subject all the property of the corporation to the claims of its various creditors.-GERMAN LOOKING GLASS PLATE CO. V. ASHEVILLE FURNITURE & LUMBER Co., N. Car., 36 S. E. Rep. 199.

29. INSURANCE-Breach of Warranty.-Where a policy stipulates that assured, on acceptance of it, warrants certain statements to be true, among which is a statement that he will report to the insurer any other insurance taken out by him, the obligation not to take such further insurance without notice cannot be held a warranty, imposing forfeiture for breach.-FIDELITY & CASUALTY Co. oF NEW YORK V. CARTER, Tex., 57 8. W. Rep. 315.

30. INSURANCE-Forfeiture-Waiver-Loss.-Where an insurance company adjusts a small loss under the policy knowing that a condition against incumbrances has been broken, such act constitutes a waiver of the forfeiture, and the company cannot afterwards deny its liability when a second loss occurs.-WESTCHESTER FIRE INS. Co. v. MCADOO, Tenn., 57 S. W. Rep. 409.

31. JUDGMENT-Revival-Notice to Creditors--A judg ment against a former husband cannot be revived, after his death, against decedent's wife, his administratrix, and her second husband, over his objection, merely because he is the husband of decedent's wife. Realty which a former husband, prior to his demise, conveyed to an assignee for benefit of creditors, cannot be subjected to execution at law on a judgment against such former husband which has been revived against decedent's wife and a second husband.-WESSELL V. GROS8, Tenn., 57 S. W. Rep. 371.

32. LIFE ESTATES-Lease by Life Tenant.-Under Shannon's Code, § 4184, authorizing apportionment of rent and recovery therefor until the death of a tenant for life, where such tenant shall die before the expiration of a lease created by him out of his life estate, and before the term fixed for payment of rent, lessees of a deceased life tenant are not entitled to retain possession, as against the remainder man, during the term of their lease, of lands prepared for a crop, but on which no crop is planted, since such statute does not authorize creation of a lease to extend beyond the life estate, and only authorizes recovery for rents due on its termination.-COLLINS V. CROWNOVER, Tenn., 57 S. W. Rep. 357.

33. LIFE INSURANCE-Suicide-Burden of Proof.-Under a policy denying liability in case of the insured's suicide, whether sane or insane, a recovery could be had where the insured's death was caused by taking an overdose of morphine, but the defendant failed to prove by a preponderance of the evidence that insured, in taking the drug, intended to end his life.-BROWN V. SUN LIFE INS. Co., Tenn., 57 S. W. Rep. 415.

31. LIMITATION OF ACTIONS New Promise.-After a debt which A owed to C, his daughter-in-law, was barred by limitations, he made a payment thereon, and claimed that the remainder was due him for boarding C's children, his grandchildren. C refused to admit the claim, and threatened to sue, whereupon A answered that she need not bring suit as after his death and that of his wife everything would belong to the children,-that he would will his property to them; and C responded that, if he would will everything to the children, she would accept that proposition in satisfaction of her claim. Held, that there was no sucn unqualified acknowledgment of the debt as raised a promise to pay, and therefore the debt was not revived.-SCHONBACHLER V. SCHONBACHLER, Ky., 57 S. W. Rep. 232.

35. MARRIED WOMAN-Personal Injury-Action by Married Woman.-Where a woman sues for damages in her own name, alleging herself to be a feme sole, and the evidence warrants the submission of her claim to the jury, but also shows that she is a married woman, who has been abandoned by her husband under cir cumstances which would entitle her to sue in her own name, it is error to direct a verdict for defendant on the theory that she was not authorized to sue alone.BENNETT V. GILLETT, Tex., 57 S. W. Rep. 302.

36. MASTER AND SERVANT-Injury-Contributory Negligence. The Alabama statute, now embodied in section 2590 of the Code of that State, rendering a master or employer liable to a servant for an injury "caused by reason of any defect in the construction of the ways, works, machinery or plant connected with or used in the business of the master or employer," does not pre. vent the defendant in an action brought under this statute from setting up as a defense that there was contributory negligence on the part of the plaintiff.SOUTHERN RY. Co. v. HARBIN, Ga., 36 S. E. Rep. 218.

37. MUNICIPAL CORPORATIONS-Defective Streets.Where plaintiff was injured by falling from a bridge forming a part of a public street because of a defective railing against which he was leaning while conversing with another, such fact did not establish that he was not using the street for the purpose for which it was constructed, since by such use he did not per se forfeit the protection from injury enjoined on cities to keep their streets in proper repair.-CITY OF WHITEWRIGHT V. TAYLOR, Tex., 57 S. W. Rep. 311.

38. MUNICIPAL CORPORATION — Obstruction to Street. -Under city ordinance requiring a city to establish barriers and danger signals along ditches in its streets, it is proper, in an action against the city for injuries from an insufficiently guarded ditch in its street, to instruct that a failure to comply with the ordinance in this regard was negligence as a matter of law.-CITY OF CORSICANA V. TOBIN, Tex., 57 S. W. Rep. 319.

39. OIL LANDS-Lease-Forfeiture.-Where a lease of oil lands provided that the lessor should have the right to forfeit it if the lessee failed to begin operations thereunder within a certain time, unless the lessee, on written notice of the forfeiture, should elect to pay a certain sum annually during the delay, such written notice was essential to a forfeiture, and the mere delay in beginning operations beyond the time limited was not of itself sufficient to forfeit the lease and let in a subsequent lessee, whose lease was conditioned on the avoidance of the first.-SOUTH PENN OIL Co. v. STONE, Tenn., 57 S. W. Rep. 374.

40. PARTNERSHIP - Infants as Partners.-A business was conducted under the firm name of "J. L. Sidwell & Son," the son being a minor. The merchant's li cense was in the firm name, and the correspondence, purchase of goods, and drawing of all checks were by the firm. The father, previous to his death, stated that such son was a partner; and the son also had represented himself to be a partner and owner of a half interest in the stock, but after his father's death he denied such partnership. Held sufficient to establish the relation of partnership, giving the son the right, as surviving partner, to wind up the business and pay the partnership debts.-PARKER V. OAKLEY, Tenn., 57 S. W. Rep. 426.

41. PRINCIPAL AND SURETY-Release of Indemnitors. -Where six stockholders of a corporation, for the purpose of raising money for the corporation, agreed that one of their number should sign a note as surety for the corporation, and that each of the others should execute his note to the corporation for one-sixth of the amount, to be indorsed by the corporation to the surety, and pledged to him as indemnity, the obligors in the collateral notes executed pursuant to this agree ment did not occupy the relation of guarantors or sureties to the surety in the principal note, as the debt was created for their common benefit, and therefore the renewal of the principal note without their con. sent did not release them.-KOEHLER V. HUSSEY, Ky., 57 S. W. Rep. 241.

gent.-BRADLEY V. OHIO RIVER & C. Rr. Co., N. Car., 36 8. E. Rep. 181.

43. RAILROAD COMPANY Negligence.-In an action against a railroad to recover for injuries to a boy, where the plaintiff claims that the boy was sucked under the train by the current of air created by its running at a speed prohibited by ordinance, and the defendant claimed and introduced evidence tending to prove that the boy was standing so near to the carg that he was struck by some projection thereof, testimony of an expert as to whether or not it would have been possible for the boy to have fallen in the manner in which witnesses have testified that he did fall, without the train striking him, is incompetent, since such question was for the jury, and not a proper subject for opinion evidence.-GRANEY V. ST. LOUIS, ETC. RY. Co., Mo., 57 S. W. Rep. 276.

44. RAILROAD COMPANY-Negligence-Fires.-Where a fire was alleged to have been caused by sparks emitted by a particular engine, it was error to admit evidence of other fires caused by sparks from other en. gines, and of fires caused by passing trains in fields past which another railroad ran, without showing the condition of the engines or the attending circum. stances.-HYGIENIC PLATE ICE MFG. Co. v. RALEIGH & AUGUSTA AIR-LINE R. CO., N. Car., 36 S. E. Rep. 279.

45. RELIGIOUS SOCIETY-Action Against.-No action can be maintained against a religious society, when sued as such, when such society has not been incorporated, nor had recorded its name and objects, as provided by law. The members of such society are liable on its contracts as joint promisors or partners.-THURMOND V. CEDAR SPRING BAPTIST CHURCH, Ga., 36 S. E. Кер. 221.

46. REMOVAL OF CAUSES - Foreign CorporationsConstitutional Law.-The refusal to permit a foreign corporation which has become a domestic corpora. tion, in pursuance of Pub. Laws 1899, ch. 62, to remove an action against it for personal injuries to a federal court, does not abridge its privileges and immunities as a citizen of the United States, or deprive it of its property without due process of law, and of the equal protection of the laws, as guarantied by the United States constitution.-DEBNAM V. SOUTHERN BELL TEL. Co., N. Car., 36 8. E. Rep. 269.

47. REPRESENTATIONS-Right of Corporation to Plead Claim of Stockholders.-A corporation cannot recover damages for alleged false representations to the stock. holders, whereby they were induced to purchase property which they transferred to the corporation subsequently organized.-LEBANON STEAM LAUNDRY DYCKMAN, Ky., 57 8. W. Rep. 227.

V.

Fide Pur

48. SALES-Reservation of Title-Bona chasers. Where, by a contract of sale, the buyer is to execute his notes for the purchase price, and the title to the goods is to remain in the seller until the goods are fully paid for, the execution of the notes, or of a renewal note, for the debt, is not a payment, unless by agreement of the parties they are taken as such.TRIPLETT V. MANSUR & TEBBETTS IMPLEMENT CO., Ark., 57 S. W. Rep. 261.

49. SHERIFFS AND CONSTABLES-Indemnity Bonds.The sureties on an indemnity bond given a sheriff for the seizure of goods under process are not relieved from liability by the loss of the goods by fire, where the sheriff was not negligent in caring for the goods.VICKERY V. CRAWFORD, Tex., 57 S. W. Rep. 326.

50. TELEGRAPH COMPANY-Messages-Damages-Mental Distress.-Where a telegraph company, on receiv ing a message for transmission, was informed that plaintiff's purpose in sending it was that the recipient should prepare a grave to receive the body of plaint. iff's deceased child, and should meet him with relatives on his arrival with the body, plaintiff was entitled to recover for mental distress and mortification caused by the recipient's failure to meet him with rel. atives, through the company's negligence in failing to deliver the message.-WESTERN UNION TEL. Co. v. GIFFIN, Tex., 57 8, W. Rep. 327.

51. TRUSTS-Power of Trustee to Sell and Reinvest.The power conferred by will on a trustee to sell the land devised, with consent of the beneficiaries, and reinvest the proceeds, was not exhausted by one sale and reinvestment.-OWSLEY V. EADS' TRUSTEE, Ky., 57 S. W. Rep. 225.

52. VENDOR AND PURCHASER-Vendor's Lien-Rescission of Sale-Failure to Pay.-In an action by a vendor against his vendee, whom the former has put in possession, to recover possession of land sold, and for which the former retained a vendor's lien, on the ground that the vendee had failed to pay the balance of the price, the vendee cannot recover for improvements made on the land, nor for payments made.BANKS V. MCQUATTERS, Tex., 67 S. W. Rep. 334.

53. VENDOR'S LIEN-Executory Contract.-A deed of lands, in which is reserved a lien to secure a part of the purchase money, is an executory contract; and the superior title to the land remains in the grantor, and can be defeated only by payment of the purchase money.-EFRON V. BURGOWER, Tex., 57 S. W. Rep. 306. 54. WATERS-Surface Water- Adjoining Lands.-A landowner who has so constructed a dam on his lands as to form a tank in which surface water is collected, until it overflows adjoining land, is liable for the dam. ages resulting to the adjoining land, since the common. law rule that the owner of the lower estate may repel surface water, which is made a part of the laws of Texas by Rev. St. § 3258, providing that the common law shall be the rule of decision until altered or repealed by the legislature, applies only to flowage in natural ways and quantities.-GEMBLER V. ECHTERHOFF, Tex., 57 S. W. Rep. 313.

55. WILLS-Election by Widow.-A widow, to whom a deceased husband has devised all his property for life, cannot be held to have elected to take under such will, by having probated it and taken possession of and assumed control of all the devised property, where the property belonged to the community estate of decedent and his surviving wife, the possession of which she was entitled to as a homestead and exemption, and it was not shown that she received anything of value under the will to which she was not otherwise entitled. -MCCLARY V. DUCKWORTH, Tex., 57 S. W. Rep. 317.

56. WILL-Estate Created-Life Estate with Power.Where a life estate is given in express terms with power to dispose of the fee by last will, a limitation over in the event the life tenant shall die intestate is valid.-LER V. FIDELITY TRUST & SAFETY VAULT Co., Ky., 57 S. W. Rep. 239.

57. WILLS-Widow-Life Estate.-A testator devised to his widow all his real estate for life, remainder to his children, with the privilege to the widow of selling and conveying it or any part of it, and making title to the same, for her use and support. The children partitioned the remainder among themselves by deed. The widow sued to set aside these conveyances as clouds on her title; claiming that, by reason of the privilege of sale given her. she took in fee, and the remainder over was void. Held, that the widow took a life estate, with authority to sell such portions as might be necessary in case the rents and profits were insufficient for her support, and hence the children's deeds were not clouds on her title.-WATSON V. WATSON, Tenn., 57 S. W. Rep. 385.

58. WILL CONTEST - Appeal-Administration.-Rev. St. 1889, § 13, provides that if the validity of a will be contested, or the executor be a minor, or absent from the State, letters of administration shall be granted during the time of such contest, minority, or absence to some other person. Held, that an order of the probate court revoking letters of administration issued under such section, made after the determination of a will contest in the circuit court, but during the pen. dency of an appeal therefrom, was erroneous, the appeal to the supreme court being a part of the "time of such contest."-STATE V. GUINOTTE, Mo., 57 S. W. Rep. 281.

premises, no matter how filthy they may become, and the public scavenger cannot be made to clean them oftener than once a month without an order from the superintendent of health. This case does not question the right of the city to clean all closets, or to have them cleaned or kept clean; but it involves the right of the owner himself to clean up. If the ordinance has that effectand the State claims that it has such an effect-then it is void, at least pro tanto. In this particular the effect of the ordinance is not to keep the city clean, but rather to keep it dirty, for the time being. It is a matter of common knowledge that refuse matter quickly decays during the summer months, and it can scarcely be contended that merely a monthly cleaning is sufficient to keep a closet in a healthy condition in a warm climate. Are the rates allowed to the public scavenger reasonable? If the ordinance were otherwise valid, we would hesitate to interfere with it on this ground alone, and we do not decide it as a matter of law; but to us it seems questionable."

NOTES OF IMPORTANT DECISIONS.

ABATEMENT AND REVIVAL - ACTIONS IN DIFFERENT JURISDICTIONS. The Court of Civil Appeals of Texas decide, in International & E. N. R. Co. v. Barton, 57 S. W. Rep. 292, that where two suits are pending between the same parties for the same cause of action, plaintiff, on the filing of a plea in abatement in the one, may, by paying the costs and dismissing the other, proceed in the former; and that the pendency of a prior suit in a federal court will not abate a suit subsequently brought in a State court between the same parties and for the same cause, though the two courts may sit in the same State and have the same territorial jurisdiction, since federal courts, deriving their powers from a different sovereignty from State courts, are foreign jurisdictions. The court said:

"The principal question presented for decision is the ruling of the court on the plea in abatement. This question has been elaborately and skillfully presented in the briefs submitted by the respective parties, and, after due consideration, we have reached the conclusion that the plea was properly overruled. It presented, in substance, the following facts: Appellee had instituted a former suit in the District Court of Travis County, upon the same cause of action presented in this suit, against appellant and the Pullman Palace Car Company, which suit had been removed to

the Circuit Court of the United States. But in response to the plea it was shown by proof that appellee had paid all the costs in the State court and in the federal court in the case described in the plea of abatement, and had filed in each of said courts a motion to dismiss the former cause, and elected to abandon the former and prosecute this suit. This right of election seems to have been recognized and approved by our supreme court. Payne v. Benhem, 16 Tex. 364; Trawick v. Martin Brown Co., 74 Tex. 522, 12 S. W. Rep. 216. See, also, Wilson v. Millican (Ky.), 42 S. W. Rep. 660, 42 L. R. A. 449. Furthermore, we concur with counsel for appellee that, as the federal courts derive their power and jurisdiction from a different sovereignty from that of the State courts, in that sense they are foreign jurisdictions, in like manner as the courts of different States are foreign to each other; and, therefore, the pendency of a prior suit in a federal court will not abate a suit subsequently brought in a State court between the same parties and for the same cause of action, although the two courts may sit in the same State and have the same territorial jurisdiction. On this subject there is conflict in the decisions, but we think the weight of authority supports appellee's contention. Cooper v. Newell, 173 U. S. 555, 19 Sup. Ct. Rep. 506, 43 L. Ed. 808; Gordon v. Gilfoil, 99 U. S. 169, 25 L. Ed. 383; Hyde v. Stone, 20 How. 170, 15 L. Ed. 874; The Kalorama, 10 Wall. 204, 19 L. Ed. 944; Stanton v. Embrey, 93 U. S. 448, 23 L. Ed. 983; Insurance Co. v. Harris, 96 U. S. 331, 24 L. Ed. 959; Short v. Hepburn, 21 C. C. A. 252, 75 Fed. Rep. 113; Latham v. Chafee (C. C.), 7 Fed. Rep. 520; Logan v. Greenlaw (C. C.), 12 Fed. Rep. 10; Crescent City Live Stock, Landing & Slaughter House Co. v. Butchers' Union Live Stock, Landing & Slaughter House Co. (C. C.), 12 Fed. Rep. 225; Weaver v. Field (C. C.), 16 Fed. Rep. 22; Hurst v. Everett (C. C.), 21 Fed. Rep. 218; Briggs v. Stroud (C. C.), 58 Fed. Rep. 720; Coe v. Aiken (C. C.), 50 Fed. Rep. 640; Pearce v. Feagans (C. C.), 39 Fed. Rep. 587; Beekman v. Railway Co. (C. C.), 35 Fed. Rep. 3; Rejall v. Greenhood (C. C.), 60 Fed. Rep. 786; Merritt v. Barge Co., 24 C. C. A. 530, 76 Fed. Rep. 228; Zimmerman v. So Relle, 25 C. C. A. 518, 80 Fed. Rep. 419; Hughes v. Green, 28 C. C. A. 537, 84 Fed. Rep. 833; Bank v. Bonney, 101 N. Y. 173, 4 N. E. Rep. 332; Litchfield v. City of Brooklyn (City Ct. Brook.), 34 N. Y. Supp. 1090; Checkley v. Steamship Co., 60 How. Prac. 511; Wood v. Lake, 13 Wis. 84; Wurtz v. Hart, 13 Iowa, 518; Hampton's Heirs v. Barrett, 12 La. 159; Caine v. Railway Co. (Wash.), 41 Pac. Rep. 904."

ALIENATION OF HUSBAND'S AFFECTIONS ACTION OF WIFE. It is decided by the Court of Appeals of Kentucky, in Deitzman v. Mullin, that under Kentucky Statute, sec. 2128, empowering a married woman to sue and be sued as a single woman, the wife may maintain an action against one who entices her husband from her and alienates his affections. The court says:

"The question presented here is, can a married woman maintain an action against one who entices her husband from her and alienates her affections? At common law marriage is considered in no other light than a civil contract, and the holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts consider unlawful marriage as a civil inconvenience. To punish or annul unscriptural marriages is the province of the spiritual courts, which act pro salute animæ. 1 Bl. Comm. 432. The common law recognizes the right of either husband or wife to maintain a suit for the restitution of conjugal rights when either is guilty of injury of subtraction without sufficient reason, in which case the ecclesiastical courts compel them to come together. 3 Bl. Comm. 94. At common law the husband and wife are treated as one person. Marriage operates as a suspension, in most respects, of the legal existence of the latter. All the disabilities of married women spring from the supposed unity of husband and wife. At common law the right of the wife to the consortium of her husband exists. In the ecclesiastical jurisdiction, which is exercised concurrently with that of the common law, the rights of the wife to the consortium of the husband are recognized and enforced. While the court did not give her damages for the loss of the consortium of the husband, but restored to her the thing itself, this was a distinct recognition of the rights of the wife by the ecclesiastical law of England, which was founded upon the principles of the civil law. 1 Bl. Comm. 442; 3 Bl. Comm. 139, 140. If the dominion which the common law gave the husband over the property and personal rights of the wife has been taken away from him and conferred upon her, and remedies conformable with the spirit of the civil law have been given to the wife for the redress of injuries to her person, property and personal rights, an action in her own name for the loss of the consortium of her busband, against one who wrongfully deprived her of it, may be maintained, unless the consortium of her husband is not one of her personal rights. It is not questioned that the law gives the husband the right to maintain an action against one who deprives him of the consortium of his wife. The law gives the wife the right to her husband's support, society and affection. If the right is invaded, a flagrant wrong has been committed. It is the boast of the common law that there is no wrong without a remedy. It would be a reproach to the law if there was no remedy for a wrong like this. There is a maxim that 'reason is the life of the law. Certainly it would be against reason to give the husband the right of action for an injury, but deny the same to the wife for suffering a like one. The reason which gives the husband an action against one who deprives him of the society and affection of his wife supports a rule which would give the wife the same remedy. Some courts hold that at common law an action like the one here can be maintained by the wife. The

right to the society of his wife is no greater to the husband than her right to his society. Marriage gives to each the same right in that regard. Each is entitled to the society and affection of the other. They both spring from marriage contract and are mutual in character. It has been said by some courts that these reciprocal rights are regarded as property of the respective parties. It is not necessary to enter into a discussion of the question as to whether this action could be maintained under the common law. If she could not maintain such an action at common law, it was because there was no remedy available to her for a vindication of the right. If the statutes supply the remedy, she is clothed with a right to enforce a meritorious cause of action. In Big. Torts, 153, it is said: To entice away, or to corrupt the mind and affections of one's consort, is a civil wrong for which the offender is liable to the injured husband or wife.' The gist of the action is not in the loss of assistance, but the loss of consortium of the wife or husband, under which terms are usually included the persons, affection, society and aid. Cooley, Torts, 228, says: We see no reason why such an action should not be supported where by the statute the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her.' In Jaynes v. Jaynes, 39 Hun, 40, it is said: These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word, property, which includes things not tangible or visible, and applies to whatever is exclusively one's own.' In Foot v. Card, 58 Conn. 1, 18 Atl. Rep. 1027, 6 L. R. A. 829, it was held that the right of the husband to the affections and society of the wife bas ever been regarded as a valuable property right, and he has always been permitted to sue for the loss of it. Upon principle, this right is as valuable to her as is that of the husband to him. In Seaver v. Adams (N. H.), 19 Atl. Rep. 776, it is said: 'As, in natural justice, no reason exists why the right of the wife to maintain an action against the seductress of her husband should not be co-extensive with his right of action against her seducer, nothing but imperative necessity would justify a decision to the contrary.' The right of the wife to maintain such a suit as this is supported by Westlake v. Westlake, 34 Ohio St. 633; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. Rep. 17, 6 L. R. A. 553; Jaynes v. Jaynes, 39 Hun, 40; Warner v. Miller, 17 Abb. N. C. 221; Haynes v. Nowlin, 129 Ind. 581, 29 N. E. Rep. 389, 14 L. R. A. 787; Foot v. Card, 58 Conn. 1, 18 Atl. Rep. 1027, 6 L. R. A. 829; Seaver v. Adams (N. H.), 19 Atl. Rep. 776. If the wife was deprived of a redress at common law when her husband was taken away from her by the improper influence of others, it is because of its barbarity, which made the wife the mere servant of the husband, and deprived her of all right to redress her personal wrongs, except by his will. The doctrine of feudal times gave many and comprehensive rights to the baron, but few to the feme.