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tion, he will be compelled by mandamus to pass on the motions.-Ex parte Campbell, Ala., 30 South. Rep. 521. 115. MARINE INSURANCE-General Average and Salv. age. A marine policy insuring petroleum against sea perils, covers the general averages assessible against the petroleum, including a decree for salvage, towage of the vessel, etc.-De Farconnet v. Western Ins. Co., U. S. D. C., 8. D. (N. Y.), 110 Fed. Rep. 405.

116. MARINE INSURANCE-Recovery by Insurers.Marine insurers, having a claim to a part of the proceeds of a recovery for collision by the owner of the insured vessel, may intervene and set up such claim after decree and at any time before distribution of the fund recovered.-Mason v. Marine Ins. Co., U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 452.

117. MARINE INSURANCE-Recovering from Vessel in Fault.-Marine insurers, to whom a ship has been abandoned for a constructive total loss by collision, are entitled to damages recovered from the vessel in fault for loss of prospective earnings.-Mason v. Ma. rine Ins. Co., U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 452.

118. MARINE INSURANCE-Suit for Subrogation.-In an action against a carrier to recover for loss of cargo, brought by a marine insurer, as subrogated to the rights of the shipper by payment of the loss, it is no defense that such insurer might have successfully resisted the claim of the shipper.-Nord Deutscher Lloyd v. President, etc., of Insurance Co. of North America, U. S. C. C. of App., Fourth Circuit, 110 Fed. Rep. 420.

119. MASTER AND SERVANT-Compensation-Evidence of Neglect of Duty.-In an action for salary due by a discharged servant, testimony of neglect of duty held competent.-Pungs V. American Brake-Beam Co., Mich., 87 N. W. Rep. 364.

120. MASTER AND SERVANT-Defective Machinery.In an action for damages to a servant caused by the breaking of machinery, defendant's negligence must be shown by a preponderance of the evidence.-Croker v. Pusey & Jones Co., Dei., 50 Atl. Rep. 61.

121. MASTER AND SERVANT-Defective Tools.-It is a primary duty of a master to provide suitable tools and machinery for a servant.-Croker v. Pusey & Jones Co., Del., 50 Atl. Rep. 61.

122. MASTER AND SERVANT-Injury to Servant.-If a servant be young, inexperienced, and ignorant of his employment, the master must give him such instructions and warning of the dangerous character of the employment as may reasonably enable him to understand the peril thereof.-Strattner v. Wilmington City Electric Co., Del., 50 Atl. Rep. 57.

123. MECHANICS' LIENS-Judgment on Appeal.-On reversing judgment dismissing contractor's com. plaint for the price of building and to foreclose me. chanic's lien, judgment will not be entered for the amount due plaintiff, but the case will be remanded for retrial.-Brewer v. Hugg, Iowa, 87 N. W. Rep. 409. 124. MONOPOLIES Constitutionality of Anti-Trust Act.-Anti-monopoly act held not to infringe on personal liberty of persons examined without due process of law. In re Davies, N. Y., 61 N. E. Rep. 118.

125. MORTGAGE-Deed and Defeasance.-A deed with defeasance held a mortgage.-Thompson v. People's Building, Loan & Investment Co., Iowa, 87 N. W. Rep. 348.

126. MORTGAGE-Defense of Usury.-When a lot cov ered by a mortgage is sold by the mortgagor, the pur. chaser cannot object to the mortgage on the ground that his grantor paid usurious interest.-Gray v. H. M. Loud & Sons Lumber Co., Mich., 87 N. W. Rep. 376. 127. MORTGAGES-Extension.-Where, on foreclosure by an assignee, the question of an extension was in is. sue, it was error to exclude evidence thereof, though the assignment had not been recorded, as required by Laws 1897, ch. 160.-Hulme v. Neosho Val. Inv. Co., Kan., 66 Pac. Rep. 239.

128. MORTGAGES- Occupation- Notice.- Occupation of land under claim of ownership held to put one acquiring mortgage on the land made by a third person on notice.-Kent v. Dean, Ala., 30 South. Rep. 543. 129. MORTGAGES-Separate Conveyance of Property. -Where several tracts of land included in a mortgage are sold at different times without reference in the deeds to such mortgage, the tracts last conveyed are first liable for the payment of the mortgage.-Gray v. H. M. Loud & Sons Lumber Co., Mich., 87 N. W. Rep. 376.

130. MUNICIPAL CORPORATIONS-Changing Grade of Street. Abutting property owner held entitled to damages for change in grade of street. -Buser v. City of Cedar Rapids, Iowa, 87 N. W. Rep. 404.

131. MUNICIPAL CORPORATIONS Defaulting Treasurer. A village can sue its defaulting treasurer on his bond to recover liquor license money, though it must ultimately go to school district.-Hrabak v. Village of Dodge, Neb., 87 N. W. Rep. 359.

132. MUNICIPAL CORPORATIONS-Defective Sidewalk. -Slight inequality of surface of brick sidewalk held not a defect rendering defendant city liable to a trav eler tripping thereby.-Haggerty v. City of Lewiston, Me., 50 Atl. Rep. 55.

133. MUNICIPAL CORPORATIONS-Defense to Claim.In action against city, the defense that appro. priation was exhausted and that payment of claim would be illegal must be pleaded.-McNulty v. City of New York, N. Y., 61 N. E. Rep. 111.

134. MUNICIPAL CORPORATIONS - Local Self-Govern. ment.-Act 1901, abolishing commissioners of parks of Detroit, and providing for a single commissioner, to be appointed by the council, does not take away the right to local self-government.-Oren v. Bolger, Mich., 87 N. W. Rep. 366.

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136. MUNICIPAL CORPORATIONS Unauthorized Expense.-Laws 1899, ch. 700, authorizing payment of legal expenses of public officer in defending charges against him by a city or county, held in violation of Const. art. 8, § 10. Chapman v. City of New York, N. Y., 61 N. E. Rep. 108.

137. NAVIGABLE WATERS-Locks in a Dam.-Under Const. art. 18, § 4, Laws 1851, Act No. 156, and Pub. Acts 1887, Act No. 202, held not competent to require a water power company, damming a navigable river, to place rocks in the dam.-Valentine v. Berrien Springs Water Power Co., Mich., 87 N. W. Rep. 370.

138. NEGLIGENCE-Jury.—In an action for injuries at railroad crossing, the issues as to the defendant's negligence and plaintiff's contributory negligence are for the jury.-Kowalski v. Chicago G. W. Ry. Co., Iowa, 87 N. W. Rep. 409.

139. NEW TRIAL-Conditional Order of New Trial.Written notice of conditional order granting new trial cannot be served, so as to limit right of appeal, until performance of condition by the other party.-Swanson v. Andrus, Minn., 87 N. W. Rep. 363.

140. NEW TRIAL- Conflicting Instructions.-Where the instructions on a material point are conflicting, a new trial will be awarded.-Edwards v. Atlantic Coast Line R. Co., N. Car., 89 N. E. Kep. 730.

141. NEW TRIAL-Unjust Verdict.-Where the overwhelming prepondence of evidence shows a verdict in favor of defendant to be unjust, it should be set aside. -Birmingham Nat. Bank v. Bradley, Ala., 30 South. Rep. 546.

142. PARTIES-Misjoinder-Waiver.-Under Civ. Code Prac. Ky. §§ 113, 114, objection, to misjoinder of causes of action or parties is waiver unless made by motion

before answering.-Merchants' Ins. Co. of Newark v. Buckner, U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 345.

143. PARTNERSHIP-Sale-Mutual Rights.-On sale of one partner of his share in partnership assets, the share can be recovered only in equity.- Leader v. Plante, Me., 50 Atl. Rep. 53.

144. PAYMENT - Partial Payments. Where partial payments have been made, interest due is first to be paid, and balance applied to principal, under Code, § 2629.-McQueen v. Whetstone, Ala., 30 South. Rep. 548. 145. PLEADING - Failure to Demur Sufficiency of Pleading.-Acts 25th Gen. Assem. ch. 96 (the last sentence of Code, § 3564), providing that no pleading shall be held sufficient for failure to demur thereto, will not permit a defendant, on exceptions to instructions on the issue, to raise the question as to whether a cause of action is stated.-Enix v. Iowa Cent. Ry. Co., Iowa, 87 N. W. Rep. 417.

146. PLEADING-Waiver of Right to Make Bill More Specific.-Where defendant pleads after plaintiff files his bill of particulars, he waives his right to require the bill to be made more specific.-Mitchell v. Yerger, Del., 50 Atl. Rep. 62.

147. PRESUMPTIONS-Retrospective Effect.-Proof of ownership of a chattel at a certain time is not proof of ownership at a prior time.-State v. Dexter, Iowa, 87 N. W. Rep. 417.

148. PRINCIPAL AND AGENT-Acceptance by Agent.An inspection and acceptance of merchandise at the place of delivery by an agent binds the principal.Darby v. Hall, Del., 50 Atl. Rep. 64.

149. PRINCIPAL AND AGENT-Husband as Agent for Wife.-Where there is evidence that defendant's husband was authorized to act as her agent, his letters while so acting are admissible where she denies his agency.-Bird v. Phillips, Iowa, 87 N. W. Rep. 414.

150. PRINCIPAL AND AGENT-Undisclosed Principal.Where a loan company made a loan for a third party to the plaintiff, who supposed she was dealing only with the company, it having acted for an undisclosed principal, will be liable for overpayments made by the plaintiff.-Thompson v. People's Building, Loan & Investment Co., Iowa, 87 N. W. Rep. 438.

151. PROCESS-Personal Service.-That a resident of Wisconsin was in Illinois to testify in another action does not affect service of process, if his presence in Illinois was not procured by fraud.-Longueville v. May, Iowa, 87 N. W. Rep. 432.

152. PROCESSIONING PROCEEDING- A dispute as to title to land cannot be tried by a processioning proceeding, under Laws 1893, ch. 22.-Midgett v. Midgett, N. Car., 39 S. E. Rep. 722.

153. PUBLIC LANDS-Actual Occupant-Homestead.One purchasing unearned land from a railroad com. pany is not a bona fide purchaser, within the meaning of Act March 3, 1887, as against a claimant under the homestead law who was in actual occupancy when, the purchase was made.-Manley v. Tow, U. S. C. C. N. D. (Iowa), 110 Fed. Rep. 241.

154. PUBLIC LANDS Field Notes. A government plat, corrected to correspond with the government field notes, supersedes the original plat.-Harrington v. Boehmer, Cal., 66 Pac. Rep. 214.

155. PUBLIC LANDS- Revolutionary Claims.- Under Resolves 1836, ch. 49, appropriating lands in satisfaction of claims for Revolutionary soldiers, held not necessary to order a new draft each time a claim was proved.-Burleigh v. Mullen, Me., 50 Atl. Rep. 47.

156. PUBLIC LANDS-Timber-Homestead/Claimant. A homestead settler, who has not perfected his right, so as to entitle him to a patent, has no right or authority to cut and remove timber from the land, and can give no title to such timber as against the United States.-Cunningham v. Metropolitan Lumber Co., U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 332.

157. QUO WARRANTO- State and Federal Represen. tation. Where the state sues to determine the valid. ity of a franchise to build a dam, the state and pros. ecuting attorney representing the county whose board granted the franchise have no authority to rep. resent the federal government.-Valentine v. Berrien Springs Water Power Co., Mich., 87 N. W. Rep. 370.

158. RAILROADS-Limiting Speed.- Where a town or. dinance limited the speed of trains within the cor porate limits in action for death at a crossing, held error to charge that, if the train was moving in excess of the prescribed rate at the crossing, such speed was negligent.-Edwards v. Atlantic Coast Line R. Co., N. Car., 39 S. E. Rep. 730.

159. RAILROADS-Mortgages-Lien.-Under the Ohio statute, the lien of mortgages upon railroad property within the state, executed by a corporation of another state whose road is partly within Ohio, is postponed to the lien of judgments recovered against it in the state for personal injuries.-King v. Thompson, U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 319.

160. RAILROADS - Violation of Ordinance. -An engineer and fireman, operating an engine across a graded street whereon no flagman was stationed, held not liable to punishment therefor, under Leavenworth City Ordinance No. 1755, §§ 13, 21.-City of Leavenworth v. Hurdle, Kan., 66 Pac. Rep. 238.

161. RECEIVERS-Attorney's Claim-Failure to Prove. -An attorney having a lien on money collected for a corporation does not lose his right to set off his claims on a motion to compel him to pay over such money, by failing to prove his claim before a receiver of such corporation.-Union Bldg. & Sav. Assn. v. Soderquist, Iowa, 87 N. W. Rep. 433.

162. REFERENCE-Authority.-The legislature can au thorize a justice of the supreme court to appoint a referee to take testimony which the judge could take out of court.-In re Davies, N. Y., 61 N. E. Rep. 118.

163. RELIGIOUS SOCIETIES-Title to Property.-An un. incorporated church society is without capacity to ac. quire title to property.- Stewart v. White, Ala., 30 South. Rep. 526.

164. REPLEVIN-Mistake of Law.-A defendant in replevin held to have no equity to require the repay. ment by plaintiff of a sum expended in the purchase of the property recovered, which it bought with knowledge of the facts, but under a mistake of law.Cunningham v. Metropolitan Lumber Co., U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 332.

165. SEAMEN-Foreign-Right of Congress.-Congress has no power to regulate the domestic concerns of a foreign ship, such as the terms on which she ships her crew or the payment of their wages.-The Eudora, U. S. D. C., E. D. (Pa.), 110 Fed. Rep. 430.

166. SEAMEN-Wages-Foreign Subjects.-Act Cong. December 21, 1898, § 24, prohibiting prepayment of wages of seamen, held constitutional, and to apply to prepayment of seamen who are British subjects shipping in American ports on British merchant vessels.The Kestor, U. S. D. C., D. (Del.), 110 Fed. Rep. 432. 167. SERVICE OF PROCESS Publication. Where a summons has been returned to the office of the clerk the authority of the court to order the service by pub. lication is not thereby taken away.-Rue v. Quinn, Cal., 66 Pac. Rep. 216.

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188. SHERIFFS AND CONSTABLES- Deputy- Compen. sation.-Under Acts 25th Gen. Assem. 1896, ch. 75, § 3, held, that a sheriff, not a salaried officer, was entitled to an allowance for a deputy.-Mentzer v. Marion County, Iowa, 87 N. W. Rep. 440.

169. SHERIFFS AND CONSTABLES-Misconduct of Deputy.-A sheriff is not chargeable in exemplary dam. ages for misconduct of his deputy.-Nixon v. Rauer, Cal., 66 Pac. Rep. 221.

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of the port, and the charter provided that lay days should not commence until she was in every respect ready to load.-Bacon v. Ennis, U. s. D. C., E. D. (Pa.), 110 Fed. Rep. 404.

171. SPECIFIC PERFORMANCE Remedy at Law.Where action at law will not lie to recover damages for breach of contract, it will not be enforced in equity.-Kent v. Dean, Ala., 30 South. Rep. 543.

172. SPECIFIC PERFORMANCE-Wife against Husband. -Under Civ. Code, §§ 158, 2235, a wife's complaint for specific performance against her husband, which does not negative the presumption of undue influence, is defective. Stiles v. Cain, Cal., 66 Pac. Rep. 281.

173. STATUTES-Title.-Act 1901, relating to commissioners of parks in Detroit, held not unconstitutional as containing provisions not included in the title.Oren v. Bolger, Mich., 87 N. W. Rep. 366.

174. TAXATION - Assessment.- Collection of taxes on complainant's property will not be restrained because it was assessed in the name of the predecessor of com. plainant corporation.-A. Booth & Co. v. Raymond, Ill., 61 N. E. Rep. 129.

175. TAXATION - Bonds of Foreign Corporations.Bonds deposited with the Ohio insurance commis. sioner by a foreign insurance company, under Rev. St. Ohio, § 3660, are taxable under section 2731 and Const. Ohio, art. 12, § 2. - Western Assur. Co. of Toronto v. Halliday, U. S. C. C., S. D. (Ohio), 110 Fed. Rep. 259.

176. TAXATION-Necessary Parties. A judgment in an action enjoining collection of taxes brought against county treasurer alone reversed for lack of necessary parties defendant.-Shearer v. Murphy, Kan., 66 Pac. Rep. 240.

177. TAXATION-Tax Lien- Foreclosing. In suit to foreclose tax lien, answer held an admission of the issuance and existence of the certificate of tax sale alleged.-Battelle v. McIntosh, Neb., 87 N. W. Rep. 361. 178. TAXATION-Validity of Tax Title.-Where claim is made that a tax title under which a party in a suit to quiet title claims is void, the only way of raising the question is by interposing in the tax proceeding.Munroe v. Winegar, Mich., 87 N. W. Rep. 396.

179. TENANCY IN COMMON-Conversion.- Where cotenant of a chattel sells the whole of it, his co-tenant may maintain trover.-Leader v. Plante, Me., 50 Atl. Rep. 53.

180. TRADE MARKS AND TRADE-NAMES-"Cascara."The word "Cascara," which is the name of a drug generally known, cannot be monopolized as a tradename, but may be used by any one in connection with any preparation of which it is properly descriptive.Sterling Remedy Co. v. Gorey, U. S. C. C., N. d. (Ohio), 110 Fed. Rep. 372.

181. TRSEPASS-Damages.-Measure of damages for entering on plaintiff's property and removing its barn held to be value of barn at time of removal.-Kent County Agricultural Soc. v. Ide, Mich., 87 N. W. Rep. 369.

182. TRESPASS- Removing Barn. - Trespass quare clausum held proper form of action by agricultural so ciety against its president for entering on its realty and removing its barn.-Kent County Agricultural Soc. v. Ide, Mich., 87 N. W. Rep. 369.

183. TRIAL-Affidavits-Refusal to Receive. Where the court, pending a trial, refused to strike certain affidavits from the files, it was not thereby precluded from afterwards refusing to receive them.-Union Bldg. & Sav. Assn. v. Soderquist, Iowa, 87 N. W. Rep. 433.

184. TRIAL-Directing Verdict.-Where petition states cause of action, and answer states no defense, held not error to direct a verdict for plaintiff.-Hrabak v. Village of Dodge, Neb., 87 N. W. Rep. 358.

185. TRIAL-Instructions.-Where, in an action for libel, the charge as to malice was unexceptional as far as it went, the judgment should not be reversed be.

cause there was no special charge as to actual and implied malice, In absence of a request for such charges.-Merchants' Ins. Co. of Newark v. Buckner, U. S. C. C. of App., Sixth Circuit, 110 Fed. Rep. 345.

186. TRUSTS-Enforcing Trust.-A person purchasing land under agreement to convey to the other, and refusing to do so, will be compelled by a bill to enforce the trust.-Kent v. Dean, Ala., 30 South. Rep. 543.

187. TRUSTS-Mingling Trust Funds.-Act of trustee mingling trust money with his own, by depositing in bank in his individual name, held not necessarily to prevent identification of the trust money.-Cushman v. Goodwin, Me., 50 Atl. Rep. 50.

188. VENDOR AND PURCHASER-Vendor's Lien.-Fail ure of vendor to present purchase money notes to vendee's administrator held not to prevent enforcement of lien.-Hood v. Hammond, Ala., 30 South. Rep. 540.

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190. WATERS AND WATER COURSES Stream.-Though a party may not divert the waters of a stream to the damage of another, he may accelerate and increase such waters, though by so doing another Is damaged.-Mizell v. McGowan, N. Car., 39 8. E. Rep. 729.

191. WATERS AND WATER COURSES-Flooding Land.Evidence held insufficient to sustain verdict against irrigation company for flooding plaintiff's land.Lowery v. San Joaquin & K. R. Canal & Irrigation Co., Cal., 66 Pac. Rep. 225.

192. WATERS AND WATER COURSES Water Com. panies-Stockholders.-Purchasers of stock of water power company held entitled to equitable relie against original holders conspiring to defeat the objects for which the company was organized.-Valentine v. Berrien Springs Water Power Co., Mich., 87 N. W. Rep. 870.

193. WILLS-Holographic Will.-The writing of the testator's name in a clause in holographic will is a sufficient signature thereto. In re Camp's Estate, Cal., 66 Pac. Rep. 227.

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196. WITNESSES- County Attorney.- A county attorney, trying a criminal case, can testify in behalf of defendant as to contradictory statements by a state's witness on a former trial.-State v. Tabor, Kan., 66 Pac. Rep. 237.

197. WITNESSES- Impeachment.-Under Pen. Code, § 2051, a question on cross-examination for the purpose of impeaching the witness in a criminal prosecution held incompetent.-People v. Warren, Cal., 66 Pac. Rep. 212.

198. WITNESSES-Impeachment.-Proof of statements contrary to a witness' testimony affect the credibility of the witness.-Smith v. May, Del., 50 Atl. Rep. 59.

199. WITNESSES- Privilege- Attorney.- Statements to an attorney when not employed as attorney held not privileged.-State v. Herbert, Kan., 66 Pac. Rep. 235.

200. WITNESSES- Transactions with Deceased Persons.-Under Code, § 4604, testimony of defendant as to transaction with deceased person held admissible in behalf of interveners.-Hogan v. Sullivan, Iowa, 87 N. W. Rep. 447.

Central Law Journal.

ST. LOUIS, MO., DECEMBER 20, 1901

What instructions, if any, should be given the jury as to a witness' insanity, when it is offered and attempted to prove, or is proven that he is insane, or has been, to the judge, when the witness is produced? In answering this question we must first determine whether the mere fact of insanity renders a witness incompetent. Under the old rule of common law and the statutes of many of the states persons of unsound mind are said to be incompetent to testify. But whether under such statutes or the rule at common law a lunatic, monomaniac, or other person insane on one or more special subjects could, under any circumstances, be permitted to testify, was not definitely determined until the celebrated English case of Regina v. Hill, 5 Cox, Cr. Cas. 259. In this case Chief Justice Campbell held that if a person be so insane as not to understand the nature of an oath, he is not admissible. "But," the court said, "a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath and capable of giving very material evidence upon the subject-matter under consideration. The proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath. The lunatic may be examined himself and his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is. Still, if he can stand the test proposed, the jury must determine all the rest." The rule thus announced was accepted by the United States Supreme Court in the case of District of Columbia v. Armes, 107 U. S. 519, where the court, speaking through Mr. Justice Field, laid down the rule as follows: A person affected with insanity is admissible as a witness, if it appears to the court, upon examining him and competent witnesses, that he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. This undoubtedly is the settled rule on this subject, indisputable

by either reason or authority. Wright v. Express Co., 80 Fed. Rep. 85; Pittsburg, etc. R. R. v. Thompson, 82 Fed. Rep. 720; Tucker v. Shaw, 158 Ill. 326; State v. Hayward, 62 Minn. 475, 65 N. W. Rep. 63; State v. Brown (Del. 1896), 36 Atl. Rep. 458; City of Guthrie v. Shaffer (1898), 7 Okla. 459; Bowdle v. Detroit Street Railway Co. (Mich. 1894), 61 N. W. Rep. 529.

The competency of the witness having been determined at the preliminary hearing of the court, the question of how far the insanity of the witness affects his testimony is one solely for the jury and evidence on that point may be introduced by the opposing counsel and considered by the jury under proper instructions from the court. Bowdle v. Detroit Street Railway Co. (Mich. 1894),61 N. W. Rep. 529; City of Guthrie v. Shaffer, 7 Okla. 459; State v. Brown, 2 Marvell (Del. 1896), 380, 36 Atl. Rep. 529. In regard to the character of the evidence offered to prove a witness' insanity, it will be instructive to consider carefully the recent case of State v. Hayward, 62 Minn. 474, 65 N. W. Rep. 63, where the court makes a distinction between insanity as a direct issue and as a collateral issue, as in the attempt to impeach the credibility of a witness, and holds that the trial court may refuse to receive any indirect evidence of insanity, as, for instance, of witness' ancestors or relatives, or of his own prior, temporary delusions, until some other evidence is first given of his insanity at the time of the transactions testified to or at the time of the trial.

After the case is closed and evidence of a witness' insanity has been introduced to impeach his testimony, the question of most serious difficulty is the drawing up of the proper instructions for the jury. The authorities are not altogether clear on the question as to the extent to which the trial court may go in interfering with the discretion of the jury. In District of Columbia v. Armes, 107 U. S. 519, 521, very conclusive evidence had been introduced of a witness' insanity, and though the court held the witness to be competent it instructed the jury that his testimony must be taken with some allowance, considering his condition of mind and his incapacity to remember all the circumstances. The United States Supreme Court held this to be a proper instruc

tion, and it is safe to affirm that in all cases where the court admits evidence of a witness' insanity at all, such an instruction would be proper. The case of Bowdle v. Railway, supra, seems to have gone farther than all other authorities. There the court held that where there is evidence that a witness is demented, it is proper to charge that, if the jury believe from the evidence that the witness is without sufficient mental capacity to understand what is going on, they are not at liberty to consider his testimony. McGrath, C. J., dissented. The court said: "When the preliminary question is passed and the court has determined that the witness is competent to testify, the entire controversy is then transferred to the jury. The court may not say to the jury that the witness is or is not entitled to credence. The jury may reject the testimony entirely or may attach whatever weight to it they choose. We are cited to no authority which holds that it is incorrect to instruct the jury that, if they shall determine from the evidence that a witness is so insane as not to comprehend or be able to understand what he is doing and saying, and to remember what has transpired in regard to the subject about which he is testifying, they should reject his testimony altogether." The court in this case undoubtedly states the correct rule. The trial court has the first right to exclude the witness, and on preliminary examination may decide that the witness is competent to testify. The same or additional evidence, however, may then be given to the jury who hear it along with other evidence in the case and have the same right as the court to exclude, in their discretion, the entire evidence or give it such weight as they think fit; and they must reject it altogether if they find the witness without sufficient mental capacity to understand what is going on.

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are instructed that, in determining the weight to be given to her testimony, you should take into consideration the testimony tending to show the mental condition of the plaintiff at this time, and from such testimony, together with her own statements and evidence as to how the accident occurred, give to her testimony such weight as in your judgment the same is entitled to." The Supreme Court of Oklahoma unanimously approved this instruction.

We have gone so much at length into this subject because of inquiries which we have received and from the further fact also that neither text books nor digests give any light whatever on the question. In fact, in some of the cases which we have cited the reporter failed to notice in the syllabi the fact that the question of proper instructions in such cases had been passed upon. It would have been easier and probably more appropriate to have prepared an article rather than an editorial on this question, but we thought best to condense the entire subject into the latter form, merely blazing a way for the more exhaustive consideration of the individual cases.

NOTES OF IMPORTANT DECISIONS.

COURTS-HOLDING JUSTICE COURT ON THE SIDEWALK.—Justice Lumpkin of the Supreme Court of Georgia is undoubtedly one of the greatest of legal humorists. Some of the most serious of legal tangles over which the painstaking attorneys have labored into the small hours of the night, are cut and solved by the sharp wit of this unique jurist. His sense of humor is remarkable being only equaled by his keen insight into the merits and equities of the case. In a comparatively recent case the court was called to consider an appeal from the judgment of a justice's court where the court was held on the sidewalk instead of the accustomed place, because the justice had been barred out of his office by his landlord. After stating the facts the court proceeds:

"Representatives in that militia district, the justice of the peace and notary public and ex officio justice, took counsel of each other, and finally (though perhaps unconscious of the coincidence) arrived at somewhat the same conclusion as the Roman poet Propertius when he said, 'In magnis et voluisse sat est.' "At least, whether influenced by the elegiac opinion the Latin author or not, they decided to act on the doctrine which in the administration of charitable trusts is sometimes known as

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