1046.

-

195. TAX SALE - Sheriff's Return. A sheriff's return of a tax sale, not stating that the sum received was the amount of the judgment, and costs, and that a sale of the entire parcel was necessary to raise such sum, shows a void sale.-MCGRATH V. WALLACE, Cal., 48 Pac, Rep. 719.

196. TAX SALE CERTIFICATES-Action to Set Aside.In an action to set aside a tax sale certificate issued on a sale of plaintiff's land for delinquent special paving assessments, where part of the tax was for keeping the pavement in repair, and void, and the court could not separate the illegal portion of the tax, it was error to strike an answer which properly pleaded the statute of limitations (Sanb. & B. Ann. St. § 1210h) providing that any suit to cancel any tax certificate for any defect going to the validity of the assessment, and affecting the groundwork of such tax, shall be brought within a year after the tax sale.-LEVY V. WILCOX, Wis., 70 N. W. Rep. 1109.

197. TENANCY IN COMMON-Purchase of Co-Tenant's Interest. Where a tenant in common is not required to pay the taxes on the interests of his cotenants, he may buy in for his own benefit, at tax sale, the undivided interest of a cotenant.-BENNET V. NORTH COLORADO SPRINGS LAND & IMPROVEMENT Co., Colo., 48 Pac. Rep. 812.

198. TENANTS IN COMMON-Adverse Possession.-Adverse possession by a tenant in common who has once acknowledged his cotenant's title will only run from the time the latter acquired knowledge of the adverse claim, unless the exclusive use has been so long con. tinued as to imply acquiescence therein by the cotenant.-SALADIN V. KRAAYVANGER, Wis., 70 N. W. Rep.

1113.

199. TRESPASS TO TRY TITLE.-In trespass to try title by a divorced wife against her former husband, in which plaintiff claimed that the land was community property, and defendant pleaded the statute of limita. tions, the charge as to adverse possession by a tenant in common should have stated that, if defendant did not pay for the land with his separate means, plaintiff was a tenant in common with him.-HOUSE V. WILLIAMS, Tex., 40 S. W. Rep. 414.

200. TRIAL-Jury-Waiver.-How. Ann. St. § 6622, de-. claring that all issues on the legality of marriage (except where physical capacity is involved) shall be tried by a jury, is not mandatory; and where a proceeding to annul a marriage has been noticed for hear ing without mention of a desire for a jury, and complainant is in attendance, ready for trial, the court may, in its discretion, refuse defendant's request for a jury trial on the issue of complainant's mental competency on the ground that the right to such trial has been waived.-MAIER V. LILLIBRIDGE, Mich., 70 N. W. Rep. 1032.

201. TRIAL-Separation of Jury.-It is the duty of the court to admonish the jury, if the jury are permitted to separate either during the trial, or after the case is submitted to them, as required by section 279 of the Code of Civil Procedure. But where the court has prior to any separation of the jury, and at each adjournment of court, admonished the jury as to their conduct during such separation, this is a substantial compliance with the statute. The mere accidental separation of the jury during the trial of the case, when the court's attention is occupied with the plead ings or instructions, should not be regarded as cause for a new trial, unless the losing party shows that he has been injured by such separation.-GLEASON V. STRAUSS, Kan., 48 Pac. Rep. 881.

202. TRUST DEED-Alteration. Where a trust deed was given to secure a note and to indemnify the surety thereon, a subsequent alteration reciting that said surety had also agreed to become surety on a renewal note for a specified sum was immaterial, the surety having signed the renewal note before the alteration was made.-FIRST NAT. BANK OF CRE EDE V. MINER, Colo., 48 Pac. Rep. 837.

203. TRUSTS-Improvements-Repairs.-Where a trust fund of a certain amount is created by a will, and the executors convey to the trustees, as part payment of the fund, a piece of real estate appraised at a certain sum, and it is shortly afterwards discovered that, owing to latent defects previously unknown to both parties, the buildings on the land require large expendi. tures to preserve them, such expenditures should be borne by the executors, and not charged as a payment on account of the trust fund, in an accounting between the executors and trustees.-STEVENS v. MELCHER, N. Y., 46 N. E. Rep. 965.

204. USURY Extension of Note.-Held, following Avery v. Creigh, 29 N. W. Rep. 154, 35 Minn. 456, that a promissory note not originally usurious cannot be made so by an agreement for an extension, subsequently entered into, in consideration of a payment of, or a promise to pay, usurious interest.-MORSE v. WELLCOME, Minn., 70 N. W. Rep. 978.

205. VENDOR'S LIEN-Enforcement.-In a suit to enforce a purchase-money lien reserved in a deed conveying legal title, with only covenant of general warranty, it is not necessary to make prior lienors, hold. ing liens against the property, parties, nor to refer the case to ascertain such liens, unless it appear that the vendor is insolvent. But if the plaintiff in his bill shows such liens, and proposes to have the purchase money go to discharge them, the owners of such prior liens must be parties.-MCCLAUGHERTY V. CROFT, W. Va., 27 S. E. Rep. 246.

206. VENDOR AND PURCHASER.-A bill to enforce a contract to buy land, and to foreclose a vendor's lien, showed that the widow and children of the deceased vendee, and also a railroad company, respectively occupied distinct portions of the land; that the company's occupancy commenced after the sale and deliv. ery of possession to the vendee; and that complainant did not know whether the vendee had acted for him. self, or as agent for the company; and set out all the facts relating to such question and the sale, and asked to have determined the respective relations of defendants to the contract: Held, that the bill was not mul tifarious, and the company was a proper party de

fendant.-PROCTOR V. PLUMER, Mich., 70 N. W. Rep.

1028.

207. VENDOR AND PURCHASER-Assumption of Mortgage Debt.-The grantee does not become personally liable for the payment of a mortgage debt by taking a deed which is made subject to a mortgage. Where land is conveyed in terms subject to a mortgage, the grantee does not undertake or become bound by the mere acceptance of the deed to pay the mortgage debt. In the absence of other evidence, the deed shows that he merely purchased the equity of redemption, and takes the land charged with the payment of the mortgage debt.-CRANE V. HUGHES, Kan., 48 Pac. Rep. 861. 208. VENDOR AND PURCHASER-Contract.-In an action by the vendor to have an executory contract for the sale of real estate declared forfeited, held, even though time is made the essence of the contract, the vendor cannot, after he has waived strict performance, enforce a forfeiture, without giving such notice of his intention to do so as will give the vendee reasonable opportunity to perform.-Mo v. BETTNER, Minn., 70 N. W. Rep. 1076.

209. VENDOR AND PURCHASER Fraud.-The undisclosed intention of the purchaser of property from a State to tender.“revenue bond:scrip" in payment, for the purpose of testing the question of its validity, is not a fraud that entitles the agents of the State to withhold possession after conveying the legal title.TINDAL V.WESLEY, U. S. S. C., 17 S. C. Rep. 770.

210. VENDOR AND PURCHASER-Sufficiency of Title.-A contract to convey land "in fee and unincumbered" is satisfied by the tender of a deed conveying a title which the grantor has acquired by adverse possession.-BARNARD V. BROWN, Mich., 70 N. W. Rep. 1038. 211. WATERS-Ice Ownership.-The owner of the land on the side of a meandered stream has the right to cut all the ice which forms on that portion of the stream owned by him, and may lease the privilege to another.-OLIVER V. ÖLMSTEAD, Mich., 70 N. W. Rep.

1036.

212. WATERS-Irrigation-Right of Way for Ditches. -Under Const. art. 3, § 15, providing that the use of all waters that are now appropriated, or may hereafter be appropriated, for any beneficial use, and the right of way over the lands of others for all ditches, drains, flumes, canals, and aqueducts necessarily used in connection therewith, shall be held to be a public use, the use of water to irrigate a particular tract of land, or working a particular mine, though such land or mine is owned by a single individual, is a public use; and the act of March 6, 1891, authorizing the condemnation of right of way for a ditch to convey water in such cases, under the power of eminent domain, is constitutional. -ELLINGHOUSE V. TAYLOR, Mont., 48 Pac. Rep. 757.

213. WATERS Prescription.Riparian Rights Where the natural outlet of a lake is closed, and an artificial outlet made, near which a dam for milling purposes is constructed and maintained for 40 years, whereby the water is caused to flow back over the lands of other riparian owners, rendering said lands valuable as pleasure resorts, the dam owner, so long as he retains his easement, has no right to lower the water below the level of the lowest point at which it has been during said period, so as to leave the shores marshy and unhealthful, and impair the value of the riparian property.-SMITH V. YOUMANS, Wis., 70 N. W. Rep. 1115.

214. WATER-Title of Appropriator.-The appropri ator of a part only of the water of a stream, the remainder being open to appropriation by others, takes title to the part appropriated, subject to the limitation that in its use he will not injure or pollute the remain. ing waters of the stream, to the detriment of other users, though subsequent in right, where the use made of it leaves it possible for him, by taking reasonable measures to that end, to enjoy his own rights and observe such limitation.-SUFFOLK GOLD MINING & MILLING CO. V. SAN MIGUEL CONSOL. MINING & MILLING Co., Colo., 48 Pac. Rep. 828.

Easement.

215. WATER AND WATER COURSES Where the owner of land on which is a natural stream, whose waters are used by him for domestic and irrigating purposes, conveys a part of the land, the grantees, who use one-half of the water continuously for 19 years, without objection by the grantor or the subse quent grantees of the remaining part of the tract, acquire a right to such use.-SMITH V. CORBIT, Cal., 48 Pac. Rep. 725.

216. WILLS-Construction.-M died, leaving him surviving two unmarried sons. By his will he gave the use and occupancy of all his property to his sons, and the survivor of them, during their lives, and provided that after the death of his two sons "and their heirs, if they had any," the property should go to his brother and sisters who, if the sons died without issue, would be their heirs. One of the sons married after M's death, and left issue him surviving; the other son hav ing previously died unmarried: Held. that the remainder to M's brothers and sisters could only take effect upon the death of his sons without issue then surviving, and that the issue of his son took the real estate in fee and the personalty absolutely.-IN RE MOORE'S ESTATE, N. Y., 46 N. E. Rep. 960.

217. WILLS-Insufficient Corpus.-D, by his will, after providing for the payment of his debts, and giving to his wife for life his household furniture, etc., gave to her "the interest upon the sum of $12,000, to be paid to her annually during the period of her natural life" by his executors, in lieu of her dower. He then made certain bequests, and gave the residue of his estate to his daughter. At the time he made his will, D sup posed his estate to be sufficient to carry out all its provisions: Held, that the provision for D's wife was intended as a gift of the income of $12,000, and not as an annuity; and accordingly, the estate, after paying debts, amounting to less than $12,000, the widow was entitled to the whole income, but not to have the deficiency in annual payments made up from the corpus of the estate.-IN RE DEWEY'S ESTATE, N. Y., 46 N. E. Rep. 1039.

218. WILLS Rights of Legatees.-The third and fourth clauses of a will each gave various pecuniary legacies, and provided that, if the residue of the estate "applicable to the payment of the legacies in this clause" should not be sufficient to pay them in full, "said legacies in this clause of my will contained shall be each proportionately reduced in amount." Clause 5 gave the residue to five persons named. Clause 6 empowered the executors to sell all the realty, and di rected them to pay the legacies with the proceeds: Held that, where the proceeds of the realty were not sufficient to pay the legacies given by the fourth clause, the legatees named therein, and not the residu ary legatees named in clause 5, were entitled to rents collected by the executors before the land was sold.LYON V. BROWN UNIVERSITY, R. I., 37 Atl. Rep. 309.

219. WITNESS-Competency of Physician.-Statement of witness that he received no information about testatrix except as a physician to enable him to take care of her, standing alone, justifies the inference that this knowledge was necessary to enable him "to prescribe or act" for her, so as to render him incompetent under Code Civ. Proc. § 1881, to testify in regard to it.-IN RE REDFIELD'S ESTATE, Cal., 48 Pac. Rep. 794.

220. WITNESS

Competency of Wife.-A wife may testify in her own behalf, in a suit between herself and another, to the creation by her of an agency in her husband, and to its execution by him.-MCADOW V. HASSARD, Kan., 48 Pac. Rep. 846.

221. WITNESS-Transactions with Decedent.-Where one of the parties to an action is an heir of a deceased person, who claims that the title to the land in controversy was transferred to his ancestor by the adverse party, such adverse party may testify that he had no transaction personally with the deceased, and that no transfer of title was ever made by him to the deceased. -MURPHY V. HINDMAN, Kan., 48 Pac. Rep. 850.

BICYCLE,

as baggage of passenger, 465.

BILLS AND NOTES. See also NEGOTIABLEINSTRUMENT. discharge of surety by an extension of note, 136, whether a note payable to one as a trustee, is a negotiable instrument, 90.

parol evidence to show the real character in which one signs a note, 136.

indorsement of maker's name on the back of a promissory note payable to his order does not make the maker indorser, nor the contract any other than that of a maker, 248, 250.

liability of a party not the payee who indorses his name on the back of a note, 248, 250.

the consideration for a promissory note executed to an incorporated college is the accomplishment of the purposes for which it is incorporated, and such consideration is sufficient, 282.

an extension granted to the principal on a note, without consent of the surety, releases the surety from liability, 340.

maker of a promissory note payable at a bank has the entire day of maturity in which to make pay. ment, and an action begun thereon just after the close of banking hours on the day it is due is prematurely brought, 506.

BOARD OF HEALTH,

power of State board of health to require compul. sory vaccination of public school children, 341. BOOKS RECEIVED, 15, 81, 165, 233, 252, 311, 413, 497, 518. BREACH OF PROMISE. See MARRIAGE. BROKER,

CALIFORNIA,

CARRIERS OF PASSENGERS-Continued.
liability of a steamboat company for baggage of
the passenger stolen from his state room, is
analogous to that of an innkeeper, 92.

rule requiring tender of fare in bills less than $2.00,
is reasonable, 116.

liability of, for damages on account of failure to
heat cars, 154.

liability of, to passengers carried gratuitously, 205.
liability in the absence of qualifying agreement,
205.

liability when there is an agreement between the

parties limiting the carrier's liability, 206.

where a carrier accepts as baggage a passenger's
goods which it knows are not so classified ordi-
narily it is responsible for them as baggage, 229,
232.

removal of baggage at destination, and liability of
carrier where passenger fails to remove, 229, 232,
liability of, to gratuitous passengers, 271.
cannot reject a person as a passenger otherwise
qualified, on the sole ground that he is blind, 280.
liability of a sleeping car company for loss of
effects of its passengers, 288.

liability of, to gratuitous passengers, 310.

invalidity of notices or memoranda on passenger tickets, 421.

bicycle as baggage of a passenger, 465. CENTRAL LAW JOURNAL,

prospectus of, at the commencement of its twentyfourth year, 1.

history and prospectus of, 29.

CHATTEL MORTGAGE,

priority of, over a laborer's lien, 37.

effect on, of assignment for the benefit of creditors, made within a few hours thereafter, 60.

a chattel mortgage executed in Iowa by a corpora
tion created by the laws of that State, but doing
business in Texas, in contemplation of insolv-
ency, and covering Texas property, cannot be en-
forced there though such mortgage was valid in
Iowa, 117.

COLLATERAL SECURITY. See PLEDGE.
COLORADO,

constitutionality of the Colorado inheritance tax
law, 465.

COMBINATION. See CONSPIRACY.
COMPROMISE. See ACCORD AND SATISFACTION.
CONFLICT OF LAWS,

a chattel mortgage executed in Iowa, by a corpo-
ration created by the laws of that State, but do-
ing business in Texas, in contemplation of insolv
ency, and covering Texas property, cannot be
enforced there though such mortgage was valid
in Iowa, 117.

construction of policy issued in one State, where applied for in another State, 202.

the rule of comity giving effect to contracts made beyond the limits of the State, does not extend to an agreement in a note to pay attorney's fee if suit is instituted thereon, as such agreement is for a penalty and tends to the oppression of the debtor and to encourage litigation, 203. interpretation of contract is governed by the law of the place where made, remedy thereon is governed by the law of the forum, 422.

CONSTITUTIONAL LAW-Continued.

paper devoted mainly to publications of scandal and immoral conduct, is not unconstitutional, 134.

the police power, 158.

can a man be compelled to vote, 212. constitutionality of State statute providing for pen. alty of attorney fee to be paid by railroad compa. nies in case of failure to settle damages, 219. validity of West Virginia statute making it unlaw ful to manufacture or sell oleomargarine, or adulterated food, 222.

validity of enactment as to the liability of railroad companies for fires caused by locomotive, 239. validity of Utah statute providing for jury of eight persons, 289.

the right of freedom of labor, 259.

validity of State taxation of property of express companies, 279.

validity of statute providing for the treatment of habitual drunkards in private institutions at the expense of the counties in which they reside, 280. jury of less than twelve, 293.

limitation of the power of States in attempting to regulate foreign corporations, 299.

in the absence of a statute making vaccination compulsory or a condition precedent to the right of children to attend public schools, a rule by the State board of health requiring a certificate of vaccination by pupils is invalid, 341. when a criminal convicted by a State court escapes and becomes a fugitive, pending his appeal to the State supreme court, it is competent for that court to order a dismissal of the appeal unless he shall within sixty days surrender himself, 341. validity of grant of elective franchise to women, 361.

nature of the majority required in favor of constitional amendments submitted to a popular vote, 377, 393, 388.

regulation of State requiring the [stoppage of trains at county seats is a reasonable exercise of its police power, 422.

validity of Illinois inheritance tax, 447. constitutionality of the Colorado inheritance tax law, 465.

validity of Missouri statute making debts due for labor preferred claims against the property of employer, 485.

the right to freedom of contract as between rail. road companies and its employees, 496.

the right of free speech in public parks of a city,

505.

validity of sale within the State of South Carolina of liquors brought therein in derogation of the South Carolina liquor dispensary law, 505. validity of State regulation of the property in animals, 506.

CONTEMPT,

classification of, 50.

CONTRACT,

meeting of the minds, 15.

the right to reward offered for an arrest, 31. validity of contract to make no will, 31.

power of municipal corporation to offer a reward for the apprehension of criminals, 57.

not to be performed within one year within the statute of frauds, 74, 79.

recent phases of contract law, 93.

the right of a third party to sue for breach of contract, 93.

where the contract is made for the special benefit of a third person, 95.

where a false representation is made, 97. of municipal corporation which is beyond the con. stitutional limit of indebtedness, validity of, 135. enforcement of ultra vires contract of corporation, 154.

for the sale of the fixtures of a post office, in which the seller, then postmaster, agreed to resign and

CONTRACT-Continued.

use his influence for the buyer, is against public policy and void, 155.

money paid on illegal contract cannot be recov ered, 155.

the rule of comity giving effect to contract made beyond the limits of the State, does not extend to an agreement in a note to pay attorney's fee if suit is instituted thereon, as such agreement is for a penalty and tends to the oppression of the debtor and to encourage litigation, 203.

validity of contract between husband and wife for separation, 208, 210.

tendency of court to frown upon suits for breach of agreement to marry, 239.

services rendered in expectation of marriage and without any expectation of other remuneration, will not sustain an action of assumpsit, 241. by attorney at law to render services to prevent the finding of an indictment against one accused or suspected of crime, is illegal and void as against public policy, 340.

where the vendor agreed to furnish material sult. able for painting a house, and the articles were delivered and used and paid for, and the purchaser did not detect that they did not correspond with the articles agreed to be furnished, he may sue for breach of contract, 347.

where one contracts to construct an elevator in a building, and before completion of the work the building is accidentally destroyed, the contractor is excused from further performance, but is entitled to nothing for work already done, 361. performance of impossible contract, 367, 369. interpretation of, controlled by the law of the place where made, 422.

remedy upon a contract will be administered ac. cording to the law of the place where the remedy is sought, 422.

recent phases of contract law, 93, 424.

the right of third party to sue for a breach of duty, 424.

the right to freedom of, 496.

action against a party for inducing a third person to break a contract, 505.

how far the assets of an insolvent corporation constitute a trust fund for the benefit of creditors, 2. validity of preference by an insolvent corporation to its officers, 2.

fraudulent acts of officers and directors of insolyent corporations, 49.

validity of mortgage of an insolvent corporation to its president, 70.

a chattel mortgage executed in Iowa by a corporation created by the laws of that State, but doing business in Texas, in contemplation of insolv. ency, and covering Texas property, cannot be enforced there though such mortgage was valid in Iowa, 117.

enforcement of ultra vires contract of corporation,

154.