to preclude the trustee from subsequently suing to subject the property to the payment of the mortgage, especially as the sale was set aside at the instance of the mortgagor.-JENNINGS V. PARR, S. Car., 28 S. E. Rep. 82. 79. MORTGAGES - Limitations - Contractual Rights.Act March 25, 1889, §§ 1, 2 (Sand, & H. Dig. §§ 5094, 5095), provide that mortgages shall be subject to the same limitation as to time as is applicable to the evidence of debt thereby secured, require a payment which would extend the period of limitations to be indorsed on the margin of the record of the mortgage, and allow one year from the date of the passage of the act for the foreclosure of mortgages which would otherwise be barred by its provisions in less than one year: Held, that the act is not unconstitutional, as impairing the obligation of antecedent contracts.-HILL v. GREGORY, Ark., 42 8. W. Rep. 408. 80. MORTGAGES Priority - Recording.-Under Rev. St. 1894, § 3350 (Rev. St. 1881, § 2981), requiring every mortgage to be recorded, and declaring that, when not recorded in 45 days from execution, it shall be void as against a subsequent bona fide mortgagee, the second mortgage, duly recorded, takes precedence of the first mortgage, not recorded within 45 days of its execu. tion, though the second mortgage was executed within such 45 days.-CARSON V. EICKHOFF, Ind., 47 N. E. Rep. 1067. 81. MUNICIPAL CORPORATIONS - Constructing Sidewalk. Where an ordinance authorizes the city council to order the construction of a sidewalk, by resolution which shall be served on the adjoining lot owners, and provides that, in case the owner fails to construct the walk within the time fixed, the work shall be done on contract at his expense, service of the resolution is a condition precedent to the right to have the walk con. structed at the expense of the lot owner. — HAWLEY V. CITY OF FT. DODGE, Iowa, 72 N, W. Rep. 756. Charter 82. MUNICIPAL CORPORATIONS - Contracts Powers. Though San Diego City Charter, ch. 5 (St. 1889, p. 664), conferred on the common council power to employ special counsel, either by joint resolution or by ordinance, a resolution providing for such em. ployment, and specifying the terms thereof, which was adopted without having indors d thereon or attached thereto a certificate of the auditor that the liability thereby created could be incurred without violating any of the provisions of the charter, as required by charter provision (St. 1889, p. 659, § 14), was void. POLLOK V. CITY OF SAN DIEGO, Cal., 50 Pac. Rep. 769. 83. MUNICIPAL OFFICERS Appointment and Removal. An appointment made to an office by a city council at a time when the office has been declared not vacant by the supreme court, and made without first removing the incumbent declared to be legally entitled thereto, is void. - MCALLISTER V. SWAN, Utah, 50 Pac. Rep. 812. 84. NEGLIGENCE - Proximate Cause. Negligence is the proximate cause of an inj ry only when the injury is the natural and probable result of such negligence, and, in the light of the attendant circumstances, ought to have been foreseen by a person of ordinary intelligence and prudence. DEISENRIETER V. KRAUSMERKEL MALTING CO., Wis., 72 N. W. Rep. 735. 85. (FFICERS-De Facto and De Jure Officers.-Where the incumbent of a municipal office, filled by appointment of the mayor with the consent of the common council, is wrongfully removed by the council, and another placed in his position by the mayor, without the council's consent, the appointee is a mere intruder, and not an officer de facto; and hence payment of the office salary to him does not relieve the city from lia. bility therefor to the de jure officer.- KEMPSTER V. CITY OF MILWAUKEE, Wis., 72 N. W. Rep. 743. 87. PARTNERSHIP-Firm Debts - Evidence.-Certain book entries of a new firm indicated that it assumed the debt of one of its members to a member of the old rm for the price of his interest in assets of the old m that became assets of the new firm, but the members of the new firm denied that it assumed such debt, and stated that said entries were made simply for con venience. Said old firm member had sued the new firm member, who purchased his interest for the debt, and had obtained a judgment without making the other member of the new firm a party: Held, the new firm did not assume said debt.-BROWNLEE V. LOBES STEIN, Tenn., 42 S. W. Rep. 467. 88. PLEADINGS-Supplemental Petition.-In an action to recover damages for injury to property, resulting from the maintenance of a nuisance, a claim for addi tional damages accruing since the commencement of the action, from a continuance of the same nuisance, may be set up by supplemental petition.-FOOT V BURLINGTON GASLIGHT CO., Iowa, 72 N. W. Rep. 735. 89. PLEDGE OF NOTES-Action by Pledgor.-The fact that a party had transferred certain notes held by him to another person as collateral did not withdraw en tirely from him the power of protecting his interests by proceeding against the maker of the notes.-O'KEL LEY V. FERGUSON, La., 38 Atl. Rep. 783. 90. PRINCIPAL AND AGENT Knowledge of AgentWhere a homestead is conveyed by husband and wife to enable the grantee to procure a loan for the hus band in avoidance of the homestead laws, with the un derstanding that the property shall thereafter be reconveyed, one who lends money to the grantee, and takes a mortgage on the land as security, is charge able with the knowledge of his agent, who acted for him in the negotiation for the loan, as to the simulated character of the transaction, in the absence of any evidence that such agent colluded with the cther par ties to defraud his principal.- PEOPLE'S BUILDING, LOAN & SAVING ASSN. V. DAILEY, Tex., 42 S. W. Rep. 385. 91. PRINCIPAL AND SURETY - Discharge of Surety.-A written notice sent by a surety on a note to the payee, informing him that the writer signed as surety only, and concluding, "Under no consideration will con sent to a prolongation of said note, and hereby request you to use every effort to collect" the same from the other signers, only one of whom had signed as princ pal, was a notice requiring the payee to sue; and, o his failure to do so within the statutory period, said surety was discharged.—SULLIVAN V. DWYER, Tex., £ S. W. Rep. 355. 92. PRINCIPAL AND SURETY-Loans.-Sureties paid to their principal sums necessary to meet payments o the note they had guarantied as they became due. The principal at once paid such sums to its creditor, and new notes were executed by it and the sureties to the creditor, and thereupon the principal gave his note to each surety for the amount then paid by him: Held, that such payments were not loans to the principal, but were payments for the benefit of the creditorBRAY V. FIRST AVE. COAL MIN. Co., Ind., 47 N. E. Rep. 1073. 93. QUIETING TITLE.-Under Rev. St. 1894, § 251 (Rev. St. 1881, § 251), requiring every action to be prosecuted in the name of the real party in interest, a grantor by warranty deed cannot maintain suit in his own name to quiet title, against third persons claiming an inter est in the land paramount to that conveyed to the grantee.-CHAPMAN V. JONES, Ind, 47 N. E. Rep. 1865 94. RAILROAD COMPANY-Accidents at Crossings-It an action for the death of plaintiff's intestate at a ra road crossing, the court, after defining "negligence, and instructing the jury that they were to decide th question, said: "You fix the standard of reasonable prudent, and cautious men, under the circumstances of the case, as you find them, according to your jad ment and experience of what that class of men do u der these circumstances, and then test the conduct 2 volved, and try it by that standard; and neither th judge who trys the case, nor any other person, supply you with the criterion of judgment by any ion he may have on that subject:" Held mislead as authorizing the jury to fix its own standard of Be ligence and ordinary care.-ST. Louis, I. M. & S. E Co. v. SPEARMAN, Ark., 42 8. W. Rep. 406. H 95. RAILROAD COMPANIES-Bridges.-Rev. St. 1894, § 5153, cl. 5 (Rev. St. 1881, § 3903), empowers a railroad company to construct its road upon or across any stream or highway "in such manner as to afford security for life and property;" but it requires the company to restore the intersected stream or highway to its former state, "or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises:" Held, that the "life and property" and the "franchises" referred to, are not those of the railroad company, but those connected with the intersected stream or highway.-NEW YORK, C. & ST. L. R. Co. v. HAMLET HAY CO., Ind., 47 N. E. Rep. 1060. 96. RAILROAD COMPANY-Defective Appliances-Neg. ligence. A railroad track curved somewhat on a bridge, so that at one corner the ends of bolts in a truss at the side of the bridge would be only 15 inches from a car. It was the duty of brakemen on freight trains to loosen hand brakes while near and passing over the bridge, and plaintiff, while going down a lad. der on a car, in discharge of such duty, was struck by said bolts: Held, that he could recover damages. -BRYCE V. CHICAGO, ETC. RY. Co., Iowa, 72 N. W. Rep. 780. 97. RAILROAD COMPANY - Illegal Construction Con. tract.-A contract by which certain directors of a street-railway company, acting in the name of a third person, who is a mere dummy, are to construct the road, and divide between them the balance of the stock and bonds not required therefor, is fraudulent, and bonds issued pursuant thereto are void.-VANDERVEER V. ASBURY PARK & B. Sr. Br. Co., U. S. C. C., D. (N. J ), 82 Fed. Rep. 355. 98. RAILROAD COMPANY-Injuries to Persons on Track. -A railroad company owes no duty to a tresp sser on its tracks until its employees actually see him on the track in a place of danger.-THOMAS V. CHICAGO, ETC. RY. CO., Iowa, 72 N. W. Rep. 783. 99. RAILROAD COMPANY Receivers.-A court of equity, when called upon to appoint a receiver of railroad property, with power to operate the road and conduct its business, pending a foreclosure suit, may, in the exercise of its judicial discretion, as a condition of issuing the order, direct the receiver, out of money coming to his bands from such business, to pay the outstanding debts for labor, supplies, equipments, or permanent improvements of the mortgaged property, as may under the circumstances of the order be reasonable.-CENTRAL TRUST Co. of NEW YORK V. UTAH CENT. RY. Co., Utah, 50 Pac. Rep. 813. 100. RAILROAD COMPANY- Receivers.-A court of equity does not take possession of a railroad for the purpose of performing the contracts of the company, but solely to preserve and protect the property, and to keep the company a going concern, pending the set. tlement of claims against it; and where the earnings are not sufficient to pay all its creditors after paying operating expenses, and keeping the property in safe condition for operation, they will be applied to the payment of creditors who hold liens or contracts which, if unpaid, they are entitled to enforce, and the enforcement of which will endanger the integrity of the property.-MERCANTILE TRUST CO. V. BALTIMORE & O. R. Co., U. S. C. C., D. (Md.), 82 Fed. Rep. 360. 101. RAILROAD COMPANY-License Negligence.-A depot platform had at the north end steps for the use of the public, and at the south an apron from the ground for the same purpose. There was a well defined footpath going from the public street across the track to the platform. It would not have been proper to have the grounds fenced, nor could the path have well been obstructed: Held, that the railroad company gave no license or invitation to any one to approach the track by the path, and cross the track to the east side of the platform, so as to render it liable to a person injured in so doing, without negligence on its part.-HEISS V. CHICAGO, ETC. RY. Co., Iowa, 72 N. W. Rep. 787. 102. RECEIVERS Appointment and Removal-Nonresidence.-A receiver appointed by a federal court in New Jersey for a New Jersey manufacturing corporation whose plant and business are located in Ohio, and subsequently appointed on the commencement of an ancillary suit, by a federal court in Ohio, will not be removed by the latter court on the application of mortgage creditors who have subsequently become parties, merely on the ground that he is a non resident of Ohio, where it appears that he is a fit person to manage the business, and intends to give it his personal supervision. -BAYNE V. BREWER POTTERY CO., U. S. C. C., N. D. (Ohio), 82 Fed. Rep. 391. 103. RES JUDICATA-Sureties on Bond. - Sureties upon a probate bond are, in the absence of fraud, concluded by the decree of the proper court rendered upon an accounting by their principal, as to the amount of the princ pal's liability, even though the sureties be not parties to the accounting.-MEYER V. BARTH, Wis., 72 N. W. Rep. 748. 105. SALES Rescission for Fraud. Plaintiff, by means of fraudulent representations, induced defendant, who believed the representations, 10 buy a new piano, for which she gave an old piano and $10 in part payment, and executed a contract whereby the title, ownership, and possession of the piano remained in the plaintiff. Defendant, upon discovery of the fraud, offered to rescind the contract and return the piano upon return to her of the old piano and the $10, which plaintiff did not do: Held, that plaintiff could not maintain an action for recovery of the piano.-MYERS V. TOWNSEND, Iowa, 72 N. W. Rep. 761. 106. SALE Title-Delivery.-The general rule is that as between seller and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery, when no question arises in relation to the statute of frauds.-CUMMINGS V. GILMAN, Me., 88 Atl. Rep. 538. 107. SET-OFF-Evidence.-In an equitable action to set off one judgment against another, evidence that plaintiff had in his hands book accounts of the defendant of sufficient value to pay off plaintiff's judgment is admissible, although the defendant has not pleaded payment or counterclaim. -UNION MERCANTILE Co. V. JACOBS, Mont., 50 Pac. Rep. 793. 108. SHERIFF8-Right to Ride on Freight Trains -To give a sheriff the right to ride on freight trains in the performance of his official duties, "between stations where such trains stop," as provided in section 3375a, Rev. St., it is not necessary that such trains should regularly stop at such station, or be scheduled to stop there. It is sufficient if they are, in fact, stopping there at the time the sheriff gets aboard.-ALLEN V. LAKE SHORE & M. S. RY. Co., Ohio, 47 N. E. Rep. 1037. 109. SLANDER-Separate Utterances.-In an action for slander, defamatory words other than or similar to those set out in the complaint, spoken by defendant at other times and places, whether prior or subsequent to the bringing of such action, are admissible in evidence, without being pleaded to show malice, but are inad missible in aggravation of damages.-BARKER V. PRIZER, Ind., 48 N. E. Rep. 4. where neither party sought a transfer, but after final judgment in a territorial court one of them took an appeal to the State supreme court, and the other joined in submitting it there for decision, this constituted an election to proceed in the State courts, and precluded the defendant from transferring the case to the federal court after a reversal and remand for a new trial.HECHT V. METZLER, U. 8. C. C., D. (Utah), 82 Fed. Rep. 340. 111. TAXATION-Surplus of Savings Bank.-When the surplus of a savings bank, under its charter and the laws of the State where it exists, belongs to its depositors, and though it is not payable at the same time with their deposits, and may be retained for a time to meet contingencies, the depositors or their representatives are ultimately entitled to the pecuniary benefit of it, such surplus is a debt due the depositors, and under Laws 1857, ch. 456, is not subject to taxation.PEOPLE V. BARKER, N. Y., 47 N. E. Rep. 1103. 112. TAX LIEN.-Where two creditors of a common debtor, who is insolvent, each has, relatively to the other, the highest lien upon distinct parcels of real estate belonging to such debtor, and there are outstanding, against the latter, tax executions issued generally against him in personam, and binding both parcels of the realty, the burden of discharging the liens of these executions should, as a general rule, upon equitable principles, be apportioned between the two lien cred. itors, by making each of the two pieces of property liable ratably for its proportion of the whole amount of the taxes, according to the respective valuations at which the property was assessed and returned for taxation.-BROOKS V. MATLEDGE, Ga., 28 S. E. Rep. 119. 113. TAX SALES-Validity of Deed.-Under Pol. Code, § 3776, providing that the certificate of a sale for taxes must state "the name of the person assessed, the de scription of the land sold, the amount paid therefor, that it was sold for taxes, giving the amount and year of the assessment," and section 3786, which requires that the tax deed shall recite the matters recited in the certificate of sale, a tax deed reciting "that said prop. erty was assessed according to law in the year A. D. 188- for the years 1888 and 1889," was void, because it did not recite the "year of the assessment."-SIMMONS v. MCCARTHY, Cal., 50 Pac. Rep. 761. 114. TRIAL-Right to Open and Close.-In an action on a note, defendant pleaded failure of consideration, and asked that he be allowed to assume the burden of proof. Plaintiff pleaded that he was an innocent purchaser, for value, before maturity, without notice: Held, that it was not an abuse of discretion to permit defendant to open and close the argument. -PERRY V. ARCHARD, I. T., 42 S. W. Rep. 421. 115. TRIAL-Misconduct-View by Jury.-Where the gist of an action on trial is the condition of the locus in quo, or where a view of it will enable the jurors the better to determine the credibility of the witnesses, or any other disputed fact, if, in such a case, jurors, without the permission of the court, or knowledge of the parties, examine the locality for the express purpose of acquiring such information, their verdict will be set aside, unless it is clear that such misconduct could not have affected their verdict. This rule must be given a reasonable operation, and not applied where there is only a possibility that the result was influenced by the alleged misconduct.-RUSH V. ST. PAUL CITY RY. Co., Minn., 72 N. W. Rep. 733. 116. TRUSTS-Completion.-A trust in favor of "children now living, or that may hereafter be born," of a woman, will last during the woman's life, as the law supposes a possibility of issue as long as a woman shall live.-BEARDEN V. WHITE, Tenn., 42 S. W. Rep. 476. 117. TRUST-Resulting Trust.-There is no resulting trust in favor of a wife in land purchased with her money, where title is taken in the husband's name at her request.-HENDERSON V. BANIEL, Tenn., 42 8. W. Rep. 470. 118. VENDOR'S LIEN.-Where land is conveyed by ab. solute deed, no vendor's llen exists, in the absence of express agreement of the parties.-SMITH V. ALLEN, Wash., 50 Pac. Rep. 783. 119. VENDOR'S LIEN.-One who conveys and delivers possession of land retains an equitable lien thereon for the unpaid purchase money, though he takes no distinct agreement or separate security therefor, and the deed recites payment of the consideration in full.MARSHALL V. MARSHALL, Tex., 42 S. W. Rep. 353. 120. VENDOR AND PURCHASER-Specific Performance. -Where the vendor did not own at the time of the sale all the land he contracted to convey, and delayed for more than two years to tender a deed, his prayer for specific execution of the contract was properly denied; there being a total failure on his part to show paper title, and a failure to satisfactorily establish a posses sory title.-WHITE V. MORGAN, Ky., 42 S. W. Rep. 408. 121. WATERS-Riparian Rights-Diversion.-The fact that headgates, erected for the purpose of regulating the flow of water into a branch stream so as to preserve uniformity of volume for the use of successive mills along its banks, have for over 21 years been con trolled by owners of the upper mill, without regard to the needs of the lower owners, does not give the former a prescriptive right to close the headgates, and divert the water into the main stream, whenever they do not require it for their own use, to the injury of the lower owners, who have had no notice of any claim of right to so interrupt the flow of water.-HUGHESVILLE WATER CO. V. PERSON, Penn., 38 Atl. Rep. 584. 122. WATER RIGHTS-Oral Transfer.-A settler in pos session of government land, for which he has appropriated a water right, may transfer such land and water right by oral assignment, so that the transferee becomes his successor in interest in the water right, even though the transfer was without consideration.WOOD V. LOWNEY, Mont., 50 Pac. Rep. 794. 123. WILLS-Perpetuities.-A bequest to G, to be held in trust by executors for her benefit, the interest thereon payable to her, and at her death the same to be continued to two certain minors, until they are each 25 years of age, when the sum is to be paid to them share and share alike, does not violate Civ. Code, § 715, prohibiting the suspension of the power of alienation beyond the existence of lives in being.-IN RE HENDY'S ESTATE, Cal., 50 Pac. Rep. 753. 124. WILLS-Sale of Infants' Real Estate.-Under a de vise by a testator to his wife of all his estate, "to do with it whatever she may think proper as long as she may remain single and lives, and after her death to my children who may be living, or the legal heirs of them who may die, to them and their heirs forever," the widow takes only a life estate, with power to use, manage, and control it in any way she thinks proper while she lives and remains single, remainder to the children.-LOEB V. STRUCK, Ky., 42 S. W. Rep. 401. 125. WITNESSES-Privileged Communications-Physi cians. In an action against a city for injuries caused by a defective sidewalk, evidence of plaintiff's physi cians regarding her condition, and the information ob tained while treating her, when called as witnesses for defendant, is within the prohibition of Code 1873, § 3643, providing that no physician shall be allowed to disclose any confidential communication properly intrusted to him in his professional capacity, and nec essary and proper to enable him to discharge the fune tions of his office according to the usual course of practice, BAXTER V. CITY OF CEDAR RAPIDS, Iowa, " N. W. Rep. 790. Transactions with a Decedent. Where a husband buys land, and has it deeded to bis wife without her knowledge, there is no personal transaction between him and her, within Code 1873, § 3639, providing that no party can be examined as to any personal transaction or communication between him and a person at the time of such examination de ceased, etc.-HAGAN V. POWERS, Iowa, 72 N. W. Rep 771. INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- A separate subject-index for the "Digest of Current Opinions" will be found on page 515, follow ing this Index-Digest. an action by the husband for a loss caused by in. right of action by father for autopsy performed on for inducing a servant to break contract of employ. for injuries to infant in ventre sa mere, 345. ADMINISTRATION, contract with sufficient consideration to act as administrator without compensation, is valid, 254. agreement by the legatees under a will to pay to one of several persons proposing to contest the will a certain sum of money in consideration of his agreement to withdraw his opposition to the probate thereof, is valid, 289. garnishment of an executor, 325. an executor and his sureties are not liable on his bond for the proceeds of land in a foreign State sold by him under power conferred by the will, said will never having been probated in the State where the land lies, so as to authorize such sale, 329. validity of statute providing for the administration of the estate of one who has been absent and not beard from for seven years, 330. ADMIRALTY, damage suits by stevedores, 350. ADULTERATION, criminal liability for, where there is no criminal intent, 116, 117. liability of the master for act of the servant, 118. AMERICAN BAR ASSOCIATION, he twentieth annual meeting of the, 108. ANIMAL, knowledge of servants put in charge of a bull to drive him to a certain place, that he is vicious, is knowledge of the owner, so as to make him liable o a stranger injured by him, 424. ARKANSAS, legislative impairment of corporate charters in Arkansas, 67. ASSIGNMENT FOR BENEFIT OF CREDITORS, estoppel of foreign creditor to contest an assignment, 328. creditors not estopped to assail an assignment vold in law upon the bare ground that they indicated their purpose to take under such assignment, 483. ASSOCIATION, the Kansas City live stock exchange decision, 397. ATTACHMENT. See, also, WRONGFUL ATTACHMENT. intervention in cases of, 261, 264. seizure of fixtures under judicial process, 465. ATTORNEY AND CLIENT, the general power of an attorney to act on behalf of his client does not authorize him to accept an acknowledgment of indebtedness of the garnishee of the judgment debtor in satisfaction of a judg ment in the client's favor, 327. suspension of disbarment proceedings by reason of institution of criminal proceedings, 47. duty and liability of attorney to client, 131. what constitutes a champertous contract between, BANKS AND BANKING-Continued. power of bank president to indorse commercial knowledge of a bank officer in the discounting of 327. necessity of tender of whatever of value has been change of beneficiary by member of, 346. change of beneficiaries in mutual benefit insur BICYCLE, collection of tolls from bicycle riders, 251. BILLS AND NOTES, the indorsee before maturity of a negotiable note power of president of bank to indorse commercial personal liability of officer of corporation in sign. commercial paper based on pre-existing debts, 367. an assignment in writing on the back of a note BILLS OF LADING. See CARRIERS OF GOODS. rights of indorsee before maturity of a negotiable BOOKS RECEIVED, 16, 265, 286, 319, 341, 398, 452, legality of the, 461, 470, 481, 494. by attacking credit, 481. BUILDING AND LOAN ASSOCIATION, recovery of payments to a foreign building and C ute CRS OF PASSENGERS, press,ility of, for injury to passengers while in the 9. Vidity of contract to indemnify a common carrier Conditions and limitations governing rights of lidity of Indiana "three-cents" car fare legisla passenger on a crowded excursion train is not right of railroad companies to restrain brokerage how far an employee may be a passenger, 462. revivor of paid real and chattel mortgages, 332. duty of railroad companies to trespassing children, CONSTITUTIONAL LAW. validity of the Missouri parol law, 1. what are incompatible offices within the purview power of boards of health to impose the require validity of city ordinance changing the grade of a legislative impairment of corporate charters in what constitutes a lottery within constitutional validity of the provision of building and loan asso- 205. validity of the Ohio "Torrens" law, validity of statute where the records of the legis right of owner to notice before abatement by m validity of statute providing for the administration validity of act providing for the destruction of dis the right to throw stereopticon views on build- validity of Ohio act establishing State medical |