fraud for the purpose of shortening the time within which the action may be brought.-PEOPLE OF STATE OF NEW YORK V. ETTENSON, Kan., 56 Pac. Rep. 749. 75. LIMITATIONS - Insane Persons - Presumptions.An insane person is under disability, within the mean. ing of the statute of limitations, although the question of his sanity has never been adjudicated by the probate court.-LANTIS V. DAVIDSON, Kan., 56 Pac. Rep. 745.

76. LIMITATIONS-Payment of Interest.-The payment of interest upon a debt evidenced by a promissory note starts the statute of limitations afresh, and the written indorsement of the interest payment upon the note is not essential.-TOPEKA CAPITAL CO. v. MERRIAM, Kan., 56 Pac. Rep. 757.

77. MALICIOUS PROSECUTION - Advice of CounselPleading.-In an action for malicious prosecution, ad. vice of counsel, as tending to disprove malice and want of probable cause, may be shown under a gen. eral denial.-MCALLISTER V. JOHNSON, Iowa, 78 N. W. Rep. 790.

Breach of Promise

78. MARRIAGE Pleading.-ACtion for breach of promise to marry will lie, without request on plaintiff's part, where defendant refused to marry plaintiff.-RIME V. RATER, Iowa, 78 N. W. Rep. 835.

79. MARRIED WOMAN-Guaranty-Conflict of Laws.Where a married woman in Connecticut executed and delivered to her husband, there, a guaranty, to enable him to obtain credit from plaintiff, in Illinois, to whom the husband sent it by mail, the contract is to be gov. erned by the Illinois law, and is therefore binding on her, though she was incapacitated from making it by the laws of Connecticut.-FIRST NAT. BANK OF CHICAGO V. MITCHELL, U. S. C. C. of App., Second Circuit, 92 Fed. Rep. 565.

80. MASTER AND SERVANT-Dangerous Place to Work. -An employee has a right to presume, when directed to work in a particular place, that reasonable care has been exercised by the employer to see that such place is safe, and is not negligent in relying on such presumption, unless a danger is obvious and should be known to a reasonably prudent employee; and for that reason the degree of care required of the em. ployer is greater than that required of the employee, and the employer may be chargeable with negligence in failing to ascertain a danger, where the employee is not.-JAMES B. CLOW & SONS V. BOLTZ, U. S. O. C. of App., Sixth Circuit, 92 Fed. Rep. 573.

81. MASTER AND SERVANT-Injury in Operation of Railroad. An injury received by a brakeman, while assisting in coaling an engine, through the negligence of a co employee in operating the hoisting crane so as to knock him from the platform-such movement of the crane not being necessary in order to permit the train to start-is not an injury "in any manner connected with use and operation of any railroad," within the meaning of Code 1873, § 1307.-REDDINGTON V. CHICAGO, M. & Sr. P. RY. Co., Iowa, 78 N. W. Rep. 800.

82. MASTER AND SERVANT-Injury to Servant-Liability of Master.-A railroad company cannot be held liable for an injury to a section man, who, with others, was trying to lift a hand car from the track in front of an approaching train, and was struck by the train, merely because the foreman did not expressly direct him to let go of the hand car and save himself, when it does not appear that the men were acting by order of the foreman in attempting to remove the hand car.-TEXAS & P. RY. Co. v. EASON, U. S. C. C. of App., Fifth Circuit, 92 Fed. Rep. 553.

83. MASTER AND SERVANT-Negligence-Assumption of Risk.-Notwithstanding a party has negligently placed himself in a position wherein he is exposed to injury, if another, after discovery of such condition, inflicts the injury by reason of failure to exercise ordinary care to avoid it, the former may have an action for damages against the latter.-DAILEY V. BURLINGTON & M. R. R. Co., Neb., 78 N. W. Rep. 722.

84. MASTER AND SERVANT-Negligence-Directing Verdict.-Plaintiff was working at a machine, when the platform on which he was standing tipped, resulting in his injury. The boards so projected that, if a person stood on the ends, the platform would tip. Plaint iff asked for the platform, and was free to use it or not, as he wished; and its liability to tip was plain. Held, that a verdict for defendant was properly directed.HENDERSON V. BOYNTON, Mass., 53 N. E. Rep. 401.

85. MECHANIC'S LIEN-Assignment-Waiver.—A parol assignment of a claim waives the right to mechanic's lien attached thereto, since at common law, except for Rev. St. § 3316, requiring the assignment of the lien to be in writing, any assignment of the claim waived the lien.-SHEARER V. RASMUSSEN, Wis., 78 N. W. Rep. 744. 86. MINES Location of Claim Abandonment.-A mining claim was located in the name of four persons. The one who located it, who was the only one who had anything to do with it, testified that, after working it awhile, he decided it was no good, and destroyed the monument, and went away, with the intention of hav ing nothing further to do with it. Held, that the claim was abandoned, so that a subsequent location, made before the statutory time for forfeiture, was valid.KINNEY V. FLEMING, Ariz., 56 Pac. Rep. 723.

87. MORTGAGE-Default.-A mortgage provided that if default was made in the payment of the interest on the debt, the payment of which was secured by the mortgage, the whole of the indebtedness should become due and collectible, without notice of condition broken. Held a contract within the power and right of the parties to enter into, and enforceable according to its terms.-CONNECTICUT MUT. LIFE INS. Co. v. WESTERHOFF, Neb., 78 N. W. Rep. 724.

88. MORTGAGES Foreclosure-Extinguishment.-A subsequent mortgagee purchased the first mortgage, which he foreclosed, and bought the property for the amount of the decree, etc., without making any reference to subsequent mortgages held by him. Held, that the lien of such mortgages was thereby extinguished, and that a purchaser of the mortgagor's equity of redemption was entitled to their release on payment of the foreclosure decree.-WELLS V. ORDWAY, Iowa, 78 N. W. Rep. 806.

89. MORTGAGES-Foreclosure-Pleading.-On a bill to foreclose a mortgage trust deed, which provided that the person who was made defendant, as trustee, should be trustee in event of the origiual trustee's removal from the county, the failure to plead nonremoval of the original trustee, in abatement of the bill, admitted the fact of removal and the capacity of the substituted trustee.-FISCHER V. STIEFEL, Ill., 53 N. E. Rep. 407.

90. MUNICIPAL CORPORATIONS-Liability for Injury.A city, by consenting to the county connecting its court house with the city sewer, does not render itself liable for acts done by the licensee in the construction of the sewer, since the act authorized is not intrinsically dangerous.-SCHNURR V. BOARD OF COMMRS. OF HUNTINGTON COUNTY, Ind., 53 N. E. Rep. 425.

91. MUNICIPAL CORPORATIONS Officers.-One ap pointed and employed by resolution of a city "as driver of the street wagon, and to care for its horses," at so much a month, is not constituted an officer of the city, entitled to hold his position until discharged or the resolution is rescinded, or to receive pay for months in which he did not work.-WHITE V. CITY OF ALAMEDA, Cal., 56 Pac. Rep. 795.

92. MUNICIPAL CORPORATIONS — Widening StreetsPaving. Where a street, after it has been paved-the sidewalks as well as the cart way-is widened so that the cartway takes in one of the sidewalks and five feet more, and a sidewalk is added beyond this, and thereafter a repaving of the cart way is ordered, the lot owner can be charged with the expense of paving no more than the five feet.-CITY OF PHILADELPHIA V. YEWDALL, Penn., 42 Atl. Rep. 956.

93. MUNICIPAL IMPROVEMENTS-Certificates.-City improvement certificates issued to contractors for street

paving, block by block, as the work progresses, are payable in cash upon appropriations when made by the city, and their payment does not in any manner depend upon the contractor's fulfillment of the maintenance clause of his contract in behalf of the city.STATE V. CITY OF NEW ORLEANS, La., 25 South. Rep. 421. 94. MUNICIPAL IMPROVEMENTS Contract.-A con tractor is not precluded from taking public work on his Individual account because his general business partner is a member of the municipal board that awards the contract.-STATE V. CITY OF PASSAIC, N. J., 42 Atl. Rep. 1059.

95. NUISANCE-Abatement.-The fact that a particular use of property is declared a nuisance by a town ordi. nance does not make it such unless it is in fact so, and is embraced within the common-law or statutory idea of a nuisance.-BOARD OF ALDERMEN OF OPELOUSAS V. NORMAN, La., 25 South. Rep. 401.

96. NUISANCE-Injunction.-A corporation employs from 15 to 25 men in conducting a business upon leased land bordering upon the Passaic river, a tidal stream. The city of Newark proposes to build a sewer, through which a large quantity of sewage will be discharged into the stream at a point 55 feet from complainant's premises. It is clear that the sewage at certain recurring periods of each year will create a stench which will be very offensive to the officers and employees of the complainant while transacting the business of the company upon the premises, and will impair the value of its property. Held that, although the injury is only anticipated, it will be enjoined.-SAYRE V. MAYOR, ETC., OF CITY OF NEWARK, N. J., 42 Atl. Rep. 1068.

97. NUISANCE-Liquor Nuisance-Injunction.-An action to enjoin a liquor nuisance will not lie where the evidence is uncontradicted that, for some time prior to the beginning of the action, defendant had ceased to sell liquor.-SHARP V. ARNOLD, Iowa, 78 N. W. Rep. 819. 98. NUISANCE-Suit in Name of Attorney-General.-A circuit court has no power to authorize a private re lator to maintain a suit in the name of the attorney. general to enjoin the maintenance of a public nuisance, on refusal of such leave by the attorney.general.STATE V. CITY OF MILWAUKEE, Wis., 78 N. W. Rep. 756. 99. OFFICERS-County Treasurers-Compensation.A public officer is required to perfom the duties of his office, however onerous they may be, for the compen. sation fixed by law. -STATE V. MESERVE, Neb., 78 N. W. Rep. 721.

100. PARENT AND Child-Oral Agreement to Convey. -A father promised his daughter certain lands if she would reside thereon, and, in pursuance of his promise, she took possession, he stating that he would give them to her on condition that she would give him one third of the crops during his lifetime. Thereafter he caused a deed from himself and wife to her to be prepared, but his wife, through deceit and undue influ. ence, induced him not to execute it, and to convey the lands to another in consideration of a mortgage thereon to the wite. Held not to show a parol agreement by the father to convey the lands to the daughter.SIPES V. DECKER, Wis., 78 N. W. Rep. 769.

101. PARTNERSHIP Dissolution Assumption of Debts. Where, on the dissolution of a partnership, the remaining partner agrees to pay the firm liabili ties as shown by the books, he is not concluded from questioning whether any particular claim is a firm liability.-HANKS V. FLYNN, Iowa, 78 N. W. Rep. 839.

102. PARTNERSHIP REAL ESTATE.-Where a partnership purchased lands with firm property, taking the title in the name of the firm members individually, and then mortgaged the lands to obtain money for the firm business, the mortgage was superior to an earlier judgment against one of the members of the firm.ROCKEFELLAR V. DELLINGER, Mont., 56 Pac. Rep. 822.

103. PRINCIPAL AND AGENT-Authority.-A power of attorney authorizing a person to represent a widow and her interest in her late husband's estate, "with full power to do and perform all acts necessary to pro

mote and protect her interest therein," delegates no authority to relinquish her rights of dower, or to estop her from claiming the same.-WELCH V. MCKENZIE, Ark., 50 S. W. Rep. 505.

104. PRINCIPAL AND SURETY-Release of Surety by Change in Contract.-The bond from a contractor for public work, provided for by 28 Stat. 278, ch. 280, is intended to perform a double function: First, to secure to the government the faithful performance of the contract; and, second, to protect third persons from whom the contractor may obtain labor or materials in the prosecution of the work. In its second aspect, the bond, by virtue of the statute, contains a separate and distinct agreement between the obligors and such third persons, as to which the agency of the govern. ment ceases when the bond is given and approved, and subsequent changes in the contract or specifica tions agreed upon between the government and the contractor, though without the knowledge or consent of a surety, where the general nature of the work and materials remains the game, will not release the surety from liability to persons who supply labor or materials thereunder.-UNITED STATES V. NATIONAL SURETY CO., U.S. C. C. of App., Eighth Circuit, 92 Fed. Rep. 549.

105. RAILROAD COMPANY - Fires-Negligence.-In an action against a railroad company for fire set by its engine, it is inconsistent to charge that, if the fire was set by the engine, the law would imply negligence, and the burden would be on the company to show its innocent intention, and that it is not sufficient to prove that the company set the fire, but it must further be shown that the fire was negligently set.-TEXAS M. R. Co. v. HOOTEN, Tex., 50 S. W. Rep. 499.

106. RAILROAD COMPANY-Highway-Faulty Construction of Road.-It is the duty of a railroad company, where its road crosses a water course, or would Interfere with its flow of water, or interfere with the drain. age of adjacent lands, to construct the road so as not to impair its usefulness, or do injury to the owners of the lands along the route. This duty is a continuing one, and, where the road is not properly constructed, each overflow incurs new cause of action for damages. -KIRK V. KANSAS CITY, S. & G. RY. Co., La., 25 South. Rep. 457.

107. RAILROAD COMPANY- Receivers-Contracts.-In the absence of an order of court, a contract of employment of a railroad company is not binding on receiv. ers afterwards appointed for it, within a clause of a subsequent deed of the railroad providing that the conveyance is made subject to "any and all indebtedness, obligations, or liabilities which shall have been legally contracted or incurred by the receivers."KEELER V. ATCHISON, T. & S. F. Ry. Co., U. S. C. C. of App., Eighth Circuit, 92 Fed. Rep. 545.

108. RAILROAD COMPANY-Street Railroads-Collision with Vehicle.-The driver of a vehicle upon a road used by the public at large, which crosses the track of an electric railway, must exercise reasonable care to avoid collision, and the same duty rests upon the motorman of a trolley car in approaching the crossing of such a road, whether the crossing is in the country or in a town; and, in case of accident, the question whether either or both of said parties failed in such duty is one to be determined by the jury, when the proofs on the subject of negligence leave that question in doubt. Neither party at such a crossing has a paramount right of way.-ATL. COAST ELEC. R. Co. v. RENNARD, N. J., 42 Atl. Rep. 1041.

cised where it will not serve the stockholders benefi. cially.- STERNBERG V. WOLFF, N. J., 42 Atl. Rep. 1078. 110. RELEASE AND DISCHARGE-Master and ServantNegligence. In an action for injuries, defendant pleaded a settlement, to which plaintiff made no reply. Defendant, at the close of the evidence, moved for judgment because such settlement was not denied by the pleading. Held, that it was properly overruled, since the settlement was denied by operation of law, as plaintiff's testimony showed that it was not made in satisfaction of his right to sue.-STOMNE V. HANFORD PRODUCE CO., Iowa, 78 N. W. Rep. 841.

111. REPLEVIN -Execution-Evidence. In replevin by a mortgagee against an officer, an execution against the mortgagor, under which the officer claims, regular on its face and issued by a court of general jurisdic tion, is admissible, without proof of the judgment or the jurisdiction of the court.-KAHN V. HAYES, Ind., 53 N. E. Rep. 430.

112. SALE-Title to Property.-The acceptance by the vendor of an offer by the purchaser, accompanied by a statement by the vendor that he will be ready for the purchaser to take the property on a specific day in the future upon payment of the purchase price, is an executory agreement to sell, and not a present sale, by which the title at once passes to the vendee.-KErr v. HENDERSON, N. J., 42 Atl. Rep. 1073.

113. STATUTES-Construction.-If necessary to give effect to the evident intent of a legislative enactment, its language may be completed by reading into it such inadvertently omitted words as may be requisite to express its obvious sense.-LANDRUM V. FLANNIGAN, Kan., 56 Pac. Rep. 753.

114. SPECIFIC PERFORMANCE-Premature Suit.-A suit to specifically enforce an agreement to convey before the time when, by its terms, the conveyance was to be made, is premature, though the vendor has conveyed the lands to third persons having notice.-BARTon v. NEW ENGLAND MORTG. SEC. Co., Miss., 25 South. Rep. 362.

115. TAXATION - Banks-Assessments.-A bank-stock assessment contained the names of the shareholders, and the correct number of shares owned by each. Held, that the intent was not to tax the capital stock, but the shares owned by the individual shareholders. -WESTERN INVEST. BANKING CO. v. MURRAY, Ariz., 56 Pac. Rep. 728.

116. TAXATION-Property-Corporate Franchise-Assessment.-Under Const. art. 7, § 1, providing that all property in the State not exempt shall be taxed, and Revenue Laws 1897, p. 136, providing that all real and personal property in the State shall be subject to taxa. tion, a franchise of an electric light and power com. pany is assessable, such franchise being property under Ballinger's Ann. Code, § 5202, declaring that all franchises shall be subject to sale on execution and on foreclosure as any other personal property.-COM. ELEC. LIGHT & POWER CO. V. JUDSON, Wash., 56 Pac. Rep. 829.

117. TELEGRAPH COMPANIES-Notice-Failure to Deliver. Where an agent sends a telegram, in his own name, announcing a death, and requesting the addressee to come, his failure to notify the company of the relation of the addressee and his principal, and that it is sent for the latter's benefit, will not preclude a recovery by his principal for his mental suffering occasioned by a failure to deliver.-CASHION V. WESTERN UNION TEL. Co., N. Car., 32 S. E. Rep. 746.

118. TELEPHONE COMPANIES-Right of Way.-Rev. St. 1898, § 1778, authorizes telephone companies to locate poles and wires in public streets. A city charter authorized the city council, by ordinance, by-law or resolution, to keep streets free from incumbrances and to regulate their use, and provided that no obstruction should be placed in streets without a written permit from the board of public works, which was given power to regulate the placing of telephone lines in streets, parties aggrieved by a decision of the board

having the right to appeal to the city council. Held, that a telephone company has no right to place poles in the streets of said city, except under the direction of the board of public works, though neither the council nor the board of public works has passed any ordinance or by-law regulating the placing of telephone poles in streets.-CITY OF Marshfield V. WISCONSIN TELEPHONE Co., Wis., 78 N. W. Rep. 735.

119. TRIAL-Conclusions of Law and Fact.-The request for a separate statement of conclusions of fact and of law in the trial of a cause to a court without a jury, to render a compliance therewith compulsory, must be made not later than at the final submission of the cause.-Ross v. BARKER, Neb., 78 N. W. Rep. 730.

120. TRIAL- Production of Writings. Notice. - A notice given by a party to an action, requiring the adverse party to deliver a copy of an instrument or other writing whereon the action or defense is based, or which he intends to offer in evidence at the trial, should describe the writing demanded sufficiently to Identify the same. A general notice for the delivery of all instruments or writings which the adverse party intends to offer in evidence is insufficient.-FRAZIER V. EBENEZER BAPTIST CHURCH, Kan., 56 Pac. Rep. 752.

121. VENDOR AND PURCHASER Contract Time of Performance.-An agreement for the sale of a tavern provided for a payment of an installment on April 1, 1891, and another on October 1, 1891, the balance to be secured by a bond and mortgage to run one year. On the same day the parties made a lease of the premises for six months from April 1, 1891. Held, that time was not of the essence of the contract to purchase.THOMPSON V. KEELER, N. J., 42 Atl. Rep. 1043.

122. VENDOR AND PURCHASER Purchase of Mortgaged Land.-The mere fact that a person purchases land subject to a mortgage does not render him personally liable to the grantor. In order to create this liability, the grantee must, by an agreement on his part, promise to pay or assume the debt.-CLIFFORD V. MINOR, Minn., 78 N. W. Rep. 861.

123. Water-Obstruction of Surface Water-Damages. -A landowner who builds a levee to prevent his land from being flooded by surface water is not liable for injury caused to adjoining land, if that method was the only practicable one for protecting his land.BAKER V. ALLEN, Ark., 50 S. W. Rep. 511.

124. WILL-Construction-Contract.-Under a will be queathing to testator's widow the income of his property during her widowhood, with power to continue his business for her sole use, and with full power to dispose of the business, and making her and another executors, with power, when they should deem it nec essary "for the payment of my debts and purposes of my estate," to sell any of the realty, they could not sell for payment of taxes, or interest on mortgage, or to aid in the conduct of said business.-COLUMBIA AVE. SAVINGS FUND, Safe DEPOSIT, TITLE & TRUST CO. v. LEWIS, Penn., 42 Atl. Rep. 1094.

125. WILL-Executors-Trustees.-A will directed the executor to pay to legatees during their lives the income of certain securities, and authorized him to change the investment, and to sell the securities, and reinvest them, in his discretion. Held, that he held as trustee, and not as executor.-TEEL v. HILTON, R. I., 42 Atl. Rep. 1111.

126. WILL-What Constitutes. An instrument executed and witnessed as provided for in case of a will, and intended as such by deceased, is such, though reciting, "I agree to will."-IN RE LONGER'S ESTATE, Iowa, 78 N. W. Rep. 834.

127. WITNESS-Competency-Conviction of Larceny. -Witnesses produced in court are presumed to be competent, but when it is shown that a witness offered has been convicted of an infamous crime a presump. tion of incompetency arises, and it then devolves on the party offering the witness to overcome the presumption by showing that the judgment of conviction is without force.-STATE V. CLARK, 56 Pac. Rep. 767.

Central Law Journal.

ST. LOUIS, MO., JUNE 16, 1899.

The recent decision, by the Supreme Court of Nebraska, of Western Union Telegraph Co. v. Call Publishing Co., is a reminder that a public service corporation is amenable to the rules of the common law relative to discrimination in rates between patrons for like intrastate or interstate services rendered under like conditions in the absence of legislation on the subject, and that courts will enforce the rules of general jurispru

dence on the subject. The contention here was as to charges for furnishing news reports of the Associated Press. It was argued on behalf of the defendants that the complaint declared upon a contract for interstate business; that the regulation of such business rests exclusively with congress; that the statutes of Nebraska, by which it was sought to establish rules on the subject, were ineffective; that there was no regulative national law applicable, and no rules of the common law in force or recognized as national rules, or enforceable within the nation as an entirety, or within the States composing it, or any one thereof, which, in the absence of statutory enactment by congress, might be invoked and be governable. In the case of Gatton v. Railroad Co. (Iowa), 63 N. W. Rep. 589, the subject of the existence in the United States of the common law as national law was discussed, and it was decided in the negative. In the opinion in the case of Swift v. Railroad Co., 58 Fed.. Rep. 858, it was said that "congress has not adopted the common law of England as a national municipal law. The courts of the United States have many occasions to enforce the common law, but in every instance it has been as the municipal law of the State by which the subject-matter was affected." The decision was to the effect that the common law was not in force as a national rule, and the exaction of unreasonable charges by a common carrier was a mat ter to be regulated by national law, and, in the absence of any such law, the common law as in force in a State could not prevail. the opinion in the case of Murray v. Railroad Co., 62 Fed. Rep. 24, the matter was fully considered, and it was decided that the courts of the United States would recognize and enforce, in the absence of congressional legisla

In

tion, the rules of general jurisprudence in any case, and define the duties and obligations of the parties thereunder. In Railroad Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. Rep. 289, the proposition that there was in full force a law of general jurisprudence, and that it might be applied in a State court or in a federal court, was given full recognition. "We are satisfied," says the court, "from a review of the subject that in actions of the nature of the present, in the absence of national legislation, the principles of the common law or general jurisprudence of the state of the action are applicable, and may be asserted and enforced; and in this State the common law right of action is accorded full force and scope. Railroad Co. v. Witty, 32 Neb. 275, 49 N. W. Rep. 183; Railroad Co. v. Lawler, 40 Neb. 356, 58 N. W. Rep. 968; Railroad Co. v. Tietken, 49 Neb. 130, 68 N. W. Rep. 336; Railroad Co. v. Gardiner, 51 Neb. 70, 70 N. W. Rep. 508; Railroad Co. v. Palmer, 38 Neb. 463, 56 N. W. Rep. 957; Railroad Co. v. Vincent (Neb., filed Feb. 23, 1899), 78 N. W. Rep. 457. It follows that this argument is without avail."

V.

The remedy of injunction against judicial proceedings in a foreign jurisdiction is a recognized doctrine of equity jurisprudence. But it has been left to the New Jersey courts to apply the principle to divorce proceedings. In a case before the New Jersey Chancery Court, not a great while ago, an injunction was granted at the instance of a wife against the prosecution by her husband of a suit for divorce in North Dakota-Streitwolf Streitwolf. It appeared there that the wife had already brought a suit in New Jersey against her husband for a limited divorce, and he had answered, setting up the matters in defense which he subsequently made the foundation of his suit in North Dakota. In the very recent decision of Kempson v. Kempson, by the same court, it was held that a complaint by a wife, alleging that her husband, whose residence was in New Jersey, had gone to North Dakota, and after a pretended residence there for a few months, commenced a suit against her for divorce, presents a case so inequitable as justifies a court of equity in the former State restraining its prosecution. "The wife,' says the court, "is in this predicament: She must either go to the trouble and expense of ap

pearing generally in the Dakota court to resist her husband's claim, or she must attempt to appear specially for the purpose of contesting the jurisdiction of the court by showing his real domicile to be in New Jersey. Either of these defenses involves great labor and expense on her part. The only other course open to her is, in substance, to allow judgment by default to go against her there and attack the decree when attempted to be enforced in this State. Now, if she adopts the first remedy, and appears in that court, it will, by that appearance, have obtained jurisdiction of her person, and undoubted jurisdiction of the subject-matter of the suit, and the case then will be brought within the authority of the case of Fairchild v. Fairchild, 53 N. J. Eq. 678, 34 Atl. Rep. 10, and the decree of that court will be binding upon her. As to the second course, namely, a special appearance for the purpose of attacking the jurisdiction, it is common knowledge that the courts of Dakota assume jurisdiction of nonresident defendants, based on a residence on the part of the plaintiff, which falls far short of amounting to an actual domicile. In fact, they are satisfied with a mere temporary residence, adopted for the purpose of obtaining a divorce, and without any animus manendi. So that if she should appear specially, the task of satisfying the court that her husband was not a bona fide domiciled resident of the State would be wellnigh hopeless. If she takes the remaining course, and fails entirely to appear, and allows a decree to go against her, she will be in the situation of a divorced wife who must bring a suit to set aside the decree of divorce and enforce her rights against her husband, who may avoid a personal service in this jurisdiction. This is a hardship to which, it seems to me, the husband has no right in equity to subject her. I held, in Felt v. Felt, 40 Atl. Rep. 436, that the only ground upon which a valid decree of divorce, based upon a service out of the territorial limits of the jurisdiction of the court could be rested, was that the complaining spouse had an actual bona fide domicile within that jurisdiction. It will be no hardship for the defendant herein to have the question of his actual domicile in Dakota settled by judicial investigation here before he proceeds with his suit there, and it seems to me that the ends of justice will be best attained by such preliminary determination."

NOTES OF IMPORTANT DECISIONS.

CARRIERS OF GOODS LIMITING LIABILITYBURDEN OF PROOF.-It is held by the Supreme Court of Indiana, in Insurance Co. v. Lake Erie & W. R. Co., that a special contract, providing that the carrier shall not be liable for the loss by fire of the goods shipped, limits the carrier's liability to damages caused by its negligence; that in an action against a common carrier for the loss of goods by fire, where the shipping contract excepted losses by fire from its liability, the burden is on the shipper to show negligence; that the fact that cotton shipped was burned while in a car on a side track does not show that the cotton took fire while on such side track, there being no other evidence to such effect; and that it is not negli. gence for a railroad company to fail to place its freight cars, when temporarily standing on side tracks, within fire and police protection. The court says: "It is settled by the decisions in this State that the carrier may, by a stipulation contained in the bill of lading, limit to some extent his strict common-law liability. Express Co. v. Fendrick, 38 Ind. 150; Railroad Co. v. Smuck, 49 Ind. 302; Bartlett v. Railroad Co., 94 Ind. 281; Rosenfeld v. Railroad Co., 103 Ind. 121, 2 N. E. Rep. 344. He cannot, however, by contract, exempt himself from liability for loss or damages resulting from his own negligence. Railroad Co. v. Heaton, 37 Ind. 448; Railroad Co. v. Allen, 31 Ind. 394; Railroad Co. v. Selby, 47 Ind. 471; Railroad Co. v. Cox, 29 Ind. 360. It has often been held that a special contract relieving the carrier from responsibility for loss or damage by fire is valid, but it is generally understood that such exemption from liability does not protect the carrier when the fire or the consequent loss is the result of his own negligence. 4 Elliott, R. R. § 1508, note 3. The effect of a special contract limiting the common-law liability of the carrier is to change the character of that liability by removing from it the important element of insurance of the goods by the carrier, and to place his responsibility for loss or damage upon the ground of negligence alone. The carrier does not, indeed, cease to be a carrier, but he is no longer an insurer. In numerous cases he is held, under such circumstances, to be a private carrier for hire, and hence subject to an entirely different rule from that which would have fixed his responsibility if no special contract had been made.

"The controlling question in the present case is as to the burden of proof. On this subject there is an irreconcilable conflict among the decisions, and it would be a fruitless task to institute a comparison between them. The great weight of modern authority, and, as we think, the better reason, sustain the rule that where the action is upon a bill of lading which limits the liability of the carrier by excepting certain perils, and it appears that the loss was within the restrictions of the special contract, the burden is upon the plaintiff to show that the accident or loss was the result of the negligence of the carrier. This rule was long