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“94 Tex. 529, 62 S. W. 1054, holding Tex. Rev. Stat. art. 580, prohibiting the inclusion for taxation of lands not used for town purposes embodies rule expressed in main case; Junction City School v. School Dist. No. 6 Trustees, 81 Tex. 152, 16 S. W. 742, holding question whether incorporated territory excessive and unreasonable in its limits depends on facts of each case.

Cited in note (25 L. R. A. 756) on physical characteristics necessary to municipal recognition.

Distinguished as relating to incorporation for general municipal purposes in Pinson v. Vesey, 23 Tex. Civ. App. 93, 56 S. W. 593, which related to incorporation for school purposes only.

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7 L. R. A. 734, STATE ex rel. HENDERSON v. LE SUEUR, 99 Mo. 552, 13

S. W. 237.


7 L. R. A. 736, CALLEN v. JUNCTION CITY, 43 Kan, 627, 23 Pac. 652.
Delegation of legislative power.

Followed in Huling v. Topeka, 44 Kan. 579, 24 Pac. 1110; Emporia v. Randolph, 56 Kan. 118, 42 Pac. 376; Eskridge v. Emporia, 63 Kan. 369, 65 Pac. 694, holding finding of district judge as to extension of city limits a judicial duty.

Cited in Hurla v. Kansas City, 46 Kan. 745, 27 Pac. 143, holding power to approve, disapprove, or modify ordinance extending city limits, not a delegation of legislative power; Pelletier v. Ashton, 12 S. D. 372, 81 N. W. 735, upholding right of court to exclude from proposed city limits large tracts of cultivated land; State ex rel. Godard v. Johnson, 61 Kan. 841, 49 L. R. A. 674, 60 Pac. 1068 (dissenting opinion), majority holding statute creating court of visitation unconstitutional as commingling legislative, judicial, and executive functions; Re North Milwaukee, 93 Wis. 629, 631, 33 L. R. A. 643, 67 N. W. 1033 (dissenting opinion), majority holding determination of what territory should be included in extending city limits exercise of legislative power; Hutchinson v. Leimbach (Kan.) 63 L. R. A. 631, footnote, p. 630, 74 Pac. 598, holding act permitting removal of territory from corporate limits of city, upon petition, unconstitutional.

Cited in footnote to Re North Milwaukee, 33 L. R. A. 638, which holds void act requiring court to determine whether or not territory should be incorporated as village.

Cited in note (11 L. R. A. 779) on extension of city limits.

Disapproved in Re North Milwaukee, 93 Wis. 625, 33 L. R. A. 642, 67 N. W. 1033, holding act of determining the advisability of incorporation and fixing boundaries not determination of question of fact, but exercise of legislative discretion. General laws.

Cited in Conklin v. Hutchinson, 65 Kan. 584, 70 Pac. 587, conceding that provisions for organization of cities must, under state Constitution, be made by general law; Paul v. Walkerton, 150 Ind. 570, 50 N. E. 725, to point general laws imposing conditions on annexation of territory, and vesting power in boards or courts to determine question, are valid.

Cited in note (27 L. R. ‘A. 743) on annexation by special law.
Due process of law.

Cited in note (27 L. R. A. 743) on taking property without due process of law. 7 L. R. A. 740, BROCKWAY v. PETTED, 79 Mich. 620, 45 N. W. 61. Liability of surety on liquor bond.

Cited in Col man v. People, 78 Ill. App. 215, holding liability of sureties on liquor dealer's bond continues during time mentioned in bond; Wright v. Treat, 83 Mich. 115, 47 N. W. 243, holding surety on liquor bond not discharged by removal from corporation limits, nor because principal notified to file new bond and discontinue business in meantime.

Cited in note (10 L. R. A. 81, 82) as to liquor bonds. Recital as covenant or promise.

Distinguished in Monks v. Provident Inst. for Savings, 64 N. J. L. 89, 44 Atl. 968, holding recital will not constitute covenant or promise unless such was intention of parties, and it must contain all the elements of a contract. Estoppel.

Cited in Lyon Bros. & Co. v. Stern, K. & B. 110 La. 478, 34 So. 641, holding corporation and surety, in action on auctioneer's bond, estopped from asserting that corporation could act as auctioneer.

7 L. R. A. 743, SANDERS v. BAGWELL, 32 S. C. 238, 10 S. E. 946. Effect of material alteration.

Approved in Richardson v. Fellner, 9 Okla. 521, 60 Pac. 270, holding note vitiated by material alteration; Sloan v. Latimer, 41 S. C. 219, 19 S. E. 491, holding surety discharged by extension of payment with privilege of payment before maturity.

Cited in footnotes to Gleason v. Hamilton, 21 L. R. A. 210, which holds mortgage not invalidated by alteration by attorney drawing same without mortgagee's knowledge; Brown v. Johnson Bros. 51 L. R. A. 403, which holds maker released by payee's addition of name of other person as comaker; Rochford v. McGee, 61 L. R. A. 335, which holds removal of note written below perforated line on application for insurance material alteration rendering it void; Simmons v. Atkinson & L. Co. 23 L. R. A. 599, which holds insertion of words "or bearer" and place of payment a material alteration; Foxworthy v. Colby, 62 L. R. A. 393, which holds insertion of word “gold” before word “dollars” material alteration.

Cited in note (13 L. R. A. 314) that party producing instrument must account for alterations. Original consideration as supporting addendum.

Approved in Harrell v. Parrott, 50 S. C. 23, 27 S. E. 521, holding new promise to pay increased rate of interest supported by original consideration.

7 L. R. A. 745, FOWLER v. ALLEN, 32 S. C. 229, 10 S. E. 947. Liability of conditional sureties.

Approved in Greenville v. Ormand, 51 S. C. 71, 39 L. R. A. 853, 64 Am. St. Rep. 663, 28 S. E. 50, holding absence of sureties on note given to maker for negotiation will not preclude evidence by one who, after payee's refusal to discount it, advanced money thereon; Carter v. Moulton, 51 Kan. 15, 20 L. R. A. 311, 37 Am. St. Rep. 259, 32 Pac. 633, holding one of several makers of negotiable note perfect in form, executed by several persons, presumed authorized to deliver; Sullivan v. Williams, 43 S. C. 512, 21 S. E. 642, holding sureties on attachment bond delivered by principals to innocent obligee estopped to show forgery of subsequent signatures.

7 L. R. A. 747, MOYER v. DRUMMOND, 32 S. C. 165, 17 Am. St. Rep. 850, 10

S. E. 952. “Family” within homestead laws.

Approved in Scott v. Mosely Bros. 54 S. C. 378, 32 S. E. 450, holding son caring for widowed mother head of family under homestead law, as against his own creditors; Holloway v. Holloway, 86 Ga. 579, 11 L. R. A. 519, 22 Am. St. Rep. 484, 12 S. E. 943, holding widow supporting husband's children by former wife head of family under homestead law, although such support is voluntary; Re Morrison, 110 Fed. 735, holding single man residing with and supporting widowed mother and minor brother entitled to homestead exemption in bankruptcy as head of family; Fant v. Gist, 36 S. C. 578, 15 S. E. 721, holding man supporting his deceased wife's niece, who spends part of her time out of school with him, entitled to homestead as head of family; Cross v. Benson (Kan.) 64 L. R. A, 567, footnote, p. 560, 75 Pac. 558, holding grandchild living with grandparents, and dependent upon them for support, member of their family.

Cited in footnotes to Bosquett v. Hall, 9 L. R. A. 351, which refuses homestead exemption because of residence of children strangers in blood; Wilkinson v. Merrill, 11 L. R. A. 632, which holds householder not deprived of homestead right by death of entire family.

Cited in note (9 L. R. A. 804) as to homestead exemption. Exemption in partnership property.

Approved in Dennis v. Kass, 11 Wash. 356, 48 Am. St. Rep. 880, 39 Pac. 656, holding partner entitled to exemption out of partnership property when no partnership debts remain unpaid; Adams v. Church, 42 Or. 274, 59 L. R. A. 785, 95 Am. St. Rep. 740, 70 Pac. 1037, holding land acquired under timber-culture claim, and conveyed to partnership, not liable for partnership debts contracted prior to issuance of final certificate.

Distinguished in Ex parte Xarish, 32 S. C. 438, 11 S. E. 298, holding partners. not entitled to exemption out of firm assets until partnership creditors satisfied.

7 L. R. A. 749, WHITAKER v. RICHARDS, 134 Pa. 191, 19 Am. St. Rep. 681,

19 Atl. 501. Sureties; instrument signed by part only of obligors named.

Cited in Gleeson's Estate, 192 Pa. 283, 44 W. N. C. 325, 73 Am. St. Rep. 808, 43 Atl. 1032, holding omission of one of several obligors named in bond to join in execution not defense as to obligors who do sign; Snyder's Estate, 7 Kulp, 415, holding no condition implied to execution by each of several obligors in bond that same shall be executed by all persons named in it, before it becomes binding upon any; Weissport v. Welsh, 6 Northampton Co. Rep. 246, holding omission of tax collector to sign official bond with sureties not release of parties signing; Hall v. Kintz, 13 Pa. Co. Ct. 27, 2 Pa. Dist. R. 617, holding attachment bond signed with firm name and by one partner individually, with name of one surety, sufficient; Reed v. McGregor, 62 Minn. 97, 64 N. W. 88, holding surety signing under belief that another person named in bond will sign, but without making signature conditioned on such person signing, is bound; Winters v. Robison, 14 Pa. Co. Ct. 265, holding existence of additional seal on bond not sufficient to charge obligee with notice that signature of surety is on condition that another signature be procured; Byrod v. Sweigart, 20 Lanc. L. Rev. 276, holding note signed on condition that it should not be binding unless signed by others named not enforceable unless so signed.

Cited in footnote to Hurt v. Ford, 41 L. R. A. 823, which denies right to make subsequent signature of another person essential to validity of note delivered to payee or his agent.

Cited in notes (45 L. R. A. 325) on conditional execution of contracts; (8 L. R. A. 735) on suretyship.

Distinguished in Yohn v. Shumaker, 28 Pittsb. L. J. N. S. 127, 5 Pa. Super. Ct. 322, 41 W. N. C. 30, holding surety delivering signed obligation to payee, with understanding that he is to procure sig ure of principal, who refuses to gn, not bound.

7 L. R. A. 750, PEPPER v. CAIRNS, 133 Pa. 114, 19 Am. St. Rep. 625, 19

Atl. 336.

Ninappropriation of money by agent.

Cited in Lerch v. Bard, 162 Pa. 318, 34 W. N. C. 540, 29 Atl. 890, holding note not necessarily invalidated for want of delivery, where agent for lender and borrower deposited proceeds to individual account; Kirchner v. Schmid, 7 Misc. 461, 25 N. Y. Supp. 85, holding plaintiff cannot have mortgage canceled which his agent delivered to defendant and received value for; Himes v. Herr, 13 Lanc. L. Rev. 15, holding fact that attorney is usually employed by lender to receive moneys not sufficient authority to collect in particular case.

Declarations of agent as to authority.

Cited in Harvey v. Schuylkill Real Estate Title Ins. & T. Co. 24 Pa. Co. Ct. 599, holding authority of agent not provable by his declarations.

7 L. R. A. 752, PIERCE v. CLELAND, 133 Pa. 189, 19 Atl. 352.

Servitudes; when license revocable.

Cited in Willis v. Erie City Pass. R. Co. 188 Pa, 67, 41 Atl. 307, holding license irrevocable when licensee has expended money upon faith of it; Bryn Mawr Hotel Co. v. Baldwin, 12 Montg. Co. L. Rep. 149, holding conveyance of part of estate implies grant or reservation, as case may be, of apparent servitudes created by vendor in favor of one portion against another, if intended to be permanent; Allegheny Nat. Bank v. Reighard, 32 Pittsb. L. J. N. S. 52, holding common entrance to two buildings on adjoining lots to be in nature of easement usable as long as building stood; Western C. Teleg. Co. v. Pennsylvania Co. 129 Fed. 859. holding that license in writing to occupy lands of railroad company for telegraph line, when ripened by use into interest in realty, becomes nonrevocable.

Cited in notes (10 L. R. A. 487) on effect of executed license; (49 L. R. A. 514) on revocability of license to maintain burden on land, after licensee incurred expense.

Distinguished in Baldwin v. Taylor, 166 Pa. 514, 31 Atl. 250, holding license to adjoining proprietor to use stairway, for temporary purpose, in consideration of conveyance of land, not assignable.

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Rights of purchaser of servient estate.

Cited in Hunter v. Wilcox, 23 Pa. Co. Ct. 194, and Geible v. Smith, 146 Pa. 285, 29 W. N. C. 467, 28 Am. St. Rep. 796, 23 Atl. 437, holding purchaser of real estate takes subject to continuous and apparent servitude, in absence of express reservation. Equity; jurisdiction.

Cited in Manbeck v. Jones, 190 Pa. 175, 42 Atl. 536, Affirming 21 Pa. Co. Ct. 304, holding equity will enjoin obstruction of public highway, before question of right decided at law, when evidence conclusive as to existence of highway, and action for damages inadequate.

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7 L. R. A. 755, BROOKHAVEN v. SMITH, 118 N. Y. 634, 23 N. E. 1002.

Cited in Blumenauer v. O'Connor, 32 Misc. 20, 66 N. Y. Supp. 137, refusing to order removal of encroaching wall where line practically determined by plaintiff at time of construction; Bloch v. Sammons, 37 Or. 604, 62 Pac. 290, holding party innocently misrepresenting title to property intending to influence purchaser estopped to assert contrary title; Moore v. Brownfield, 10 Wash. 444, 39 Pac. 113, holding party in honest belief that title in government, inducing another to settle and improve land, estopped to assert title; Wetmore v. Royal, 55 Minn. 168, 56 N. W. 594, refusing to correct mistaken date in mechanic's lien record as against purchaser on foreclosure misled thereby; Hazard v. Wilson, 22 Misc. 401, 50 N. Y. Supp. 280, holding mortgagee estopped to foreclose against improved acre covered by mortgage of tract where unselected acre released for cash; Teachers' Bldg. & L. Asso. v. Severance, 41 App. Div. 316, 58 N. Y. Supp. 464, holding acquiescence in mortgagor's deduction of interest each month for six years estops association to deny right; Moore v. Nye, 49 N. Y. S. R. 170, 21 N. Y. Supp. 94, holding mortgagee under deed absolute in form estopped by denial of interest in property to assert title against mortgagor's vendee; Mattes v. Frankel, 157 N. Y. 609, 68 Am. St. Rep. 804, 52 N. E. 585, Reversing 65 Hun. 208, 20 N. Y. Supp. 145, holding owner of adjoining lots estopped to deny vendee's right of way to lot sold, where pointed out during negotiations, though not included in deed; Williamson v. Jones, 39 W. Va. 269, 25 L. R. A. 237, 19 S. E. 436, holding owner causing void judicial sale of land and receiving proceeds cannot attack vendee's title after improvements made; Morris v. Wheat, 8 App. D. C. 387, holding party granting as guardian, but warranting in own right, estopped to deny grantee's title; Re Turtler, 1 Misc. 71, 1 Power, 402, 23 N. Y. Supp. 135, holding heir assenting to payment in accordance with intent of testator estopped to contest executor's account; Williams v. Whittell, 69 App. Div. 348, 74 N. Y. Supp. 820, holding party receiving benefits under sealed agreement. not to attack will estopped to assert invalidity for want of consideration; Crawford v. Ormsbee, 6 App Div. 52, 39 N. Y. Supp. 740, holding heir estopped from contesting will, where conveyance was made to him by reversioner on strength of his statement that he would make no claim against the estate; Dovale v. Ackermann, 39 N. Y. S. R. 518, 15 N. Y. Supp. 196, holding party obtaining payments through admission that payer not legally liable estopped to assert liability; Munson v. Magee, 22 App. Div. 345, 47 N. Y. Supp. 942, holding party acquiescing in apparent valid release of contract estopped to assert invalidity against party incurring expense in reliance thereon; Dr. David Kennedy Corp. v. Ken

L. R. A. AU.-Vol. 1.-65.

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