vendor's inability to convey according to his bond.SIEVERS V. BROWN, Oreg., 56 Pac. Rep. 171.

64. LANDLORD AND TENANT-Defective Premises.-A landlord who let an entire tenement is not liable for injuries to a subtenant of one of the tenements, through defects in a stairway used as a common entrance for several of the tenements, since he was no longer in possession of it, and was not obliged to make repairs.-MARLEY V. WHEELWRIGHT, Mass., 52 N. E. Rep. 1066.

65. LANDLORD AND TENANT-Lease-Destruction of Subject matter.-When the subject-matter of an alleged lease is destroyed, the estate of both lessor and lessee ends, and the relation of landlord and tenant can no longer survive, and an instruction which, in effect, informed the jury that the leasehold estate of plaintiff continued after destruction of the subject-matter of the lease, was erroneous.- UTAH OPTICAL Co. v. KEITH, Utah, 56 Pac. Rep. 155.

66. LANDLORD AND TENANT-Liability to Strangers.A landlord is not liable to a stranger for injury received in falling into the coal hole in front of and connected with the leased premises, due merely to failure of the tenant to fasten the cover, which was in good condi. tion.-FRISCHBERG V. HURTER, Mass., 52 N. E. Rep. 1086. 67. LIMITATIONS-Mortgages Foreclosure. - Where five years have elapsed after maturity of a note, no suit to foreclose a mortgage securing it can be maintained.-WHIPPLE V. JOHNSON, Ark., 49 S. W. Rep. 827. 68. MANDAMUS TO COUNTY-Payment of Judgment.— The return of a county to an alternative writ to compel the county court to draw its warrant on the treas urer to pay relator's judgment is sufficient on demurrer, which shows there is no money of the county unappropriated to the payment of demands against it and liable to relator's judgment, and that the various funds for the years subsequent to the accrual of relator's demand are covered and, liable for warrants legally drawn on them, though it does not state what portions of the various funds belong to each year, relator not having asked to have the return made more specific in this respect.-STATE V. DOUGLAS COUNTY, Mo., 49 S. W. Rep. 862.

69. MARRIED WOMEN-Judgments.-Where a woman is covert when she commences an action for partition of the estate of her ancestor, and remains so until her death pendente lite a judgment afterwards rendered against her personally for costs is absolutely void.HINKLE V. KERR, MO., 49 S. W. Rep. 864.

70. MASTER AND SERVANT-Assumption of Risk.Where a quarryman understanding quarrymen's work, and whatever danger there was, at request of the superintendent for some one to help clean out the tamping remaining in two holes in a ledge after an attempt to fire them and an explosion, held the drill while it was being struck by the superintendent and another, and continued so to do without any assurance that it was safe, after the superintendent, in reply to a sug. gestion of some one that water should be put in the hole before it was drilled out, said that he did not want to put any water in it, that he wanted to fire it out as soon as it was cleaned out, recovery cannot be had for injury to the quarryman from an explosion caused by such work.-ALLARD V. HILDRETH, Mass., 52 N. E. Rep. 1061.

71. MASTER AND SERVANT-Contributory Negligence. -Though an employee engaged in teaming on his employer's private road may have assumed the risk of a defect therein by passing over it many times, yet, if the employer promises to repair it before he must pass over it again, he may rely on such promise, and is not precluded from recovering for injuries due to a failure to perform the promise on the ground of assumed risk. -NELSON V. SHAW, Wis., 78 N. W. Rep. 417.

screw that fastened a collar near the end of the revolv ing shaft, which was put in without his knowledge, and without any warning of the danger of its use, where he was not acting in reliance on his former observation of the machinery. - FORD V. MT. TOM SULPHATE PULP Co., Mass., 52 N. E. Rep. 1065.

73. MASTER AND SERVANT-Right to Abandon Employ. ment. Where a servant employed under a contract for a definite time, which stipulated the damages for its breach, was, without his or the master's fault, prevented from fulfilling it, he may recover the wages actually earned, less the liquidated damages stipulated for a breach of the contract.-FISHER V. WALSH, Wis., 78 N. W. Rep. 437.

74. MECHANICS' LIENS Incompleted Contract.When work is done and materials furnished to erect a building for the owner of a whole tract of land, which has no visible divisions, it warrants a finding that the whole tract is one lot, and that there is a lien on the whole for the sum due, under Pub. St. ch. 191, § 1, providing for a lien on the "lot of land" on which the building is situate, and for which labor and material are furnished.- ORR V. FULLER, Mass., 52 N. E. Rep. 1091.

75. MECHANIC'S LIEN-Priorities.-One contracted to furnish all the lumber of certain kinds for a house and barn, and, after part thereof was furnished, the owner mortgaged the land, and thereafter the balance of the lumber was furnished. Pub. St. ch. 191, § 5, provides that the lien provided for in the chapter shall not avail against a mortgage made and recorded before the contract under which the lien is claimed. Held, that a lien could be enforced for materials furnished after the mortgage was recorded.-SPRAGUE V. MCDOUGALL, Mass., 52 N. E. Rep. 1077.

76. MINES AND MINERALS- Claims within Placer Claims. A placer location confers neither title to nor possession of, nor withdraws from subsequent location by others, known lodes or veins of mineral in place within its limits, under Rev. St. U. S. § 2333, providing that a placer patent which fails to include an applica tion for a vein or lode claim known to exist within its limits shall be deemed a conclusive declaration that the placer claimant has no right thereto.-Mr. ROSA MINING, MILLING & LAND CO. v. PALMER, Colo., 56 Pac. Rep. 176.

78. MUNICIPAL CORPORATIONS Trusts.-If property consisting of real estate be by will conveyed to trustees to hold for the life of certain persons in being therein named, the income therefrom to be used so far as necessary to keep the property in repair and pay the taxes and insurance, and the balance to be paid to those having the life interest during the continuation of their lives, and the corpus of the property to be, at the termination of the life interest, conveyed to a municipal corporation for purposes for which it may legally hold and devote it, and there be ample income from such property to preserve it for the ultimate purpose named in the will, and there be no express power in the will for the trustees to make permanent repairs or improvements on the property out of the corpus thereof, only the income can be devoted to that purpose.-IN RE COLE'S ESTATE, Wis., 78 N. W. Rep. 402.

exercise of ordinary care prior to the acceptance of the work.-CITY OF LOUISVILLE V. MULDOON, Ky., 49 S. W. Rep. 791.

80. MUNICIPAL CORPORATIONS-Validity of Ordinance. -A city ordinance providing for the removal of carcasses of dead animals, and fixing charges therefor, is void unless it gives the owner of a dead animal the right to remove it, or have it removed, within a prescribed time before the public contractor takes charge thereof.-MEYER V. JONES, Ky., 49 S. W. Rep. 809.

81. NEGLIGENCE OF POSTMASTER.-While a postmaster is liable to private parties for moneys or property coming to his hands as such postmaster, and lost through the wrongful act, neglect, or default of such postmaster, his assistants or servants, an action to recover the same should be brought against the postmaster, and not upon his official bond.-IDAHO GOLD REDUCTION Co. v. CROGHAN, Idaho, 56 Pac. Rep. 164. 82. OFFICERS — Power of Legislature to Change Com pensation.-Const. § 161, providing that the compensa. tion of any city officer "shall not be changed after his election or appointment or during his term of office," applies only to officers having a fixed term, and does not forbid the reduction of the salary of a policeman removable by the board of police commissioners at pleasure.-CITY OF LEXINGTON V. RENNICK, Ky., 49 S. W. Rep. 787.

83. PARTNERSHIP Exemptions Out of Partnership Property.-A partner may claim exemptions out of partnership property, as against his individual creditors.-SOUTHERN JELLICO COAL CO. V. SMITH, Ky., 49 S. W. Rep. 807.

84. PARTY WALLS-Relation of Owners.-Owners of a party wall, built at joint expense, are not tenants in common, but each owns in severalty the part thereof situated on his own land, with an easement of support from the other part.-SHIVERICK v. R. J. GUNNING CO., Neb., 78 N. W. Rep. 460.

85. PLEADING - Building and Loan Associations.-A suit by a building and loan association to foreclose a mortgage, and to enforce a lien on shares of stock of the mortgagor given as collateral security to the mortgage, is not an action on the certificate, within Burns' Rev. St. 1894, § 365 (Horner's Rev. St. 1897, § 362), requir ing the filing of a copy of a written instrument with any pleading founded thereon, and hence such certifi cate, when filed with the complaint, will not be considered in determining the sufficiency of the complaint.-INDIANA MUT. BLDG. & LOAN ASSN. V. PLANK, Ind., 52 N. E. Rep. 991.

86. PROHIBITION-Courts-Jurisdiction.-On an application for a writ of prohibition to arrest the proceedings of a district court in a pending suit in equity, it will be presumed, in the absence of a showing to the contrary that the court will not exceed the limitations of its jurisdiction, though it has no jurisdiction to grant a part of the relief asked for.-STATE V. DISTRICT COURT OF SILVERBOW COUNTY, Mont., 56 Pac. Rep. 219. 87. RAILROAD COMPANY-Contributory Negligence.An adult woman was proceeding along a pathway be. tween railway tracks to a station, with an umbrella over her head, which obstructed her view, and, know. ing that a train was approaching behind her, suddenly, without looking, rushed to a point where a collision was inevitable. She was not in danger so long as she followed the path. The company had no reason to anticipate that she intended to cross the track, or venture too near the cars, until they were so close that a collision could not be avoided. Held that, in action by the husband for damages for her death, an instruction in the nature of a demurrer to the evidence was proper. -KREIS V. MISSOURI PAC. RY. Co., Mo., 49 S. W. Rep. 877.

but the testimony should be confined to the reasonable cost of putting the county road in as good condition as it was before the railroad was built.-RICHMOND, N., I. & B. R. Co. v. ESTILL COUNTY, Ky., 49 S. W. Rep. 805.

89. RAILROAD COMPANY-Location-Certainty.- Where the location of a railroad states that "the width of line taken varies from two to five rods, according as the embankments or excavations require," the uncertainty of the taking, outside of the two-rod strip, does not invalidate the location to extent of the two rods, as against a landowner who acquiesced in the location for nearly 50 years.-HARDING V. BIGGS, Mass., 52 N. E. Rep. 1060.

90. RAILROAD COMPANY-Negligence.-One who stands on a railroad track for two or three minutes in front of an approaching train which can be seen for threequarters of a mile, without taking any precautions, and is struck by it, is guilty of contributory negli gence as a matter of law. Even though the railroad company be culpably negligent in running its trains at an unlawful rate of speed, such contributory negli gence bars a recovery.-DULL v. CLEVELAND, C., C. & ST. L. RY. Co., Ind., 52 N. E. Rep. 1013.

91. RAILROAD COMPANY-Right of Way.-The construction of a fenced lane across the right of way of a railroad company, and beneath a bridge carrying the tracks, so as to provide a subway for the passage of live stock, is not so foreign to the purposes of a grant of land for railroad purposes that the grantor can complain thereof as an abandonment of the right of way granted, or as a trespass upon his reversionary rights. -REICHERT V. KELLER, Neb., 78 N. W. Rep. 381.

92. RAILROAD COMPANY - Street Railroads - Negli gence.-A horse drawing a buggy in which plaintiff was seated was driven in a public street near defendant's electric car, which made a loud noise and threw sparks from its wheels. When the motorman rang the gong, the horse took fright, and plaintiff was injured. It did not appear that the noise and sparks were due to any defect in construction, or negligence in operat. ing the car, and the horse did not appear to be frightened until the gong sounded. Held no evidence of defendant's negligence.-HENDERSON V. GREENFIELD & T. F. ST. RY. Co., Mass., 52 N. E. Rep. 1080.

93. RECEIVERS-Actions-Presumptions.-It will be presumed, in the absence of evidence to the contrary, that a note sued on by a receiver who was appointed, in a controversy over a note, to collect the same and hold the proceeds pending decision, was the one in controversy in the action in which the receiver was appointed, and that he is lawfully in possession.DRIVER V. LANIER, Ark., 49 S. W. Rep. 816.

94. SALE-Construction of Contract.-Where defend. ant contracted to purchase certain timber from plaint. iff, and the timber furnished was cut for plaintiff on lands belonging to the government, but without knowledge thereof of either plaintiff or defendant, defendant is entitled to a reduction of the price to the amount paid by him to the government in settlement of the trespass.-PARISH v. MCPHEE, Wis., 78 N. W. Rep. 421.

95. SALES-Rescission.-After defendant had agreed to give a note to plaintiff for lumber, he learned that it was incumbered with a lien; and, when plaintiff demanded the note, he refused to give it, unless plaintiff should clear the title or give bond for a delivery free from liens. Plaintiff gave no bond, and shortly afterwards planed defendant's name from the lumber, and sold it to another. Held, that the contract of sale was rescinded.-SHORES LUMBER CO. V. ČLANEY, Wis., 78 N. W. Rep. 451.

96. SALES-Warranty.- Where a sale with warranty is within the statute of frauds when made, but the goods are afterwards delivered, the fact that at the time of delivery a bill is sent, bearing a printed notice that the vendor sells no goods with warranty, does not prevent the parol warranty from attaching by delivery of the goods, except in so far as the printed notice

tends to show a rescission of the parol contract.-ED. GAR V. JOSEPH BRECK & SONS CORP., Mass., 52 N. E. Rep. 1093.

97. SALES-Warranty-Rescission.-If a contract of sale of personalty is executory, and accompanied by a warranty of the quality of the property, or that it is to be fit or suitable for a specified purpose, and, if it is not, may be returned, and the consideration not paid, there may be a rescission for a breach of the warranty. -MCCORMICK HARVESTING MACH. Co. v. KNOLL, Neb., 78 N. W. Rep. 394.

98. SALE OF LAND-Action for Price.-In a suit to recover the purchase price of real estate, alleged to have been sold and conveyed by the plaintiff to the defend. ant, it is not essential that the petition should allege that the contract of sale was in writing.-SOWARDS V. Moss, Neb., 78 N. W. Rep. 373.

99. SET-OFF-Joint Demands.-Under Pub. St. ch. 168, § 8, providing that, where there are several defendants, a demand to be set off shall be due to them jointly, a judgment against a party in favor of others cannot be set off in an action against the latter and another.SIMMONS V. SHAW, Mass., 52 N. E. Rep. 1087.

100. SPECIFIC PERFORMANCE-Contract.-A parol contract between father and son that the son shall go on land of the father, improve it, and pay the taxes, and have it, is not sufficiently definite and unequivocal for specific performance; no time being fixed for giving a deed, and nothing being said as to the nature or character of the improvements.-WOODWARD V. WOODWARD, Ill., 52 N. E. Rep. 1041.

101. TAXATION-Corporations.-A State tax on a corporation's capital employed in manufacturing, when it also sells goods manufactured outside the State, is not within the constitutional inhibition against a State taxing imports or regulating interstate commerce.PEOPLE V. ROBERTS, N. Y., 52 N. E. Rep. 1104.

102. TAXATION Corporations.-Where part of the business of a manufacturing corporation is selling im ported goods from broken packages, it is not exempt from taxation as a manufacturing corporation, under Laws 1880, ch. 542, § 3, as amended, exempting corporations wholly engaged in manufacturing within the State. PEOPLE V. ROBERTS, N. Y., 52 N. E. Rep. 1102.

103. TENANCY IN COMMON-Lease from Co-tenant.Where tenants in common lease the property for one year to a firm of which one of them is a member, and the lessee holds over after the expiration of the year without exercising a privilege of renewal given by the lease, under an arrangement between the firm and the co tenant in possession, it does not continue the tenancy for another year, as it will not be presumed that such co-tenant continues to hold under the lease; and it is error to exclude evidence of the lessees showing that he had assumed his relation to the premises as owner, and given his consent to the company to hold over.-VALENTINE V. HEALEY, N. Y., 52 N. E. Rep. 1097. 104. TRIAL-Examination.-Where, in an action for personal injuries, defendant proved that plaintiff refused to submit to an examination by defendant's phy sicians, it was competent for plaintiff to explain, as a reason for such refusal, that he consulted with his physician, and determined, on his advice, that it would be apt to result injuriously, and retard his recovery.F. W. COOK BREWING CO. v. BALL, Ind., 52 N. E. Rep. 1002.

105. TRIAL-Instructions.-Under Rev. St. 1889, § 2188, requiring the court to give instructions when the evidence is concluded, and before the case is argued or submitted to the jury, the giving of an instruction, after argument, to cure misconduct therein, is not an irregularity authorizing granting a new trial.-YORE V. MUELLER COAL, HEAVY HAULING & TRANSFER CO., Mo., 49 S. W. Rep. 855.

106. TRUSTS-Constructive Trust.-When an agent who foreclosed a mortgage for his principal was au. thorized to do so, and his only fraud consisted in bidding in the property in his own name, the principal

need not treat the mortgage as unforeclosed, but may bring suit against the agent to enforce the constructive trust.-LUSCOMBE V. GRIGSBY, S. Dak., 78 N. W. Rep. 357.

107. TRUSTS-Equity Liens.-A trustee was to sup port and educate the beneficiary during minority, and then convey one-half of the estate to her, retaining the other half; but he failed to observe the trust, and his heirs claimed the entire estate, thus forcing the minor to expend over half the rents during her minority to enforce the trust, and the balance fell short of an adequate support for her. Held, in partition to divide the estate and adjust the equities at her majority, that equity would impress a lien on the share of the trustee's heirs for the amount necessary to make up the reason able cost of her support.-MILLER V. MILLER, Mo., 49 8. W. Rep. 852.

108. VENDOR AND PURCHASER-Rescission.-A vendee under an executory contract cannot rescind and recover back payments because of defects in the title while retaining possession of the land.-SIEVERS V. BROWN, Oreg., 56 Pac. Rep. 170.

109. VENDOR AND PURCHASER Setting Aside SaleFraud. A presumption of fraud arises where the value of land sold is grossly in excess of the price, which fraud, if not rebutted by the vendor, may be relied on by the vendee, on seeking, in a court of equity, to set aside a parol sale of the land, and to compel the vendor to account for improvements placed thereon by the vendee while in possession. -MANN V. RUSSEY, Tenn., 49 S. W. Rep. 835.

110. WAREHOUSEMEN-Conversion by Agent.-A sale, by one in charge of a warehouse, of goods stored therein, under a belief that they had been abandoned, amounts to a conversion.-CRESON V. WARD, Ark., 49 8. W. Rep. 827.

111. WATERS-Diversion.-Where, in a suit to enjoin the diversion of the water of a stream as interfering with plaintiffs' right to a specific quantity thereof for irrigation both plaintiff and defendants have acquired rights to the use of the waters by the appropriation thereof by means of dams and ditches, and defendants claim by right superior to the rights of other landown. ers who maintain dams between those of plaintiff and defendants, such intermediate owners are necessary parties to the suit.-BLISS V. GRAYSON, Nev., 56 Pac. Rep. 231.

112. WATERS AND WATER COURSES - Obstructing Nat ural Flow. A person having no right to maintain a ditch across a railroad right of way cannot recover for the company's obstructing the ditch on its own land, the ditch carrying off surface water only.-CLEVELAND, ETC. RY. Co. v. HUDDLESTON, Ind., 52 N. E. Rep. 1008.

113. WILLS-Construction.-The provisions of a will relating to personal property situate in this State must be construed according to the law of the domicile of the testator at the time of his death.-CRANDELL V. BARKER, N. Dak., 78 N. W. Rep. 347.

114. WILL-Construction - Jurisdiction.-A court of equity being authorized to construe wills, and having entertained a bill for that purpose, the fact that it was mistaken in the conclusion that it required construc tion and the appointment of a trustee does not make its decree void for want of jurisdiction.-STOFF V. Mc. GINN, Ill., 52 N. E. Rep. 1048.

115. WILL-Power of Sale - – Administrator.-Though a power of sale given by a will to the executor cannot be executed by the administrator de bonis non, yet, sale being necessary for distribution according to the will, he may as trustee be authorized by the court to make the sale.-MULLIGAN V. LAMBE, Ill., 52 N. E. Rep. 1052.

116. WITNESSES - Right to Contradict.-By merely swearing a witness, and asking him a question having no bearing on the issue, a party does not make him his own, so that he cannot thereafter contradict him when testifying for the adverse party.-FALL BROOK COAL CO. V. HEWSON, N. Y., 52 N. E. Rep. 1095.

Central Law Journal.

ST. LOUIS, MO., APRIL 28, 1899.

The question as to the right to the remains of the dead has frequently arisen as between those claiming such right through marriage, descent or legal representation. But the somewhat novel question recently arose before the Supreme Court of California as to the right of an individual to make a valid and binding testamentary disposition of his own body after death. The court held that he had, and also decided that a probate court had no jurisdiction to award the custody of the body of a decedent to a stranger to his blood, to the exclusion of the surviving wife, with directions to such stranger to transport the body to another place for interment; that neither the probate court, nor the personal representative of a decedent, has any right to his body, nor any right to control the manner of disposing of the same, as against the widow of decedent. O'Donnell v. Slack, 55 Pac. Rep. 906. The duty of the burial of the dead, the court says, is made an express legal obligation; but, aside from the obligation, there is a right, well defined and universally recognized, that in disposing of the body of deceased the last sad offices belong of right to the next of kin, within which phrase, as here employed, is included the surviving husband or wife. This right had its origin in sentiment, in affection for the dead, in religious belief in some form of future life. It therefore early became a subject of cognizance by the ecclesiastical courts. But, while thus having its origin in affection and religious sentiment, it soon came to be recognized as a strictly legal right; and the next of kin, while not, in the full proprietary sense, "owning" the body of deceased, have property rights in the body which will be protected, and for a violation of which they are entitled to indemnification. Thus, if the right is interfered with, damages will be awarded. Smiley v. Bartlett, 6 Ohio Cir. Ct. R. 234. "That there is no right of 'property' in a dead body, using the word in its ordinary sense, may well be admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty,

imposed by the universal feelings of mankind, to be discharged by some one toward the dead, a duty, and we may also say a right, to protect from violation, any duty on the part of others to abstain from violation; and it may therefore be considered as a sort of quasiproperty, and it would be discreditable in any system of law not to provide a remedy in such a case." Pierce v. Proprietors, 10 R. I. 227. The whole question is learnedly considered in Ruggles' Report, 4 Bradf. Sur. 503. The conclusions there reached are those which have been generally adopted by the courts of the land. One of these conclusions is "that the right to bury a corpse and to preserve its remains is a legal right, which the courts of law will recognize and protect." Another is that "such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin." And another, that "the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure." In employing the phrase "next of kin," Mr. Ruggles explains that it was not used for the purpose of denying or even questioning the legal right of a surviving husband to bury his wife's remains. Hackett v. Hackett, 18 R. I. 155, 26 Atl. Rep. 42. The same right belongs to the surviving wife. Hackett v. Hackett, supra; Larson v. Chase, 47 Minn. 307, 50 N. W. Rep. 238; Perley, Mortuary Law, 27; Hadsell v. Hadsell, 7 Ohio Cir. Ct. R. 196; Durell v. Hayward, 9 Gray, 248.

Another interesting question on the subject of rights in dead bodies, which, as the court remarked, was "happily more novel than difficult," arose in a recent Michigan case-Keyes v. Konkel. The question was whether replevin would lie for a human corpse. The court held not. The replevin statutes of that State, it appears, provide for a judgment for defendant, when the plaintiff fails in his case, for a return of the property, or for its value. The court very properly calls attention to the fact that no return of the property can be ordered in case of the replevin of a dead body, and it is equally true that its value in money can neither be appraised nor ascertained by a jury. It was formerly held in England that there can be no property in a human body. Williams v. Williams, L. R. 20 Ch. Div. 659, also reported in Am. L. Reg.

508; Guthrie v. Weaver, 1 Mo. App. 141; Magher v. Driscoll, 99 Mass. 284; Pierce v. Swan Point Cemetery, 10 R. I. 227; Wild v. Walker, 130 Mass. 422. In certain modern American cases, cited in connection with the California case, a dead body has been said to be a quasi property, and the right to control and bury it and to recover against one who mutilates the corpse has been maintained. Recovery for the refusal of the right to bury or for mutilation of the body is rather based upon an infringement of a right than upon the notion that the property of plaintiff has been interfered with. The recovery in such cases is not for the damage to the corpse as property, but damage to the next of kin by infringement of his right to have the body delivered to him for burial without mutilation. In numerous cases equity has taken jurisdiction to prevent interference with the control of the dead body by persons entitled to control it. See Wild v. Walker, 130 Mass. 422; Pierce v. Proprietors, etc., 10 R. I. 227, and in Reg. v. Fox, 2 Q. B. 246, the remedy by mandamus to a jailer was granted.

NOTES OF IMPORTANT DECISIONS.

ASSIGNMENT

COURTS CONFLICT OF LAWS FOR BENEFIT OF CREDITORS PREFERENCES.The Supreme Court of Indiana has recently decided in the case of Nathan v. Lee, 52 N. E. Rep. 987, that a decision of a foreign State that an insolvent corporation of that State cannot execute a preferential mortgage to secure an antecedent debt is not binding on the courts of another State as to a mortgage of such a corporation, no statute being construed, since, as to the general principles of the common law, each State may construe the law for itself; that a preferential mortgage executed simultaneously with a general assignment is not a part of it; the assignment being declared invalid as to the mortgaged property, and the mortgagor remaining in possession over six months, and that an insolvent foreign corporation may mortgage land in Indiana to secure a bona fide antecedent debt, and thereby prefer one creditor over another, such action not being prohibited by the statutes of the foreign State of Indiana; and this though the preferred creditor is a resident of the foreign State. The following from the opinion of the court is a summary of the law involved in the case: "It is a well-affirmed general rule that the laws of a sister State, which either give or deny the power to contract, have no extraterritorial force or effect where the particular contract involved relates to the convey

ance or incumbrance of lands situated in another State or jurisdiction. Cochran v. Benton, 126 Ind. 58, 25 N. E. Rep. 870. and authorities there cited. Such conveyances or incumbrances are considered as being governed by the law of the situs of the realty, and all questions relating to the validity thereof are to be determined according to that law, and not according to the law of the place of the contract, or of the domicile of the contracting parties. 6 Thomp. Corp. § 7721; Jones, Mort. § 823; Whart. Confl. Laws, §§ 273, 274; Boehme v. Rall, 51 N. J. Eq. 541, 26 Atl. Rep. 832, and authorities there cited. Another rule is that it is the restrictions or prohibitions contained in the charter of a foreign corporation, or those of the governing laws of the State where it is organized, in relation thereto, which follow it into another State. It is such restrictions or prohibitions, as a general principle, and these alone, which, under the rules of comity, are recognized and enforced in other jurisdictions, and not the general legislation or judicial decisions of the State in which such corporation is organized. The general laws, regulations, or decisions of the courts of a sister State are controlling only within its own limits, and such State has no power to give them force or effect in other jurisdictions. 2 Mor. Corp. § 967; Warren v. Bank, 149 Ill. 9, 38 N. E. Rep. 122, and cases there cited; Boehme v. Rall, supra; Borton v. Brines-Chase Co., 175 Pa. St. 209, 34 Atl. Rep. 597. We have examined the statutes of Ohio, introduced in evidence, which relate to corporations organized thereunder, and we discover nothing therein which can be said to forbid or prohibit an insolvent corporation of that State from mortgaging its corporate property or assets to secure a bona fide antecedent indebtededness of its own, and thereby prefer one or more of its creditors over others. If it appeared in this case that the mortgages in question were executed in violation of the express provisions of any of these statutes, or that the power or right of the company to execute the mortgages, depended upon a construction placed upon a statute of that State by its highest court, quite a different question would be presented for our decision.

"That an insolvent corporation, in like manner as an insolvent natural person, may, at common law, execute a mortgage upon its property to some of its creditors, and thereby create a preference, is a well-settled proposition. See 2 Cook, Stock, & Stockh. Corp. Law, § 779; Ang. & A. Corp. p. 168, § 187; 2 Mor. Corp. § 802; 1 Beach, Corp. $358; Levering v. Bimel, 146 Ind. 545, 45 N. E. Rep. 775. Blackstone, in his Commentaries, asserts that it is necessarily and inseparably incident to every corporation aggregate that it has the power to sue or be sued, implead or be impleaded, grant or receive by its corporate name, and do all other acts as may a natural person. 1 Bl. Comm. (Cooley's Ed.) *475. In 2 Cook, Stock, Stockh. & Corp. Law, § 691, it is said: "Corporations, unless restricted by their charters or by general statutes, may make assignments for