(PROPERTY RIGHTS; WILLS.) appear that he knew that the driver was incompetent or negligent. (Minn.) 684.

The Ohio statute requiring every street railway company before a street car crosses a railroad track at grade to stop the car and send an employee ahead to see if the track is clear and signal to that effect is construed to apply in case of a crossing at which there are gates and a watchman as well as to other crossings; and it is held that, at least in the absence of extraordinary circumstances, failure to comply with these requirements is negligence, and renders the street-car company liable for any damages resulting therefrom. (Ohio) 509.

An attempt to mount a flat car used in front of a road engine for switching purposes is held not to constitute contributory negligence as matter of law where it was in accordance with the usage of brakemen in similar circumstances, and was the only way in which the employee could do the work required of him. (Mont.) 814.

Easement of railway.

Carrier's liability.

See also Contracts, supra, II.

For an assault on a railroad passenger after alighting at a station and starting out on his business as a peddler, the carrier is held not liable, but is held liable for an assault, without provocation, in a ticket office in the presence of the ticket agent where he made no effort to prevent it. (Utah) 297.

The words "any railroad," in the New York general railroad law respecting passengers riding on platforms, are held inapplicable to street railways. (N. Y.) 626.

Physician's negligence.

A physician who sends another physician in his stead to attend a patient is held not to be liable for the negligence or unskilfullness of the latter. (N. J.) 345.

VII. PROPERTY RIGHTS; WILLS

A public warehouse or elevator on a railroad right of way, maintained by the railroad company, its lessee or licensee, is held not to be a misuse of the easement. (Minn.) 534.

Entireties.

An estate by entireties is held not to exist where property descends to husband and wife as next of kin. (Wis.) 320.

A deed to husband and wife is held to create an estate by entirety although it provides that if the wife survive the husband she shall have the use of the property, and that the remainder at her death shall go to their children. It is also held that the wife's rights in the property cannot be affected by sale under any judgment against the husband, although the purchaser may be entitled to it if the husband outlives the wife. (Tenn.) 315.

In Maine a gift by will of the residue to a daughter and her husband in equal shares, and so to their heirs and assigns forever, is held not to create a teuancy by entireties; and the court goes further and says that such estates are irreconcilable with statutes giving wives separate and independent property rights. (Me.)

331.

of the husband to the entire usufruct of such an estate was a part of his marital rights and not an incident of this estate, therefore the husband and wife are held entitled to separate moieties in these rents and profits. (N. Y.)305. Mines.

A decision of the highest importance in respect to mining rights is that which sustains the right of a locator, when the apex of a vein passes through but one end line and crosses one of the side lines, to follow the strike of the vein on a dip beyond the side line so far as it such end line extended, and a parallel vertical is included between a vertical plane through plane through the intersection of the apex and the side line. (Mont.) 803.

Homestead.

A building in a city, a part of which is rented for business purposes and the rest occupied as a residence, is held to be protected as a homestead. (Okla.) 722.

Water rights.

On the sudden diversion of water from a channel by the act of God, it is held that a riparian appropriator has no right to go upon another's land to restore the water to the old channel. (Cal.)820.

The claim of a riparian owner to damages for trespass in disturbing his thatch by a person digging clams below high-water mark is held not to be valid on the ground that the public right of fishery is paramount. (R. L.) 497.

The loss by nouuser of rights in an irrigating ditch is held to result by failure to take water therefrom during the statutory period of limitation in irrigating season, except what is distributed to the owners as shareholders in an association which owns an older ditch of which this has been taken as part. (C. C. App. 9th C.) 265.

Separate mortgages made by husband and wife each for an undivided half interest in land held by the entireties are held to give the mortgagee on the husband's death no lien except upon an undivided half interest under the wife's mortgage. The right of the wife to make such a mortgage is sustained under laws giving the wife control of her property free An important case as to the law of prior apfrom her husband's marital rights. (Ark.) 324. propriation of waters holds it applicable to the The question as to the right to the rents and diversion of water for a flouring mill, and susprofits of an estate by the entirety where stat-tains the right as existing in that portion of the utes have given married women power to con state of Washington east of the Cascade trol and dispose of their own property is de mountains before the act of Congress on the cided on the theory that the common law right subject. (Wash.) 665.

(CIVIL REMEDIES; RULES AND PRINCIPLES; DAMAGES.)

A change of the place and purpose of use | vival of which the judgment creditor had neiof water by a prior appropriator is held allow-ther actual nor constructive notice. (Pa.) 400. able so long as the water is used for proper objects and the change does not injuriously affect the rights of others. (Cal.) 390.

But the right of a prior appropriator of water to enter on land held by a homestead claim to change the point of diversion is denied although the claimant has not obtained or yet become entitled to a patent. (Cal.) 384.

A peculiar case as to the right of prior appropriation in respect to percolating waters sus tains the right in favor of one who dug wells on public lands as against a subsequent locator of the land. (Utah) 186.

Liens.

Authority to borrow money is held beyond the power of a court to confer upon a receiver to carry on the business of a private corporation by issuing certificates which should be a first lien on the corporate property against the objection of the first mortgagee. (C. C. App. 8th C.) 201.

The rule allowing earnings of a receiver to be applied to running expenses in preference to a mortgage on railway property is denied application in case of a street railway to a claim for damages for negligence of the company before the receiver's appointment. (C. C. App. 8th C.) 456.

Insolvency.

The inception of liens within the meaning of Participation in dividends from assets of an a statute is held to be the time to which they insolvent is allowed on secured claims only for relate in giving them effect as against a mort- the amount unpaid after deducting all that was gage taken upon an incomplete building, and realized on collaterals up to the time of mak this is held subject to all mechanics' liens ac-ing the preliminary proofs, but this is not held cruing before the work is completed. (Tex.) to apply to a payment made on that day. 765. (Ill.) 380. Trust.

So a mechanic's lien for machinery in a mill is held superior to a prior mortgage taken on the premises when the mill was unfinished and substantially without machinery. (Wis.) 778. The right of subrogation of a mortgagee who advances money on the promise of a first lien is enforced in a case in which the first liens were paid off with his money, while an intermediate lien remaining first in order is held not to prevent subrogation. (Miss.) 829.

The priority of a judgment recovered against a consolidated railroad company under the South Carolina statutes over a mortgage is sustained as against a purchaser on foreclosure who had covenanted to discharge all liens prior to the mortgage, although the judgment was for a personal injury in another state. (C. C. App. 4th C.) 823.

The revival of a judgment is held effective as against a grantee of the judgment debtor, in a deed made after the judgment but before the re

VIII. CIVIL REMEDIES; RULES

Diminished capacity to labor is held to be an element of the damages recoverable by a married woman for personal injuries under statutes which entitle her to her own earnings. (Mass.) 658.

Evidence.

The doctrine of oral evidence to show consideration of a conveyance receives careful analysis in a case which denies such evidence as to the consideration of a deed expressly made for the settlement of certain claims. (Miss.) 441.

AND PRINCIPLES; Damages.

Creditors who proceed to take judgment and by garnishment on execution reach wages which were exempt by the law of the debtor's domicil after an order restraining them from collecting such wages by garnishee proceedings will be compelled to refund the exempt amount the garnishment which was pending when the reached with interest, although they dismissed (Wis.) 360. restraining order was made.

Injunction.

A novel case of a mandatory injunction is that in which the proprietor of a store is ordered to adopt some means of distinguishing it from that of a competitor where he had pur posely imitated the building of the other and adopted the same name, without any name or sign to distinguish them. (Cal.) 182.

An injunction against trespass upon land for the purpose of boxing and scraping trees for turpentine is held to be within the jurisdiction of chancery, notwithstanding the constitutional provisions as to right of trial by jury. (Fla.) 754.

The right to an injunction against an execu

(CRIMINAL LAW AND PRACTICE.) tion sale of exempt property is denied unless the property has some special value to the plaintiff, where the statutes provide a remedy at law. (Or.) 98.

An injunction against a judgment at law is sustained, where the judgment is without evi dence to support it and an appeal was prevented by the death of the trial judge. (Ark.) 560. Fraud in the entry of a default judgment is held ground for an injunction against it, although there was a remedy by certiorari. (Cal.) 786.

The rendition by a justice of a judgment for more than is demanded by an affidavit of attachment is held insufficient ground for an injunction. (Ind.) 700.

An injunction against a judgment by confession which is held to be merely irregular and not void is denied, and it is said that lack of jurisdiction only will not be ground for the injunction unless it is also unjust and inequitable. (Wis.) 235.

The failure to appointļa guardian ad litem for an infant is held not to be a ground for an injunction against a judgment taken against him. (Ala.) 707. Time.

The meaning of the term "calendar month" in a provision as to the time for statutes to take effect is defined as denoting a period terminating with the day of the succeeding month numerically corresponding with the day of its beginning less one, unless there is no corresponding day of the succeeding month, when it terminates on the last day. (Neb.) 450.

The rule that Sunday is to be excluded from the computation of time which ends on Sunday is denied application in a case where the act to be performed was the filing of an application for a writ of error which the court held could lawfully be done on that day. (Tex.) 498.

INDEX TO NOTES.

(The General Index follows this.)