is elsewhere properly given by the judge in his charge. -RALEIGH & G. R. Co. v. ALLEN, Ga., 32 S. E. Rep. 622. 69. MASTER AND SERVANT - Negligence Rules.Where a railroad company, through its superintend ents in charge, had made and enforced a rule in its carrepair shop that employees working on or along any of the tracks in the shop should be given personal notice when cars were to be moved on such track, it can. not be charged, by an employee who is injured by moving cars, and who had knowledge of such rule, with negligence in failing to establish proper regula. tions for the protection of the men, merely because the rule was not printed.-GRAY V. SOUTHERN RY. CO., U. S. C. C. of App., Sixth Circuit, 92 Fed. Rep. 491.

70. MASTER AND SERVANT-Pleading-Amendment of Complaint.-A complaint by a brakeman against a railroad company for injuries received in coupling cars, alleging negligence in using different systems of bumpers in the coupling of its trains, instead of the ordinary, improved bumper, cannot be amended, after the running of limitations, by charging negligence in having the bumpers loose and out of repair, since stat. ing a new cause of action.-Box v. CHICAGO, ETC. RY. Co., Iowa, 78 N. W. Rep. 694.

73. MONOPOLIES Combination to Restrict Production. At a convention of manufacturers of wooden ware, in which 80 per cent. of the production of the country was represented, a combination was formed for the purpose of restricting the production of wooden dishes throughout the country, and keeping up the price thereof. To this end it was expected and intended that all the factories would be brought under the control of a central organization, which was to regulate the prices. The articles to which the combination related were such as are in common use. Held, that a contract made in pursuance of such combination, by which a manufacturer was guarantied a certain sum as dividends on his stock in the central company, in consideration of the closing of his factory for a year, was contrary to public policy, and therefore unlawful, and would not be enforced by the courts.— CRAVENS V. CARTER-CRUME CO., U. S. C. C. of App., Sixth Circuit, 92 Fed. Rep. 479.

74. MORTGAGES-Payment of Interest by Second Mortgagee. A national bank and two other banks, whose claims against a common debtor were secured by a second mortgage, agreed to pay the interest on a first mortgage, and then to bid in the land when sold under the mortgage. Held, that the national bank was entitled to have the proceeds of foreclosure sale in excess of the first mortgage applied in payment of advancements made by it on the interest of the first mortgage, though a receiver was appointed for it, and the comp. troller forbade his participating in buying in the land according to agreement.-WEADOCK V. NOEKER, Mich., 78 N. W. Rep. 669.

principal, with lawful interest; certainly so when it is exercised with the acquiescence of the mortgagor.MOSELEY V. RAMBO, Ga., 32 S. E. Rep. 638.

77. MUNICIPAL CORPORATIONS

Change of Street Grade-Damages.-Damages recoverable for a change of grade in a highway include such as may result from any change in that of the sidewalks.-MCGAR V. BOROUGH OF BRISTOL, Conn., 42 Atl. Rep. 1000.

78. MUNICIPAL CORPORATIONS-Defects in Streets.— In an action to recover for injuries resulting from a defect in a city street, the burden is on plaintiff to show that the city had actual or implied notice of the defect.-JONES v. CITY OF GREENSBORO, N. Car., 32 8. E. Rep. 675.

79. MUNICIPAL CORPORATIONS-Ratification of Unauthorized Contract.-A city council having authority to enter into a contract, or to authorize its board of pub. lic works to enter into it, on behalf of the city, may legally ratify such a contract made by the board with. out previous authority-the performance of the contract by the second party being a sufficient consideration-and a ratification is equivalent to authority originally given, and renders the contract valid from its date.-HILL V. CITY OF INDIANAPOLIS, U. S. C. C., D. (Ind.), 92 Fed. Rep. 467.

80. MUNICIPAL CORPORATIONS-Waterworks-Issuance of Bonds.-A statute authorizing a municipality to create an indebtedness to erect waterworks by either borrowing money or the issuance of bonds impliedly authorizes the sale of such bonds when issued, especially where the statute further provides that no loan for any purpose shall be made except by ordinance specifying the purpose to which "the funds to be raised" shall be applied.-THOMAS V. CITY OF GRAND JUNCTION, Colo., 56 Pac. Rep. 665.

81. NUISANCE-Injunction-Damages.—In a suit to enjoin the operation of a factory near plaintiff's prop erty, and for damages, allegations that the health of plaintiff's family had been injured by the noise and smoke are proper, as being descriptive of the character of the nuisance.-HOADLEY V. M. SEWARD & SON CO., Conn., 42 Atl. Rep. 997.

82. PARTNERSHIP-Construction of Contract.-A contract between the owner of an hotel and another that the latter should occupy and conduct the hotel, and share the profits, if any, with the owner, being alone responsible for the losses, did not create a partnership between the parties.-MAY V. INTERNATIONAL LOAN & TRUST CO., U. S. C. C. of App., Fifth Circuit, 92 Fed. Rep. 445.

83. PARTNERSHIP-Firm Property.-The title to personal property of a firm is not in the individual members, so that they can convey an undivided share in any specific article to another.-PRATT V. MCGUINNESS, Mass., 53 N. E. Rep. 380.

84. PRINCIPAL AND AGENT-Unauthorized Contracts. -An agent who makes a contract on behalf of his prin. cipal in excess of his authority is, on the repudiation of the contract by the principal, liable thereon, though he made no false representations as to his authority, since he impliedly warranted that he was empowered to make the contract.-COCHRAN V. BAKER, Oreg., 56 Pac. Rep. 641.

85. PRINCIPAL AND SURETY - Surety's Liability.— Where, in an action on fidelity bonds of a deceased defaulting officer of a bank, the court decreed that the surety was liable, but that the liability was secondary to that of deceased's estate, and retained the case for the purpose of an accounting of collaterals deposited by deceased for the bank's reimbursement and for the fixing of the surety's ultimate liability, "whatever that may be," such decree is not final, within 26 Stat. 826, 828, ch. 517, § 6, and hence no appeal can be prosecuted therefrom to the circuit court of appeals.-GUARANTEE CO. OF NORTH AMERICA V. MECHANICS' SAVINGS BANK & TRUST CO., U. S. S. C., 19 S. C. Rep. 551.

86. PUBLIC LANDS-Patents-Issuance by Mistake.Where a patent to public land was issued by inadvert

ence or by mistake while an appeal and contest of the right of the patentee was pending, the question of the rights of the parties becomes one of private right, which the courts have jurisdiction to settle in an action to quiet the title.-DULUTH & I. R. R. Co. v. ROY, U. S. S. C., 19 S. C. Rep. 549.

87. RAILROAD COMPANY-Injury to Person on TrackTrespassers.-Under the provision of Shannon's Code Tenn. § 1574, which makes a railroad company liable for an injury to a person on its tracks, where it fails to keep a lookout on the engine as therein required, it is not absolved from such duty, nor from liability, because the person injured was a trespasser.-FELTON V. NEWPORT, U. S. C. C. of App., Sixth Circuit, 92 Fed. Rep. 470.

88. RAILROAD COMPANY-Negligence.-The duties of railroad company with respect to care in operating its trains are dictated and measured by the exigencies of the occasion, or in the light of the conditions of things at the place where, and the time when, an accident happens; and the building up of a town along its line of road, causing the operation of its trains at that place to be attended with greater danger to others than formerly, imposes a duty upon the railroad company to exercise such additional care as the circumstances reasonably demand.-FLORIDA CENT. & P. R. Co. v. FOXWORTH, Fla., 25 South. Rep. 339.

89. RAILROAD COMPANY-Street Railroads-Ordinance -Mandamus.-An ordinance granting a street-railway company the right to construct and operate lines in certain streets, and providing that, if the company shall not construct and operate a certain portion of the line within a certain time, the right shall be forfeited, as to the parts where the failure occurs, does not impose on the company the duty to continue the operation of any portion of the line; and mandamus cannot issue to compel it to do so.-STATE V. HELENA POWER & LIGHT CO., Mont., 56 Pac. Rep. 685.

90. RAILROAD COMPANY-Suit to Foreclose Mortgage. -In a suit by a trustee to foreclose a railroad mortgage, the question of the ownership of the bonds se cured properly comes up for consideration on distri bution of the proceeds of the sale, and not before; and allegations in the answer of the mortgagor seeking to raise such question are properly stricken out by the court.-SIOUX CITY, O. & W. RY. Co. v. MANHATTAN TRUST CO., U. S. C. C. of App., Eighth Circuit, 92 Fed. Rep. 428.

91. RECEIVERS-Appointment

Collateral Attack.

The appointment of a receiver for an insolvent corporation on the direct application of a stockholder, without the pendency of a suit against the corporation, is not subject to collateral attack where the court had jurisdiction of the corporation, since the subject-matter was within its jurisdiction, under Hill's Ann. Laws, § 1061, authorizing the appointment of a receiver for an insolvent corporation in any civil action or proceeding against it.-MCNARY V. BUSH, Öreg., 56 Pac. Rep. 646.

92. RELIGIOUS SOCIETIES-Trustees-Debts.-A voluntary association of persons, organized for religious purposes, which has regularly appointed trustees to hold and manage its property, is liable to have such property subjected to the payment of money furnished for the use of such trust estate under proceedings authorized by statute. To such proceedings, where the trustees reside in the county where suit is brought, they are the only necessary parties defendant.-JOSEY V. UNION LOAN & TRUST CO., Ga., 32 S. E. Rep. 628.

93. REMOVAL OF CAUSES-Citizenship.-The right of a sole defendant sued in a court of another State by a citizen of such State on a cause of action existing in favor of the plaintiff, upon which he claims more than $2,000, to remove the cause into a federal court, is not defeated because the plaintiff, as permitted by a State statute, has joined in his complaint a separate cause of action held by him as assignee of a third person, whose citizenship does not appear, and of which the federal court would not have jurisdiction; and in such

case the removal carries the entire suit, so that the defendant is not required in his petition to set forth the existence of a separable controversy.-SHARKEY V. PORT BLAKELY MILL Co., U. S. C. C., D. (Wash.), 92 Fed. Rep. 425.

94. REPLEVIN-Shares of Stock.-Replevin does not lie to recover shares in a corporation, as they are incorporeal and intangible property, incapable of seizure.-ASHTON V. HEYDENFELDT, Cal., 56 Pac. Rep. 624. 95. REPLEVIN BOND-Entry of Judgment.-A judg. ment rendered against sureties on a forthcoming bond in replevin is not voidable because of want of notice to sureties; and their remedy, if any, against it, is therefore not by injunction.-CABELL V. FLOYD, Tex., 50 S. W. Rep. 478.

96. SALES-Acceptance-Warranty.-A buyer of ma chinery, who continues to use it after discovering that it is not as warranted, and who denies the seller's right to it, is deemed to have accepted it.-HUYETT & SMITH MFG. Co. v. GRAY, N. Car., 32 S. E. Rep. 718.

97. SALE-Conditional Sales.-Under an instrument whereby one lets chattels to hire to another, and agrees to execute a bill of sale on receipt of stipulated monthly installments, the latter acquires no title until all the installments are paid.-Cottrell v. CARTER, RICE & Co., Mass., 53 N. E. Rep. 375.

98. SALES-Rescission-Insolvency.-In replevin to rescind a sale and recover the goods, because bought under a false statement of solvency, and with an intent not to pay for them, a charge that plaintiff cannot recover unless he show the intent not to pay, and that the question of insolvency cannot be considered, except as it throws light on the question of intent, is erroneous, since plaintiff can recover if he show either the intent not to pay, or that he relied on a false state. ment of solvency in making the sale.-W. W. JOHNSON Co. v. TRIPLETT, Ark., 50 S. W. Rep. 455.

99. SLANDER-Liability of Firm.-An action for slander does not, in this State, lie against a partnership.— OZBORN V. WOOLWORTH, Ga., 32 S. E. Rep. 581.

100. SPECIFIC PERFORMANCE Statute of FraudsConditions.-Specific performance not being a remedy which either party to a contract can demand as a matter of absolute right, it will not, in any given case, be granted, unless strictly equitable and just. Accordingly, specific performance of a contract to convey land upon payment of the purchase price will not be decreed, where it appears that the party seeking the aid of the court entered into a parol agreement with the defendant to the action to become answerable for the debt of another, and to pledge the land as security for the fulfillment of this further obligation, notwithstanding such agreement be not legally binding or enforceable because coming within the operation of the statute of frauds. On the contrary, the plaintiff will be left to pursue his legal remedies, unless he elects to submit to such terms as the court may properly impose upon him as a condition precedent to the granting of the relief sought.-KIRKLAND V. DOWN. ING, Ga., 32 S. E. Rep. 632.

101. TAXATION - Municipal Corporations. - A State having power to tax property for State purposes may confer on one of its municipal corporations the power to tax the same property for local purposes; so that a judgment declaring the taxation of such property by a municipal corporation for local purposes, under the authority of the State, to be forbidden by the federal constitution, in effect declares that like taxation by the State for State purposes is also forbidden by that instrument.-HENDERSON BRIDGE CO. v. CITY OF HENDERSON, U. S. C. C., 19 S. C. Rep. 553.

102. TAXATION-National Bank-Constitutional Law. -The words of an act which imposes a tax on the presidents "of each of the banks of the State" include the president of all banks doing business in the State. Such an act, however, is inoperative when sought to be applied to the presidents of national banking asso ciations organized under the acts of congress, because

such associations are instrumentalities created by con. gress, and designed to aid in the administration of an important branch of the public service. The business of such an association not being subject to be taxed by the laws of a State,and the president being an officer prescribed by the act of congress, through whom, in part, the business of the association must be carried on, a tax on the president, as such, would tend to retard and burden the operation of the law which provides for the creation and maintenance of such institutions.-LINTON V. CHILDS, Ga., 32 S. E. Rep. 617.

108. TAXATION-Notes of Insurance Company.-Property of an insurance company, consisting of notes and accounts of its policy holders representing portions of unearned premiums, although apt to be defeated upon the happening of a contingency, not being exempt from taxation under the constitution, must be assessed at their full value; and, in the absence of fraud or bad faith,on the part of the assessor, his judgment of value is conclusive, unless modified by the board of equalization.-HOME FIRE INS. Co. v. LYNCH, Utah, 56 Pac. Rep. 687.

104. TAXATION-Payment by City to County-Recovery.-A city collector paid a certain sum, collected, to the county treasurer, to settle an account between the city and county. One item of said sum was for a fund for which no tax was spread on the city rolls, and hence not collected by the city collector. The collector was under no obligation, nor authorized, to pay such tax from the city funds. Held that, whether or not the collector knew said item was included in the settlement, he could recover it from the county treasurer.WEBSTER V. WHEELER, Mich., 78 N. W. Rep. 657.

105. TAXATION-Succession Tax-Corporations. - Under St. 1891, ch. 425, § 1, imposing a succession tax on all property within the jurisdiction of the commonwealth, whether tangible or intangible, and whether belonging to residents or not, stock in corporations organized under the laws of the commonwealth, and of national banks located in the State, is so taxable, though the certificates were without the common. wealth at the testator's death, and were transferred by the executor under the authority of his appointment in the foreign State, before his appointment in the commonwealth.-GREVES V. SHAW, Mass., 53 N. E. Rep.

372.

106. TRIAL-Erroneous Instructions.-A presumption that an erroneous instruction is prejudicial prevails, unless the evidence is such as to overcome it.-LOUGH. RAN V. DES MOINES ST. RY. Co., Iowa, 78 N. W. Rep. 675.

107. TRIAL-Misconduct of Jury. Under a statute prohibiting "any common carrier or person" from transporting liquor, an individual engaged in the liquor traffic may be convicted, though not a common carrier.-STATE V. REILLY, Iowa, 78 N. W. Rep. 680.

108. TRIAL-New Trial-Motion.-A joint motion for a new trial should be overruled as to all the parties joining therein, if any one of them is not entitled to a new trial. JOHNSON V. WINSLOW, Ind., 53 N. E. Rep. 388.

109. TRUSTS-Parent and Child.-Where a complaint in an action to establish a trust in realty shows the relationship of father and daughter between complainant and grantee, the former, to secure a decree, must show both that he paid the purchase money and that no gift or advancement was intended when he placed the title in the latter.-DOLL V. GIFFORD, Colo., 56 Pac. Rep. 676.

110. TRUST DEED- Foreclosure Parties. Where & trust deed executed to secure a note stipulated that in case of suit for collection 10 per cent. of the note would be paid to the trustee in trust, he may be joined with plaintiff in a suit to recover on the note and to foreclose.-PARKS V. LUBBOCK, Tex., 50 S. W. Rep. 466.

111. TRUSTEE-Accounting.-The owner of a contin gent interest in real estate cannot compel an account. ing by a trustee of the particular estate therein.-IN RE WAGENER'S ESTATE, Penn., 42 Atl. Kep. 955.

112. USURY - What Constitutes. The fact that the borrower, in addition to the maximum legal rate of interest reserved on a given loan, also paid the attor neys of the lender their fee for examining titles to the land conveyed as security for the debt, did not render the transaction usurious as to the lender, especially when the latter neither authorized the charge nor shared in the fee. This is true, notwithstanding the borrower did not know who the attorneys for the lender were, and did not agree to pay their fees until after the papers for the loan had been prepared, and the money had been forwarded by the lender.-GANNON V. SCOTTISH-AMERICAN MORTG. CO., Ga., 32 S. E. Rep. 591.

113. VENDOR AND PURCHASER - Defective Title. - A purchaser of land, who is in possession under a bond for titles, cannot have relief in equity against his contract to pay, on the mere ground of a defect in title, unless he alleges that the vendor is insolvent or a nonresident, or some other fact which would make it inequitable for the vendor to enforce the payment of the purchase money. (a) When a¡ plea seeking relief of the character above referred to fails to allege that the vendee is out of possession, "the conclusion of law is that he is in possession under the contract of purchase set forth."-MALLARD V. ALLRED, Ga., 32 S. E. Rep. 588. 114. VENDOR AND PURCHASER-Misrepresentations. In an action for the price of land, where the evidence shows that defendant relied on his friendly relations with, and his confidence in, plaintiff, and believed his statements as to the value of the land, and the price which plaintiff had paid for it, and that such statements were false, it was error to direct a verdict for plaintiff.-DORR V. CORY, Iowa, 78 N. W. Rep. 682.

115. WILLS-Construction-Taking Per Capita.-Where a testator directs that his estate be equally divided between his and his wife's sisters and brothers, devisees take per capita, and not per stirpes.-KLING V. SCHNELLBECKER, Iowa, 78 N. W. Rep. 673.

116. WILLS-Rights of Devisee. A devisee under a will making no provisions contingent on the election of the widow to take under the law cannot compel other devisees or legatees to make good a loss sustained by an election so to take, though the testator intended that the devisee should take the property in fee, free from claims.-DEVECMON V. KUYKENDALL, Md., 42 Atl. Rep. 963.

117. WILLS-Signature.-Writing on a box, "'in case of my death, I want this box to go to my attorney," signed by deceased, together with inscriptions of different names on envelopes therein, none of which were signed by him, does not satisfy the statutory pro. vision that a will shall be in writing, signed by testator at the end thereof.-IN RE JACOBY'S ESTATE, Penn., 42 Atl. Rep. 1026.

118.

WILLS-Trusts.-A will gave a stated sum to trustees, directing them to invest it, and apply the income, or as much thereof as was necessary, for the maintenance and education of testator's infant daughter until she reached the age of 18, after which the en tire income of the fund was to be paid to her during life, and on her death the fund was to go to her children. After applying as much of the income yielded by the fund during the minority of the daughter as was necessary for her maintenance and education, there was a surplus. Held, that the daughter was entitled to the surplus, because the intention was to give her the benefit of the entire income of the trust fund.—BURT V. GILL, Md., 42 Atl. Rep. 968.

119. WITNESSES-Transactions with Decedent.-Upon the trial of a suit against the representative of a deceased party upon an account embracing items for services rendered, and for board and rent of room furnished, by plaintiffs to deceased, it is not error to permit one of the plaintiffs to testify that they operated a boarding house during the time named in the account, when it appears that such fact in no wise involved any transaction or communication had by plaintiffs with deceased.-GOMEZ V. JOHNSON, Ga., 32 S. E. Rep. 600.

Central Law Journal.

ST. LOUIS, MO., JUNE 9, 1899.

The recent decision, by the Supreme Court of the United States, in the case of Lake Shore, etc. Ry. Co. v. Smith, very forcibly illustrates the difference between proper regulation of railroad corporations, and wanton disregard of their constitutional rights by State legislation. It was held that a statute of Mich

igan requiring railroad companies in the State to keep for sale 1,000 mile tickets at specified rates, less than the regular rates, to be used in the name of the purchaser, his wife and children, and valid for two years, where the maximum rates for transportation of passengers have been previously established by the legislature, is void as not within the legislative power to fix maximum rates, nor a proper regulation of the affairs of the company, but, on the contrary, a taking of the property of the company without due process of law. The opinion by Mr. Justice Peckham very clearly epitomizes the reasoning of the court in the following language: "The power to enact legislation of this character cannot be founded upon the mere fact that the thing affected is a corporation, even when the legislature has power to alter, amend or repeal the charter thereof. The power to alter or amend does not extend to the taking of the property of the corporation, either by confiscation or indirectly by other means. The authority to legislate in regard to rates comes from the power to prevent extortion or unreasonable charges or exactions by common carriers or others exercising a calling and using their property in a manner in which the public have an interest.

In this case there is not an exercise of the power to fix maximum rates. There is not the exercise of the acknowledged power to legislate so as to prevent extortion or unreasonable or illegal exactions. The fixing of the maximum rate does that. It is a pure, bald and unmixed power of discrimination in favor of a few of the persons having occasion to travel on the road, and permitting them to do so at a less expense than others, provided they buy a certain number of tickets at one time. It is not legislation for the safety, health or proper convenience of the public,

but an arbitrary enactment in favor of the persons spoken of, who, in the legislative judgment, should be carried at a less expense than the other members of the community. There is no reasonable ground upon which the legislation can be rested, unless the simple decision of the legislature should be held Whether the legis

to constitute such reason. lature might not in the fair exercise of its tickets purchased from the company should power of regulation provide that ordinary be good for a certain reasonable time is not a question which is now before us, and we need not express any opinion in regard to it.

In holding this legislation a violation of that part of the constitution of the United States which forbids the taking of property without due process of law, and requires the equal protection of the laws, we are not, as we have stated, thereby interfering with the power of the legislature over railroads as corporations or common carriers to so legislate as to fix maximum rates, to prevent extortion or undue charges, and to promote the safety, health, convenience, or proper protection of the public. We say this particular piece of legislation does not partake of the character of legislation fairly or reasonably necessary to attain any of those objects, and that it does violate the federal constitution, as above stated."

On the other hand is to be noted the recent decision, by the same court, of Atchison, T. & S. F. R. R. v. Matthews, where it was held (four of the members of the court dissenting) that the provision of the Kansas statute (Sess. Laws 1885, p. 258, ch. 155, secs. 1, 2), requiring a reasonable attorney's fee for the plaintiff to be allowed and made a part of the judgment on a recovery against a railroad company for damages from fire caused by the operating of its trains, is in the nature of a police regulation, designed to enforce care on the part of railroad companies to prevent the escape of fire from their moving trains, which subject the property of adjacent owners to peculiar hazard, and has a reasonable relation to the object sought to be accomplished, although the statute imposes no specific duty by way of precaution; and that the provision is not in violation of the fourteenth constitutional amendment, as an arbitrary classification of suitors, which deprives those affected