the enforcement of such liability begin to run at the expiration of a year for such suspension, whether the claim against the corporation has been reduced to judgment or not, since the creditor may immediately proceed against the stockholders on the dissolution of the corporation, without waiting to obtain a judgment against the corporation.-SEATTLE NAT. BANK V. PRATT, U. S. C. C., N. D. (N. Y.), 103 Fed. Rep. 62.

32. CORPORATIONS-Transfer of Property-Validity.A corporation may not transfer all its property to another corporation, and take in payment therefor the stock of such corporation, without the unanimous consent of its stockholders, and hence such transfer will be set aside at the suit of a non assenting stockholder.-MORRIS V. ELYTON LAND CO., Ala., 28 South. Rep. 513.

33. CRIMINAL EVIDENCE - Opinion Evidence-Homfelde. A medical expert, after describing a wound and its location, and giving his opinion as to the character of the weapon by which it was caused, may testify to the opinion that the blow came from the rear of the injured person. Any witness, after examining a phys. ical instrument, may testify to the opinion that it is a deadly weapon. -PERRY V. STATE, Ga., 36 S. E. Rep. 781. 34. CRIMINAL LAW Entry of Judgment.-A journal entry of judgment in a criminal case cannot be amended after the sentence, as stated in such journal entry, has been fully served, and the fine and costs paid, by adding thereto a penalty for failure to give the good-behavior bond provided for in the statute.STATE V. MCBEE, Kan., 61 Pac. Rep. 1092.

35. CRIMINAL LAW-False Pretenses.-When one, by using any deceitful means or artful practice, other than those which are mentioned specifically in the Penal Code, obtains the money or goods of another, the offense forbidden by Pen. Code, § 670, is complete as soon as the owner is thus deprived of his property, and subsequent repentance and restitution on the part of the wrongdoer will constitute no bar to a prosecu. tion against him.-LOWE V. STATE, Ga., 36 S. E. Rep. 856.

86. CRIMINAL LAW-Insanity-Presumption.-Where the defense of insanity is interposed to a criminal prosecution, it is proper to instruct that if the defendant is shown to have been permanently insane before the crime, the presumption would be that it continued and existed at the time of the offense, but that by "permanently insane" is meant insanity not due to a temporary cause, such as delirium tremens, fever, or the like.-KEllogg v. UNITED STATES, U. S. C. C. of App., Sixth Circuit, 103 Fed. Rep. 200.

37. CRIMINAL LAW-Instruction.-Const. art. 6, § 19, declares that judges shall not charge juries with re spect to matters of fact. Held, that where, on a prosecution for murder, the jury were instructed that, though there was no evidence of a motive on the part of accused for the commission of the offense charged, there may nevertheless have been a motive undisclosed, and, the evidence relied on to convict being circumstantial, were charged that circumstantial evi. dence has the advantage of direct evidence, because not likely to be fabricated, the instructions were improper, under Const. art. 6, § 19, since they intimated the court's view of the sufficiency of the evidence.PEOPLE V. VERENESENECKOCKOCKHOFF, Cal., 62 Pac. Rep. 111.

38. CRIMINAL LAW-Larceny-Ownership of Prop. erty. While possession is sufficient prima facie proof of the ownership of land to support an indictment for stealing the timber from it, the mere fact that one not in possession, but claiming to own the land, instructed another, who was also not in possession, to look after it, and keep off trespassers, was not sufficient proof of possession, In the absence of the exercise of any act of ownership, to support such an indictment.-CARL V. STATE, Ala., 28 South. Rep. 505.

39. CRIMINAL LAW-Train Robberies-Indictment.Rev. St. 1899, § 1955, declares that any person who shall

place upon any railroad track any obstruction or explosive substance, or shall remove, destroy, or injure any rails,ties, or switch from bridge or trestle, or shall stop any train with the intent to commit robbery, shall be punished by death or confinement in the State prison. Held that, under the statute, a conviction was proper, although the offender did not so impair the railroad track as to endanger the entire passenger train and the lives of the people thereon.-STATE V. STUBBLEFIELD, Mo., 58 8. W. Rep. 337.

40. DEATH BY WRONGFUL ACT-Damages-Evidence. -In an action under Code 1896, § 27, providing that the personal representatives of one killed by a wrongful act may recover such damages as the jury may assess, evidence of the ag, physical and mental condition, earning capacity, and occupation of deceased, and the amount contributed by him to the support of those dependent on him, was properly rejected as irrelevant, since the act is not compensatory, but punitive in its nature.-LOUISVILLE & N. R. Co. v. TEGNOR, Ala., 28 South. Rep. 510.

41. DEATH BY WRONGFUL ACT-Punitive DamagesAlabama Statute.-Under the statutes of Alabama (Code, §§ 26, 27), the personal representative of a deceased minor child, in an action against the receivers of a railroad to recover for the death of his intestate through the wrongful act or negligence of defendants, or their servants, may recover punitive damages.MCGHEE V. MCCARLEY, U. 8. C. C. of App., Fifth Circuit, 103 Fed. Rep. 55.

42. DEATH BY WRONGFUL ACT-Release by Party Injured-Effect.-An action for the homicide of a hus. band or father, alleged to have been occasioned by a physical injury, is not maintainable when it appears that he, while in life, voluntarily settled with the wrongdoer therefor, and discharged the latter from all the liability for the damages resulting therefrom. -SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. CASSIN, Ga., 36 S. E. Rep. 881.

43. DEBTOR AND CREDITOR-Compromise with Creditors-Secret Agreement.-When one of several creditors of a common debtor who is in failing circum stances ostensibly agrees with the other creditors and the debtor upon a compromise and settlement of all their claims at a specified per cent. on the dollar, and the creditor first referred to, by à secret arrangement with the debtor, of which the other creditors are kept in ignorance, obtains from him money and promis. sory notes in addition to what is paid under the terms of the general settlement, this latter transaction is in law fraudulent, the notes given in pursuance thereof are void, and the debtor may recover the money paid In pursuance of the secret preference thus given.BROWN V. EVERETT RIDLEY-RAGAN CO., Ga., 36 S. E. Rep. 813.

44. DIVORCE - Cruel Treatment - Evidence.-Cruel and inhuman treatment by a husband may be shown by compulsory excessive intercourse, injuring the health of his wife, a woman of delicate health.-GARDNER V. GARDNER, Tenn., 58 S. W. Rep. 342.

45. EQUITY-Suit by Receiver against Stockholders.Equity is without jurisdiction of a suit by the receiver of an insolvent corporation against numerous stock. holders to recover an additional liability imposed by statute, on the single ground that a multitude of ac. tions at law will thereby be avoided, where the amount of the assessment has been previously adjudicated in a general suit, and has been fixed at the full amount of the statutory liability, since no question remains in which the defendants have a common interest, and the suit is merely an aggregation of separate suits, each involving separate issues and having little rela. tion to each other, except that there is a common plaintiff, and in each of which the remedy at law is adequate. HALE V. ALLINSON, U. S. C. C., E. D. (Penn.), 102 Fed. Rep. 790.

46. EXECUTORS AND ADMINISTRATORS-JudgmentsCollateral Attack.-Where a judgment de bonis testatoris

is obtained against an executor, execution issued thereon, a return of nulla bona made by the sheriff, and a suit brought on the judgment against the executor personally, suggesting a devastavit, the executor can. not, in his defense to the suit, make a collateral at tack upon the judgment by showing fraud or mistake in its rendition; and this is true although the judgment was rendered by the same court in which the suit thereon is pending.-PORTER V. ROUNTREE, Ga., 36 S. E. Rep. 761.

47. EXTRADITION-Habeas Corpus.-In proceedings for the extradition of one charged in the complaint with being a fugitive from the justice of a foreign country, and with the commission of an extraditable offense under the treaty between such country and the United States, where the commissioner before whom the hearing is had has jurisdiction of the person of the accused, his finding of probable cause is open on habeas corpus only to the inquiry whether there was legal evidence before him on which to exercise his judgment, and not as to the sufficiency of such evidence.-IN RE COUNT DE TOULOUSE LAUTREC, U. S. C. C. of App., Seventh Circuit, 102 Fed. Rep. 878.

48. FEDERAL COURTS - Jurisdiction - Assignee of Chose in Action.-Under the provision of section 1 of the judiciary act of 1887-88, that no federal court shall have cognizance of a suit to recover the contents of any promissory note or other chose in action "in favor of any assignee or any subsequent holder, unless such sult might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made," if the requisite diversity of citizen. ship existed between the original parties to a note or contract, and a suit between them might have been maintained thereon in a federal court, any subsequent assignee may maintain such action, provided he is also a resident of a State other than that in which the defendant resides; and it is immaterial that an intermediate assignee was a resident of the same State.PORTAGE CITY WATER Co. v. CITY OF PORTAGE, U. S. C. C., W. D. (Wis.), 102 Fed. Rep. 769.

49. FEDERAL COURTS Jurisdiction - Citizenship.The fact that merely formal parties, against whom no relief is sought, and who are residents of the same State with the real defendants, are made defendants, when they might properly be joined as plaintiffs, will not defeat the jurisdiction of the federal court, on the ground that the parties on one side are not all citizens of different States from those on the other.REESE V. ZINN, U. S. C. C., D. (W. Va ), 103 Fed. Rep.

97.

50. FEDERAL COURTS-Jurisdiction-Patent Laws.Where a contract, the validity of which is involved in a suit for infringement of a patent, is not one between the parties to the suit is collateral thereto, and cannot characterize the suit as on the contract, and not one arising under the patent laws, and therefore not within the special jurisdiction of the circuit courts of the United States.-ATHERTON MACH. Co. v. ATWOOD. MORRISON Co., U. S. C. C. of App., Third Circuit, 102 Fed. Rep. 949.

51. FEDERAL COURTS-Scope of Powers-City Ordinances. Where no federal question is involved, it is hardly within the province of a federal court to declare void a municipal ordinance, passed under a gen. eral grant of power from the legislature, on the ground that its provisions are unreasonable, and therefore in excess of the powers to be inferred from the grant.SOUTHERN BELL TELEPHONE & TELEGRAPH Co. v. CITY OF RICHMOND, U. S. C. C. of App., Fourth Circuit, 103 Fed. Rep. 31.

52. FRAUDS, STATUTE OF-Promise to Pay Debt of Another. If a debtor apply to his creditor for further credit for goods to be used in connection with his business, which the creditor refuses; and a third person, pecuniarily interested in the success of the debtor's business, agree to assume the debt if the creditor will extend further credit; and the creditor discharge

the debtor from the debt, look to the third person for payment thereof, and extend to the original debtor further credit-the promise by the third person to pay the original debt is not collateral, but an original undertaking, and need not be in writing.-FERST V. BANK OF WAYCROSS, Ga., 36 S. E. Rep. 773.

53. FRAUDULENT CONVEYANCES -Evidence.-A conveyance of property by an insolvent mother to her daughter and the husband of the latter is not neces. sarily fraudulent, and when the jury was authorized, under the evidence, to find that such conveyance was made in good faith and for a proper and legal consid eration, the verdict, in the absence of any error of law on the part of the judge, ought not to be set aside.COOLEY V. ABBEY, Ga., 36 S. E. Rep. 786.

54. FRAUDULENT CONVEYANCES-Life Policy-Insolv ency of Insured.-Where insured agreed to take out a policy in his wife's favor in consideration of being allowed the income from her estate during the life of the policy, and such income exceeded the amount of premiums paid by him, the payment of such premiums was not voluntary, and hence insured's creditors could not reach the amount of the policy paid his wife on the ground of his insolvency when such premiums were paid.-FIRST NAT. BANK OF ASBURY PARK V. WHITE, N. J., 46 Atl. Rep. 1092.

55. GAMBLING CONTRACTS-Validity-Bankruptcy.-A bill of sale intended as security for a loan of money to be used in dealing in differences, in the profits of which the vendee is to participate, is invalid as against the trustee in bankruptcy of the vendor.-MARDEN V. PHILLIPS, U. s. D. C., D. (Mass.), 103 Fed. Rep. 196.

56. GARNISHMENT-1ax Execution.-Where a tax execution has been by the tax collector transferred to a private person, such transferee cannot base upon it a garnishment proceeding against a debtor of the defendant in execution.-DAVIS V. MILLEN, Ga., 36 8. E. Rep. 803.

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57. GUARANTY Corporate Stock-Tender. --When one induces another to purchase stock in an incorporated company, and in consideration thereof undertakes in writing to guaranty to pay to the subscriber "one hundred cents in the dollar" for the stock "within ninety days from the date" of such agreement, the purchaser could not maintain against the guarantor an action upon the contract without showing affirmatively that in due time he had tendered the stock to the latter, and demanded of him payment in accordance with the terms of the agreement.-MORRIS V. VEACH, Ga., 36 S. E. Rep. 753.

58. INSURANCE

Construction-Allenation of Property. Where there is an express provision in a policy of insurance that the policy shall be void if the prop. erty shall be sold without the insurer's consent, a pro. vision that the policy shall be void if, without the insurer's consent, "the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risks," will not be construed to embrace changes of situation or circumstances made by a sale.-Clinton v. NORFOLK MUT. FIRE INS. Co., Mass., 57 N. E. Rep. 998.

59. INSURANCE - Premium-Forfeiture.-An insured In a life insurance policy secured several premium loans on the policy from the company, and at length, on negotiation of a further loan, gave a note covering the entire amount borrowed, which note provided that, if the interest due thereon should not be paid when due, the policy might be sold to satisfy the claim of the company; and thereafter the policy was sold on the ground that insured had not paid sufficient interest while, as a matter of fact, the amount paid by insured, together with dividends on the policy to which she was entitled, was sufficient to liquidate the interest due. Held, that equity, at the suit of the benef. ciary, would relieve against the forfeiture.-UNION CENT. LIFE INS. Co. v. CALDWELL, Ark., 58 8. W. Rep. 355.

60. JUDGMENT-Joint Judgments-Parties.-All persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and that a fallure to join any of them either as plaintiffs or defendants is ground for dismis sal of the case.-GOODWIN V. WYETH HARDWARE & MFG. CO., Kan., 62 Pac. Rep. 11.

61. JUDGMENT - Lien Homestead. A judgment against the owner of lands used as a homestead is not a lien on such lands, and hence a purchaser acquires a title thereto free from such judgment.NORTHRUP V. HORVILLE, Kan., 62 Pac. Rep. 9.

62. JUDICIAL NOTICE-Judges-Term of Court.-The court will take judicial notice that a particular circuit judge was regularly assigned to hold court in a certain circuit within a State at a certain time.-BarnWELL V. MARION, S. Car., 36 S. E. Rep. 818.

63. JUDICIAL SALE- Purchaser's Title.-A purchaser of land at judicial sale, acting in good faith and without notice, acquires title as against a prior convey. ance by the owner, unrecorded at the time of the mak. ing and confirmation of such sale.-OUSLEY V. BAILEY, Ga., 36 8. E. Rep. 750.

64. LANDLORD'S LIEN-Sale by Tenant-Intent to Defraud. In order to render penal a sale by a tenant of personalty which is subject to a landlord's lien for rent and advances, it must appear that such sale was made without the consent of the landlord, with intent to defraud him, and that in consequence of such sale he sustained a loss.-MORRISON V. STATE, Ga., 36 S. E. Rep. 902.

65. LIBEL-What Constitutes.-To publish of a merchant that he has given a mortgage upon his stock of goods, though the same does not appear of record, is not actionable, without allegations of special damage.-DUN v. WEINTRAUB, Ga., 36 S. E. Rep. 809.

66. MARRIED WOMAN - Deed-Garnishment.-Where the debtor merely has the legal title to the fund in a garnishee's possession, and where the equitable title is in the claimants, a garnishment proceeding cannot be maintained.-RUSHTON V. DAVIS, Ala., 28 South. Rep. 476.

67. MASTER AND SERVANT-Independent ContractorInjury to Third Person.-Where an owner of property employs a competent independent contractor to repair chimneys, and retains no authority over the details of the work, or the manner in which it shall be done, such owner, though he retains the right of control of the premises, is not liable to a person on the street for an injury from falling bricks, caused by the contractor's negligence.-BOOMER V. WILBUR, Mass., 57 N. E. Rep. 1004.

69. MASTER AND SERVANT-Injury Assumption of Risk. Notwithstanding his own expressed fears that the walls of the trench in which he was working as an employee of the receivers of a railroad company might fall and do him bodily injury, the plaintiff, a man of very limited experience in that kind of work, contin ued in the employment, relying upon the assurance of the foreman in charge of the work that the same was entirely safe. Held, that all questions as to the defendant's negligence and as to the plaintiff's assump. tion of the risks of the employment were for determination by the jury.-WALKER V. SCOTT, Kan., 61 Pac. Rep. 1091.

69. MASTER AND SERVANT-Injuries-Proximate Cause. -An employee who has suffered a physical injury can. not maintain therefor an action against his master merely because there may have been on the part of the latter negligent acts or omissions, which, though they may to some extent have contributed to bringing about a dangerous situation, in which the employee did an act from which the injury directly resulted, were not themselves the cause of the injury.-CENTRAL OF GEORGIA; RY. Co. v. EDWARDS, Ga., 36)S. E. Rep. 810.

70. MASTER AND SERVANT-Employee-NegligencePromise to Remedy.-Where the master conducting an enterprise of hazard promises an employee to remedy a defect in the instrumentalities he furnishes, or to discharge an incompetent servant, the person receiving such promise may wait in reliance thereon a reasonable length of time for the fulfilment of the same, where the danger is not imminent; and the promisee does not thereby assume the risk of injury resulting therefrom.- VOGT V. HONSTAIN, Minu., 83 N. W. Rep. 533.

71. MASTER AND SERVANT-Special, Verdict.-Rev. St. § 2858, provides that on request the court shall prepare a special verdict, “in the form of questions, in writing, relating only to material issues of fact and admitting a direct answer." A sawmill employee's complaint in an action for injuries alleged that his employer failed to provide a reasonably safe place for his work, and that he failed to inform plaintiff of the dangers attendant thereon. Held that, on request for a special verdict, the submission of the question whether defendant was guilty of negligence in merely permitting plaintiff to work where he did was improper, since the question raised was not issuable. - SLADKY V. MARIINETTE LUMBER CO., Wis., 83 N. W. Rep. 514.

72. MASTER AND SERVANT-Voluntary Services.-An employee who, as a mere volunteer, does an act entirely outside of the scope of his employment, and in consequence receives personal injuries, cannot hold his master liable therefor.-ALLEN V. HIXSON, Ga., 36 S. E. Rep. 810.

73. MECHANICS' LIENS-Payment to Contractor-Rights of Assignee.-Where, under a contract for the erection of a school building, monthly estimates are to be made by the architect of the value of the work done, Independently of materials furnished and not then used in the building, and the school trustees are to draw a warrant in favor of the contractor for 75 per cent. of such estimate, the assignee of a warrant issued to the contractor by the trustees upon an esti mate made by the architect, for a valuable consideration, is entitled to payment, as against the claims of material-men, of which no notice was served until after the assignment of the warrant.-LONG BEACH SCHOOL DISTRICT V. LUTGE, Cal., 62 Pac. Rep. 36.

74. MINING CLAIM-Notice of Location-Description. -The law will not hold the locator of a mining claim to a strict and technical observance of the statute in respect to the terms of his notice, so long as he sub. stantially complies with its requirements; and if it ap pears that the location was made in good faith, and by any reasonable construction, in view of the surround.' ing circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.-WELLS V. DAVIS, Utah, 62 Pac. Rep. 3.

75. MORTGAGE-Acknowledgment-Collateral Attack. -Though the fact that a mortgagor's wife acknowl. edged the instrument before a notary public who was an officer in the grantee corporation rendered the instrument invalid, that question could not be raised in an action for the recovery of the land, based on the deed.- MONROE V. ARTHUR, Ala., 28 South. Rep. 476. 76. MORTGAGES Foreclosure Crops Covered by Chattel Mortgage.-A purchaser of lands at foreclosure sale took the growing crops, notwithstanding a chattel mortgage on the same, made before sale, on the mortgagor's share, as rent owing him from a tenant whose term was unexpired, since such rent did not ac crue till the harvesting of the crops, which occurred after sale, and hence was payable to the purchaser, rather than the mortgagor.-JONES V. ADAMS, Oreg., 62 Pac. Rep. 16.

77. MORTGAGES-Foreclosure-Setting Aside Sale.Where, on default in payment of a mortgage, the assignee of the mortgagor bought at the foreclosure sale without unfairness or irregularity in the foreclosure proceedings, the fact that the assignee purchased the mortgage and indebtedness secured thereby at the

mortgagor's request, under an agreement to give the mortgagor management of the mortgaged premises and a support therefrom for a certain time, and then deed a portion thereof to him, thus deceiving and overreaching him, and that the premises were sold for less than their value, is insufficient to authorize equity to set aside the sale, and allow redemption under the mortgage, since mere breach of assignee's contract does not afford ground for equitable relief.- HUNTER V. MELLEN, Ala., 28 South. Rep. 468.

78. MORTGAGES-Foreclosure Sale-Failure of Title.A purchaser of land at a master's sale under foreclos ure is entitled to an abatement in the price bid, on dis. covery after the sale, and before a deed has pissed, that a portion of the lands described in the decree and advertisement of sale had been recovered from the mortgagor by title paramount.-PROPLE'S BANK OF GREENVILLE V. BRAMLETT, S. Car., 36 S. E. Rep. 912. 79. MUNICIPAL CORPORATIONS Defective BridgeLiabilities.-A city is not liable for injuries resulting from the defective condition of a bridge over a road on private property, approached by a gate, and in no way controlled by the city or open to the public. This is true although the bridge is within the corporate limits of the city.-MAYOR, ETC. OF SANDERSVILLE V. HURST, Ga., 36 S. E. Rep. 757.

80. MUNICIPAL CORPORATIONS - Telephone WiresOrdinance.-The city council or governing body of a municipality has the undoubted right in the exercise of the police power to order the placing of telegraph and telephone wires under ground whenever, in the exercise of a fair discretion, it decides that public interest require it to be done; but it cannot act arbitrarily in the premises.-NORTHWESTERN TEL. EXCH. CO. V. CITY OF MINNEAPOLIS, Minn., 83 N. W. Rep. 527.

81. NATIONAL BANKS-Liability of Stockholders.The purpose of the provisions of the national banking law relating to liability of stockholders is that, in case of the insolvency of the bank, its shareholders shall be liable for its debts to the extent of the amount of their stock, and the law is to be construed in view of such purpose. The comptroller has power to order succes. sive assessments, in the aggregate within the limit of the stockholders' full liability; and this power cannot be affected, and the purpose of the law defeated, by the fact that a receiver, in enforcing a first assessment, has sued at law rather than in equity, and bas recovered a judgment which has been satisfied.STUDEBAKER V. PERRY, U. S. C. C. of App., Seventh Circuit, 102 Fed. Rep. 947.

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82. PLEADING Binks Action for Deposits.-A formal demand is a condition precedent to the misdemeanor of an action against a banker for a deposit, which must be alleged in the complaint; and the money counts do not aver a demand nor any excuse for not making it, and are insufficient.-TOBIAS V. MORRIS, Ala., 28 South. Rep. 517.

83. PRINCIPAL AND AGENT-Liability to Principal.-A managing agent of a warehouse company, without disclosing the fact to his principal, made profits in the business use of the name of the company, and outside of the scope of its corporate authority. Held, that such profits belonged to the company.-GOODHUE FARMERS' WAREHOUSE Co. v. DAVIS, Minn., 83 N. W. Rep. 531.

84. PRINCIPAL AND SURETY Enforcement of Con. tribution.-Though a surety might in some instances, without payment, compel a co-obligor to pay his por tion of a common obligation, the remedy is not avail. able if the person to whom payment should be made is not a party to the action, since he could not be com pelled to accept payment.-LADD V. CHAMBER OF COMMERCE, Oreg., 61 Pac. Rep. 1127.

85. PUBLIC LANDS-Mistake in Survey.-The land department of the United States has no power to correct errors in a survey of public lands after such lands have been sold, by reference to such survey, to purchasers in good faith; the remedy of the government, if a mis

take has been made to its Injury, being by a suit in the courts.-MURPHY V. KIRWAN, U. S. C. C., D. (Minn.), 103 Fed. Rep. 104.

86. RAILROADS - Foreclosure of Liens-Decree.-A holder of railroad bond, who becomes a party by Intervention to a suit against the company in which receivers have previously been appointed, and by authority of the court have issued receivers' certificates, is conclu led by a subsequent decree which adjudges the validity of such certificates as liens; and unless he takes steps to review such decree, by petition for re. hearing or appeal, he cannot contest the question on distribution of the proceeds of the property after sale. -FIRST NAT. BANK OF HOUSTON V. EWING, U. S. C. C. of App., Fifth Circuit, 103 Fed. Rep. 169.

87. RAILROAD COMPANY-Crossing Private Lands.-A railway company which, in granting a right of way to an adjacent owner, stipulates that the way granted is to be always so used and enjoyed as to do no unnecessary damage to the roadbed, and so as not to impede any trains when in motion on its tracks, after such way has been used for a number of years, open and unobstructed, cannot obstruct it by gates, bars, or other fences, since it sufficiently appears that the way granted was a free right of passage.-HAMLIN V. NEW YORK, ETC. R. Co., Mass., 57 N. E. Rep. 1006.

88. RAILROAD COMPANY

Foreclosure of MortgageReorganization Ageement.-A decree foreclosing mortgages on a railroad cannot be impeached because of a prior agreement between a committee of bondholders and officers and directors of the company to form a reorganized company, and purchase the prop erty at the sale, and thereby relieve it from the unsecured debts of the company, even though it is a part of such agreement that stockholders of the old company may obtain stock in the new on payment of a small difference, where the mortgages are due because of default in the payment of interest, and the company is in fact insolvent, and it does not appear that the trustees who brought the suit are parties to or had knowledge of the agreement, or that the default which matured the mortgages was due to such agreement.— FARMERS' LOAN & TRUST Co. v. LOUISVILLE, ETC. RY. Co., U. S. C. C., D. (Iud.), 103 Fed. Rep. 110.

89. RAILROAD COMPANY-Street Railroads - Crossing Other Roads-Additional Servitude.-No new burden or servitude is imposed upon a public street or highway by constructing and operating therein a street railway for the transportation of passengers, the cars of which are propelled by electric power.-SOUTHERN RY. Co. v. ATLANTA RY. & POWER Co., Ga., 36 S. E. Rep. 873.

90. RECEIVERS Appointment Exhausting Legal Remedies. Decree appointing receiver will not be set aside on motion of a creditor because the creditor applying for the appointment had not had an execution issued and returned unsatisfied, no objection on this account having been made by the corporation to the application.-ENOS V. NEW YORK & O. R. Co., U. S. C. C., S. D. (N. Y.), 103 Fed. Rep. 47.

91. REMOVAL OF CAUSES - Foreign Corporations.-A railroad company incorporated under the laws of another State is a non resident of South Carolina, for the purpose of removal of causes to a federal court, though it has complied with the requirements of Act March 19, 1896, providing that thereupon such corpora. tion shall become a domestic corporation, with all the rights and liabilities thereof.-CALVERT V. SOUTHERN RY. Co., S. Car., 36 S. E. Rep. 750.

92. REMOVAL OF CAUSES-Separable Controversy.An action in tort against two defendants to charge them with liability on the ground of the negligence of servants employed by them jointly, does not involve a separable controversy, so as to be removable by one defendant alone.-MARRS V. FELTON, U. S. C. C., D. (Ky.), 102 Fed. Rep. 775.

93. REMOVAL OF CAUSES-Separable Causes of Action.-An action by the receiver of an insolvent bank

against numerous stockholders for the recovery of an assessment made upon the several stockholders for each one's pro rata share of the deficiency of funds necessary to discharge the obligations of the corporation involves a separable controversy within the provisions of the removal act.-CALDERHEAD V. DOWN. ING, U. S. C. C., D. (Wash.), 102 Fed. Rep. 27.

94. RES ADJUDICATA-Appeal.-Under Const. art 5, § 12, providing that judgments shall be affirmed in the supreme court when the justices are divided equally in their opinions, a judgment affirmed under such con. ditions is res judicata of the issue involved as to the particular case.-JOHNSON V. CHARLESTON & S. RY. Co., S. Car., 36 S. E. Rep. 851.

Bond School

95. SCHOOLS - Building Contract Buildings.-Code Civ. Proc. § 1183, provides that contracts made between reputed owners of property and contractors for the construction of buildings shall be filed with the county recorder. Section 1203 declares that every contract required to be filed shall be accom. panied by a bond guarantying payment of labor and material. Held, that a school district in contracting for the erection of a school house, though not ex. pressly authorized to require a bond under the sections recited, could nevertheless do so, as it was not prohibited.-UNION SHEET METAL WORKS V. DODGE, Cal., 62 Pac. Rep. 41.

96. TAXATION-Interstate Commerce-License.-The "Interstate Commerce Clause" of the constitution of the United States does not operate to prevent a State from imposing, for the purpose of raising revenue, a license tax upon persons who, as traveling agents for principals residing in other States, make executory contracts for the sale of goods, and who, when the same are shipped into this State, receive them in bulk, break the original packages in which they are contained, and distribute thein among the customers with whom such contracts had been made.-RACINE IRON Co. v. MCCOMMONS, Ga., 36 S. E. Rep. 866.

97. TRADE MARKS Infringement - Damages. -The amount recoverable by the owner of a trade mark from a willful infringer is not limited to the profits made by the defendaut, but includes also the damages resulting to the complainant from the injury to his business or the reputation of his goods.-HENNESSY V. WILMERDING-LOEWE CO., U. s. C. C., N. D. (Cal.), 103 Fed. Rep. 90.

98. TRADE MARKS-Name Descriptive of Quality.Defendant, who had selected for its customers, from manufacturers' stocks, shoes so constructed as to bring the weight of the body on the inside of the center line, and applied the name "Delsarte" thereto, for several years prior to its use by complainant to desig. nate a line of shoes manufactured and sold by it, was not entitled to use such name as a trade-mark for any kind of shoes it might make or sell, since its prior use of the word was to indicate the particular quality or character of the shoes selected by it, and not as a fancy name.-MEDLAR & HOLMES SHOE Co. v. DELSARTE MFG. Co., N. J., 46 Atl. Rep. 1089.

99. TROVER

Forthcoming Bond-Estoppel.-There was no error in refusing to grant the nonsuit. The execution of a recognizance, payable to the plaintiff, for the forthcoming of personal property, where bail has been required, in an action of trover, does not estop the defendant from denying that he ever was in possession of the property to recover which the sult was instituted.-BELL v. G. OBER & SONS CO., Ga., 36 8. E. Rep. 904.

100. TRUSTS-Executors-Powers under Will.-Under a will giving the executor power, should it be necessary, to raise in such way as it seems best to him a sufficient amount of money to pay the debts of the testator, the executor is authorized to borrow money for the purpose of paying such debts, and to secure the loan by mortgage or security deed. Where money is borrowed)under such power, it is not incumbent on the lender to ascertain whether there are debts of the

testator or not; the loan being made within a reason. able time after the death of the testator and the probate of the will.-FLETCHER V. AMERICAN TRUST & BANKING CO., Ga., 36 S. E. Rep. 767.

101. VENDOR AND PURCHASER-Loss by Fire.-Where a binding executory contract for the sale of improved realty has been made, and the improvements are destroyed by fire before the vendor is in a position to convey the legal title, and before the vendee obtains possession, the loss is that of the vendor.-PHINIZY V. GUERNSEY, Ga., 36 8. E. Rep. 796.

102. WATERS-Negligence.-Though the plaintiff, by her method of irrigation, caused surface) water to ac. cumulate on her low land, she could nevertheless recover against an irrigation company¡ for discharging quantities of water thereon and increasing her injury. -EMISON V. OWYHEE DITCH Co., Oreg., 62 Pac. Rep. 13. 103. WATER COURSES-Rights of Millowners-Pollu tion of Water.-Where there are two ore mills in oper. ation on the same stream, the lower proprietor may be compelled to take some steps and be at more expense than he would if he were the only proprietor on the stream; and It is the duty of the upper proprietor to use great care and caution, and to take such action as will avoid, as far as possible, any injury occurring to the lower proprietor by the flow of tailings from his mill.-OTAHEITE GOLD & SILVER MIN. & MILL CO. V. DEAN, U. 8. C. C., D. (Nev.), 102 Fed. Rep. 929.⚫ 104. WATER RIGHTS - Appurtenant to Land.-One party's right to use, water for irrigation purposes is not necessarily incompatible with another's right to use the same water in operating a gold mine, since the growth of plants is stimulated by the application of water in the spring and summer, and the separation of gold is usually accomplished in the rainy or winter season. MATTIS V. HOSMER, Oreg., 62 Pac. Rep. 17.

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105. WILL-Contest.-When the attestation clause to such an instrument recites all the facts essential to its due execution as a will, and it is shown that the alleged testator and those whose names appear thereon as witnesses actually affixed their signatures to the paper, a presumption arises that it was executed in the manner prescribed by law for the execution of wills; and this is so though there may be on the part of one or more of the witnesses a total failure of mem. ory as to some or all of the circumstances attending the execution.-UNDERWOOD V. THURMAN, Ga., 86 8. E. Rep. 788.

106. WILL-Trusts-Life Estate.-Where testator, after directing his wife, as his executrix, to pay all his debts and funeral expenses out of his personal estate, devised the residue of his estate to her for life, to support herself and to support and educate testator's children, the life estate given the wife was incumbered with a trust for the support and education of testator's children, and she had no power to sell her life interest in the estate.-HUNTER V. HUNTER, S. Car., 36 S. E. Rep. 784.

107. WILLS-Trusts-Life Estates-Perpetuties.-That a devise of land gave the devisee full control, with full power to deed to her grantees, their heirs and assigns, forever, did not create a fee, where all other parts of the will indicated a life, estate, with power in the devisee to sell so much as would insure her a comfort. able living, since the provision as to power to sell should be construed as inserted merely to make clear devisee's right to sell in case of necessity. – MORSE V. INHABITANTS OF NATICK, Mass., 57 N. E. Rep. 996.

108. WILLS-Validity-What Law Governs.-Where a testator, having real and personal estate in Pennsyl. vania, and his domicile in that State, and having also real estate in Virginia and West Virginia, after certain specific bequests devises all the residue of his estate to a city in Virginia, the validity of such residuary devise, as respects the real and personal property of the testator in the State of Pennsylvania, is to be determined by the law of that State.-HANDLEY V. PALMER, U. S. C. C. of App., Third Circuit, 103 Fed. Rep. 40.