ing agent of the insurance company the facts in rela. tion to an incumbrance on the property it is proposed to insure, and the agent, asserting that such facts are not material, has inserted in the application which is signed by the applicant a statement that there is no incumbrance on the property, but there is nothing to show that the company would have declined the risk if it had known of the incumbrance, nor that either the insured or the agent perpetrated any fraud on the company, the insurance company, in case of a loss, is llable upon a policy issued upon such application, notwithstanding it contains a stipulation that any false answer in the application should render it void.PHOENIX INS. Co. v. WARTTEMBERG, U. s. C. C. of App., Ninth Circuit, 79 Fed. Rep. 245.

61. INSURANCE-Proof of Amount of Loss.-Where the books showing the amount of goods in a mercantile house when destroyed by fire were also burned, evi. dence showing the amount of stock on hand when an inventory was taken, the quantity purchased afterwards and before the fire, the amount of sales made, and the average profits charged thereon, is admissible to prove theamount of the loss.-SCOTTISH UNION & NATIONAL INS. CO. OF EDINBURGH, SCOTLAND, V. KEENE, Md., 37 Atl. Rep. 33.

62. JUDICIAL SALE-Setting Aside.-Where property owned by minors was bid off at a foreclosure sale for the amount of the incumbrance and costs, under a ver. bal agreement between the purchaser and the guardian of the minors (which was afterwards reduced to writing) that the purchaser should pay a higher price for the property, the remainder to be paid to the guardian before the time for redemption from the sale expired, an assignee of the certificate of sale took it charged with the equities arising from such agreement, though he had no actual knowledge of it; and, though the agreement cannot be enforced against him, unless the price agreed on is paid, the sale will be set aside at suit of the guardian, and a resale ordered.-BRUSCHKE V. WRIGHT, Ill., 46 N. E. Rep. 813.

64. JUDGMENT-Effect as Adjudication. Where a defendant pleaded as a counterclaim one-half of the amount of a payment made by him on a note which he alleged was given for the joint benefit of himself and plaintiff, and issue joined on such allegation was determined in his favor, and judgment rendered for his counterclaim, such judgment constitutes an adjudication, as between the parties, that each is liable for one-half the note, and estops the plaintiff from deny. ing his liability in an action to recover on account of a subsequent payment made by defendant thereon.REED V. CROSS, Cal., 48 Pac. Rep. 491.

65. JUDGMENT-Res Judicata. In mandamus to com. pel county commissioners to levy a tax to pay judg. ments rendered on county warrants, defenses predi. cated on the invalidity of such warrants are not avail. able.-BOARD OF COM'RS OF RIO GRANDE COUNTY V. BURPEE, Colo., 48 Pac. Rep. 539.

66. JUDGMENTS- Vacation Res Judicata.-A judg ment entered in violation of an agreement to extend the time to answer is taken through defendant's "surprise or excusable neglect," within Hill's Ann. Laws, § 102, authorizing the court, in its discretion, to relieve a party from such judgments; and hence denial of an application under the statute to vacate the judgment bars a suit in equity for the same relief.-THOMPSON V. CONNELL, Oreg., 48 Pac. Rep. 467.

67. JUDGMENT-Validity. - A judgment which is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at

any time upon motion of the defendant.-GILLE V. EMMONS, Kan., 48 Pac. Rep. 569.

68. JUDGMENT BY DEFAULT — Injunction.-An Injunc tion against the enforcement of a judgment by default should not be granted to allow defendant a set-off or diminution of the damages allowed in the action, on grounds which could have been raised therein, if it is not shown that the judgment plaintiff is insolvent, and no sufficient reason appears why a defense was not made.-TWIGG V. HOPKINS, Md., 87 Atl. Rep. 24.

69. LIBEL-Evidence-Mitigation of Damages. -In an action for newspaper libel, where defendant does not plead a justification, evidence that no investigation as to the truth of the matter was made before publication, because the source from which the information came had been found by experience to be reliable, is admissible to mitigate damages. FOLWELL V. PROVIDENCE JOURNAL CO., R. I., 37 Atl. Rep. 6.

70. LIFE INSURANCE - Suicide - Burden of Proof.-In an action on a life policy, void if the assured committed suicide, the issuing of the policy and the death of the assured made a prima facie case for plaintiff. Defendant then read in evidence the proof of claim fur. nished by plaintiff, in which the cause of death by the assured was stated as "pistol shot from his own hand." This admission was unexplained and uncontradicted by plaintiff: Held, that the burden of proof was shifted to plaintiff, and a verdict was properly directed for defendant.-SPRUILL V. NORTHWESTERN MUT. LIFE INS. Co., N. Car.. 27 S. E. Rep. 39.

71. LIFE INSURANCE-Surrender by Pledgee.-The surrender before maturity of an endowment policy, by one to whom it was assigned as security for a de. mand note, is unauthorized, and the assignee will be required to account for the proceeds, where the assignment did not provide for a surrender or sale, and no demand was made for payment of the note, and no notice given to the assignee of the intention to surrender.-MANTON V. ROBINSON, R. I., 37 Ati. Rep. 8.

72. LIMITATIONS Fraudulent Conspiracy.-Wrong. ful acts or omissions of conduct performed or omitted in pursuance to a fraudulent conspiracy, and not the conspiracy itself, constitute a cause of action; and the statute of limitations begins to run from the performance of such conduct or the omission of such acts if known to the injured party, and not from the time of his discovery of such conspiracy.-RIZER V. BOARD OF COMRS. OF GEARY COUNTY, Kan., 48 Pac. Rep. 568.

78. MANDAMUS — Writ of Brror.-If final judgment be rendered on a demurrer to an alternative writ of mandamus, a writ of error will lie.-STATE V. HUDSPETH, N. J., 37 Atl. Rep. 67.

74. MASTER AND SERVANT - Assumption of Risk.-A person, under age, who is employed in operating a dangerous machine, knowing it to be so, and being old enough to appreciate its dangers, assumes those risks which are incident to its operation, to the same extent as a person of mature years; and no action will lie against his employer for injuries received by him in such a case.-DUNN V. MCNAMEE, N. J., 87 Atl. Rep.

61.

75. MASTER AND SERVANT-Fellow-servants.-The car repairer of an electric railway is not a fellow-servant of a conductor whose death was caused by inadequacy of repairs.-DENVER TRAMWAY CO. V. CRUMBAUGH, Colo., 48 Pac. Rep. 503.

76. MINES AND MINING - Location.-When a vein of mineral-bearing rock, in its course lengthwise, after passing under the surface limits of one location, on which it outcrops, crosses nearly at right angles the side lines of another, prior location, on which it also outcrops, the side lines of such prior location becoming, by reason of the course of the vein, its end lines, the right to follow the lode in its downward course, between the vertical planes drawn through such side end lines, belongs to such prior location, and the extralateral rights of the other location cease when the vertical plane so drawn between the two locations is

reached.-TYLER MIN. Co. v. SWEENEY, U. S. C. C. of App., Ninth Circuit, 79 Fed. Rep. 277.

77. MORTGAGE-Assumption Statute of Frauds.-If the grantee, in consideration of the conveyance, promise to pay a mortgage on the land given by his grantor, he thereby makes the debt his own, and such a promise is not within the statute of frauds.-THOMP SON V. CHEESMAN, Utah, 48 Pac. Rep. 477.

78. MORTGAGE

Foreclosure Pleading.-When suit for the foreclosure of a mortgage has been com. menced, based upon a default in interest alone, and, while the suit is pending, the trustee of the mortgage, under the provisions thereof, elects to declare the principal of the bonds secured by it due because of the non-payment of interest, such election is properly the subject of a supplemental bill, but, if introduced into the suit by amendment to the original bill, objection must be made by demurrer, plea, or answer; otherwise it is waived.-SEATTLE, ETC. RY. Co. v. UNION TRUST Co., U. 8. C. C. of App., Ninth Circuit, 79 Fed. Rep. 179.

79. MORTGAGE - Marshaling of Securities.-A mort. gagee is not chargeable with constructive notice of subsequently recorded judgments against the mortgagor which are liens on the mortgaged property, and his lien will not be postponed to that of the judgments because he permitted the debtor to divert personal property on which he also had a lfen, where at the time he had no actual knowledge of the existence of the judgments.-ANNAN V. HAYS, Md., 37 Atl. Rep. 20.

80. MORTGAGES-Sale of Parcels Release.-Where a mortgagee receives the price of a portion of the mortgaged premises sold by the mortgagor, and executes a release as to such portion, with notice, recited in the release, of a prior deed of another portion to a different grantee, who had received no release, he will be charged, in foreclosing as against such prior grantee, with the value of the land released, in reduction of the mortgage debt, unless he has already credited Its value as a payment on the mortgage.-LONGSTREET V. BROWN, N. J., 37 Atl. Rep. 56.

81. MORTGAGE BY EQUITABLE OWNER.-The equitable owner of land may compel a conveyance of the legal title, and a surrender of possession, though she has given to a third person a mortgage, which has not been foreclosed, conveying her "legal and equitable estate."-LACKEY V. MARTIN, N. Car., 27 S. E. Rep. 35. 82. MUNICIPAL CORPORATIONS-Defective SidewalksAction Over.-The owner of a building is bound by a judgment against a city for injuries caused by an opening in the sidewalk, made and left unguarded by him, rendered in an action which he was notified by the city to defend, though he did not appear or defend, and was not a party to the action.-CITY OF PAWTUCKET V. BRAY, R. I., 37 Atl. Rep. 1.

83. MUNICIPAL CORPORATION - Division of Territory. -When a municipal corporation is divided, the old corporation retains title to all its property, unless provision is made to the contrary by the act authorizing the division.-INHABITANTS OF TOWNSHIP OF BLOOMFIELD v. MAYOR, ETC. OF BOROUGH OF GLEN RIDGE, N. J., 37 Atl. Rep. 63.

84. MUNICIPAL CORPORATIONS-Occupation Tax.-Code 1892, § 2972, giving to certain municipalities power to levy an occupation tax, "the same not to exceed fifty per centum of the State license tax upon the same callings," limits the power of the municipalities to levy on only such occupations as the State has levied upon.-TOWN OF GREENWOOD V. DELTA BANK, Miss., 21 South. Rep. 747.

86. NATIONAL BANKS-Judgments-Receivers.-While the receiver of an insolvent national bank may interpose and become a party to a suit to enforce a claim against the bank, he is not a necessary party to such a suit, and a judgment rendered against the bank by a court of competent jurisdiction, in a suit to which he is not a party, is binding upon the receiver, in the absence of fraud or collusion.-DENTON V. BAKER, U. S. C. C. of App., Ninth Circuit, 79 Fed. Rep. 189.

87. NATIONAL BANKS-Usury-Recovery of Penalty.Under the Revised Statutes of the United States (sec tion 5198), which authorize the person paying usurious interest to a national bank to recover twice the amount paid, several of the joint makers of a note on which illegal interest is paid by such parties individ ually cannot unite in one action to recover such penalty.-TEAGUE V. FIRST NAT. BANK OF SALINA, Kan., 48 Pac. Rep. 603.

89. NEGLIGENCE- Liability of Lessee.-Lessees of a building damaged by fire, and being repaired under a contract, are not liable to an employee of the con tractor injured while working in the elevator shaft by the moving of the elevator; such use as they had of the building at the time being permissive, the elevator not being completed or having been turned over to them, though they were allowed to carry some goods by means thereof to the upper floors, and it not being shown that they, or any one in their employ, started the elevator.-REILLY V. SHANNON, Penn., 37 Atl. Rep.

91. PARTITION Interlocutory Decree.-Where it ap pears, on partition of property which cannot be equitably divided by metes and bounds, but must be sold, that a contest is pending in probate court between certain of the parties over the interest of a deceased cotenant, the court may make an interlocutory decree, definitely fixing the proportion to which each party is entitled, so far as undisputed, and also the quantity belonging to the estate of the deceased cotenant, leav ing the rights of the contesting claimants, as between themselves, to be determined by the probate court.GRANT V. MURPHY, Cal., 48 Pac. Rep. 481.

92. PARTNERSHIP-Change of Membership.-The pur chaser or transferee of the interest of a partner in a firm is entitled only to the interest of such partner in the assets after the liabilities of the firm are paid, and is not liable for debts of the old firm, unless he expressly or impliedly agrees to assume them.-NIX V. FIRST NAT. BANK OF PUEBLO, Colo., 48 Pac. Rep. 522. 93. PARTNERSHIP - Payment of Individual Debts.Where a co-executor, who had wrongfully withdrawn funds of the estate,repaid,the same with cash belonging to a firm of which he was a member, and with a firm check drawn to his order, and indorsed to the estate, he alone was liable to the firm, and not the estate, which had no knowledge that it was partnership money.-IN RE LAFFERTY'S ESTATE, Penn., 87 Atl. Rep.

113.

94. PRACTICE-Dismissal for Want of Prosecution.~It is not an abuse of discretion for a court to dismiss an action for want of prosecution where it was dropped from the calendar nearly three years before by a verbal agreement between the attorneys, not au thorized by the defendant, to await the determination

of another action; there being no agreement filed as provided by Code Civ. Proc. § 283.-MCLAUGHLIN V. CLAUSSEN, Cal., 48 Pac. Rep. 487.

95. PRINCIPAL AND SURETY-Contribution.-An ac. tion at law by a surety for contribution lies only against the co-sureties severally for the aliquot part due from each.-ADAMS V. HAYES, N. Car., 27 S. E. Rep. 47.

Consolidation. - Where

96. RAILROAD COMPANIES railroad companies are consolidated under the statute, the consolidated company is answerable for torts of the old companies, in the absence of evidence or stipulation to the contrary.-HUTCHISON & S. R. Co. v FAIR, Kan., 48 Pac. Rep. 591.

97. RAILROAD COMPANIES - Insolvency-Judgments for Personal Injuries.-A judgment creditor of a rail. road corporation, whose claim originated in the negli gent act of the corporation's servants, is not entitled to be paid in preference to the holders of pre-existing llens upon the corporation's property.-FARMERS' LOAN & TRUST Co. v. NORTHERN PAC. R. Co., U. 8. C. C. of App., Ninth Circuit, 79 Fed. Rep. 227.

98. RAILROAD COMPANY-Mortgages-Foreclosure.On the foreclosure sale of a railroad, then in possession of a receiver, one divisiyn of the road was sold subject to a prior mortgage, which expressly secured to the bondholders the net income of the property af ter default in interest. While the road was still in possession of the receiver, a suit was brought to foreclose this senior mortgage, and the existing receiver was also appointed as receiver in that suit, and continued in possession until the sale, some years later, under the senior mortgage: Held, that the purchaser at the first sale was not entitled to the net earnings of the division covered by the senior mortgage, which had accumulated in the hands of the receiver, after his appointment in the second sult, but the same belonged to the bondholders under the terms of the mortgage. -DOWNS V. FARMERS' LOAN & TRUST CO., U. S. C. C. of App., Fifth Circuit, 79 Fed. Rep. 215.

99. RAILROAD COMPANY Mortgage Foreclosure.-A purchaser of a railroad at foreclosure sale, who resists the confirmation of the sale, and ultimately procures the setting aside of a decree of confirmation, and a release from his bid, is not entitled to be paid, out of the trust fund, his attorney's fees and expenses incurred in that behalf, but can only receive the ordinary taxable costs; and it is immaterial that the services of his counsel may have Incidentally benefited the fund. -FARMERS' LOAN & TRUST CO. v. GREEN, U. S. C. C. of App., Fifth Circuit, 79 Fed. Rep. 222.

100. RAILROAD COMPANY-Negligence.-A street car company cannot be held liable for injury to one riding on a wagon which is negligently turned to cross the track when the car is but a short distance from it; the speed of the car at the time being moderate, there being no negligence in its management, and everything being done to stop it as soon as possible.-KANE V. PEOPLE'S PASS. RY. Co., Penn., 37 Atl. Rep. 110.

101. RAILROAD COMPANY-Negligence.-It was negli gence, as a matter of law, for a bright, active boy, 13 years old, a trespasser on a train who knew the at tendant danger, to voluntarily attempt to jump from a train which was running 20 miles an hour.-HOWELL V. ILLINOIS CENT. R. Co., Miss., 21 South. Rep. 746. 102. RAILROAD COMPANY-Negligence and Contributory Negligence. Testimony that deceased, killed on the fourth track at a crossing, stopped a few feet before the first track, then started across, and that at the time there was a severe rain storm and it was almost as dark as night; an admission that no whistle was blown; conflicting testimony as to whether the bell was rung, and whether at the time there was a watchman at the crossing; and evidence that the train was running from 38 to 50 miles an hour-present a case for the jury, on the questions of negligence and contributory negligence.-LAIB v. PENNSYLVANIA R. Co., Penn., 37 Atl. Rep. 96.

103. RAILROAD COMPANY Preferred Debts.-Money advanced to a railroad company at various times to pay floating debts and interest coupons, and bonds loaned it to be pledged for the price of necessary rails to be purchased, and which bonds it is unable to return, do not constitute a debt which is entitled to a preference over the mortgage bonds upon the appointment of a receiver in foreclosure proceedings.SOUTHERN DEVELOPMENT CO. v. FARMERS' LOAN & TRUST CO., U. S. C. C. of App., Fifth Circuit, 79 Fed. Rep. 212.

104. RECEIVERS-Liability for Rent.-Where receiv ers appointed to take charge of railroad property took possession of a leased line, and operated it for 18 months, keeping no separate account of its earnings and expenses, but applying them for the benefit of the entire system, of which it was treated as an integral part, and the rent which fell due a few days after the appointment of the receivers was paid by them with the sanction of all parties, and the several bills under which the receivers were appointed, and the orders of court made thereon, looked to the maintenance and full preservation of the entire system, including leased lines, and the lessor was not proceeded against as an insolvent corporation, these facts, in connection with the judicial admissions from time to time that the rent which became due more than a year after the appointment of the receivers was a debt which they were required to provide for, require that the rental for the entire period during which the receivers were in possession should be treated as a receivership obligation, contracted under the authority of the court.-CENTRAL RAILROAD & BANKING CO. OF GEORGIA V. FARMERS' LOAN & TRUST Co., U. S. C. C., S. D. (Ga.), 79 Fed. Rep. 158.

105. RAILROAD COMPANY-Preference.-The purchase by a railroad company, under contracts made from about sixteen months to over two years before the ap pointment of a receiver, of some 20,000 tons of steel rails,to replace the old and deterioratedrails with which its tracks were laid, to be paid for by its notes, due in six months, renewable for six months longer at the railroad company's option, is not a purchase of supplies in the ordinary operation of the road to keep it a going concern, so as to authorize the court appointing the receiver to give the debt a preference over the mortgage debt.-LACKAWANNA IRON & COAL Co. v. FARMERS' LOAN & TRUST Co., U. S. C. C. of App., Fifth Circuit, 79 Fed. Rep. 202.

106. RAILROAD COMPANY-Stock Killing.-If horses break out of their owner's pasture lot and stray upon a railroad track, without fault on the part of the railroad company, and there are killed through the negligence of the company's servants, the negligence of the owner in permitting the horses to stray will bar him from recovering damages, for their loss. CASE V. CENTRAL R. CO. OF NEW JERSEY, N. J., 37 Atl. Rep. 65. 107. RAILROAD COMPANY Street Railroads-Use of Street. A street car company, which has the right to use a street for its cars, is not guilty of negligently obstructing the street by allowing one of its cars to remain on a spur track on the street for a reasonable time for the purpose of allowing another car to pass.FORD V. CHARLES WARNER, Co. Dela., 37 Atl. Rep. 39.

108. REMOVAL OF CAUSES.-Where local citizens, employed as day-laborers by a foreign railroad company commit a trespass under its direction, and are joined as defendants with the company in an action for the trespass, there is not a separable action against the company, which it may remove to the federal court, on the ground of diversity of citizenship between it and plaintiff; and hence a mere general allegation in toe petition for removal that the other defendants were fraudulently joined, to prevent a removal, was unavailing.-ILLINOIS CENT. R. Co. v. LE BLANC, Miss., 21 South. Rep. 748.

109. REPLEVIN-Judgment on Bond.-In replevin, a judgment against the principals and surety on the

bond is absolutely void, when rendered after the death of the surety.-WEIS V. AARON, Miss., 21 South. Rep. 763. 110. RES JUDICATA.-The decision of the court overruling motions made by the assignor and assignee to discharge property of an insolvent debtor from an attachment levied thereon is not such a final adjudication of the validity of the deed of assignment as will preclude the assignee from maintaining an action of replevin to recover the attached property, even though the sole ground for the attachment was that the deed of assignment was fraudulent, and the trial of the motions was had on oral testimony bearing on this point. The fact that the attachment was on a claim not due does not change the rule.-BLAIR V. ANDERSON, Kan., 48 Pac. Rep. 562.

111. SALE-Conditional Sales-Estoppel.-The seller of goods is not estopped from claiming title to them, on a conditional sale, by the fact that he accepted a chattel mortgage on them from the buyer in posses. sion, foreclosed it on default, as shown by the records, and again delivered them to the buyer under the origi. nal contract; the validity of the conditional sale and the mortgaged being unquestioned.-GOODKIND V. GILLIAM, Mont., 48 Pac. Rep. 548.

112. SALES-Construction.-Under a contract for the sale of coke at 90 cents per ton, "said price to continue until there may be a general advance in the market price of coke, then and in that event the price to be the lowest rate at which coke is sold to the larger and better consumers of coke in the market," the expression "general advance in the market price of coke," must be regarded as meaning a general advance over the 90 cents per ton named in the contract, and not a general advance over what was the market price of coke at the time the contract was made.-SPANG V. RAINER, U. S. C. C. of App., Second Circuit, 79 Fed. Rep. 250.

113. SCHOOL TRUSTEE-Purchases.-A school trustee, under his authority to "provide suitable furniture, apparatus, and other articles and educational appliances necessary for the thorough organization and efficient management" of the school of his township (Rev. St. 1894, § 5920; Rev. St. 1881, § 4444), cannot buy "reading circle books" and render the township lia. ble therefor.-FIRST NAT. BANK V. ADAMS SCHOOL TP., Ind., 46 N. E. Rep. 832.

114. ΤΑΧΑΤΙΟΝ -Assessment - Ownership.-In ascertaining the ownership of property for the purposes of taxation, the record title, in the absence of actual knowledge, must control. It is unnecessary for the assessing officer to investigate all matters pertaining to the ownership of the property or the validity of the record, but he has the right to act upon the appear. ance of title as shown by such record.-STATE TRUST Co. v. CHEHALIS COUNTY, U. S. C. C. of App., Ninth Circuit, 79 Fed. Rep. 282.

115. TAXATION OF MORTGAGES IN HANDS OF AGENT OF NON-RESIDENT.-Debts owned by a non-resident of the State of Ohio, evidenced by notes and mortgages upon real estate within the State, are not taxable there, under Rev. St. Ohio, §§ 2731, 2734, 2735, although the notes and mortgages are in the hands of a resident agent, who made the loans, and collects and remits principal and interest as they become due -JACK V. WALKER, U. S. C. C., S. D. (Ohio), 79 Fed. Rep. 138.

116. TRIAL- Instructions - Exceptions.-Exceptions to a charge to the jury, not taken until after the jury has retired, will not be noticed on appeal, especially where the objections to the charge are of such a nature that they might have been remedied had the court's attention been called to them at the proper time.-NEW ENGLAND FURNITURE & CARPET Co. v. CATHOLICON Co., U. S. C. C. of App., Eighth Circuit, 79 Fed. Rep.

294.

117. TRIAL-Tender of Issues.-Code, § 395, providing that the material issues "arising upon the pleadings" shall be made up by the attorney "or by the judge," is mandatory; and where the judgment is based on issues

-

which, though submitted by consent, wholly fail to present the real contentions of the parties, a new trial will be ordered.-TUCKER V. SATTERTHWAITE, N. Car., 27 S. E. Rep. 45. 118. USURY Conflict of Laws.-A note on its face payable in Mississippi, though dated in Louisiana, and secured by mortgage on lands in that State, being given for a loan effected in Mississippi, where the money was paid and was to be paid back, and being given without any reference to performance under Louisiana laws, is subject to the usury laws of Missis sippi.-COMMERCIAL BANK V. AUZE, Miss., 21 South. Rep. 754.

119. VENDOR AND PURCHASER- Part Performance.An offer by letter to sell land upon terms therein stated, orally accepted by the proposed vendee, and executed by him as to part of such terms, is a valid contract of sale, as against the statute of frauds, and entitles the vendee, if in possession, to resist ejectment brought against him by the vendor, and to show by oral evidence his readiness and ability to complete the purchase according to such contract, and that his failure to do so is attributable to his vendor.-BOGLE V. JARVIS, Kan., 48 Pac. Rep. 558.

120. WATERS - Irrigation - Prorating.-Act 1879, § 4 (Gen. St. § 1722), providing for prorating water actually carried by an irrigation ditch, among all the consumers therefrom, in time of scarcity, so that all such consumers shall suffer proportionately, does not interfere with priorities, or invalidate, as between the parties, contracts for prorating.-LARIMER & WELD IRR. Co. v. WYATT, Colo., 48 Pac. Rep. 628.

121. WATERS - Navigable Waterway.-An artificial ditch connecting with a navigable stream, but constructed by private parties for the benefit of adjacent property, and which has been filled up by the owners of such property for most of its length, and abandoned for the uses for which it was designed, is not a public, navigable waterway, and is subject to condemnation for public purposes.-LIGARE V. CHICAGO, ETC. R. CO., Ill., 46 N. E. Rep. 803.

122. WATERS-Public Lands-Appropriation.-Miners and others, in the region where the artificial use of water is an absolute necessity, have the right, though not riparian proprietors, to appropriate for mining, irrigation, etc., the waters of non-navigable streams flowing through the public lands, so far as not already appropriated by others; and the previous establish ment of a government reservation below the point of appropriation does not affect the right, except so far as the waters of the stream have been previously ap -KRALL V. propriated for the use of such reservation. UNITED STATES, U. S. C. C. of App., Ninth Circuit, 19 Fed. Rep. 241.

123. WATER RIGHTS-Parties to Action.-A ditch com pany may maintain an action to secure or protect its water rights as representing its stockholders and con sumers without joining them as parties. -MONTROSE CANAL CO. V. LOUTSENHIZER DITCH Co., Colo., 48 Pac. Rep. 532.

124. WILLS

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Charitable Bequests - Perpetulties.-A bequest in trust, for the erection in a public park of a memorial arch in memory of Pennsylvania soldiers, upon which are to appear statues of certain Union generals, and also a statue of testator, with his name in large letters underneath, is a charitable gift; and the direction that the income of the residue of the etate be appropriated for the maintenance and repair of the monument does not violate the statute against perpetuities. -IN RE SMITH'S ESTATE, Penn., 87 Atl. Rep. 114.

125. WILLS-Naked Trust.-A provision in a will that three persons take as trustees, the real estate of testa and devote the same to the erection and main tenance of an institution for the education of poor

tor,

children, vests a naked power in the trustees; and hence, on the death of one of them before the will takes effect, the trust becomes vold. HADLEY, Ind., 46 N. E. Rep. 823.

HADLEY V.