The trunks were of the aggregate value of five dollars. From this description of the trunks and boxes and their contents, it is evident that the trunks and boxes must have been of a size very much larger than was necessary to hold the ordinary luggage of the number of persons entitled to transportation on three tickets would amount to. It is highly improbable that the plaintiff would carry with him such large trunks and boxes for the purpose of carrying such personal effects of himself and family as he was entitled to have carried as baggage on three tickets. The effects contained in the boxes was thereby packed in such a manner as to indicate that they were not carried as necessary personal baggage to be used on the journey, but as merchandise would be when it reaches its place of destination. From all these circumstances, we think that the judge, sitting as a jury, as he did in this case, was authorized to infer that the company was put upon notice, and given to understand, that the trunks and boxes contained more than the ordinary baggage, and that it accepted and treated the contents without regard to what they might be, as baggage, and transported them accordingly.

Railroad companies are responsible as common carriers for the baggage of their passengers. Such responsibility continues until the baggage is ready to be delivered to the owner at the place of his destination, and until he has had a reasonable time and opportunity to come and take it away. If it be not called for in a reasonable time the company may store it in a secure warehouse, when it becomes a mere warehouseman, and is thenceforward bound to exercise the same care, and no more, than ordinarily prudent men do in keeping their own goods of similar kind and value. Mote v. Railroad Co., 27 Iowa, 22; Railroad Co. v. Boyce, 73 Ill. 510.

What constitutes a reasonable time and opportunity for a passenger to remove his baggage is, ordinarily, a mixed question of fact and law. When the facts are in dispute, the jury should decide under the instructions of the court as to the law; otherwise, it is a question of law, and the court should decide it. Railroad Co. v. Boyce, Ill. 510; Railroad Co. v. Mahan, 8 Bush, 184; Roth v. Railroad Co., 34 N. Y. 548.

No absolute rule on this subject can be stated. In determining whether a passenger has had a reasonable time in which to receive and remove his baggage, "the customs of the railway and of the station, the manner of transporting baggage

In many places, especially in cities, transportation for baggage can be procured immediately upon its arrival by railroad trains and steamboats. If such places be its destination, it is the duty of the passenger to present his check, and receive it on its arrrival by train or steamboat, or as soon thereafter as the checks can reasonably, under the circumstances, be presented, and the baggage delivered. If he refuses or neglects to do so, the liability of the carrier is changed from that of an insurer to the responsibility of a warehouseman. Roth v. Railroad Co., 34 N. Y. 548; Ouimit v. Henshaw, 35 Vt. 605.

The passenger, however, cannot extend the strict and rigid liability of common carriers as insurers by postponing the time of taking possession of his baggage for his own convenience on account of its arrival at a late hour in the night, or his own peculiar circumstances. In Railroad Co. v. Boyce, 73 Ill. 510, it was held that the fact that a passenger on a railway is taken sick, and is given a lay-oyer ticket, so that he does not reach his destination as soon as his baggage, will not have the effect of extending the liability of the carrier as insurer beyond what it would otherwise be.

In the case before us the plaintiff and his baggage arrived at Mammoth Springs, their place of destination, at 11:08 o'clock at night. There were no conveyances at the depot, or running at that hour. They were in the city, "a mile's distance from the defendant's depot." The plaintiff, although he saw his baggage on the platform, made no demand for it during the night' of its arrival, but left it in the possession of the defendant who stored the same in its warehouse, which was destroyed with the baggage by fire about 1 o'clock that night.

According to the evidence, it appears that plaintiff had a reasonable time in which he might, with the use of diligence, have received and removed his baggage before the fire occurred. There is no excuse given for his failure to do so, except the lateness of the hour, and the fact that no vehicles were at the depot, or "running" that night, by which it could have been removed. This merely shows that it was inconvenient for him to remove it during the night. This, in the absence of a better showing, was not sufficient to extend the reasonable time, within which the plaintiff should call for it, to the next morning, so that, it not being called for, the defendant became liable for its custody as a carrier. "If it was not the usual course of business for the defendant to deliver baggage immediately on the arrival of the train at that late hour of the night, or, if the railroad company detained the plaintiff's baggage for their own convenience upon the arrival of the train, such facts should have been shown by the plaintiff, and, if shown, might

vary the defendant's liability for the custody of the property. But we cannot presume such facts to exist." Quimit v. Henshaw, 35 Vt. 616.

The defendant company not being liable, as common carriers, for the loss of the baggage of plaintiff, before he could recover on account thereof, it was necessary for him to show that the fire was the result of such negligence of the railroad company as would make it liable as a warehouseman for him, which he failed to do. Reversed, and remanded for a new trial.

ern

NOTE.-Recent Important Cases on the Subject of Liability for Baggage.-A railroad company is not bound, as a part of its contract to transport a passenger, who is employed as a traveling salesman, to carry as his personal baggage a case of sample merchandise belonging to his employers; and where it receives and checks such case without knowledge of its own. ership or contents, a part of which it afterwards stolen from its baggage room without negligence on its part, it is not liable to the owners. SouthKan. Ry. Co. v. Clark, 34 Pac. Rep. 1054, 52 Kan. 398. Sayles' Civ. St. art. 4258b, providing for an allowance of baggage to each raliroad passenger, does not permit the passenger to take the baggage of another. Andrews v. Ft. Worth & D. C. Ry. Co. (Tex. Civ. App.), 25 S. W. Rep. 1041. When a passenger brings baggage to the depot, to go by a train earlier than that which he intends to travel by, and, on learning that it cannot go by the former, leaves it for the latter, the railroad company is only liable to him as a warehouseman if it is burned in the interval. Goodbar v. Wabash Ry. Co., 53 Mo. App. 434. The liability of a carrier with respect to the personal baggage of a passenger, after it has reached its destination, is that of a bailee for hire. Nealand v. Boston & M. R. R. (Mass.), 36 N. E. Rep. 592. Where a railroad company safely transports the trunk of a passenger to his destination, and delivers the trunk to the passenger, who takes out some of its contents, the company's duty as carrier ceases, and the fact that its station agent consents to the retention of the trunk at the station for the convenience of the passenger attaches to it only the liability of a warehouseman. Galveston, H. & S. A. Ry. Co. v. Smith (Tex. Civ. App.), 24 S. W. Rep. 668. A railroad company which receives as a passenger's baggage the trunk of a drummer, with notice that it contained his samples, cannot escape liability for injury to the contents by showing that they were not in fact passenger's baggage. Ft. Worth & R. G. Ry. Co. v. I. B. Rosenthal Millinery Co. (Tex. Civ. App.), 29 S. W. Rep. 196. A person who, by the exercise of ordinary care, could have known that the checking of jewelry sample ca jes by station agents was prohibited by a rule of the company, cannot recover the value of such case if lost. Weber Co. v. Chicago, St. P., M. & O. Ry. Co. (Iowa), 60 N. W. Rep. 637. A railway company receiving as baggage without knowledge as to its character, a trunk containing a stock of jewelry, part of which was afterwards lost by the wrecking of a train, is liable only for safekeeping and delivery to the owner, on proper identification, of the articles saved. Wunsch v. Northern Pac. R. Co. (C. C.), 62 Fed. Rep. 878. A common carrier is liable as such if it receives, with notice, more money as baggage than is usually carried under similar circumstances. St. Louis S. W. Ry. Co. v. Berry, 30 S. W. Rep. 764, 60 Ark. 433. The liability of a railroad company, where its baggage room is broken open, and a trunk removed therefrom and

rifled, is no greater than that of a bailee for hire, if the owner of the truuk, who was a passenger, failed to call for it within a reasonable time after its arrival at its destination. Cohen v. St. Louis, I. M. & S. Ry. Co., 59 Mo. App. 66. Where a passenger's baggage is placed in the baggage room after it has reached its destination, the burden is on plaintiff to show want of ordinary care by defendant. Kahn v. Atlantic & N. C. R. Co. (N. C.), 20 S. E. Rep. 169, 115 N. C. 638. Where a passenger demands his baggage on the arrival of the train, and is told he cannot get it until the following morning, the carrier is liable if it is destroyed by fire during the night. Georgia Railroad & Banking Co. v. Phillips, 20 S. E. Rep. 646, 93 Ga. 801. Where a carrier (received baggage for transpor tation, mistakenly 'supposing that the owners thereof had purchased tickets over its road, when in fact they had purchased tickets over another road, it owed to the owners the duty only of ab staining from anything amounting to willful or wanton injury to their property while in its possession, and were hence not liable for its destruction, in common with their own property, caused by attempting to run the train in which it was placed upon an unguarded bridge, which was, and long had been, so defective that it could not sustain such a burden. Beers v. Boston & A. R. Co. (Conn.), 34 Atl. Rep. 541. A common carrier is not liable for a loss of baggage occasioned by an unforseen and unprece dented flood, though the flood would not have been encountered but for the carrier's delay. Wald v. Pittsburg, C. C. & St. L. R. Co., 60 Ill. App. 460. A railroad company's liability as common carrier, for a passenger's baggage, continues until a reasonable time has been allowed, after its delivery at its desti nation, for the owner to get it, though it be delivered by the company to a warehouseman. Pennsylvania Co. v. Liveright (Ind. App.), 41 N. E. Rep. 350. The carrying of a traveler's baggage by a railroad company constitutes a mere incident to its contract to carry the traveler, and a recovery for the loss thereof will not be governed by rules applicable to carriers of goods. Talcott v. Wabash R. Co., 35 N. Y. S. 574, 89 Hun, 492. A railroad company is liable to a passen. ger for his personal baggage, but not for merchandise contained in his trunk, delivered to it by him, and ac cepted by it simply as passenger's baggage, and with out notice to the company by the passenger that the trunk contained merchandise. Simpson v. New York, N. H. & H. R. Co. (Sup.), 38 N. Y. S. 341, 16-Misc. Rep. 613. Where the baggage agent of a railroad company, at the time he receives the baggage and checks it, has knowledge that the same contains valuable merchandise belonging to the firm for which the passenger is traveling agent, and receives it without objection, as personal baggage, the company will be liable therefor as for ordinary baggage. Bowler & Burdict Co. v. Toledo & O. C. Ry. Co., 10 Ohio Cir. Ct. Rep. 272. In order to absolve a carrier from lisbility to a passenger whose baggage was placed in the baggage room on his failure to call for it on his arrival at his destination, and from that place stolen, it is not necessary that the company show that the baggage room was absolutely burglar-proof, but only that it was such a place as a man of ordinary prudence would use for the storage of his own goods. Kansas City, Ft. S. & M. R. Co. v. Patten (Kan. App.), 45 Pac. Rep. 108. When a person takes passage upon a railroad, purchases his ticket, and checks his baggage to the place of his destination, and such baggage arrives at its destination, and is not, from any cause, delivered to such passenger, it is the duty of the company to

deposit the baggage in its baggage room, in which event its responsibility becomes that of warehouseman, and it must respond in damages for any neglect in that capacity. Kansas City, Ft. S. & M. R. Co. v. Patten (Kan. App.), 45 Pac. Rep. 108.

BOOKS RECEIVED.

Digest of Insurance Cases, Embracing all Decisions of the United States Supreme, Appellate, and Circuit Courts, and of the Appellate Courts of the Various States and Foreign Countries, in any Manner Affecting Insurance Companies, Upon Whatever Plan Their Business May be Conducted. Also, References to Annotations and to Leading Articles on Insurance in Law Journals. Vol. IX. For the Ending October 31, 1896. By John A. Finch, of the Indianapolis Bar. Indianapolis and Kan. sas City. The Bowen-Merrill Company. The American State Reports, Containing the Cases of General Value and Authority subsequent to Those Contained in the "American Decisions" and the "American Reports." Decided in the Courts of Last Resort of the Several States. Selected, Reported and Annotated, by A. C. Freeman, and the Associate Editors of the "American Decisions." Vol. LII. San Francisco. Bancroft-Whitney Company. Law Publishers and Law Booksellers. 1897.

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1. ASSIGNMENT FOR BENEFIT OF CREDITORS.-A chat. tel mortgage to secure a note due in one day is an assignment for the benefit of creditors who were such at the time of the execution of the mortgage.-TRIGG V. BALL, Ky., 38 S. W. Rep. 701.

2. ATTACHMENT-Garnishee-Interpleader.-In an attachment suit, it is in the discretion of the court to award a feigned issue to determine the ownership of a fund paid in by a garnishee.-ECKLES V. SMYSER, Penn., 36 Atl. Rep. 408.

3. ATTORNEYS-Lien for Services.-An attorney-atlaw, who successfully defends an action for the recovery of property, real or personal, recovers the same, within the meaning of section 1989 of the Code, and by

virtue of such recovery is entitled, to the extent of his fees, to a lien upon the property so recovered. His claim of lien arises upon his employment, and is per fected by the ultimate recovery of a judgment for his client, and record of his lien, and binds the property so recovered as against the owner and all others, save only bona fide purchasers without notice.—LOVETT V. MOORE, Ga., 26 S. E. Rep. 498.

4. BILLS AND NOTES - Antecedent Debt - Innocent Purchasers.-A note assigned before maturity merely as collateral security for a pre-existing debt, without any agreement for extension of time for payment of such debt, is subject to all equities existing between the original parties.-LOEWEN V. FORSEE, Mo., 38 S. W. Rep. 712.

5. BILLS AND NOTES-Failure of Consideration.-The makers of a note pleaded that it was given in consideration that the payee would become surety on a bond to be given by the makers for the performance of a government contract, and would procure the acceptance of the bond by the government; that payee signed the bond, but made no effort to get it approved; and that, in consequence, the bond was rejected. There was no evidence that the payee guarantied the acceptance of the bond, though it was, in fact, not approved: Held, that there was no failure of consideration.BRANCH V. MCREYNOLDS, Tex., 38 S. W. Rep. 625.

6. BILLS AND NOTES-Fraud-Bona Fide Purchaser.— The bona fide holder for value of a negotiable promis. sory note, who acquired title thereto before its maturity, is entitled to enforce its collection against the maker, although the latter may have been induced to sign the note by means of false and fraudulent repre. sentations made by the origina! payee in the transac. tion which led to the giving of the note.-TAYLOR V. CRIBB, Ga., 26 S. E. Rep. 468.

7. BILLS AND NOTES - Indemnity of Indorser.-A debtor deposited property with his creditor as security for notes given for the debt, which had been transferred by the creditor to third persons. The creditor, becoming insolvent, executed a deed of trust in which the debtor was preferred to the extent of the deposit: Held, that the preference inured to the benefit of the holders of the notes, and not to the debtor.-DORSEY V. FRANK, Tex., 38 S. W. Rep. 645. 8. BILLS AND NOTES Indorsers Liability.-Indorsers of a negotiable note, though it be for accom. modation of the maker, while all are responsible to its holder, are responsible, as between themselves, in the order of their indorsement, in the absence of an agreement to be bound jointly and equally. Therefore an indorser is liable to a subsequent indorser paying it, but not to a prior one.-WILLIS V. WILLIS, W. Va., 26 S. E. Rep. 515.

9. BILLS AND NOTES - Joint Makers Guarantors.One makes a negotiable note to a payee, and others put their names on its back, the payee not indorsing it, and it is then delivered to payee. He may treat them all as joint makers, or he may treat the two putting their names on its back as indorsers or guarantors, as he chooses, unless he agrees, before or on delivery of the note, to treat them in a particular one of those characters. Unless he agrees to treat them as indorsers, no protest or notice of non-payment is necessary to hold them as just makers or guarantors.MILLER V. CLENDENIN, W. Va., 26 S. E. Rep. 512.

10. BUILDING AND LOAN ASSOCIATIONS-Insolvency.In an action against a building association for a receiver, etc., on the ground of insolvency, it appeared that the alleged indebtedness consisted in $5,000, "bills payable," none of which were held by complainants, and subscriptions of "free shareholders" to the amount of $74,000, of which complainants represented $545; that complainants had not given notice in writing of their withdrawal, as required by the constitution, and hence were not creditors; that a large majority of the free shareholders desired the business continued; and that the available assets were $50,950: Held, that the relief asked was properly refused.-STEINBERGER V.

13. CARRIERS Passenger

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- Negligence.-A person who goes to a flag station on a railroad at which there is no ticket office, for the purpose of boarding a train, is, upon properly signifying an intention to get upon a passenger train which has actually stopped, entitled to the rights of a passenger.-WESTERN & A. R. Co. v. VOILS, Ga., 26 S. E. Rep. 483.

14. CARRIERS-Railroads Negligence.-There being a snowstorm in the mountains over which a passenger train was about to pass, it was not negligent for the company, in order that schedule time might be kept, to make up the train with a snowplow ahead, and a flanger behind the leading locomotive and between said locomotive and the two locomotives which were the real motive power of the train proper.-DENVER & R. G. R. Co. v. PILGRIM, Colo., 47 Pac. Rep. 657.

15. CARRIERS OF GOODS-Contract of Shipment-Parol Evidence.-A carrier cannot be held liable under a parol contract for the shipment of goods made by a connecting line, in the absence of anything to show that the agent who made the contract was also agent of the defendant.-ST. LOUIS S. W. RY. Co. v. CATES, Tex., 38 S. W. Rep. 648.

16. CARRIERS OF PASSENGERS — Street Railroad-Neg. ligence. It is the duty of the carrierto convey the passenger safely to his destination. Any want of care on the part of the street car conductor, resulting in injury to the passenger, will make his principal responsible; but to call a boy passenger to the platform of the car, about to reach his destination, the signal to stop the car given, and the boy called at the right time, will not be deemed negligence of the conductor, charging the carrier with responsibility for injuries to the boy by falling from the platform or car steps, the fall being due to his own imprudence.-CRONAN V. CRESCENT CITY R. Co., La., 21 South. Rep. 163.

17. CONTRACT- Application of Payment.-A receipt signed by the vendor of lands, acknowledging the payment of money by the vendee "to be placed to his land credit, and balance to account," is a contract for the application of the payment, which cannot be varied by parol.-JOHNSON V. JONSON, Miss., 21 South. Rep. 147.

18. CONTRACT-Rescission-Illegal Consideration.-A court of equity will not lend its aid to one seeking the rescission of an executed contract, when it affirmatively appears, from the evidence introduced by the plaintiff in making out his case, that one of the purposes which he and the defendant both had in view in making the contract necessarily involved the violation of a criminal statute, and a mutual intention on their part to defraud and deprive a city of the revenue to which it was entitled as a license fee for conducting a retail liquor business, the sale of which constituted in part the consideration of the contract in question.GARRISON V. BURNS, Ga., 26 S. E. Rep. 471.

19. CONTRACTS IN RESTRAINT OF TRADE-Validity.-A covenant by a seller of a manufacturing business not to engage in a similar business within 1,000 miles of the place in which it was located, was unreasonable where the business sold did not extend more than 100 miles, and there was nothing to show that such limit was necessary to protect it.-ALTHEN V. VREELAND, N. J., 36 Ati. Rep. 479.

20. CORPORATIONS Change of Corporate Purpose.Where a corporation is chartered to construct and operate a railroad, a lease of its road is a change of its

corporate purpose, which being made by less than a unanimous vote, is invalid ag inst dissenting stockholders, though the right to amend its charter is reserved by the legislature, and subsequent to its incorporation, and prior to the lease, a general act is passed authorizing any railroad corporation to lease its road by vote of two-thirds of its stockholders; the grant of leasing power not having been unanimously accepted by the stockholders.-Dow v. NORTHERN RAILROAD, N. H., 36 Atl. Rep. 510.

21. COVENANTS IN LEASE - Insurance Money.-Lessees who have covenanted to keep the buildings insured for two-thirds their value, the insurance money to be used in rebuilding, executed a trust deed of the prem ises containing a like covenant, the trustee having notice of the lease. The buildings were insured for their full value, the lessor having no opportunity to select or approve the companies, and no part of the insurance being made payable to him. Of a subsequent loss, only about five-sixths was collected: Held that, as it was the intention of all parties that the insurance money should be used in rebuilding, the lessor was entitled to the whole amount collected.NORTHERN TRUST CO. V. SNYDER, U. 8. C. C. of App., Seventh Circuit, 77 Fed. Rep. 818.

22. COVENANT OF WARRANTY.In an action of cove nant for breach of warranty, if it appears that a portion of the land conveyed with covenants of general war ranty was in the adverse possession of a stranger at the date of the conveyance, and held by a paramount title, the grantee in such deed will be held to be evicted on the day of the execution of said deed, and the statute of limitations will commence to run against the action from that date, and will be barred in 19 years thereafter.-ILSLEY V. WILSON, W. Va., 26 8. E. Rep. 551.

23. CRIMINAL EVIDENCE-Conspiracy-Accomplice.A conspirator is an accomplice, whose testimony must be corroborated. - SESSIONS V. STATE, Tex., 38 S. W. Rep. 623.

24. CRIMINAL LAW Assault Justification. - The mere use of opprobrious, insulting, or abusive language, without more, will not justify the pointing or aiming of a gun by the person to whom such language is addressed at the person using the same. Provoca tion of this kind does not stand upon a like footing of reason and justice with self-defense, or defense of habitation, person, or property. - SKINNER V. STATE, Ga., 26 S. E. Rep. 475.

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COMMON

25. CRIMINAL LAW - Burglary. An indictment for breaking into the warehouse of an ice company is supported by evidence that defendant broke into an apartment in the warehouse which was leased from the ice company by a brewing company. WEALTH V. BALLARD, Ky., 38 S. W. Rep. 678. 26. CRIMINAL LAW Burglary Possession. The failure of a person charged with a burglary which had been committed to satisfactorily account for personal property recently thereafter found in his possession is not a circumstance from which his guilt of this offense can be inferred, unless it appears that the goods in question had actually been taken from the house which had been broken and entered.-KING V. STATE. Ga., 26 S. E. Rep. 480.

27. CRIMINAL LAW - Carrying Concealed Weapons.Within Code, § 1027, which authorizes, as a defense for carrying a concealed weapon, that defendant "was threatened, and had good and sufficient reason to ap prehend a serious attack from an enemy, and that be did so apprehend," etc., defendant must show that he actually apprehended an attack and an attempt to do him great bodily harm.-STROTHER V. STATE, Miss., 21 South. Rep. 147.

28. CRIMINAL LAW - Forcible Entry.-In order to con stitute the offense of forcible entry, which section of the Penal Code defines as "the violently taking pos session of lands and tenements with menaces, force, and arms, and without authority of law," the entry must be accompanied by some act of actual violence

or terror directed towards the person in possession; and, consequently, breaking and entering an unoc cupied house in the absence of the person who had previously been in possession and control thereof, and who still claimed the right to the possession, is not indictable.-LEWIS V. STATE, Ga., 26 S. E. Rep. 496.

29. CRIMINAL LAW - Forgery - Order for Goods.-An indictment charging a defendant with having falsely, and with intent to defraud, made a writing requesting one person to deliver merchandise to another, to be charged to a third, with intent to thereby write an order from such third person for the goods, is a good indictment for forgery.-AGEE V. STATE, Ala., 21 South. Rep. 207.

30. CRIMINAL LAW - Homicide - Self-defense. - One who, when going to the house of another man for the purpose of having illicit intercourse with the wife of sach man, arms himself with a deadly weapon, with the intent to take the life of the husband if detected, and if necessary to save his own, and who does so use it, and kills the husband, is guilty of murder in the first degree.-DABNEY V. STATE, Ala., 21 South. Rep. 211. 31. CRIMINAL LAW-Receiving Stolen Goods. Where defendant, when found in possession of stolen goods, gave no explanation as to how he came by the same, a charge on the truth or falsity of the explanation was erroneous.-GRANDE V. STATE, Tex., 38 S. W. Rep. 613. 32. CRIMINAL LAW-Self-defense.-The fact that there had been several difficulties between defendant's codefendant, his brother, and deceased, in which de ceased used abusive language and made threats against his brother previous to the difficulty in which the homicide occurred, does not prevent his right to take deceased's life in defense of his brother from be ing conditioned on whether his brother brought on the last difficulty.-CROCKETT V. COMMOMWEALTH, Ky., 388. W. Rep. 674.

33. CRIMINAL LAW-Theft-Principal.-One of several persons who enter into an agreement to steal horses generally, cannot be convicted as a principal in the theft of a horse taken by other parties to the agree ment, he having refused to have anything to do with It.-SESSIONS V. STATE, Tex., 38 S. W. Rep. 605.

34. CRIMINAL LAW-Verdict- Correction.-Where the jury, on conviction for murder, assesses the punishment at imprisonment for 99 years instead of for life, as instructed by the court, in case of conviction it is proper to send out the jury to correct the verdict, and to accept another verdict fixing the punishment at imprisonment for life. CROCKETT V. COMMONWEALTH, Ky., 38 S. W. Rep. 676.

5. CRIMINAL PRACTICE - Burglary Indictment. Bev, St. 1889, § 3526, provides that a person breaking and entering "any building within the curtilage of a dwelling house, but not forming a part thereof;" or, "aby shop, store, booth, tent, warehouse, or other building," in which goods, etc., are kept, with intent, etc., is guilty of burglary: Held, that an indictment which charged that defendant did break and enter a barn, being a building in which goods, etc., were kept, with intent, etc., was bad under the first clause of the statute, because it did not show whether the building Was of the character there described; and also under the second, because a "barn" is not embraced in it.STATE V. SOUTH, Mo., 38 S. W. Rep. 716.

35. DECEIT Rescission Fraudulent Representations. Rescission of a sale of land for notes secured on certain other land may be had for fraudulent rep. resentations as to the solvency of the maker of the aotes, and the value of the land on which they were secured, notwithstanding an agreement by the pur. chaser that, if the maker of the notes did not pay a prior mortgage on the land on which the notes were secured, he himself would pay a certain part of it, or reconvey to the vendor part of the land bought of him. -INGRAM V. ABBOTT, Tex., 38 S. W. Rep. 626.

1. DEDICATION OF PUBLIC SQUARE - Acceptance.-A public square in a town or village, which for more

than 80 years has been treated as such by the county court of the county, has been recognized as such by the municipal authorities of the town, and used as a public square by the court and the public generally, must be considered as dedicated as a public square for the use of the public. - STURMER V. COUNTY COURT OF RANDOLPH COUNTY, W. Va., 26 8. E. Rep. 532.

38. DEED Conditions Construction.- A meeting. house cannot be used for daily morning prayers by the grantor, an academy, which conveyed it to a religious body on condition that the grantor might use it for "public exhibitions and other purposes."-TRUSTEES OF PHILLIPS EXETER ACADEMY V. NEW PARISH IN EX. ETER, N. H., 36 Atl. Rep. 548.

39. DEEDS-Presumption of Delivery.-The presumption of delivery, ari ing from the grantee's possession of a deed, and from the probable intention of the grantor that it should have some effect, is not overcome by indefinite evidence, on behalf of the grantor, that it was never delivered; such evidence presenting also inconsistencies with some of the circumstances.WRIGHT V. WRIGHT, U. S. C. C., D. (Conn.), 77 Fed. Rep. 795.

40. DISTRIBUTION - Death - Presumption.-One who has been absent and unheard of for seven years will be presumed to be dead, but no presumption arises as to the time of his death. SCHAUB v. GRIFFIN, Md., 36 Atl. Rep. 443,

41. EASEMENT - License Revocation.-G, owning a tract of upland, and also a separate tract fronting on the sea, conveyed to S and his heirs, by warranty deed, the tract of upland, and, after describing it by metes and bounds, continued as follows: "Together with the free use and full right of sufficient land on my sea front for bathing purposes, with the right to enter thereon, erect bath houses, and use the same, free of charge, undisturbed at any time:" Held, that by this deed G gave to S an easement of way over his land to the sea: Held, also, that the right given to erect bath houses and use the same free of charge, undisturbed at any time, was a license merely, which was revoked both by the death of the parties and by a subsequent conveyance. ECKERT V. PETERS, N. J., 36 Atl. Rep.

491.

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42. ELECTION CONTEST Evidence. St. § 1482, provides that, when the polls close, the election officers shall count the votes and announce the result, and thereupon the judges shall destroy the ballots cast, mutilated, or spoiled, and those remaining unvoted; and that if there are ballots cast, and counted or uncounted, concerning the regularity of which the judges have any doubt, they shall be sealed up, and returned with the returns of the election, with a statement as to whether they have or not been counted: Held that, to render the doubtful ballots admissible in an election contest or other investigation, they must be sealed and returned with the statement of the officers, as required by such section.-STRUSS V. JOHNSON, Ky., 38 S. W. Rep. 680.

44. EQUITY-Indispensable Parties.-A bill to compel a transfer of corporate stock from defendants to complainant, and an accounting of dividends, averred that the stock had been pledged by complainant with one A, trustee, as collateral for a loan, and that I had been induced by false representations to sell and transfer it to defendants. It did not appear whether or not H's claim had been fully discharged: Held, that H was not an indispensable party, especially as his interest in the stock, if he had any, and chose to assert it, would not be affected by its transfer to complainant. SMITH V. LEE, U. S. C. C., N. D. (Iowa), 77 Fed. Rep. 779.