovery on account of the street being out of repair, or not graded or macadamized, after the grade was changed; and it is error to admit evidence or to instruct the jury as to such elements of damage.-CITY OF HENDERSON V. WINSTEAD, Ky., 83 N. W. Rep. 777. 74. MUNICIPAL CORPORATION-Defective SidewalkNegligence.-Whether projecting hinges, nearly 2 inches tall, on bulkhead doors, in an otherwise smooth sidewalk, constitute defects in the sidewalk which the city, in the exercise of reasonable care, should have remedied, is a question for the jury.-LAMB V. CITY OF WORCESTER, Mass., 58 N. E. Rep. 474. 75. MUNICIPAL CORPORATIONS-Defective SidewalkContributory Negligence.-One who, while traveling along a public thoroughfare in the suburbs of a city, on a dark night, with knowledge of a defect in the sidewalk, leaves the road and takes the walk, and is injured by falling into the opening which he is trying to avoid, is not, as a matter of law, guilty of contributory negligence.- TAYLOR V. CITY OF MANKATO, Minn., 83 N. W. Rep. 1084. 76. MUNICIPAL CORPORATION - Lighting Streets Franchise.-Under a city charter conferring power upon a common council to contract to supply its inhabitants with water and light, and to grant the use of the streets, etc., for those purposes, for a period not exceeding 10 years, the common council cannot grant a franchise for the use of the streets, etc., for a longer period than 10 years for those purposes.-SULLIVAN V. BAILEY, Mich., 83 N. W. Rep. 996. 77. MUNICIPAL CORPORATIONS-Open Sewer-Maintenance. Where a city, in accordance with an ordinance duly adopted, builds a temporary open sewer on streets running through a plat which it had never ac. cepted, an abutting property owner has an action at law for damages for the trespass, but the maintenance of such sewer cannot be enjoined, since the granting of an injunction to abate the nuisance presupposes defendant's right to do work on the street to abate the nuisance, which it did not have.-COOPER V. CITY OF CEDAR RAPIDS, Iowa, 83 N. W. Rep. 1050. 78. NEGLIGENCE OF LANDLORD.-Plaintiff was injured by the falling of a smokestack erected partly on the ground of an adjoining proprietor and partly on ground leased by defendant to such adjoining proprietor, and insecurely erected. The stack was used by defendant in connection with his building, and he had agreed to keep it in repair. Held, that defendant, and not his tenant, was liable for the injury.-BOYCE V. SNOW, Ill., 58 N. E. Rep. 403. 79. NOVATION-Requisites.-An agreement by a new firm to pay all obligations of an old firm does not ren. der the new firm liable for a debt due from the old firm to a creditor who was not a party to the agreement.DARLING V. RUTHERFORD, Mich., 83 N. W. Rep. 999. 81. PLEDGES Property in Bond - Warehouse Receipts. A party holding a warehouse receipt for certain tobacco in bond, as security for a number of ac commodation notes, which receipt contained a statement that the tobacco had been received on storage "on account of" such party, and having across its face the words "Not negotiable," pledged the tobacco to plaintiff as security for loans, and indorsed the receipt to him. Held, that the warehouse receipt conferred on the holder no greater rights, as against the true owner, than the goods themselves, and hence, since the party had no authority from the owner to sell or pledge, plaintiff was only entitled to hold the receipts until a sum equal to the original debt for which they had been pledged had been paid.- COMMERCIAL NAT. BANK V. BEMIS, Mass., 58 N. E. Rep. 476. 82. PRINCIPAL AND SURETY-Discharge of Surety.-It the obligee in a bond obtains control of money or property of the principal therein, which he may law. fully apply to the discharge of that principal's obligation to him, and to which he is not otherwise entitled, and then voluntarily surrenders or releases the money or property, so that the surety loses the benefit of the security it furnishes, the latter is discharged from Hability on the bond to the extent of the value of the money or property thus surrendered. WOOD V. BROWN, U. S. C. C. of App., Eighth Circuit, 104 Fed. Rep. 203. - 83. RAILROAD COMPANY- Receivers - Actions.- A court appointed a receiver for a railroad company, and enjoined all bondholders, creditors, and others interested in the property from bringing suits against the receiver in any other court. Held, that the injunction applied only to the suits of bondholders, creditors, and others, whose claims were in existence at the time the receiver was appointed, and not to claims for the torts of the receiver while operating the road after his appointment.-BURKE V. ELLIS, Tenn., 58 S. W. Rep. 855. 84. RAILROAD COMPANY - Street Railroads - Negligence. The parents of a child injured by a street car cannot recover for negligence in running the car at an excessive speed, where the child ran unexpectedly in front of the car, and the accident would have hap. pened in the same way had the car been going at a reasonable speed, as the speed was not the proximate cause of the injury. - HOLDRIDGE V. MENDENHALL, Wis., 83 N. W. Rep. 1109. 85. RECEIVER-Foreign Receiver.-In a suit by a foreign receiver as such to foreclose a mortgage, a demurrer interposed on the ground that the receiver had no capacity to sue in the courts of the State should have been overruled where the petition alleged that the mortgage had been assigned to the receiver.HALE V. HARRIS, Iowa, 83 N. W. Rep. 1046. 86. RECEIVERS-Jurisdiction to Appoint.-The courts In any jurisdiction may, in a proper case, take posses. sion through receivers of property within its limits, independently of the question of the domicile of the owner; but, where the purpose of a suit is to wind up a corporation, or a joint stock association, or a partnership, on account of alleged insolvency or fraudu. lent transactions, or where a general receivership of the property of such concern is sought, the initial proceedings should be at the place of domicile, and other receiverships should be anciliary thereto.HUTCHINSON V. AMERICAN PALACE CAR CO., U. S. C. C., D. (Me.), 104 Fed. Rep. 182. 87. RELEASE AND DISCHARGE-Compromise.-Where two or more persons are liable for an injury sustained by a third party, the damages recoverable are not apportionable in law between the parties so liable, and a settlement with the injured party by one inures to the benefit of all who are responsible for such injury.HARTIGAN V. DICKSON, Minn., 83 N. W. Rep. 1091. 88. REMOVAL OF CAUSES-Time of Application-State Statute.-On consideration of a motiou to remand a cause to the State court because the petition for removal was not filed in time, the federal court cannot take judicial notice of a rule of the State court by which the time in which pleadings may be filed is extended beyond the date fixed by the general statute of the State.-YARNELL V. FELTON, U. S. D. C., E. D. (Tenn.), 104 Fed. Rep. 161. 89. SALE-Contract Breach.-Where a contract of sale of a musical automaton provided that the sellers should have fifteen days, after notice that the instrument was not as represented, in which to elect whether they would send a man to make it so, or order the instrument returned to them for examina. tion or repair, or replace it with a new instrument, on their failure to proceed to repair the instrument, as required by the contract, within a reasonable time, the buyer had the right to refuse to accept it.PRICE V. MARTHEN, Mich., 83 N. W. Rep. 1021. 90. TAX DEED Failure to Record.-Where the holder of a tax deed fails for six months from its date to have it recorded as required by law, said tax deed becomes void, and the grantee therein cannot retain a lien on the land described, for taxes paid, by afterwards taking possession thereof.-HUMPHREY V. YOST, Kan., 62 Pac. Rep. 550. 91. TAX DEED-Validity.-A tax deed for several separate tracts of land, bid off by the county treasurer for the county at a tax sale, to be valid upon its face must show that the sale of each tract failed for want of a bidder who would pay the amount due thereon.HOWARD V. HULBERT, Kan., 62 Pac. Rep. 545. 92. TRADE-MARK Unfair Competition-Fraud and Deceit.-The basis of a suit for unfair competition in trade is fraud. To warrant relief in such a suit, there must be proof of the fraudulent intent to palm off the goods manufactured by others as though manu. factured by the plaintiff, or proof of facts and circum. stances from which such an intent and fraud may be fairly inferred.-GORHAM MFG. CO. v. EMERY-BIRD. THAYER DRY GOODS Co., U. S. C. C. of App., Eighth Circuit, 104 Fed. Rep. 248. 93. TRUST DEED-Impairment of Security-Action for Damages. Where the grantor in a trust deed given to secure a debt conveys his equity to defendants, who unlawfully cut down and remove the standing timber from the land described, the beneficiary in the deed may maintain an action for the injury, though not in possession or entitled to possession, since it is an im. pairment of his security.-ARNOLD V. BROAD, Colo., 62 Pac. Rep. 577. 94. TRUST DEED - Trust Fund Investment - Identification. A trustee invested the trust fund in a drug store and fixtures, taking title in his own name, and so conducted the business at the same place until his death, four years later, but always during such time acknowledged the trust. After his death, his admin. istratrix conducted the business for two years, when it was sold. Held, that since the drug store as an entity, and not the individual items of stock, constituted the trust fund, it was only necessary to identify it, at the time of the sale by the administratrix, as the same as that in which the trust fund was originally invested, in order to follow it, and impress a trust thereon.-BYRNE V. MCGRATH, Cal., 62 Pac. Rep. 559. 95. TRUSTS Vested Estate.-Where a trust deed de. clared that after the death of the cestui que trust, leav ing a wife and child or children, the trustee should receive the profits, and apply the same to the use of the wife and children during the wife's life, and that at her death the estate should pass absolutely to such children, one of the children, on the death of the cestni que trust, took a vested interest in the estate, of which she could dispose by will.-CONOVER V. HEWITT, Mich., 83 N. W. Rep. 1009. 96. WILLS-Bequest to Widow.-In the first clause of testator's will he bequeathed to his half-brother a specific piece of land. By the second clause he be queathed another specific piece to his sister. By the third clause he gave and bequeathed unto his wife "all the statute of the State of Michigan allows a widow." By the fourth clause he bequeathed the remainder of his estate, both real and personal, to his brother and two sisters, "after my wife receives what the statute of the State of Michigan allows a widow." Held, that as the testator died without issue, his widow is en-. titled to one-half of his real estate, which the statute gives her.-MURDOCH V. BILDERBACK, Mich., 83 N. W. Rep. 1007. 97. WILLS-Devise to a Class.-Testator's will pro vided: "I give and bequeath to the legal and direct descendants-the heirs of their bodies begotten and their heirs-of my brother W, and his wife, M (now both deceased), the one-fourth part of my estate." Held, that the clause, "the heirs of their bodies begot ten and their heirs," limited the clause immediately preceding, and hence the devise did not descend to the heirs generally of the ancestors named, but only to the heirs of their bodies.-LANCASTER V. LANCASTER, Ill., 58 N. E. Rep. 462. 98. WILLS-Trusts-Diversion of Trust Funds-Implied Trust.-Where a house and lot are deeded to a father in trust for his children, and insurance money for the house and the proceeds of the lot are used by him in part payment for his own land, an implied trust in favor of the beneficiaries arises, for the funds thus misapplied, which becomes a charge on the land. -KAPHAN V. TONEY, Tenn., 58 S. W. Rep. 909. 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 505, follow- ABATEMENT AND REVIVAL, of actions in different jurisdictions, 162. ACCORD AND SATISFACTION, liberal application of the doctrine of, 61. ACTION, by wife for alienation of husband's affections, 162. parties plaintiff in actions ex contractu and ex delicto by the payee of a note, 320. by a depositor against a bank for refusal to honor ADMIRALTY, jurisdiction of State courts of action against a where a carrier fails to perform its contract of car- jurisdiction of State courts over maritime contracts ALIENATION OF AFFECTIONS. See HUSBAND AND ALTERATION OF INSTRUMENTS, effect of the alteration of a bill or note, in the hands AMERICAN BAR ASSOCIATION, proceedings of the twenty-third annual meeting of twenty-third annual meeting of the, 339. ARREST, upon suspicion, 1. ASSIGNMENT, what constitutes an assignment or transfer, 204. restricted sense as applied to commercial assignment as denoting the instrument of scope of term "transfer," 207. ATTACHMENT, has the garnishing creditor a specific llen, 25. rights and liabilities of owners and operators of BAILMENT, whether a bailment or a sale, 44. tiller of the soil cannot be involuntary bankrupt, policy of insurance on the life of a bankrupt, recent decisions construing the jurisdiction of right of trustee in bankruptcy to policy of life in- concealment of assets by bankrupt, 181. report of Mr. E. C. Brandenburg on the operation BANKS AND BANKING, liability for payment of a check with a forged in. action by a depositor against a bank for refusal to BENEVOLENT SOCIETY, estoppel of the association from claiming a for- whether right of action for death by wrongful act BICYCLE, is not a carriage within the meaning of an act pro. BILLS AND NOTES, the effect of alteration of, in the hands of a bona alteration of negotiable instruments by the unau- the payee of a note in his possession is presumed BOOKS RECEIVED, 13, 73, 93, 157, 252, 272, 311, 331, 391, BREACH OF PROMISE, of marriage, ill health as an excuse for, 319. as to suicide, in action on life insurance policy, 400. where a carrier fails to perform its contract of car- reasonableness of rule of street railway company CHARITABLE CORPORATION, liability of a public hospital to patients for in- liability for torts in the pollution of streams, 301. CHATTEL MORTGAGE, effect of mortgagee's knowledge of mortgagor's CHECK. See BANKS AND BANKING. CHINESE EXCLUSION ACT, law and justice, 279. COMBINATION, injunction against combination of laborers, 12. labor organizations, the right to control the price CONDITIONAL SALE. See SALE. CONFLICT OF LAWS, situs of debt in garnishment case, 2. construction of statutes of other States involving place of contract, 64. a contract valid elsewhere will not be enforced by validity of Connecticut statute prohibiting the validity of city ordinance providing for public validity of city ordinance prescribing certain lim- legal status of osteopathy and physicians practicing any change or limitation of remedy which does not statute which absolutely exempts to married men power inalienable, 226. discretion of legislature, 226. destroying property without compensation, 227. United States constitution, 228. summary, 229. the unconstitutionality of assessment of private status of Hawaii, 279. discrimination against colored jurymen, 319. the validity of the Tennessee cigarette law, 439. CONTEMPT, constructive contempt of courts, 221. effect of impossibility of performance of, 29. |