UNITED STATES C. C. OF APP........ 18, 21, 31, 35, 38, 39, 51 UTAH.....

29 ...........7, 23, 33, 36 1. ACCORD AND SATISFACTION.-The giving of notes by a husband, under an agreement that if paid at maturity they shall satisfy his wife's note, is a good accord and satisfaction, though they are not paid at maturity, where, after default, the payee accepts pay. ment of some of the husband's notes, and sues on the others.-WATSON V. TANNER, R. I., 36 Atl. Rep. 715. Release on Stipulation.After a vessel has been released on stipulation, she is freed forever of the lien, and the court therefore has no authority to require the claimant to give any addi tional security.-BARNEY DUMPING BOAT Co. v. THE MUTUAL, U. S. D. C., D. (Conn.), 78 Fed. Rep. 144.

2. ADMIRALTY PRACTICE

3. ASSIGNMENT FOR BENEFIT OF CREDITORS--Description of Assets.-An assignment for benefit of creditors conveying to the assignee all the property of the assignor, of every nature whatsoever, with the statement that the property was more particularly described in the schedule annexed, and that "all the property is conveyed, whether specified in the schedule or not," is valid, though the description in the schedule is of a like general character.-GRAHAM PAPER CO. v. SANDERSON, Colo., 47 Pac. Rep. 904.

Deposits

4. BANKPayment. However careless and uncommon may be the payment of money by a bank to a depositor, who had authority to draw the money, without any written order or receipt, if such payment of the money of the firm was actually so made by the bank, it would be a good payment, and the bank would not be further Ilable.-RICE V. BANK OF CAMAS PRAIRIE, Idaho, 47 Pac. Rep. 856.

5. BILLS AND NOTES-Attorney's Fees-Negotiability. -A note which provides for attorney's fees if collected by suit, or placed in an attorney's hands for collection, is non-negotiable.-SYLVESTER BLECKLEY CO. V. ALEWINE, S. Car., 26 S. E. Rep. 609.

6. CERTIORARI-Trial de Novo.-Under Code, § 795, giving the judge of probate authority to issue certiorari on any civil judgment rendered by a justice, on a grant of such writ the circuit court properly tried the case de novo.-GUSCOTT V. RODEN, Ala., 21 South. Rep. 313. 7. CONSTITUTIONAL LAW Laborer's Liens.-1 Hill's Code, § 3124 (Code 1881, § 1974), providing that where execution is issued, except for labor done, persons who have claims against the execution debtor for labor done may give notice thereof to the creditor and the officer executing the writ, and may prosecute their claims to judgment, if disputed, and that the officer shall pay all valid claims for labor as preferred, within limitations as to amount, is not unconstitutional as not "due process of law."-GLEASON V. TACOMA HOTEL Co., Wash., 47 Pac. Rep. 894.

8. CONTINUING CONTRACT.-A life policy, delivered upon payment of the first year's premiums, is a con tinuing contract for the life of the Insured, subject to be forfeited for non-payment of premiums, and not merely a contract for a year, renewable by payment of subsequent premiums.-MCMASTER V. NEW YORK LIFE INS. Co., U. S. C. C., N. D. (Iowa), 78 Fed. Rep. 33. 9. CORPORATIONS Minority Stockholders.-Where minority stockholders, by suit, obtain a cancellation of claims against the corporation, and an injunction restraining the directors from voting excessive com pensation to officers, the complainants are entitled to a reasonable solicitor's fee, to be paid by the corpora tion.-DECATUR MINERAL & LAND Co. v. PALM, Ala., 21 South. Rep. 315.

10. CRIMINAL LAW-Homicide-Insanity.-Where the defense of insanity is interposed in a prosecution for murder, the important question is the mental capacity or incapacity of the defendant at the time of the homicide; but testimony as to his state of mind shortly be fore and after the homicide may be received as tend ing to show his mental condition at the time of the homicide.-STATE V. NEWMAN, Kan., 47 Pac. Rep. 881.

11. CRIMINAL LAW-Larceny from the Person.-It is not necessary, to constitute larceny from the person, that the property be either forcibly or secretly taken. -HIGGS V. STATE, Ala., 21 South. Rep. 358.

12. DAMAGES-Evidence.-In an action by a woman for personal injuries, in which no special damages were claimed for loss of time from inability to labor, evidence that plaintiff had not "been out to service since the injury" was admissible to show her condi tion after the accident.-CITY OF DENVER V. HUMAN, Colo., 47 Pac. Rep. 911.

13. DEDICATION.-The fact that the owner of vacant and uninclosed land being put to no present use makes no dissent to the public's traveling over it in a certain route does not show an intention to dedicate.-TUTWILER V. KENDALL, Ala., 21 South. Rep. 332,

14. EJECTMENT Title.-The fact that defendant in ejectment lived on the land with her husband for 17 years, and in the meantime recognized his title by re nouncing dower in three mortgages executed by him, including the one under which plaintiff claimed, and that, after the husband left for parts unknown, she re mained on the land, and endeavored to pay the mort gages, and in fact made a payment on one, tended to show that she claimed the land under the husband. The title of plaintiff in ejectment is not speculative be cause his deed contains a covenant of warranty which he intends to enforce if he fails in the suit.-BRADLEY V. DRAYTON, S. Car., 26 S. E. Rep. 613.

15. ELECTIONS Voting Machine.-Const. art. 8, §%, providing that voting shall be by ballot, "and, in all cases where an election is made by ballot or paper vote, the manner of balloting shall be the same as is now required in voting for general officers, until other wise prescribed by law," permits of a law authorizing the use of the McTammany voting machine, by which choice is indicated by puncture of a roll of paper on which the names of candidates are printed.-IN BE VOTING MACHINE, R. I., 36 Atl. Rep. 716.

16. EXECUTION SALE Action to Redeem.-An execu tion defendant, who has made a statutory tender to re deem property sold under the execution, may sue to enforce the right of redemption; and equity is not de prived of Jurisdiction by the fact that the purchaser claims title under a prior sale on an execution against the same defendant, and not under the one from which redemption is sought, the title so claimed not being adverse to that of the execution defendant.-VICK V BEVERLY, Ala., 21 South. Rep. 325.

17. FEDERAL COURTS - Jurisdiction - Suits in Differ ent States. The fact that an insurance company, after the adjustment of a loss in Iowa, and the assignment by the insured of his claim for the amount thereof, has been garnished in a suit brought in an Illino

court by a creditor of the insured, does not deprive a federal court in Iowa of jurisdiction of a suit against the company by the assignee of the claim to recover the amount of the loss.-DEMING V. ORIENT INS. Co., U. 8. C. C., N. D. (Iowa), 78 Fed. Rep. 1.

18. FEDERAL COURTS-Rights Created by State Statates.-Rights created or provided by the statutes of the States to be pursued in the State courts may be en. forced and administered in the national courts either at law, in equity, or in admiralty, as the nature of the rights or remedies may require.-DARRAGH V. H. WETTER MANUFG. CO., U. S. C. C. of App., Eighth Circuit, 78 Fed. Rep. 7.

19. FORCIBLE ENTRY AND DETAINER - Defenses.-Defendant in forcible entry and unlawful detainer cannot defend on the ground that his entry and detention are In the capacity of agent, and not in his own right.LULING V. SHEPHERD, Ala., 21 South. Rep. 352.

20. FRAUDULENT CONVEYANCES. A bill by a substituted trustee in insolvency to cancel alleged fraudu. lent conveyances made by the debtor to the original trustee prior to the insolvency, comes too late when brought 20 years after the conveyances were made, 13 years after the insolvency proceedings, and 5 years after said trustee's death.-PRESTON V. HORWITZ, Md., 36 Atl. Rep. 710.

21. FRAUDULENT CONVEYANCES-Assignment for Cred. itors. Where a deed of trust was accepted by the grantee as security for an actual indebtedness, in good faith, and in ignorance, until some hours later, of an assignment for benefit of creditors made by the grantor about the same time: Held, that the two instruments were to be regarded as separate and dis tinet, and that the trust deed was valid.-HILL V. RYAN GROCERY CO., U. S. C. C. of App., Fifth Circuit, 78 Fed. Rep. 21.

22. FRAUDULENT CONVEYANCES - Notice. A sale is not in fraud of creditors where there is no secrecy about it, and the purchaser does not know that the sellers are insolvent, or are attempting to defraud, and has not such information as should put him on inquiry.-SIMMONS V. SHELTON, Ala., 21 South. Rep. 309. 28. FRAUDULENT CONVEYANCES Venue-Pleading.A conveyance from a husband to a wife being attacked by creditors as voluntary, the wife showed that the consideration was the conveyance by her of other land previously acquired from the husband: Held that, though such other land lay in a different county, the court was not precluded by 2 Hill's Code, § 158, requir Ing actions affecting title to be commenced in the county where the land lies, from determining whether It had been conveyed to the wife in fraud of creditors. CARKEEK V. BOSTON NAT, BANK OF SEATTLE, Wash., 47 Pac. Rep. 884.

24. HOMESTEAD-Waiver of Right.-Where an execution from a justice is levied on land, the right to claim an exemption as a homestead is waived as against such exécution unless it is interposed before an order of sale of the land is made by the circuit court.-LACKLAND V. ROGERS, Ala., 21 South. Rep. 341.

55. LANDLORD AND TENANT-Fixtures.-Where a lease provided that fixtures erected by the tenant should remain his property, and be removed by him without fixing a time for removal, a delay of four days after termination of the tenancy, during which time the parties were negotiating as to a sale of the fixtures, did not defeat the right of removal. - CHALIFOUX V. TER, Ala., 21 South. Rep. 322.

POT

35. LANDLORD AND TENANT Unrecorded Lease.-An unrecorded lease is binding on a purchaser of the reversion who takes a formal assignment of the lease to himself.-MCCARDELL V. WILLIAMS, R. I., 36 Atl. Rep.

719.

mining the terms of the contract.-KELLY V. LIFE INSURANCE CLEARING CO., Ala., 21 South. Rep. 361.

28. LIMITATIONS-Carriers of Goods.-The burden on a foreign corporation urging the statute of limitations to show the bar (Code Civ. Proc. § 458) is not sustained without proof that it has designated one on whom process against it may be served (St. 1871-72, p. 826), on its doing which the right to avail itself of the statute is made to depend.-PIERCE V. SOUTHERN PAC. CO., Cal., 47 Pac. Rep. 874.

29. MALICIOUS PROSECUTION - Probable Cause.-The plaintiffs alleged that defendants maliciously and without probable cause commenced a prosecution against plaintiff Annie Johnston; that they falsely charged her with threatening to assault defendant Meaghr and others with deadly weapons; that a warrant issued, upon which she was arrested; that they unlawfully, maliciously, and without probable cause, imprisoned her, without any right whatever. No demurrer was filed: Held, after verdict and judgment, that the facts stated should be regarded as a count for malicious prosecution. - JOHNSTON V. MEAGHR, Utah, 47 Pac. Rep. 861.

30. MASTER AND SERVANT-Contract of Employment. -One who was employed for a year was told by his employer at the end of the year that, "so long as you stay here, and do what is right by the company, we will employ you, and pay you by the year:" Held, that such hiring could be terminated at any time by either party.-BOOTH V. NATIONAL INDIA-RUBBER CO., R. I., 36 Atl. Rep. 714.

31. MASTER AND SERVANT - Railroad Companies.-A railroad company is not responsible for the negligent construction of a cattle pen, built and used by a shipper over the road on land adjoining the right of way, although unintentionally, and without the knowledge of the railroad company, it has been extended a short distance on to the right of way; nor can such company be held liable to one of its employees, injured in an accident resulting from the escape of cattle from such pen, on the ground that its duty to provide a safe place for such employee to work required it to see that the cattle pen was safely constructed.-CARPER V. RECEIVERS OF NORFOLK & W. R. Co., U. S. C. O. of App., Fourth Circuit, 78 Fed. Rep. 94.

32. MECHANICS' LIENS - Foreclosure - Parties.-The beneficiary of a trust deed is not the owner of the property on which it is given, within the provision of Gen. St. 2152, that to an action to enforce a mechanic's lien the owner of the property shall be made a party.CORNELL V. CONINE-EATON LUMBER CO., Colo., 47 Pac. Rep. 912.

33. MORTGAGE-Priority of Lien.-Where a mortgage is given to secure an antecedent debt, it is not prior in lien to a judgment entered the same day on which the mortgage was filed, though the judgment entered was not filed until after the filing of the mortgage, but will prorate with the judgment. GOETZINGER V. ROSENFELD, Wash., 47 Pac. Rep. 882.

34. MORTGAGES-Record-Loss of Original.-The right to sell under a mortgage is not affected by the loss of the original instrument, where there is a record of it. -BIBB V. CREWS, Ala., 21 South. Rep. 341.

35. MUNICIPAL CORPORATIONS - Limitation of Indeb. tedness.-The act of May 25, 1895, supplementary to the charter of the city of Key West, Fla., and "to extend the powers of said municipality," which gives the city power to make special levies of taxes for payment of interest on debt, and for sinking fund, removes the limit previously placed by charter upon the city's power to tax, so far as to permit it to levy a tax sufficient to pay a debt lawfully contracted; and the city may be compelled by mandamus to levy a tax, either in a single year or within a reasonable number of years, in the court's discretion, to pay a judgment against it. -UNITED STATES V. CITY OF KEY WEST, U. S. C. C. of App., Fifth Circuit, 78 Fed. Rep. 88.

36. MUNICIPAL CORPORATION-Complaint-Sufficiency. -An action at law will lie against a city for an amoun

37. MUNICIPAL CORPORATION-Sidewalks-Negligence. -Where a city by its charter, is required to keep its sidewalks in repair, and is authorized to levy a tax of a certain per cent. for municipal purposes, it is no defense to an action for personal injuries resulting from a defective walk merely to allege that it had exhausted its means for the care of streets.-Lord v. CITY OF MOBILE, Ala., 21 South. Rep. 366.

38. NEGLIGENCE-Electricity Safe Insulation.-An electric light company, which maintains wires carrying an electric current of high power on poles used, in common with it, by other companies for the support of their wires, owes to an employee of one of such other companies who is lawfully upon the pole, in pursuance of the common right, the duty of exercising ordinary care to keep its wires so safely insulated as to prevent injury to such employee, though, in the performance of his work, he may enter upon a sepa rate cross arm of the electric light company, or accidentally touch its wires.-NEWARK ELECTRIC LIGHT & POWER CO. v. GARDEN, U. 8. C. C. of App., Third Cir. cuit, 78 Fed. Rep. 74.

39. OFFICERS-Breach of Duty-Rights of Citizens.One who seeks relief from the courts for a breach of a duty imposed upon public officers by statute must show that he has a vested right to the discharge of that duty, and that the statute which imposed it was enacted for the benefit of himself and others in a like situation.-COLORADO PAV. Co. v. MURPHY, U. S. C. C. of App., Eighth Circuit, 78 Fed. Rep. 28.

40. PROCESS Waiver.-When a defendant accepts service of a complaint which states a cause of action, and authorizes the case to be docketed, and to stand for trial, summons is not necessary; hence defects in a summons which in fact issues are waived by the ac ceptance and authorization.-WARD V. MANLY, Ala., 21 South. Rep. 307.

41. RAILROAD COMPANY-Contributory Negligence.A street car conductor who runs his car over a railroad track at a crossing in front of an approaching train, which is within his view for 880 feet, cannot recover for injuries caused by a collision with the train. -HIGHLAND AVE. & B. R. Co. v. FENNEL, Ala., 21 South. Rep. 324.

42. RAILROAD COMPANY-Killing Stock.-In an action against a railroad company for killing stock, where plaintiff makes a prima facie case under Code, § 2326, by proof of the killing, and that the action was com. menced within six months, and defendant Introduces evidence tending to show that it was not negligent, it was error to direct a verdict for defendant.-HARDISON V. ATLANTIC & N. C. R. Co., N. Car., 26 S. E. Rep. 680.

43. RAILROAD COMPANY-Killing Stock-Negligence. -Failure to look and listen before driving over a railroad crossing in the daytime, where the view was unobstructed, will preclude recovery for the killing of the horse, though no warning signal was given.MESIC V. ATLANTIC & N. C. R. Co., N. Car., 26 S. E. Rep. 633.

44. RAILROAD COMPANY Street Railroads Negligence.-Street railway companies have no superior or predominant right to the use of the highways in which their cars run, over the rights of other persons pass. ing on foot or with vehicles, except that, because of the inability of their cars to deviate from their track, other passers must give them the right to pass when occasion requires.-BUTTELLI V. JERSEY CITY, H. & R. ELECTRIC RY. CO., N. J., 36 Atl. Rep. 700.

45. RAILROAD COMPANY-Trespassers.-Where a flag. man, whose duty it is, on discovering a trespasser on a train, to take him to the conductor, and then, if so directed, to stop the train, and put him off, ejects a

trespasser on his own responsibility while the train is in motion, the company is liable for the resulting injury.-SOUTHERN RY. Co. v. HUNTER, Miss., 21 South. Rep. 304.

46. RAILROAD RECEIVERS-Authority to Renew Leases of Cars.-A mortgagee of a railroad who procured a decree in foreclosure appointing receivers, and giving them power to carry out or renew any contracts made by the mortgagor company, is estopped to claim that the receivers have no authority to renew leases of cars without additional orders of court. - MERCANTILE TRUST & DEPOSIT CO. V. SOUTHERN IRON CAR LINE CO., Ala., 21 South. Rep. 373.

47. REVERSIONS - Land of Extinct Corporations.Land conveyed to a corporation in fee does not revert to the grantor or his heirs on the extinction of the cor poration.-WILSON V. LEARY, N. Car., 26 S. E. Rep.

630.

48. SALE-Conditional Sale-Bona Fide Purchaser.Where a merchant buys a safe under an unrecorded contract, whereby the seller is to retain title till the last installment is paid, a creditor of the buyer, who, in good faith and without notice, purchases the prop. erty, acquires a valid title.-QUIN V. MOSLER SAFE CO., Miss., 21 South. Rep. 303.

49. TAXATION-Board of Equalization.-Where a com plaint is made by a property owner to the board of equalization that his assessment is excessive, the assessment roll as returned by the assessor fixes the value prima facie; and, though the only testimony of fered is by the complainant, such testimony cannot be considered as uncontradicted, nor can the determina tion of the value of the property by the board be re viewed on a writ of review.-OREGON COAL & NAVIGA TION Co. v. Coos COUNTY, Oreg., 47 Pac. Rep. 851.

50. TRESPASS-Damages. - Where plaintiff's timber land was uninclosed and occupied, and surrounded on three sides by timber land of defendant, from which timber was being cut and hauled, the fact that defendant hauled across plaintiff's land, thereby cutting rute in it, did not render him liable for exemplary dam ages.-KEYSTONE LUMBER & IMPROVEMENT Co. V. Mc GRATH, Miss., 21 South. Rep. 301.

51. TRIAL- Agreed Statement-Judgment.-When a case is submitted upon a stipulation as to facts, which is mainly a statement of evidence, and not of the ult mate or issuable facts, and the court thereupon makes neither a general finding nor a special finding of facts, but merely finds that the facts are as set forth in the agreed statement, a judgment rendered thereon is invalid; nor can the appellate court, in reviewing such judgment, draw the inference of fact from the admitted evidence, however plain such inference may be.BURNHAM V. NORTH CHICAGO ST. RY. Co., U. S. C. C. of App., Seventh Circuit, 78 Fed. Rep. 102.

52. WATERS-Parol License.-A parol license to enter and construct a ditch over lands by the gratuitous consent of the owner operates as an irrevocable grant after entry and construction of the ditch, its inter rupted use for two years, and the expenditure of money to make the water available for purposes of ir rigation.-DE GRAFFENRIED V. SAVAGE, Colo., 47 Pac. Rep. 902.

53. WILLS-Parol Trust.-Ingrafting a parol trust on bequeathed personalty after probate of the will is not obnoxious to the statute of frauds or the statute of wills.-MOORE V. CAMPBELL, Ala., 21 South. Rep. 358.

54. WILLS-Power of Appointment.-Testator, having given his property to his wife for life, with power of appointment to three children "or the survivors," with remainder to them "or the survivor or survivors of them" if she die intestate, and the children having agreed that the quoted words be considered as omitted from the will, and the wife having adopted this agree ment in her will, the rights of the children and their heirs are to be determined as though such words were not in testator's will.-THORINGTON V. HALL, Ala., 2. South. Rep. 335.

this federal case is that, while power in a State to regulate the business of a foreign corporation admitted within its borders is reiterated, the disposition is shown to strictly uphold the fundamental rights of the individual from invasion through the pretext of corporate regulation. The decision is sound in principle and eminently proper and just. Its reasoning might have considerable collateral force, though not direct application, upon a kind of legislation which has been suggested in our own State with a view to the regula tion of foreign corporations and their business. It has been proposed to impose upon directors and officers of foreign corporations doing business in this State personal liabilities and penalties similar to those attaching to the corresponding officers of domestic corporations. Whether such legislation could legitimately be comprehended under the regulation of foreign corporations, or whether it would not rather constitute unjustifiable subjection of individuals to oppression and penalty, are at least serious questions."

NOTES OF RECENT DECISIONS.

ACCIDENT INSURANCE "BODILY INFIRMITIES"-APOPLEXY.-In Travelers' Ins. Co. v. Selden, 78 Fed. Rep. 285, decided by the United States Circuit Court of Appeals for the Fourth Circuit, it appeared that the T. Ins. Co. issued an accident policy to one S, insuring him against death resulting through external, violent and accidental means, but not covering death resulting wholly or partly, directly or indirectly, from disease or bodily infirmity, or voluntary overexertion. S, a man 53 years of age, while engaged in work which required stooping, and shortly after running rapidly up a hillside, to get an article needed in his work, was attacked with pains in his head and shortly after died. On the trial of an action on the policy, two physicians, called by the plaintiff, testified that S died of apoplexy, which is a bodily infirmity or disease, and that there was nothing in the circumstances to have caused death if there had been no bodily infirmity or predisposition to apoplexy. It was held that it was error to refuse to direct a verdict for the defendant. "The case under consideration" said the court "was simply one of contract.

Had the policy of insurance been an ordinary life policy, the right to recovery is plain; but it is the duty of courts to enforce contracts as made, and not to make or allow to be made new contracts between the parties. The contract was what is known as, and what on its face and in its terms it purported to be, an 'accident policy,' and the defendant corporation covenanted to pay the sum of money named if death resulted from bodily injuries through 'external, violent, and accidental means alone, independently of all other causes,' and it was expressly stipulated that it should not cover injuries of which there is no visible mark, nor death resulting wholly or partly, directly or indirectly, from disease or bodily infirmity,' or from 'voluntary overexertion.' In an etymological sense, anything that happens may be said to be an 'accident,' but in the sense in which the word is used in this policy, as shown by the context and as expounded in similar cases, it is to be taken as meaning 'an event which proceeds from an unknown cause, or as an unusual effect of a known cause, and therefore unexpected' something casual and fortuitous. To entitle the plaintiff below to recover, the burden of proof was upon her, not only to show that the deceased came to his death through 'external, violent and ac cidental means alone,' but also to show that the death was not due, in whole or in part, directly or indirectly, to disease or bodily infirmity. There was not only no proof of any accident, but conclusive evidence, from the only medical witnesses examined, that death was due to disease. If, during the operation upon the colt, while running to the fire for the hot iron, the deceased had stumbled or fell, that might have been considered an accident; but there was nothing of the kind. At most, it might be contended that the exertions and activities of that morning tended to bring into activity a then existing but dor mant disorder; but 'voluntary tion,' and disease and bodily infirmity, ste in express words not insured against."

overexer

ACTIONS AGAINST FOREIGN EXECUTORS.The general rule of law is that an executor can only sue or be sued in his own forum. But in Pennsylvania the rule cannot be stated so broadly as appears from the case of Laughlin v. Solomon, 36 Atl. Rep. 704, recently decided by the Supreme Court of Penn