alleged were insufficient as a cause of action. The plaintiff refusing to plead further, judgment was rendered for the defendants, from which the plaintiff has appealed.

The codefendants of the city are the persons who were engaged in the active operation of said city's fire department. Nothing is said in the briefs, however, as to their liability, and the only question presented is as to whether or not the amended petition filed in this case is sufficient to disclose a liability on the part of the city of Casper, and we shall confine our discussion to that point. The collision aforesaid happened, as disclosed by the amended petition, between 2 and 3 o'clock in the afternoon of October 7, 1921, on Center street in said city. A fire alarm, operated by said city, sounded while plaintiff, in a Marmon car, was driving south on said street and while crossing the intersection of First street with Center street. Immediately after hearing the fire alarm, plaintiff attempted to turn his automobile close to the curb, in obedience to the ordinances and traffic regulations of said city. No parking space along the curb was available, and he, accordingly, parked his car parallel with the curb and as close to the other cars

there parked as possible. Shortly thereafter a fire truck of said city drove into and collided with plaintiff's automobile, demolishing it and inflicting bodily injuries upon plaintiff. A claim for his damages was duly filed with and rejected by said city.

In addition to these facts, plaintiff pleaded the following as a basis for holding the city liable, namely: (a) That the fire truck was, at the time of the collision, operated by the duly authorized agents of the city at a high and dangerous rate of speed. (b) That the fire to which the fire-fighting apparatus was taken at the time mentioned was located at or near the building designated as 425 East First street, far out of the congested district of said city. That the fire truck could have been taken to the scene of the fire easily by avoiding such congested district. That the locality of the fire did not constitute a "grave fire hazard," and the danger from fire did not justify excessive speed. (c) That the said fire truck was driven along Center street, and that portion thereof which, at the time of the accident, was the most congested part of the city. That by taking this street the distance to the fire was greater than if less congested streets had been taken, and Center street was taken merely for show and display, as was well known to the managing authorities of said city. That said city had, immediately prior to said collision, sprinkled said Center street, render

(d)

ing it wet, slippery, and dangerous for a few blocks each way from the scene of said collision. That such dangerous condition could have been seen by the agents of the city operating said fire apparatus in ample time to have avoided it. (e) That the driver of said fire truck was incompetent, incapable and inexperienced. That he was at the time suffering from eye trouble and was under the care of an eye specialist, all of which facts were well known to the city. (f) That the city neglected and failed to enforce its 30-minute" parking ordinance, leaving plaintiff without parking space. That had such ordinance been enforced, appellant could have escaped injury. (g) That the driver of said fire truck lost control thereof. That it skidded to the right and to the left, and did not stay on the right side of the street. That said driver was able to see appellant for a distance of 900 feet and could have avoided the accident by slacking his speed and regaining control of said truck. (h) That the fire alarm, owned and operated by said city, was defective, so that it could not be heard in the congested portion of said city-all to the knowledge of said city.

1. We pointed out in the case of Ramirez v. City of Cheyenne (Wyo.) 241 P. 710, 42 A. L. R. 245, that it is held almost without dissent that the maintenance of a fire department is a governmental function. And the decisions are nearly unanimous to the effect that, in the absence of statutory provisions to the contrary, a municipality is exempt from liability for injuries to persons or property resulting from malfeasance or nonfeasance in the maintenance and operation of a fire department by such municipality. These decisions, numbering about 100, are cited and reviewed by exhaustive notes in 9 A. L. R. 143, 157, and in 33 A. L. R. 688, 691. The more recent cases are to the same effect: Rollow v. Ogden City (Utah) 243 P. 791; Young v. Lexington, 212 Ky. 502, 279 S. W. 957; Mabe v. WinstonSalem, 190 N. C. 486, 130 S. E. 169; Gregoire v. Lowell (Mass.) 148 N. E. 376; Florio v. Jersey City (N. J. Err. & App.) 129 A. 470, 40 A. L. R. 1353; Board v. Bowen's Adm'x, 205 Ky. 309, 265 S. W. 785; Barnes v. Waco (Tex. Civ. App.) 262 S. W. 1081. The contrary rule is held by very few cases, mainly by Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697, 30 A. L. R. 471, and Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150. The case of Fowler v. Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131, was to the same effect, but was expressly overruled in the later case of Aldrich v. Youngstown, 106 Ohio St. 342, 140 N. E. 164, 27 A. L. R. 1497.

We held in the Ramirez Case, supra, that a municipality might be held liable under certain circumstances for damages caused by dangerous appliances left in a park, and in the case of Opitz against the town of Newcastle, decided this day, it is held that a municipality is liable for damages resulting from leaving an open hole in a street therein without maintaining protective barriers or other signals to warn travelers of danger; but we cannot extend the rule of these cases to the case at bar. We do not believe that we are warranted in departing in this case from the principle that a municipality is exempt from liability in its operation of a governmental function, and in deciding, contrary to the overwhelming weight of authority, that a municipality is liable for negligence in the operation of its fire department, unless there are special facts in the case by which we would be justified to take it out of the general rule. In the note to 9 A. L. R. 150 and 151, illustrations are given as to when a municipality is exempt from liability for acts in connection with the operation of such department. Instances of that kind are as follows: For negligent driving of a fire apparatus in going to a fire; for carelessness of a fireman in drawing a hose cart against a person on a public street while answering an alarm of fire; for negligent driving in going from a fire back to a firehouse for more hose to use in fighting a fire; for reckless driving of a fire apparatus, negligently running down a pedestrian on a street. It is clear that at least most of the acts of negligence alleged in the case at bar come within the principle of these cases. То drive a fire apparatus to a fire negligently or recklessly, and without control of the apparatus, and on the wrong side of the street, or in a street which is crowded where it was unnecessary to drive, and to have a fire alarm system which was defective, are clearly acts of negligence in the operation of the fire department of the city for which, under the rule of the cases mentioned, the city is not liable. And that is no less true where the city hires or retains an incompetent servant in connection with that department, though the incompetency of the servant is known. This specific point has been decided in the case of Higgins v. City of Superior, 134 Wis. 264, 114 N. W. 490, 13 L. R. A. (N. S.) 994, where the court said in part:

"The gravamen of the complaint is the negligence of the driver of the team and the omission of the city authorities to fully discharge their public duty by selecting and retaining him in the employ of the city with knowledge of his negligent conduct and intemperate habits.

Unquestionably the city officers were remiss in their official duties, if they selected and retained an incompetent and reckless driver to take charge of a team connected with the city's fire department. Such neglect of duty, however constitutes no legal ground for holding the city liable for the damages resulting therefrom."

2. It is claimed that the city is liable because of the nonenforcement of its parking ordinances, by reason of which plaintiff was unable to find a parking space along the curb of Center street at the time of the collision. It is clear, however, we think, under the allegations of the amended petition, that such negligence, if any, was merely a condition and not the proximate cause of the injury. The efficient cause was the alleged negligent driving of the fire apparatus along Center street, and brought about the accident and was the proximate cause thereof. Lemos v. Madden, 28 Wyo. 1, 200 P. 791. Further, it is the general rule that, except in cases, perhaps, where a nuisance is created, which is not true in this case, a municipality is not liable for the nonenforcement of its ordinances. 28 Cyc. 1289, 1356, 1357. See Bradley v. Oskaloosa, 193 Iowa, 1072, 188 N. W. 896.

The

3. Nor can the city be held liable because it sprinkled the street over which the fire apparatus was negligently driven. There can be no question that the city had a perfect right to sprinkle its streets. That is one of the functions of a municipality very commonly exercised, and of importance to the health and welfare of the citizens of the community. sprinkling of a street, especially a paved street, necessarily makes it slippery for the time being, but that itself cannot be held to constitute negligence. Such condition must, of course, be taken into consideration in driving along the street, and failure to do so may constitute negligence; and when the driver of the fire apparatus in the case at bar failed to take the slippery condition of Center street into consideration, so that the fire apparatus swerved from one part of the street to the other, he was, perhaps, negligent, but this negligence was in the operation of the fire department of the city, a governmental function, and for which the city, according to the general rule, cannot be held liable.

4. One other point is still to be considered. Plaintiff alleged in his amended petition that there was a fire to which the fire apparatus was driven at the time of the accident in question, but stated that the locality of the fire did not constitute a grave fire hazard, and that the danger from fire did not justify excessive speed. It is the theory of counsel for the plaintiff that

there must have been an actually existing emergency, as proven by the facts, which would justify excessive speed, in order to exempt a municipality from liability for damages caused thereby, and that, inasmuch as the existence of such emergency was negatived by the amended petition, the demurrer thereto should have been overruled. This theory is based upon the provisions of the motor vehicle law of this state. Now the general rule is that where, as here, a municipality exercises governmental functions in operating fire apparatus, and a statute is passed for the purpose of regulating the speed of vehicles generally, it will not be assumed that the regulation was intended to apply to the operation of such fire apparatus unless such intention is couched in express terms or is manifested by necessary or unavoidable implication. Fire trucks are used for a special purpose only, and are not used or intended to be used on the streets for either pleasure or business purposes, and are not considered as coming within the designation of ordinary vehicles. Rollow v. Ogden City, supra, and cases in note to 19 A. L. R. 459. We find no mention, express or implied, in our motor vehicle law of any fire apparatus, except in section 3487, W. C. S. 1920, in force at the time of the accident in the case at bar, and, bearing the foregoing rule in mind, the section just mentioned is the only one which could have a bearing on the case at bar. That section, in so far as it may relate to cities and towns, is as follows:

"No motor vehicle shall be operated within any city or town at a speed greater than twenty miles per hour, nor at a rate of speed such as to endanger the life or limb of any person, having regard for the traffic, use and condition of the road or other public highway. Upon ap proaching the intersection of highways, or a bridge, or a sharp curve, or a steep descent, or another vehicle, or an animal or a person outside of any city, or town, the person operating the motor vehicle shall give a timely signal with his bell, or horn, and shall reduce the speed of such motor vehicle to a reasonable rate, and shall not exceed such speed until entirely past such intersection, bridge, curve, descent, vehicle, animal or person. Upon approaching any place where passengers are getting on or off street cars, every person operating a motor vehicle shall bring such vehicle to a full stop, and shall not start again until said street cars have started. Provided that the speed limits in this section shall not apply to physicians or surgeons, or police or fire vehicles, or ambulances, when answering emergency calls demanding excessive speed.'

A similar provision was before the court in

the case of Opocensky v. City of South Omaha, 101 Neb. 336, 163 N. W. 325, L. R. A. 1917E, 1170. In that case an automobile, used in connection with the fire department, was driven negligently along a street at a high and dangerous rate of speed, in order to test it out and not while answering a fire call. The court held that no emergency existed, that the exemption in the statute as to speed did not apply, and that, under the circumstances, the city was liable for damages caused by the dangerous and excessive speed. The case has no application to the case at bar, for here the existence of a fire at the time of the accident, and the fact that the fire apparatus, which collided with plaintiff's automobile, was being driven to this fire, is not questioned. We think that the exemption mentioned in the statute above quoted contemplates that an actually existing fire in the city is an emergency which justifies excessive speed, and that the men operating the fire department may construe it to be such. Whether a fire in a city is or is not of a grave character cannot, in many cases, be determined in the first instance. It may or may not be, depending on many different circumstances. fire that at a casual glance would appear insignificant might, under favorable conditions, be turned into a conflagration. We cannot believe that the Legislature intended that the character and extent of the fire must, in order to justify excessive speed, be determined beforehand and that at the peril of the city.

A

We think the demurrer was properly sustained. The judgment below must accordingly be affirmed, and it is so ordered. Affirmed.

NOTE. Statutes Regulating Speed of Vehicles as Applicable To Fire Department Vehicles. It is generally held that Statutes and Ordinances regulating the speed of vehicles in the highways do not apply to Fire Department vehicles. Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429; Warren v. Mendenhall, 177 Minn. 145, 79 N. W. 661; Farley v. New York, 152 N. Y. 222, 46 N. E. 506, 57 Am. St. Rep. 511; Oklahoma R. Co. v. Thomas, 63 Okla. 219, 164 Pac. 120; Waddell v. Williamson, W. Va., 127 S. E. 396.

General words of a statute will not be construed to include the Government or its agencies SO as to impair sovereign power, unless expressly included by name or unless that construction be clear and undisputable. Belthasar v. Pacific Electric R. Company, 187 Cal. 302, 202 Pac. 37.

"It would be an affront to the intelligence of the Legislature to hold that, in enacting a statute designed to suppress speeding it intended to restrict peace officers to the prescribed speed limits when in pursuit of violators of the statute." Edberg v. Johnson, 149 Minn. 395, 184 N. W. 12.

DIGEST

Digest of Important Opinions of the State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this Digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

Alabama Arizona

10.-Wife's Negligence.-Husband, who bought automobile for wife to be used by wife and family held liable, under law of principal and agent, for wife's negligence.-Cohen v. Hill, Tex., 286 S. W. 661.

California

Florida

Georgia

Idaho

Maryland

Massachusetts

Minnesota

New Jersey

New York...

North Carolina

Ohio 1, 21, 35, 43, 50, 59, 70, 78, 82, 85,

Missouri 2, 3, 23, 24, 32, 39, 46, 60, 62, 63, 64, 65, 66, 81 36, 38, 45, 58 13, 28, 31, 47, 51, 75, 77, 79, 92 67, 86, 96 88, 93, 100

Oregon

Pennsylvania

South Dakota

Texas

U. S. C. C. A..

U. S. D. C..

5, 9 87, 94 27, 90 4, 7, 10, 25, 33, 55, 57, 73 17, 22, 30, 56, 68, 76, 80, 102 14, 15, 16, 18 1. Animals -"At Large." Dogs, killed or wounded by accused while trailing rabbits, at command and within call or presence of owner, though on property of defendant held as matter of law not at large and not trespassers.-Uebele v. State, Ohio, 153 N. E. 215.

2. Arrest-False Arrest.-Where conductor put passenger off train against his will and placed him in custody of marshal, railroad was responsible for marshal's conduct tending to furnish passenger with reasonable ground to believe that he was under arrest, and evidence of such conduct was admissible.-Humphreys v. St. Louis-San Francisco Ry. Co., Mo., 286 S. W. 738.

3. Automobiles "Accident."-If plaintiff inadvertently slipped his finger between body of automobile and door at instant defendant attempted to close it, so that neither had chance to prevent injury, that would have been an accident; "accident" being a happening of an event from an unknown cause.-Yawitz V. Novak, Mo., 286 S. W. 66.

4. Bill of Sale.-Sale of secondhand motor vehicle is not void because not accompanied by bill of sale and transfer of license receipt required by statute.-Le Sage v. Maxie, Tex., 286 S. W. 612.

5. Collision. In action for injuries in collision with defendant's truck, on evidence showing that truck had no light on rear, as required by Laws 1921, p. 707, § 3, subd. 5[c], even if injury was product of concurring negligence of defendant and of driver of automobile in which plaintiff rode, denying motion for nonsuit and motion for directed verdict was not error.-Ross v. Willamette Valley Transfer Co., Ore., 248 Pac. 1088.

6. Measure of Damages.-Measure of damages to automobile from collision is difference in its value immediately before and immediately after injury, or reasonable cost of repairs, if less than difference in values.-Menefee v. Raisch Improvement Co., Cal., 248 Pac. 1031.

7. Registration.-Sale of second-hand automobile by dealer without compliance with Vernon's Ann. Pen. Code Supp. 1922, arts. 16174d-16174f, relative to registration held not void.-Moore v. Galey, Tex., 286 S. W. 679.

8.- -Speed.-Instruction that it was not negligence to drive at statutory speed, in absence of warning of "danger ahead," held proper, in absence of allegation or proof of negligence, except with respect to speed.-Strickfaden v. Green Creek Highway Dist., Idaho, 248 Pac. 456.

13. -Restitution.--Where bankrupt used money stolen from defendant to pay for merchandise, repayment of amount stolen to defendant on demand held restitution, and not voidable preference, where repayment was made before insolvency, and plaintiff believed bankrupt to be solvent.-Saperston v. National Bond & Inv. Co., N. Y., 217 N. Y. S., 611.

14.- -Review.-After appointment and qualification of trustee, single creditor has no standing to petition for review of order affecting estate generally, which can only be done by the trustee, and if he refuses to act, application should be made to referee or judge to require him to act, or to authorize creditor to act in his name.-In re New England Tire & Rubber Co., U. S. D. C., 13 F. (2d) 1004.

15. Setting Aside Transfer.-In suit by trustee in bankruptcy to set aside transfer of property on ground of defrauding creditors of bankrupt, receiver in state court proceedings, in which it was determined bankrupt had no title or interest in property held not necessary party.-Detroit Trust Co. v. Schantz, U. S. D. C., 14 F. (2d) 225.

16.- -Set-Off.-Bank, which was party to agreement for sale of assets of insolvent concern and for use of proceeds in particular manner held not entitled, when such proceeds were deposited with it, to appropriate them in satisfaction of its own claim against insolvent concern.-In re Gans & Klein, U. S. D. C., 14 F. (2d) 116.

17. Suit in State Court.-Federal courts may stay proceedings in state court, begun prior to proceedings in bankruptcy, and stay taking of any steps embarassing equitable distribution of bankrupt estate.-Bailey v. Blackmon, U. S. C. C. A., 14 F. (2d) 16.

18. Chattel -Unrecorded Mortgage. Where bankrupt purchased property more than four months prior to bankruptcy, giving a chattel mortgage for the price which though not recorded, was valid between the parties and against creditors not having liens, the fact that mortgagee took possession of the property within the four months, which had the same effect as recording held not to make the transaction a preferential transfer, voidable under Bankruptcy Act, § 60b, as amended by Act June 25, 1910, § 11 (Comp. St. § 9644).-Sample v. Getman-McDonnell-Summers Drug Co., U. S. D. C., 14 F. (2d) 170.

19. Banks and Banking-Offset.-Surety on depositary's bonds did not become creditor of depository until it paid obligees, and, that happening after superintendent of banks took charge of bank as insolvent, it was not entitled, either as subrogee or assignee, to offset its claim therefor on fidelity bond on which it was surety for bank's cashier. Hammons v. United States Fidelity & Guaranty Co., Ariz., 248 Pac. 1086.

20. Paying Check. In action against bank for paying check on which payment was stopped, allegations showing money on deposit, issuance of check, notice to stop payment thereof, payment of check, demand for the money, and its nonpayment, with prayer for its recovery, stated a cause of action without alleging damage.-Hiroshima V. Bank of Italy, Cal., 248 Pac. 947.

21. Bills and Notes-Interest.-Nonpayment of past-due interest on negotiable instrument does not affect its maturity, and purchasers thereof in good faith for value are holders in due course.Kreitz v. Savings Deposit Bank & Trust Co., Ohio, 153 N. E. 236.

22. Place of Contract.-In absence of anything to contrary, fact that parties made note in one jurisdiction to be paid in another will justify conclusion that they intended law at place of performance to govern.-Joffe v. Bonn, U. S. C. C. A., 14 F. (2d) 50.

23. Presentment.-As general rule, check should be presented within reasonable time, which depends on circumstances of each particular case, but where payee receives check in place where drawee bank is located, he should present it before closing of banking hours on next business day.-Koch v. Sanford Loan & Realty Co.-Mo., 286 S. W. 732.

24. -Presentment.-Where payee of check mailed it to drawer for correction through allowance of amount which had already been allowed in arriving at amount of check, and on return to him without change promptly presented it to bank on which it was drawn more than three days after it was issued, he must bear loss from insolvency of bank.-Koch v. Sanford Loan & Realty Co., Mo., 286 S. W. 732.

25. Brokers Commission. Where purchaser found by plaintiff and seller agreed on terms, plaintiff held entitled to commission though purchaser and seller subsequently agreed to modifications, and, because of inability of purchaser to comply with modifications, no sale was consummated.-Danciger v. Smith, Tex., 286 S. W. 633.

26. Commission.-Where broker contracts, for commission, to procure loan, if he procures lender on agreed terms and within specified time and notifies proposed borrower, he is entitled to commission although borrower may not be able to complete transaction.-Allen v. Farmer, Ala., 109 So. 555.

27. Carriers of Live Stock-Delay.-In action for carrier's delay in shipment of cattle, circumstance of loading portion, and then taking engine on train going west, and neglect and refusal of east-bound train to complete loading and take cars, were sufficient to support inference of negligence.-Willer v. Chicago, M. & St. P. Ry. Co., S. D., 210 N. W. 81.

28. Carriers of Passengers-Convenience and Necessity.-Under Public Service Commissions Law, §§ 23, 53, as they existed in 1913, certificate of convenience and necessity granted to corporation organized under Transportation Corporations Law, § 20, to operate motor busses, without notice to electric urban and interurban railroad whose tracks paralleled bus route, and whose business would be seriously affected by operation of busses, in view of sections 22, 24, section 25, as added by Laws 1913, c. 495, § 1, and amended by Laws 1915, c. 667, § 1 and section 26, as added by Laws 1915, c. 667, § 2, and amended by Laws 1919, c. 307, was void and subject to collateral attack in any court. -Hudson Valley Ry. Co. v. United Transp. Co., N. Y., 217 N. Y. S. 614.

29. -Negligence.

-

That

woman passenger, standing up in street car, with a suit case in her hand, fell and was injured when car stopped with a jerk held not to establish negligent operation of car.-Harkins v. Philadelphia Rapid Transit Co., Pa., 134 Atl. 376.

30. Conspiracy-Use of Mails.-In prosecution under Criminal Code, §§ 37, 215 (Comp. St. §§ 10201, 10385), for scheme to defraud in sale of mortgage company stock by use of mails, it is not necessary that indictment set out or describe letters charged to have been mailed.-Scheib United States, U. S. C. C. A., 14 F. (2d) 75.

V.

31. Constitutional Law-Fraudulent Practices.— General Business Law, art. 23-A, § 352, as added by Laws 1921, c. 649, and amended by Laws 1923, c. 600, and Laws 1925, c. 239, authorizing Attorney General to issue subpoenas requiring attendance and examination respecting fraudulent practices in dealing in securities to discover whether cause of action exists held not grant of judicial power to executive officer in violation of Const. art. 6. in view of General Business Law, § 359, as added

by Laws 1921, c. 649, and amended by Laws 1923, c. 600, and Laws 1925, c. 239, and Attorney General is not restricted to proceeding under section 354, as added by Laws 1921, c. 649, and amended by Laws 1923, c. 600, and Laws 1925, c. 239, where information is refused.-Dunham V. Ottinger, N. Y., 217 N. Y. S. 565.

32. Corporations-Express Contract with Employee. Stockholder in employ of corporation held entitled to contract with it for part of profits from joint venture in manufacturing certain articles under contract between corporation and third party.-Allan v. Hargadine-McKittrick Dry Goods Co., Mo., 286 S. W. 16.

33. Foreign Corporation.-Where foreign loan corporation was not licensed under Vernon's Ann. Civ. St. 1925, arts. 1529, 1536, to do business in Texas, assignee of its real estate mortgages, charged with knowledge thereof, could not intervene in garnishment proceeding to claim moneys impounded therein belonged to him under trust agreement with corporation.-Standard v. Cantwell, Tex., 286 S. W. 760.

34. Place of Bringing Suit.-Where, notwithstanding contract recited it was signed in certain county, it appeared that defendant corporation signed it as indicated, but plaintiff signed it later in another county, contract was made in latter county, and hence action could be maintained therein on contract, in view of Const. art. 12, § 16, though defendant's principal place of business was in former county.-California Bean Growers' Ass'n v. C. H. & O. B. Fuller Co., Cal., 248 Pac. 967.

35. Stock Subscription.-A. signed contract subscribing for 100 shares of corporation stock under secret agreement to pay for 10 shares only, and corporation represented to B. that A.'s subscription for 100 shares was genuine, and B. relying thereon subscribed for stock. Held, that fact that as against corporation A. could not enforce such secret agreement, but would be held for original subscription, did not establish truth of representation to B., which, if false in fact and B. relied thereon, constituted complete defense to suit on subscription against B.-Ziliox v. City View Apartment & Storage Co., Ohio, 153 N. E. 183.

36.

Covenants-Building Restrictions.-Building, consisting of garage and five living rooms, occupied by tenants, erected in rear of defendant's dwelling held to violate restriction in deed, limiting use of premises to single family dwelling with necessary outbuilding.-Matthews V. Captain, N. J., 134 Atl. 359.

37. Running with Land. Where one who was the owner of a certain lot of land and the structures thereon, which was equipped with the necessary tanks and other materials requisite for the purpose of handling and selling at retail the products of a named oil company, sold and conveyed the lot to another party and inserted in the writing the following stipulation, towit: "It is agreed with the parties hereto that the said J. F. Posey (the grantee) is to use the Standard Oil Company gas and oil as long as the said G. C. Smith (the grantor) acts as agent for said company and the prices of same are in accord with other gasoline and oils," the clause quoted, construed in the light of the other facts in the record and the intention of the parties to the deed, amounted to a covenant running with the land. And where the grantee in the conveyance referred to above conveyed to a third party the same property, but omitted from his deed of conveyance all reference to the covenant and condition in the deed from the first grantor, nevertheless the covenant, being one running with the land, was binding upon the last grantee, and the first grantor may maintain a suit for injunction to prevent the violation of the covenant under the circumstances alleged in the petition.-Smith v. Gulf Refining Co., Ga., 134 S. E. 446.

38. Use of Property.-Taking in guests who paid proportionate cost of their living expenses, though not use of premises as inn, tavern, or boarding house held violation of restriction requiring use of premises for single dwelling house exclusively.-Trainor v. Le Beck, N. J., 134 Atl.

355.