persons using its track at the place in question. The engineer testified that he was in his place, and did not see plaintiff. If the jury believed him, they could not find for the plaintiff on the second or third count of the declaration; but there was uncontradicted evidence from which the jury might find that, by the exercise of care and diligence, he might have discovered the presence of plaintiff. The first count charged that the engineer, by the exercise of care, could have seen the plaintiff, and that he negligently failed to see and observe him. The evidence was admitted to show the existence of a duty to exercise such care, and the verdict was probably based on the failure to perform such duty. The error was material and harmful.

The trial court refused to instruct the jury to return a verdict for defendant. This is assigned as error, but as the case was tried on an erroneous theory of the rights of the parties, and must be submitted to another jury upon such evidence as the parties may then produce, we shall not discuss the evidence produced at the trial already had, or the inferences which the jury might justifiably draw from it. The judgments of the appellate and circuit courts are reversed, and the cause will be remanded to the latter court. Reversed and remanded.

NOTE.-Properly speaking there is no positive duty owing from a railroad company to a trespasser on its track; it is not a part of its duty in exercising ordinary care in the operation of its road to provide against the possibility that trespassers may be on its track and the extent of its duty is to refrain from willful or deliberate injury. Except at crossings it has the right to an exclusive use of its track and premises and is entitled to assume that they are clear; it is not bound to anticipate that persons will be on them or to make provision for the safety of such persons. These propositions may be said to be elementary and are supported by innumerable cases. Reviews of such cases will be found in 19 Amer. & Eng. Encyclopædia of Law, pp. 935, 936; 38 Amer. Rep. 637, 639; 67 Amer. Dec. 675; 84 Amer. Dec. 460; 8 Amer. State Rep. 881; 9 Amer. State Rep. 440; 19 Amer. State Rep. 593; 30 Amer. State Rep. 53; 44 Amer. State Rep. 181; 48 Amer. State Rep. 432. There are many cases holding that where persons have long been accustomed to use the track at certain places the company is charged with notice of such usage and owes the duty to keep a careful lookout at such places even though the parties so using the track do so without authority and are really trespassers. See 19 Amer. & Eng. Encyclopædia of Law, p. 987, and cases cited. It will be of value here to call attention to some of the more recent cases not as yet collected in text books.

Recent Cases on the Duty of Railroad Companies Toward Trespassers on Their Tracks.-In an action for injuries received while crossing defendant's railroad tracks, it appeared that plaintiff and others had been accustomed to cross the tracks at the place in question for a year, which was known to defendant's employees, and permitted by them. Held, that defendant would not be regarded as a trespasser. Illinois Cent. R. Co. v. Dick (Ky.), 15 S. W. Rep. 665. A stranger who walks on a railroad track at a place other than a public crossing, and not in a town or

village, is a trespasser, and the company is under no obligation to look out for him. Louisville & N. R. Co. v. Black (Ala.), 8 South. Rep. 246, 89 Ala. 313. Decedent, while walking along a railroad track without license, was run into and killed at a distance of 150 yards from a crossing behind him, from which direction the train was coming. The engine was in a reversed position, and there was no head light or cowcatcher on the tender. The bell was not rung, nor was the whistle blown at the crossing, though provided for by statute. Had such signals been given, decedent would probably have heard them and escaped injury. He was not seen by the trainmen until after the accident. Held, that decedent was a mere trespasser, to whom the company owed no duty, and therefore it was not liable. Toomey v. Southern Pac. R. Co. (Cal.), 24 Pac. Rep. 1074, 86 Cal. 374. In an action to recover damages, the evidence showed that the engineer discovered deceased about midway of a trestle, 100 feet long, when the train was from four to six hundred yards from deceased, and that the train could have been stopped within that or less distance. had the trainmen acted promptly, and that, after the discovery, the engineer acted upon the presumption that the deceased could reach the end of the trestle in safety and did not attempt to stop until deceased attempted to retrace his steps. Held, that the conduct of the engineer was reckless and wanton, and would justify a verdict, notwithstanding that deceased was a trespasser, and guilty of contributory negligence. Central Railroad & Ranking Co. v. Vaughn (Ala.), 9 South. Rep. 468. A railroad company is not liable for injuries to a trespasser on its track, where, after his presence is discovered, the employees in charge of the train use due diligence to stop it. Candelaria v. Atchison, T. & S. F. R. Co. (N. M.), 27 Pac. Rep. 497. In an action against a railroad company for killing plaintiff's decedent while attempting to cross a trestle, a charge that, if decedent went upon the trestle without looking and listening for an approaching train, she was guilty of contributory negligence, is irrelevant, since she was a trespasser on the track, and no amount of prudence in attempting to cross the trestle would change her attitude as such. Glass v. Memphis & G. R. Co. (Ala.), 10 South. Rep. 215. In an action against a railroad company for causing the death of a trespasser, where it appears that deceased was run over while lying upon the track in an unconscious condition, it is immaterial, in the absence of gross negligence on the part of defendant, whether such condition was the result of intoxication or was caused by fever or some uncontrollable circumstance, since in neither case can recovery be had. Missouri Pac. Ry. Co. v. Brown (Tex. Sup.), 18 S. W. Rep. 670. Though at the time of the injury plaintiff was on the track without right, that would not relieve defendant from its duty of exercising due care to avoid the accident. Clampit v. Chicago, St. P. & K. C. Ry. Co. (Iowa), 50 N. W. Rep. 673. Under Pub. St. ch. 112, sec. 212, providing that a railroad company shall not be "liable for the loss of life by a person while walking or being upon its road contrary to law," there is no right of action where a person is killed while crossing a railroad track at a place at which he had no right to cross, since Pub. St. ch. 112, sec. 195, prohibits persons from knowingly walking or standing upon a railroad track without right, and it was immaterial that when decedent was struck by the train he was in an unconscious and helpless condition by reason of an epileptic fit, when he went there in an attempt to cross the track unlawfully. McCreary v. Boston & M. R. Co. (Mass.), 31 N. E. Rep. 120. Plaintiff's in

testate, subject to epileptic fits, attempted to cross defendant's railway at a point beyond a street crossing, where there was a ditch four feet deep, and where crossing was forbidden by defendant, and in so doing was seized with a fit, and fell on the track, and was killed by a freight train backing slowly, with bell ringing. Held, that decedent was guilty of contributory negligence, and was also a trespasser on defendant's right of way, and that a verdict for plaintiff should be set aside. Tyler v. Kelley's Admr. (Va.), 15 S. E. Rep. 509. One walking along a spur track laid on the surface of a public alley, but not imbedded so as to become part of the roadway, is a trespasser; and the railroad owes him no duty except to avoid injuring him, if possible, after his presence is discovered. Montgomery v. Alabama, G. S. R. Co. (Ala.), 12 South. Rep. 170. In an action for the death of a person walking on a railroad track, where the track was defendant's main line, and it did not appear that it was in a public street, and so incorporated with it as to form part of the roadway itself, deceased was a trespasser. Louisville & N. R. Co. v. Hairston (Ala.), 12 South. Rep. 299. A railroad company is bound, in all cases, to exercise reasonable care to avoid injuring trespassers known to be, or who may be reasonably expected to be, on its right of way. Chicago, B. & Q. R. Co. v. Wymore (Neb.), 58 N. W. Rep. 1120; Chicago, B. & Q. R. Co. v. Wilgus (Neb.), 58 N. W. Rep. 1125. In an action against a railroad company for personal injuries received by plaintiff while a trespasser on defendant's track, it is error to charge that plaintiff could not recover unless the engineer intentionally and purposely ran him down, and unless the conduct of defendant's servant "was regardless of consequences, and without effort to prevent injury." Christian v. Illinois Cent. R. Co. (Miss.), 15 South. Rep. 71. A railroad company is liable for an injury to a trespasser, only if the negligence of its servants, and not the fact of the trespassing, is the proximate cause; and an instruction that defendant is liable if it did not exercise ordinary care, though plaintiff was negli gent, is misleading- San Antonio & A. P. Ry. Co. v. Jazo (Tex. Civ. App.), 25 S. W. Rep. 712. Recovery cannot be had for the killing by a train of a trespasser on a railroad, notwithstanding his negligence, by reason of the fact that the train was not properly equipped with appliances for stopping it quickly, as the negligence which will allow recovery, notwithstanding that of deceased, must be subsequent to this. Smith v. Norfolk & S. R. Co. (N. C.), 19 S. E. Rep. 863. The mere fact that persons have frequently trespassed upon a railroad track, and that the company has taken no means to prevent it, does not amount to a permission to use the track, and thereby prevent persons so using it from being trespassers. Ward v. Southern Pac. Co. (Oreg.), 36 Pac. Rep. 166. Though a policeman is authorized by a railroad company to patrol its tracks, he is a trespasser in walking thereon for his own convenience to enter on the discharge of his duties on his beat. Pennsylvania Co. v. Myers (Ind. Sup.), 36 N. E. Rep. 32. A person who without permission, walks upon the tracks of a railroad company, is a trespasser, though the portion of the track where he walks is habitually used by pedestrians. Eggman v. St. Louis, A. & T. H. R. Co., 47 Ill. App. 507. Where a railroad company has notice that a large number of pedestrians use its tracks at a particular place, and takes no steps to prevent this use, it is negligence for its train to approach such place without giving warning. Texas & P. Ry. Co. v. Watkins (Tex. Civ. App.), 26 S. W. Rep. 760. Since

Rev. St. sec. 1811, makes it unlawful for any one unconnected with a railroad to walk along its track unless laid in a public street, no mere user of a track by the public will raise an implied license to walk over a trestle, 120 feet long, unplanked, and so narrow as to leave no room to avoid a passing train, which is on a main track, and is crossed daily by a dozen regular trains besides specials. Anderson v. Chicago, St. P., M. & O. Ry. Co. (Wis.), 58 N. W. Rep. 79. In an action against a railroad company for killing a person on its track, the allegation that for more than 10 years defendant's track, where the accident occurred, had been used by the public as a thoroughfare to and from the city with the knowledge of defendant and its employees, is not sufficient to admit evidence that such use of the track was by license from defendant. Burg v. Chicago, R. I. & P. Ry. Co. (Iowa), 57 N. W. Rep. 680. Where it appears that persons were accustomed to walk on the track, and that this had been done to such an extent that between the rails there was a path worn by pedestrians, while the ground on either side was so incumbered as to make it inconvenient to walk outside the track, the question of license or acquiescence is for the jury. Johnson v. Lake Superior Terminal & Transfer Ry. Co., 56 N. W. Rep. 161, 86 Wis. 63. The fact that people are ac customed to cross a railroad track at a certain place, and that the company makes no objection, does not, as a matter of law, import a license for such use from the company, but it is a question for the jury. Chenery v. Fitchburg R. Co. (Mass.), 35 N. E. Rep. 554, 160 Mass. 211. One who is injured while trespassing on a railroad track cannot complain that the injury was owing to the size or weight of the train or to defective brakes. Brown's Adm'r v. Louisville & N. R. Co. (Ky.), 30 S. W. Rep. 639. A railroad company is not required to keep a lookout for trespassers on its tracks, and is not liable for injuries to one struck by a train, unless he was actually seen within time to avoid the accident. Thomas v. Chicago, M. & St. P. Ry. Co. (Iowa), 61 N. W. Rep. 967. A railroad company may be liable for injuring a person on its track, even though it could not have prevented the injury after discovering the danger, if there was reason to apprehend that the track was not clear, from the fact of long and extensive use thereof by pedestrians, and it failed to use proper care to destroy them. Powell v. Missouri Pac. Ry. Co., 59 Mo. App. 626. Railroad employees in charge of a train are not bound to be on the alert for persons on the track, in the absence of anything naturally calculated to lead them to expect such persons; and they owe them no duty, except not to injure them wantonly, or by gross negligence. Powell v. Missouri Pac. Ry. Co., 59 Mo. App. 626. Even if plaintiff was a trespasser on defendant's track, defendant was not relieved from lia. bility, if he was injured by reason of its culpable ignorance of his dangerous situation, or negligence in any other particular. Mitchell v. Boston & M. R. R. (N. H.), 34 Atl. Rep. 674. To entitle plaintiff to recover for the death of her husband, under pleadings which allege that deceased, "when killed was lying on defendant's track, asleep and unconscious, in a help. less condition, being in a state of intoxication," it is necessary to show that defendant railroad company's servants saw deceased on the track in time to have avoided his death, and their failure, then, to use the proper care to prevent it. Sullivan v. St. Louis S. W. Ry. Co. (Tex. Civ. App.), 36 S. W. Rep. 1020. One who uses a footpath over a railroad, which has been long used as a walk way by him and others, occupants of adjoining lots, with the knowledge, but with.

out the objection, of the railroad company, is a licensee, and is not wrongfully on said path. Norfolk &W. R. Co. v. De Board's Adm'r, 22 S. E. Rep. 514, 91 Va. 700. Where from 50 to 100 people, daily, for four or five years, use a railway track for foot travel, with the acquiescence of the railroad company, such acquiescence creates a right, which imposes on the company a duty of ordinary diligence to avoid injury persons so using the track. Roth v. Union Depot Co., 43 Pac. Rep. 641, 13 Wash. 525.

CORRESPONDENCE.

MEETING OF MINDS IN CONTRACT.

To the Editor of the Central Law Journal:

I was interested in Mr. Cline's communication in the JOURNAL of December 11th, because I had recently appended an American note to Raffles v. Wich. elhaus, in vol. 6, English Ruling cases, citing a group of analogous American Cases, including the case of the blooded cow with calf, supposed barren (Sherwood v. Walker, 66 Mich. 568, 11 Am. St. Rep. 531), and that of the rough diamond worth $700 sold for one dollar (Wood v. Boynton, 64 Wis. 265, 54 Am. Rep. 610). Possibly Mr. Cline may find something suggestive in that note.

I. B.

NEW JERSEY.

..146

.......44, 98, 113, 172 13, 36, 48, 95, 119, 154 ......214 ......178, 179

BOOKS RECEIVED.

The American State Reports, Containing the Cases of General Value and Authority Subsequent to those contained in the "American Decisions" and the "American Reports," Decided in the Courts of Last Resort of the Several States. Selected, Reported and Annotated, by A. C. Freeman, and the Associate Editors of the "American Decisions." Vol. LI. San Francisco: Bancroft-Whitney Com. pany, Law Publishers and Law Booksellers. 1896. The Law of Evidence in Civil Cases. By Burr W. Jones, of the Wisconsin Bar. Lecturer on the Law of Evidence and Other Subjects, in the Law School of the University of Wisconsin. In Three Volumes. San Francisco: Bancroft-Whitney Co., Law Publishers and Law Booksellers. 1896. The American and English Encyclopædia of Law, Index-Digest. By Thomas J. Richie. Volume XXX. Northport, Long Island, N. Y.: Edward Thompson Company, Law Publishers. 1896.

HUMORS OF THE LAW.

Recently, a man caught three different men kissing his wife, whereupon he went to a lawyer, "you have very good grounds for divorce," the lawyer said. "I don't want a divorce," the man replied, "I want to get an injunction to make them quit it." "He's a great criminal lawyer, isn't he?"

"Well, I believe he always stops short of actual criminality."

"Can't tell anything about the case yet," said the lawyer, "the jury is hung."

"Jerusalem!" exclaimed the prisoner, "that does beat all! But I knowed my friends 'ud lynch 'em if they got a chance at 'em!"

NORTH CAROLINA.
NORTH DAKOTA.

OHIO...........
OREGON..............

PENNSYLVANIA..

RHODE ISLAND..
SOUTH DAKOTA..

..4, 30, 90, 99, 184

.88, 142, 163

..223

....160, 205

TENNESSEE, 23, 39, 43, 60, 73, 81, 135, 148, 173, 174, 193, 216,

221

TEXAS, 5, 8, 22, 34, 42, 52, 53, 54, 59, 61, 66, 68, 96, 115, 117, 121, 122, 124, 132, 151, 158, 161, 166, 176, 180, 190, 203, 219, 225

UNITED STATES C. C........87, 100, 106, 125, 126, 168, 202, 220 UNITED STATES C. C. OF APP., 9, 46, 101, 103, 159, 162, 189, 196, 200, 213

1. ADMINISTRATION

Executors Duties.-The fact that the widow and executrix of a testator was also, by his will, made residuary devisee and legatee, with power to use and dispose of his residuary estate dur ing her life as she might see fit, without being required to account to any one therefor, does not relieve her from any of her duties as executrix; and she is required to make reports to the court, and to close up the administration as provided by statute, the same as any other representative.-RIDGLEY V. PEOPLE, Ill., 45 N. E. Rep. 116.

2. ADVERSE POSSESSION Proof of Possession. - A claim of continuous possession of land for the period necessary to establish title by adverse possession is not sustained where, for a year or more during such time, neither actual occupancy nor any act of dominion over the land is shown.-BURNS V. EDWARDS, Ill., 45 N. E. Rep. 113.

4. ALTERATION OF INSTRUMENTS.-Where a negotiable note has a blank in it, preceded by the word "at," the payee or any bona fide holder may insert in the blank the name of a place, so as to make it payable at such place, without the authority of the maker.-Cox v. ALEXANDER, Oreg,, 46 Pac. Rep. 794.

5. ANIMALS-Injury by Vicious Dog.-Where a vicious dog is kept within a safe inclosure, and a boy puts his hand within the inclosure and is bitten, without any carelessness by the owner, the latter is not liable for the injuries, though the owner knows the dog is vicious.-BADALI V. SMITH, Tex., 37 S. W. Rep. 642. 6. APPEAL Constitutional Law. In an action to restrain defendant from discharging certain waters upon the lands of plaintiff, the district court granted an injunction pendente lite. Defendant appealed from the order granting the injunction, and respondent moved to dismiss the appeal on the ground that it was not a final judgment, and therefore not warranted by the constitution: Held, that the terms, "in other cases the supreme court shall have appellate jurisdiction only," as used in section 4, art. 8, Const., has reference to appeals from all final judgments of the district court as used in section 9, art. 8, Const., and no other.-NORTH POINT CONSOLIDATED IRRIGATION Co. V. UTAH & SALT LAKE CANAL CO., Utah, 46 Pac. Rep. 824.

7. APPEAL-Sufficiency of Exception.-An exception, taken at the time of the delivery of the charge of the court, "to all the remarks of the court in reference to the impeachment of" a witness named, and "to that part of the charge in regard to the evidence of" such witness, is sufficient.-BROWN V. UNITED STATES, U. S. S. C., 17 S. C. Rep. 33.

-

Pref

9. ASSIGNMENT FOR BENEFIT OF CREDITORS erences. Under the laws of Kansas, a chattel mortgage executed in favor of a creditor in compliance with a demand for security is not invalidated by an assignment for the benefit of creditors, made within a few hours thereafter, the mortgagee having accepted and recorded the mortgage without any knowledge of the mortgagor's intention to make an assignment.OTTENBERG V. CORNER, U. S. C. C. of App., Eighth Circuit, 76 Fed. Rep. 263.

10. ASSIGNMENT FOR CREDITORS-Mortgaged Chattels. -Where there has been an assignment for creditors, and a preference has been sought over general cred. Itors by reason of a prior chattel mortgage on part of the assigned property, a judgment declaring a priority, and directing the trustee to pay from the funds arising from the sale of the mortgaged chattels a specified sum on such preferred claims, and that he take from said funds no part thereof on account of his services or those of his attorneys till all of the specified claims are fully paid, is final and appealable.-HAMRICK V. LORING, Ind., 45 N. E. Rep. 107.

11. ASSOCIATION-Joint-Stock Associations-Liability of Members.-The members of a joint-stock association are partners, and, as to third persons, each member is liable for the debts of the association, unless he has shifted his liability in the manner prescribed by the articles.-WADSWORTH v. DUNCAN, Ill., 45 N. E. Rep. 132.

12. ATTACHMENT-Bond.-A bond by defendant in attachment conditioned for redelivery of the property if plaintiff prevail is not satisfied by redelivery of the property in a depreciated condition, due to his use or neglect of the property. - CRESWELL V. WOODSIDE, Colo., 46 Pac. Rep. 842.

16. ATTACHMENT Residence - Abandonment. — Absence for the purpose of business or pleasure is of itself not such an abandonment of one's place of abode within the State as to authorize the issuance of an attachment against him on the ground of non-residence. -JOHNSON V. MAY, Neb., 68 N. W. Rep. 1032.

17. ATTACHMENT IN JUSTICE COURT - Affidavit.-An affidavit for a writ of attachment in a justice's court, made by a person other than the plaintiff, is sufficient to authorize the issuance of the writ, where it appears from the files and records in the action that it was made in behalf of the plaintiff, although it is neither so stated nor recited in the affidavit.-WEST V. BERG, Minn., 68 N. W. Rep. 1077.

18. BANKS-Charter-Amendment.-A private corporation authorized to receive deposits, loan money, and discount notes and other securities, was a corporation with banking powers, within the meaning of the act of 1887, though it was not empowered to issue bills. HENDERSON LOAN & REAL ESTATE ASSN. V. PEOPLE, Ill., 45 N. E. Rep. 141.

19. BANKS-Set-off-Insolvent Bank.-The defendant, in an action by the assignee to recover money due to an insolvent banking corporation, may set-off, against the amount owing by him to the bank, an indebted. ness of the latter to him.-BERNSTEIN V. COBURN, Neb., 68 N. W. Rep. 1021.

Demand.-The

20. BANKS AND BANKING - Deposit failure to allege and prove a demand in an action by a depositor against a bank which has failed is not ground for reversal of judgment, where the record shows such demand would have been fruitless and unavailing.WHEELER V. COMMERCIAL BANK OF Moscow, Idaho, 46 Pac. Rep. 830.

21. CARRIERS-Passenger in Freight Car-Injuries.When a passenger voluntarily takes a passage in a freight car in a freight train, he assumes all risks and inconveniences reasonably and necessarily incident to that method of transportation. In such case the carrier has a right to discharge the duty imposed by law upon it as to the safety of the passenger with reference to the nature and purposes of the particular car and train so selected, but it is bound to exercise the highest degree of care for the safety of the passenger consistent with the practical operation of such train. -SOLLING V. WINONA & ST. P. R. Co., Minn., 68 N. W. Rep. 1083.

22. CARRIERS OF LIVE STOCK-Negligence.-In an action for damages to a shipment of horses by rail, it appeared that they were unloaded at one of defendant's yards en route, that they escaped from the pen in which defendant had placed them, and were damaged while at large: Held, that defendant was an insurer of the horses against damage from such a cause, and hence plaintiff need not show negligence on the part of defendant.-TEXAS & P. RY. Co. v. TURNER, Tex., 37 S. W. Rep. 643.

23. CARRIERS OF PASSENGERS-Contributory Negli. gence.-A woman 63 years old, and crippled by a former dislocation of her hip, traveling in the caboose of a freight train, is negligent in leaving her seat, to get

a drink, while the train is switching cars, so as to prevent her recovery for injuries from a fall caused by the jolt in coupling cars; it appearing that the jolt was not greater than is usual in such cases, and that she was aware that such jolts necessarily followed in the coupling of cars.-FELTON V. HORNER, Tenn., 37 S. W. Rep. 696.

24. CARRIERS OF PASSENGERS-Negligence in Starting Train. It is the duty of a railroad company to afford a sufficient time to passengers to alight in safety by the exercise of reasonable care and diligence on their part, and it is negligence on the part of such company to start a train when those operating it know, or by due diligence might know, that a passenger is in the act of alighting.-LUSE V. UNION PAC. RY. Co., Kan., 46 Pac. Rep. 768.

25. CHATTEL MORTGAGE - Collateral Agreement.-A creditor who obtains a chattel mortgage on a stock of goods of his debtors to secure his debt, at the same time entering into an agreement to take possession of the stock and continue the business for the benefit of himself and the mortgagors and their other creditors, in the absence of fraudulent representations or a viola. tion of the agreement on the part of the mortgagors, will not be permitted to ignore the agreement and sell the mortgaged property under his mortgage in the usual way, to the detriment of the mortgagors and their other creditors.-ROLFE V. BURNHAM, Mich., 68 N. W. Rep. 980.

6. CHATTEL MORTGAGE-Defective Verification.-A defect in the affidavit to a chattel mortgage will not invalidate the mortgage as against third persons if the mortgagee takes actual possession thereunder before their rights accrue.-CHICAGO TITLE & TRUST Co. v. O'MARR, Mont., 46 Pac. Rep. 809.

27. CHATTEL MORTGAGE Notice. The filing of a chattel mortgage on a growing crop of grain continues to be constructive notice to all the world, although the grain is threshed and removed from the land on which it was raised.-HOGAN V. ATLANTIC ELEVATOR CO., Minn., 69 N. W. Rep. 1.

28. CHATTEL MORTGAGE Record Possession. Where a mortgagee of personal property, without any intention to defraud, has delayed filling his mortgage and taking possession of the property, but the instru ment is in fact filed, or the mortgagee obtains and holds actual possession of the property under the mortgage before the rights or lien of any third party attaches, the lien of the mortgage is good against a creditor of the mortgagor who subsequently causes the property to be seized upon attachment or execution.FORRESTER V. KEARNEY NAT. BANK, Neb., 68 N. W. Rep. 1059.

29. CHATTEL MORTGAGE-Waiver.-Under Code Civ. Proc. 1887, § 358, declaring that there shall be but one action for the recovery of any debt secured by mortgage, "which action shall be in accordance with the provisions of this chapter," to-wit, chapter 1, tit. 10, relating solely to the foreclosure of mortgages, a creditor cannot waive his chattel mortgage security, sue on the debt, and attach his debtor's property, but must bring suit to foreclose.-LARGEY V. CHAPMAN, Mont., 46 Pac. Rep. 808.

30. CONSTITUTIONAL LAW.-An action may be maintained in the name of the State, on relation of a district attorney, to enjoin the payment of money from the State treasury on a warrant issued in pursuance of an act of the legislature which is claimed to be in violation of the State constitution.-STATE V. METSCHAN, Oreg., 46 Pac. Rep. 791.

31. CONSTITUTIONAL LAW-Delegation of Legislative Powers.-That part of Gen. St. 1894, § 399, which provides that the court may direct the manner in which notice may be given to the common carrier proceeded against is not violative of the constitutional provision which forbids the delegation of legislative powers to the judiciary. Nor have legislative powers been delegated in section 5979, which provides that the court or Judge allowing a writ of mandamus shall direct the

manner of serving the same.-STATE V. ADAMS EXP. Co., Minn., 68 N. W. Rep. 1085.

32. CONSTITUTIONAL LAW-Sale of Homestead by One Spouse.-Act March 25, 1874, § 1 (St. 1873-74, p. 582), provides that, if either husband or wife shall become hopelessly insane, the probate court, on application of the sane spouse, may make an order permitting the applicant to sell or mortgage the homestead. Section 2 provides for notice by publication and personal service on the nearest male relative of the insane spouse In the State, or, if no such relative reside in the State, then on the public administrator. Section 4 declares that, if the court makes the order, any conveyance shall be as valid as if the property was the absolute prop. erty of the person making such conveyance: Held, not unconstitutional as depriving the insane spouse of vested rights in property without due process of law. -RIDER V. REGAN, Cal., 46 Pac. Rep. 820.

33. CONSTITUTIONAL LAW-Special Law-Local Option. -A certain local option law granting charter powers to all the cities of a certain class, to take effect in each city only upon the adoption of the same by such city, contravenes sections 33 and 34 of article 4 of the constitution, prohibiting special legislation as to cities, and requiring all laws as to the same to be uniform in their operation throughout the State.-STATE V. COPELAND, Minn., 69 N. W. Rep. 27.

34. CONTRACT-Abandonment What Constitutes.An instruction that, if the conduct of a contractor for the erection of a building was such as to evince an intention to abandon the contract, then the owner would have the right to treat it as abandoned, is erroneous, where there was evidence tending to show that the contractor had fentered upon and was engaged in the performance of the contract at the time the owner took possession of the building and completed it.KILGORE V. NORTHWEST TEXAS BAPTIST EDUCATIONAL Soc., Tex., 37 S. W. Rep. 599.

35. CONTRACT-Breach-Damages.-In an action by an owner against contractors for failure to complete a house within the time fixed by the contract, plaintiff can recover the rental value as damages, although he did certain work just before the house was completed, which was not covered by the contract, where defendants, down to within a very few days before the work was completed, assumed to keep control of the house, and were from time to time at work on it, and said work consisted of plumbing which could not be put in until the house was substantially ready for occupancy. -COVODE V. PRINCIPAAL, Mich., 68 N. W. Rep. 987. 36. CONTRACTS

Construction. A principal telegraphing its agent, who had left its employ with his accounts unsettled, to come to its place of business at its expense, is not liable to the agent for the expenses of the trip, where the agent refuses to discuss the business matters between them.-BALLARD V. TRAVELERS' INS. CO., N. Car., 25 8. E. Rep. 867.

37. CONTRACTS Construction by Parties.-Plaintiffs leased of defendant a coal mine, agreeing to deliver to defendant a certain number of cars of coal each week, at a specified price, f. o. b. cars at the mine, unless prevented by strikes or circumstances beyond their control. When plaintiffs took possession, they notified defendant's superintendent that they were ready to deliver coal as soon as cars were furnished. The superintendent informed them that he would see that the necessary cars were furnished: Held that, under the construction thus put upon the contract by the parties, the failure of the defendant to furnish cars was a breach of a contract, for which it was liable.-CONSOLIDATED COAL CO. OF ST. LOUIS V. SCHNEIDER, Ill., 45 N. E. Rep. 126.

38. CONTRACT-Gaming Contract.-Where one pays money to another, who has won in games from a third person, at the request of the latter, the transaction is not affected by St. § 1955, providing that every contract for the consideration of money or other thing won, lost, or bet in any game, or for the consideration of money or other thing bet or advanced for the purpose