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. S. 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 property 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, with. out 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 S. W. Rep. 470. 118. VENDOR'S LIEN.-Where land is conveyed by ab. No. 25 solute deed, no vendor's lien 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 possessory title.-WHITE V. MORGAN, Ky., 42 S. W. Rep. 403. 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 controlled 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 possession 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 devise 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-Physicians. In an action against a city for injuries caused by a defective sidewalk, evidence of plaintiff's physicians regarding her condition, and the information obtained 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 func tions of his office according to the usual course of practice. BAXTER V. CITY OF CEDAR RAPIDS, Iowa, 72 N. W. Rep. 790. 126. WITNESSES Transactions with a Decedent. Where a husband buys land, and has it deeded to his 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 deceased, 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 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. contract with sufficient consideration to act as ad- garnishment of an executor, 325. an executor and his sureties are not liable on his ADMIRALTY, damage suits by stevedores, 350. criminal liability for, where there is no criminal llability of the master for act of the servant, 118. he twentieth annual meeting of the, 108. ANIMAL, knowledge of servants put in charge of a bull to legislative impairment of corporate charters in ASSIGNMENT FOR BENEFIT OF CREDITORS, creditors not estopped to assail an assignment void the Kansas City live stock exchange decision, 397. seizure of fixtures under judicial process, 465. the general power of an attorney to act on behalf suspension of disbarment proceedings by reason of duty and liability of attorney to client, 131. evidence of confidential communications between, BAGGAGE, liability of carrier for merchandise carried as bag- BANKS AND BANKING, drawing of check as an equitable assignment of CENTRAL LAW JOURNAL. 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 usury by, 145. how far a building association may receive in ad- usury by, 339. forfeiture of shares, 340. withdrawal of members, 340. payment of withdrawing members, 340. withdrawal of members upon insolvency of, 385. what constitutes a "breaking" in prosecution for, 14. what constitutes a "breaking" is a question of law CARRIERS OF GOODS, the "excess and deficiency" clause in bills of lad- effect of stipulations in way bill limiting the car- limitation of carrier's liability, 156. CARRIERS OF PASSENGERS, No. 26 liability of, for injury to passengers while in the validity of contract to indemnify a common carrier conditions and limitations governing rights of 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. CHILDREN, duty of railroad companies to trespassing children, CIVIL RIGHTS, injunction to prevent bringing of suit in a foreign liability of an association amongst tradesmen for CONSTITUTIONAL LAW. validity of the Missouri parol law, 1. what are incompatible offices within the purview suits against individuals holding State offices, as a power of boards of health to impose the require- validity of city ordinance changing the grade of a validity of retroactive act giving right of redemp- legislative impairment of corporate charters in what constitutes a lottery within constitutional validity of the provision of building and loan asso- validity of the Ohio "Torrens" law, 205. validity of Indiana "three cents" car fare legisla. validity of statute where the records of the legis right of owner to notice before abatement by mu validity of statute providing for the administration validity of act providing for the destruction of dis- on build- the right to throw stereopticon views on recent phases of contract law, 113. breach by renunciation before performance, 113. effect of a consideration illegal in part, 166. validity of contract to indemnify a common car. an agreement on sufficient consideration to act as agreement by the legatees under a will to pay to of employment, breach of, 326. validity of contract of employment providing that interpretation of contract of guaranty, 364. CONTRIBUTION, liability for between parties who are affected by CONTRIBUTORY NEGLIGENCE. See, also, NEGLI- GENCE. passenger on a crowded excursion train is not legislative impairment of corporate charters in power of, to enter into partnership with individ- rights of innocent holder of spurious corporate transfer by insolvent corporation of its property to personal liability of incorporators of defectively mandamus against corporations to compel duties to mandamus lies to compel corporations to per- the fact that the corporation thus compelled is CORPORATION-Continued. to compel water supply companies to furnish to admit a qualified person to membership in to compel corporations to perform public duties service of process upon foreign corporation, 442. COUNTY, liability of, for the use of a horse by sheriff in mak- COURT MARTIAL, mandamus to compel a State court martial to permit COURTS, judge of court not civilly liable to a person improp. criticism of the official act of judges, 398. admissibility of evidence of experiments, 69. constitutionality of the Missouri parol law, 1. what constitutes a "breaking" in prosecution for right of self-defense when in imminent danger, 48. proof of the corpus delicti in poisoning cases, 72. when the statute makes it a criminal offense to assault with deadly weapon, 119. opinion by juror in a criminal case formed solely criminal liability of warehouseman, 309. what constitutes skimmed milk, 363. false representations or pretenses to procure credit, in a view by a jury it is error to allow conversation larceny by deception, 442. the conviction, under a general law, for the offense conveyance of the homestead, 77. effect upon general creditors of deeds or mortgages implied grant or reservation of easement, 352, 353. recent decisions as to the rights of purchasers by DIGEST OF CURRENT OPINIONS, 16, 40, 60, 79, 101, 119, DISBARMENT. See ATTORNEY AND CLIENT. DISCOVERY, in aid of execution at law, 209. DIVORCE, jurisdiction of equity in cases of, 326. EASEMENT, of light and air as between adjoining landowners, implied grant or reservation of, 352, 353. where an electric light plant, operation of which validity of "trolley wire" patent, 165. evidence of telephonic communications, 251. 355. ELEVATORS, liability of owners of, for negligence in the carriage EQUITABLE ASSIGNMENT, of funds in bank by the drawing of check, 2. EQUITY, jurisdiction of, in cases of marriage and divorce, ESTOPPEL, of foreign creditor to contest an assignment for creditors not estopped to assail an assignment void EVIDENCE, admisibility of evidence of experiments, 69. an ordinary witness may be asked whether or not HIGHWAY, collection of tolls from bicycle riders, 251. validity of mortgage of wife of the homestead to caused by wrecking of train, 5. right of self-defense when in imminent danger, 48. liability for causing another's death by suicide, 481. |