between the principal stockholders and bondholders (who were for the most part the same persons and also the officers of the company), by which the new com. pany was to issue its bonds to the old bondholders and its stock to the stockholders of the old company, cannot be made effective to relieve such property from the claims of general creditors of the old company, whose rights therein are superior to those of its stockholders, and such transfer will be set aside In equity, so far as necessary to protect the equitable rights of such creditors.-ST. LOUIS TRUST Co. v. DES MOINES, ETC. Rr. Co., U. S. C. C., S. D. (Iowa), 101 Fed. Rep. 632.

76. REAL ESTATE AGENT - Right to Commissions.-A real estate agent employed to find a purchaser for the property is not entitled to commissions, though presenting one willing to pay the price; the person presented not being the real customer, who had instructed the agent to buy the property if he could get it at a fair price, and the agent having refused to tell the landowner who the real customer was, for fear she would understand his need of the property (he being the owner of the next lot), and would raise the price. -WILKINSON V. MCCULLOUGH, Penn., 46 Atl. Rep. 357. 77. REMOVAL OF CAUSES-Prejudice or Local Influence.-An application for the removal of a will con. test to a circuit court of the United States for "prejudice or local influence," if authorized by the act of Congress of March 3, 1887, as corrected by the act of August 13, 1888, providing for the removal of causes "at any time before the trial thereof," comes too late when first made after a mistrial of the cause in a State pro bate court.-MCDONNELL V. JORDAN, U. S. 8. C., 20 Sup. Ct. Rep. 886.

78. RES JUDICATA.-In a former action, brought by plaintiff on a contract to recover the stipulated amount for services rendered, defendant secured a judgment upon the ground that the contract had not been com. pleted. In a second action plaintiff sued to recover the reasonable value of the same services. Held, that the judgment in the former action was not a bar to the latter.-ROSSMAN V. TILLENY, Minn., 83 N. W. Rep. 42.

79. RES JUDICATA-Pleading Former Judgment as Bar.-An action by a bondholder of a city against the city treasurer in his official capacity for a mandamus to compel payment of interest coupons is virtually an ac. tion against the city, and a judgment therein adjudg. ing the coupons void may be pleaded in bar of a subsequent action brought by the plaintiff against the city by name to recover judgment on the same coupons. RANSOM V. CITY OF PIERRE, U. S. C. C. of App., Eighth Circuit, 101 Fed. Rep. 665.

80. SALES-Conditional Sales-Validity.-Under Code 1873, § 1922, declaring that no conditional sale shall be valid against a creditor of the buyer in actual possession thereunder, without notice, unless in writing, executed by the seller, and acknowledged and recorded the same as a chattel mortgage, a bill of sale wherein title to the goods was retained by the seller till full payment, executed by the seller, and acknowledged and recorded, was sufficient to protect the seller's right to such goods against a subsequent creditor of the buyer, though such instrument was not executed by the buyer.-NATIONAL Cash Register Co. v. SCHWAB, Iowa, 82 N. W. Rep. 1012.

81. SALES-Delivery-Demand.-Where the agent of a nursery sold an order of trees to defendant, to be paid for on delivery, an instruction that tender of the stock was insufficient if coupled with a demand for the pur. chase price, because the agent had no right to make such a demand, was erroneous where, by the terms of the contract, the plaintiff was entitled to his pay on delivery.-RICE V. APPEL, Iowa, 82 N. W. Rep. 1001.

82. SALES-Fraud-Rescission.-A seller of goods purchased by the buyer under false and fraudulent representations as to his solvency cannot maintain an action to recover possession of the goods sold, or in the alternative the price thereof, since he must elect to either affirm the sale and sue for the price, or rescind the sale and sue for possession of the goods.-WEAR &

BOOGHER DRY GOODS Co. v. CREWS, Tex., 57 S. W. Rep.

75.

83. TAXATION-Assessment-Payment of Portion.Where a taxpayer paid a part of a tax, which was thereafter returned to him by the collector on the taxpayer's inability to pay the balance before the expira. tion of the time when the tax must either have been paid or the land returned for delinquent taxes, such payment did not affect the State's lien on the land for the entire tax, nor invalidate a sale of the land for the same.-SAYERS V. O'CONNOR, Mich., 82 N. W. Rep. 1044. 84. TAXATION-Inheritance Tax Law-Exemption of United States Bonds.-A legacy of United States bonds is not exempted from the inheritance tax laws of a State by the provisions of the act of Congress of July 14, 1870, and the declaration on the face of the bonds is. sued thereunder, exempting them from taxation in any form by or under State authority, since the inheritance tax is not imposed on the bonds, but on the privilege of acquiring property by will or inheritance, which is a right and privilege created and regulated by the State.-PLUMMER V. COLER, U. S. S. C., 20 Sup. Ct. Rep. 829.

85. TRADE-MARK-Geographical Name.-The use of the name "Pocahontas Coal" by the selling agents for the owners of coal mined at or near a town called Po cahontas will not create an exclusive right in such agents to the use of the name for all the coal from that field, or deprive the mine owners of the right to use the same name.-CASTNER v. COFFMAN, U. s. S. C., 20 Sup. Ct. Rep. 842.

86. TRESPA88-Punitive Damages.-The mere unau. thorized use by the owner of coal under land of plaint. iff of his tunnel to transport coal from adjoining lands does not entitle plaintiff to punitive damages, or any. thing but nominal damages, and such further dam. ages, if any, as will compensate him for any injuries resuting from the wrong.-SPRINGER V. J. H. SOMERS FUEL CO., Penn., 46 Atl. Rep. 370.

87. TRUST-How Declared-In Personal Property.-A trust in personal property may be declared, admitted, or created by parol declarations, and may be proved by parol evidence, and as to such trusts the statute of frauds does not apply; but a trust relating to real prop. erty must be declared and proved by some writing executed by the parties creating the trust.-SKEEN V. MARRIOTT, Utah, 61 Pac. Rep. 296.

88. TRUST-Proof-Sufficiency.-Where defendant executed a warranty deed to land to his mother for a valuable consideration, which she devised to her daughter, and which defendant claimed she had orally agreed to hold in trust for him, to be reconveyed on demand, loose declarations and statements said to have been made by the mother, "that George has a drawn-up contract with me that will bring him out all right, if he took care of it," and the testimony of a feeble-minded brother that he heard his mother and defendant talking about contracts or making the land over," were insufficient to establish the trust.-MULOCK V. MULOCK, Mo., 57 S. W. Rep. 122.

89. TRUST-Spendthrift Trust.-A spendthrift trust is created as well in the case of the son as of the wife, where testator directs his executors to hold property in trust to pay the whole net income thereof quarterly to his wife, "into her own hands, for her separate use and maintenance," for life, "and not to be liable to anticipation, and her receipt alone to be the sole discharge to my said trustees," and, on her death, then to pay said net income quarterly to his son, "for his use and support," for life, "and not to be liable to anticipation, and his receipt alone to be the sole discharge to my said trustees."-WINTHROP Co. v. CLINTON, Penn., 46 Atl. Rep. 435.

90. TRUSTEE-Purchase of Trust Property-Laches.A cestui que trust, who delays for 21 years to attack the title of the trustee acquired at execution sale under judgment of the trustee against the cestui que trust, is barred by laches.-CHURCH V. WINTON, Penn., 46 Atl. Rep. 363.

91. UNSAFE APPLIANCES-Negligence of Independent Contractor.-A master is not relieved from the positive personal duty which he is under to the servant by let. ting work to a contractor, and he cannot avoid liability for an injury to the servant due to the dangerous condition of appliances which he is required to use, on the ground that such dangerous condition was caused by the negligent acts of an independent contractor, whom the master had employed to make certain repairs about the premises.-TOLEDO BREW. & MALT. Co. v. BOSCH, U. S. C. C. of App., Sixth Circuit, 101 Fed. Rep. 530.

92. VENDOR AND PURCHASER--Conditions-Waiver.Where a vendor agrees in writing to sell lands, and, on the vendees' being unable to comply with the contract, a written modification is made, whereby the vendees are to pay less, and the vendor is to convey subject to a mortgage, and then develops that there are two outstanding mortgages, and on-being presented with the deed and discharges of the two mortgages the vendees request that the mortgages be extended, and afterwards request further time for themselves, the request for the extension of the mortgages is a waiver of the vendees' excuse for non-performance that there were two mortgages instead of one, and such excuse cannot be urged as a defense to the vendor's action for a forfeit payable on the vendees' default.-HURLBURT V. FITZPATRICK, Mass., 57 N. E. Rep. 464.

93. VENDOR AND PURCHASER Specific Performance. -Where the vendor in a contract to convey land, of which time was made of the essence, grants such indulgence to the vendee, in permitting the time of pay. ment to go by without declaring an immediate forfeiture, as might reasonably lead the latter to believe that he did not intend to insist on an immediate perform. ance of the contract according to its terms, it works a suspension of the vendor's right to declare a forfeiture without notice.-EATON V. SCHNEIDER, Ill., 57 N. E. Rep. 421.

94. WAREHOUSEMEN-Damages

Several Action.

Under a contract, signed by a fruit company and a number of fruit growers, providing that such growers might deliver prunes to the company to be weighed, separately dried, and, after being graded into several sizes, weighed again to the respective owners, after which it might be mingled with other fruit in the bins used for the purpose, and that a receipt should be given to the owner calling for so many pounds in bulk, the contract, as between the fruit growers, was not joint, but several, and one of such growers was entitled to sue the company for damages to him under the contract.-ARNOLD V. PRODUCERS' FRUIT CO., Cal., 61 Pac. Rep. 283.

95. WAR REVENUE ACT-Tax on Legacy of Inheritance-Exemption of United States Bonds.-United States bonds included in a legacy or distributive share of a decedent's estate are not exempted from the tax on the transmission of such property, imposed by the war revenue act of 1898, §§ 29, 30, by reason of the declaration in the federal statutes and on the face of the bonds to the effect that they are exempt from taxation, since the tax is not upon the bonds, but on the right of transfer by will or under the interstate law.-MURDOCK V. WARD, U. S. 8. C., 20 Sup. Ct. Rep. 775.

96. WATERS-Navigable Waters-Obstruction of.-A pass or crevasse caused by the overflow of the Missis sippi river, making a channel to the Gulf of Mexico, through which a few fishermen have occasionally gone with small vessels carrying oysters for planting, and through which one or two cargoes of willows and timber may have passed, but which has not been used for any purpose of interstate commerce, and the gulf end of which has become closed, does not constitute a navigable water of the United States in such a sense that a dam erected therein for the purpose and with the effect of reclaiming overflowed lands and rendering them fit for cultivation will constitute an obstruction in navigable waters, within the prohibition of the

act of Congress of September 19, 1890, against such ob.. structions without authority of the secretary of war.LEOVY V. UNITED STATES, U. S. S. C., 20 Sup. Ct. Rep. 797.

97. WATERS AND WATER COURSES-Water Priorities. -Gen. St. 1893, §§ 1762, 1766, providing a mode of adjudicating questions concerning the priority of rights to water appropriation for irrigation purposes, have no application to cases where the point of diversion is within the State, but the lands to be irrigated lie without its territorial limits, and hence, in a proceeding under such statutes, water will not be decreed to irrigate New Mexico lands.-LAMSON V. VAILES, Colo., 61 Fac. Rep. 231.

98. WILLS-Absolute Devise-Life Estate.-Where a will recited testator's advancements to his children, and that he desired them all to be made equal, and, after they each received an amount making them equal with a son to whom a larger advancement had been made, anything remaining should be equally divided, and directed that a daughter's share should be vested .in her to her separate use and control, and to be di vided, at her death, among her children, the daughter acquired an absolute estate in such devise.-COLVILLE V. WOMACK, Tenn., 57 S. W. Rep. 196.

99. WILLS-Capacity to Execute - Evidence. - The probate of a will will not be set aside for incapacity of the testator, an aged man, to make it, on contestant's evidence that testator's mind was altogether off, be. cause his talk was from one thing to another, and he did not seem to have the mind he ought to have, and would answer both yes and no when asked to do any thing, where proponent's testimony shows that testa. tor, when he executed the will, was of sound mind, and understood his business transactions.-APPEAL OF VOGLESONG, Penn., 46 Atl. Rep. 424.

100. WILLS-Conversion of Real Property.-The equitable conversion of real property into personalty by will is a matter within the exclusive province of the courts of the State in which the land lies to determine, although the will was made and has been probated at the domicil of the testator in another State, where it is construed to work such conversion of the real property wherever situated, and it is immaterial that the executor has not assumed to make any conveyance of the property.-CLARKE V. CLARKE, U. S. S. C., 20 Sup. Ct. Rep. 873.

101. WILLS-Devise-Conditions Subsequent.-Where a testator devised lands to his son, providing he should care for and support his mother as long as she should live, and the mother, by reason of ample means, did not need the son's support, and supported and cared for both herself and the son, the condition of the devise was only a personal condition subsequent, which the wife waived; and hence the fee of the land vested in the son on testator's death, and at the death of the son passed to his heirs.-ALEXANDER V. ALEXANDER, Mo., 57 S. W. Rep. 110.

102. WILLS-Devise-Vested Estate.-When testator devised a child's part of his real estate to his wife for life, the share of any child dying without living issue to go to the surviving children or their representatives, and the share devised to his wife for life to be equally divided on her death among the children and the issue of deceased children, the children took a vested estate in the devises and remainder, conditioned only that each child's share, at his death without living issue, should go to the surviving children or their heirs; and, as executory devises could bind their heirs and con. vey absolutely their contingent interest, a deed by such wife and children conveyed a valid title in fee.LITTLE V. BROWN, N. Car., 36 S. E. Rep. 175.

103. WITNESSES-Impeachment-Homestead.-A wit ness cannot be impeached by proof of his commission of a theft, which he denies, though the objections of his counsel to his examination on such question are sustained on his admission that such fact may be shown by other witnesses for the purpose of impeachment.-WINN V. WINN, Tex., 57 S. W. Rep. 80.

Central Law Journal.

ST. LOUIS, MO., AUGUST 24, 1900.

The recent case of Morris v. Dodd, by the Supreme Court of Georgia, involves an interesting question of bankruptcy. It was held that a policy of insurance on the life of a bankrupt though payable to his legal representatives, does not, if it have no cash surrender value, vest in the trustee in bankruptcy as assets of the bankrupt's estate. Accordingly, where a husband, within four months prior to the filing of his petition in bankruptcy, transferred to his wife an insurance policy on his life, which before such transfer was payable to his legal representatives, it was held that it was error in the court below, on the petition of the trustee filed upon the death of the bankrupt pending the proceedings in bankruptcy, to enjoin the widow from collecting and the insurance company from paying to her the amount due upon the policy, it appearing that it had no cash sur render value, either when the transfer was made or the petition in bankruptcy was filed.

A law passed at the last session of the New York legislature and which goes into effect on the first of next month is worthy of attention. This law provides that hereafter no person or persons shall carry on or transact business in the State under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name of the individual or individuals carrying on such business unless after filing in the office of the clerk of the county where such business is carried on, a certificate setting

forth the name under which the business is to be transacted and the true full name or names of the person or persons conducting the business, with his or their post-office address. Persons now carrying on business under an assumed name, or under any designation other than the real name, are required to file a certificate such as is above described within thirty days after the act takes effect, and any person failing to file such certificate is declared guilty of a misdemeanor. The object of the law is to prevent the use of assumed names or of corporate names where there is no real incorporation.

An important decision affecting the exemptions of homesteads in cities has recently been rendered by the Supreme Court of Florida. According to this decision the exemption of a homestead in an incorporated city or town does not extend under the State constitution to any other improvements or buildings than are comprehended under the terms "residence and business house of the owner," and, where the buildings or improvements in excess are not physically connected with the residence or business house, such improvements or buildings and the land upon which they are situated may be sold under execution for the owner's debts. This is true even though such improvements are inseparably attached to or form parts of an undivisible building which likewise constitutes the residence and business house of the owner.

The ground of the decision is clearly indicated in the opinion of the chief justice of the court, who says that in those cases where a non-exempt improvement or building is combined in a single structure that likewise constitutes the residence or business house of the owner, the soil perpendicularly under and covered by any such non-exempt improvement is improperly dedicated to other uses than are consistent with the constitutional right of exemption, and is, therefore, not exempt, and this whether such non-exempt improvement be situated upon the first, second, third, fourth or tenth floor of a many-storied building, and notwithstanding the fact that the space perpendicularly above or below such non-exempt improvement may be properly utilized by the owner for legitimate residence or business purposes. The court said that it might be that in the application of the rule the whole of the residence or business

house exemption might be taken away and defeated, but it declared that in such case the blame must fall upon the exemptor, who thus devotes the same soil to two inconsistent uses, the one legally sufficient to support the exemption contended for, and the other legally sufficient to defeat or destroy it. This is an illustration sufficiently familiar in judicial records of where the courts step in to check evasions of the law by applying the rule of equity and common sense.

NOTES OF IMPORTANT DECISIONS.

WILL-LEGACY-CHARGE ON LAND.-In Clotilde v. Lutz, 57 S. W. Rep. 1018, decided by the Supreme Court of Missouri, it was held that a testator, who had no personal property at the time he executed his will and bequeathed certain specific legacies, will be presumed to have intended to charge them on his lands. The court said in part:

"The question presented by this appeal is whether, under the facts stated, the various legacies bequeathed in the will must fail because there is no personalty out of which they can be paid, or, in the absence of express provision in the will for their payment out of the real estate of which the testatrix died seized, are they a charge on such real estate? The rule announced by this court for the construction of a will is to give full force and effect to every word and sentence in it, if possible to do so, and then construe it as a whole, so as to meet the intention of the testator, and, in order to arrive at such intention, there is no better way than to put one's self, as near as may be, in the position of the testator at the time of its execution. The will provides that all of the bequests shall be paid, if practicable, within six months after the death of the testatrix, and after the payment of all her debts, funeral expenses and bequests, she gave all the rest and residue of her personal property, whatever the same might consist of, to her husband, George A. Lutz. At the same time she must have known that she did not have any personal property with which to pay said legacies, or even her funeral expenses, much less a residue to give to her husband. Upon these facts is predicated the argument that they make these legacies an equitable and implied charge upon the real property of the estate. General legacies are more favored in law than specific legacies, and it has been the disposition of all courts to maintain all general legacies which the testator clearly intended should be paid, regardless of the sufficiency of the fund; and it has been said: 'If the language of the will indicates that the testator intended legacies to be paid, knowing that his personal estate would be insufficient for that purpose, or if it appear that, in giving the legacies, he had the real estate in mind, there will be a charge thereon, although it be devised.' 2 Am. Law Admn. (2d ed.), pp. 1096, 1097, sec. 491. In Downman v. Rust, 6 Rand. 587, a single woman, having but little personal property, and real estate of considerable value, having only one brother, who would have been her heir and distributee, by her will bequeathed certain legacies to two of her friends as tokens of affection, and made the brother executor and residuary legatee. It was held that she must be considered as intending that the legacies should be paid out of the land.

In Hoyt v. Hoyt, 85 N. Y. 142, it is said: 'It is assumed that no man, in making a final disposition of his estate, will make a legacy, save with the honest, sober-minded intention that

*

* *

it shall be paid. Hence, when, from the provisions of a will prior to the gift of legacies, it is seen that the testator must have known that he had already so far disposed of his personal estate as that there would not be enough left to pay the legacies, it is reasoned that the bare fact of giving a legacy indicates an intention that it shall be met from real estate. In McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480, the testator executed a will previous to the day of his death, by which he bequeathed to his wife $1,000, and to his son M $400, and gave the residue of his estate to four children, to be divided equally between them. The personal estate left by the testator was insufficient to pay his funeral expenses. In an action to have the widow's legacy declared to be a charge upon the real estate, it was held that the intent of the testator was that both legacies should be so chargeable; the court saying: 'Whether a legacy is charged upon the real estate of the decedent is always a question of the testator's intention. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. His personal estate was insufficient even to pay his funeral expenses, and the two legacies to the widow and son were mere mockeries, unless meant to be a charge on the real estate. The testator must bave known that he had no personal estate with which to pay the smallest portion of his bequests; and, unless he meant to charge them upon the land, we must impute to him the deliberate and conscious intention of making bequests to his wife and son which he knew could never be paid. * * * But the situation is such that all possibility of innocent mistake is removed, and the facts drive us to the alternative of believing that the testator, in making his last will, under the solemnity of approaching death, indulged in bequests known to be useless and vain, or meant that they should be paid from the only possible source. No reasonable intelligence can hesitate to draw the latter inference.' So, in Duncan v. Wallace, 114 Ind. 169, 16 N. E. Rep. 137, it is said: 'Where a testator gives legacies and so disposes of all his personal property that it cannot be made available for the payment of the legacies, the natural presumption is that he intended to charge the land with the payment of the legacies, since a different rule would attribute to him a purpose to make a gift in appearance, and not reality. * * So, where a testator has no personal property at the time he executes a will and bequeaths specific legacies, the reasonable presumption is that he intended to charge them on the land, for it is not to be presumed that he did no more than make an empty show of giving a bounty to the legatees. But this presumption does not prevail where there is personal estate at the time the will was executed, although it may subsequently be lost to the testator.'

"That the testatrix was possessed of no per