cannot therein successfully assall the order of ap. pointment for informality in the proceedings without praying for judgment on its demand, or disclosing a well-grounded claim for damages against the receiver personally. REMINGTON PAPER CO. V. WATSON, La., 22 South. Rep. 355. 122. RECEIVERS Release.-It is error for a court by which a receiver was appointed to refuse to release from its custody lands in the hands of the receiver, and permit a sale thereof under a power in a trust deed which is a first lien thereon, where it is clear that the lands are not worth enough to pay more than half the debt secured by the deed. SCOTT V. CRAWFORD, Tex., 41 S. W. Rep. 697. -- - 123. RECEIVERS Sales under Attachment. It is in the discretion of the court in which receivership proceedings are pending to refuse to permit a sale of the property on attachment issued from another court, though it was levied before the receiver was ap pointed. SOUTHWESTERN INV. V. CRAWFORD, Tex., 41 S. W. Rep. 720. A 124. RELIGIOUS SOCIETIES - Authority of Priest. church and school belonging to a religious corporation were for eight months entirely in charge of the priest, who collected and disbursed all funds, the trustees holding no meeting, and taking no part in the management. The priest borrowed money to build an addition to the school. The trustees knew that the addition was being built, and that the corporation was without funds, and retained the building so erected: Held, that the corporation was liable for the borrowed money. ROMAN CATHOLIC CONGREGATION OF THE CHURCH OF THE ANNUNCIATION V. O'LEARY, Colo., 49 Pac. Rep. 422. 125. REMOVAL OF CAUSES-Citizenship.-When a peti tion for the removal of a cause from a State to a federal court alleges facts to show that a defendant, who is a citizen of the same State as the plaintiff, has been joined merely for the purpose of defeating the Juris diction of the federal court, it is open to the plaintiff to join issue upon the facts so alleged; and thereupon the court will hear the evidence, and decide accord. ingly, but, unless issue is joined, the facts alleged in the petition, if supported by affidavit, will be taken as true, and the cause will be removed.-DURKEE V. ILLINOIS CENT. R. Co., U. S. C. C., N. D. (Iowa), 81 Fed. Rep. 1. 125. REMOVAL OF CAUSES-Local Prejudice. Under the acts of 1887 88, a cause can only be removed from a State to a federal court on the ground of local prejudice before the trial of the case; and the submission of a demurrer to the petition, based upon the ground that the petition fails to show a cause of action, and the ruling of the court thereon, constitute a trial of the case, such as to prevent the removal. - HOBART V. ILLINOIS CENT. R. Co., U. 8. C. C., N. D. (Iowa), 81 Fed. Rep. 5. 127. REMOVAL OF CAUSES Proceeding to Probate Will.-The only way to contest a will under the Arkansas statutes being by objection to its probate, or by ap. peal to the circuit court from the order of the probate court, such a proceeding may be removed to the federal court in a proper case. - FRANZ V. WAHL, U. S. D. C., E. D. (Ark).), 81 Fed. Rep. 9. 128. SALE Action for Price. - In an action on notes given for the price of a soda fountain sold by plaintiffs to defendants in January, 1888, to be paid for in monthly payments, it was not error to charge that if defendants claimed in July, 1888, that they had rejected the fountain, and held it subject to plaintiff's order and then continued to make monthly payments until November, such facts were evidence that the claims of defects were unfounded. HODGE V. TUFTS, Ala., 22 South. Rep. 422. 129. SALES - Chattel Mortgage. - A buyer cannot, in an action for the price, attack the seller's title on the ground that the sale by which such title was acquired was in fraud of creditors of the first seller, where the buyer, though a creditor of the first seller, had no lien on the goods.-FIRST NAT. BANK OF SHERIDAN V. C. D. WOODWORTH CO., Wyo., 49 Pac. Rep. 406. 1 130. SALES Fraud Rescission.-A seller, claiming goods that, through the buyer's misreprerentations as to financial condition, had been sold on credit, as against an attachment creditor of such buyer, may in. troduce in evidence a statement of financial condition made by the buyer and sent to a certain merchant, where the buyer, prior to the sale, had referred the seller to such statement, and the seller had written to and received a reply from said merchant stating what the buyer claimed to be worth. MCKENZIE V. WEINN. MAN, Ala., 22 South. Rep. 508. 131. SLANDER-Privileged Communications. - Legal malice is conclusively settled by a default in an action of slander, where the words are actionable per se; and hence, on an inquisition of damages after the default, the words cannot be held privileged by reason of the circumstances under which it is shown they were spoken.-HEYWARD V. SANNER, Md., 37 Atl. Rep. 798. 132. STATUTES-Approval or Repeal-Computation of Time.-Sundays are excluded in computing the periods of 10 days, under Const. art, 5, § 16, providing that "any bill which shall not be returned by the goveruor within 10 days (Sundays excepted) after it shall have been presented to him, shall be ome a law in like manner as if he had signed it; unless the general assembly shall, by their adjournment, prevent its return, in which case it shall be filled with his objections in the office of the secretary of state, within 10 days after such adjournment, or become a law."-PEOPLE V. ROSE, 111., 47 N. E. Rep. 518. 133. STATE-Suits against State. The legislature has the right to authorize suits against the State. The authority to sue covers authority to bring an action to prevent prescription of the judgment obtained under the original authority granted.-CARIER V. STATE, La., 22 South. Rep. 400. 134. TAXATION-Exemptions -Validity.-Const. art. 7, §§ 1, 2, declare that "all property not exempt under the laws of the United States or under this constitution shall be taxed;" that the legislature shall provide a uniform and equal rate of taxation on "all property in the State, provided that a deduction of debts from credits may be authorized;" and "that the property of the United States, and of the State, counties, school districts, and other municipal corporations, and such other property as the legislature may by general laws provide, shall be exempt from taxation:" Held, that the words "and such other property," etc., re er to property of the same general character as that specially enumerated, and do not authorize the legis. lature to exempt any private property. STATE V. DANIEL, Wash., 49 Pac. Rep. 243. 135. TAXATION-Inheritance Tax.-Constitutionality. -St. 1893, p. 193, establishing a collateral inheritance tax, is not unconstitutional, as a discrimination be. tween persons standing in the same relation, merely because it does not tax inheritance by brothers and sisters of deceased, and does tax inheritances by children of such brothers and sisters, while Civ. Code, § 1386, provides that in certain cases the children of deceased brothers and sisters may take by representation, since such regulation of descent is not a classifi cation for the purpose of taxation.-IN RE WILMER DING'S ESTATE, Cal., 49 Pac. Rep. 191. 136. TAXATION OF RAILROAD.-A railroad, not the property of a railroad company, and neither owned nor operated under a franchise by an individual or an unincorporated association, is not subject to taxation by the State board of assessors.-STATE V. STATE BOARD OF ASSESSORS, N. J., 37 Atl. Rep. 729. 137. TAXATION-Peddlers.-Gen. St. § 3312, subd. 13, authorizing towns "to license, tax, regulate, suppress and prohibit" peddlers, empowers them to exact a license as peddlers from such persons only as can be termed such in the signification of the word as there used; and hence an ordinance which attempts to enlarge such signification is to that extent void.-KENNEDY V. PEOPLE, Colo., 49 Pac. Rep. 373. 138. TRESPASS Damages.-The erection of a bulk. head on one's own land, whereby the lands of another are flooded, is not a trespass; and hence an action for damages by such flooding is not within Code Civ. Proc. § 338, subd. 2, providing limitation of actions for "trespass on realty."-HICKS V. DREW, Cal., 49 Pac. Rep. 189. 139. TRESPASS Partnership - Penalty for Cutting Trees. While one is liable for the consequential damages from the tortious cutting of trees by his partner In the prosecution of their business, he, not having known of or authorized the cutting, is not liable for the penalty therefor under Code 1886, § 3296, providing that any person who cuts down trees "on land not his own, willfully and knowingly, without the consent of the owner, must pay to the owner $10 for every such tree."-WILLIAMS V. HENDRICKS, Ala., 22 South. Rep. 439. 140. TRUST FUNDS-Deposit with Bank.-It is not within the power of the treasurer of a school district, by a general deposit of funds held by virtue of his of. fice, to create between such district and his banker the relation of debtor and creditor.-STATE V. MIDLAND STATE BANK, Neb., 71 N. W. Rep. 1011. 141. USURY-Limitation of Actions.-The "usurious transaction" from which limitations run against an action to recover twice the amount of usurious interest paid to a national bank (Rev. St. U. S. § 5198) occurs only when an amount greater than the principal and legal interest has been paid, or judgment recovered for such an amount, as the creditor can until that time purge the usury by crediting the excessive interest on the principal.-FIRST NAT. BANK OF GADSDEN V. DENSON, Ala., 22 South. Rep. 518. 142. VENDOR AND PURCHASER-Contract-Assignment. -A land contract stipulating that the purchase money paid should be forfeited in sale of failure to pay the remainder of the price by a certain date, but that the obligation to purchase at the priced named should continue binding on the vendee, was not a mere option which became forfeited by vendee's failure to make such payment by the date specified.-HEMAN V. WADE, Mo., 41 S. W. Rep. 740. 143. VENDOR AND PURCHASER-Covenant of Warranty - Estoppel. A grantor is not estopped by his covenant of warranty from enforcing an existing mortgage on the property which is afterwards assigned to him, it having been expressly understood when the deed was made that the property was sold subject to such mortgage, and the consideration hav. ing been agreed on with that understanding.-HAMILL V. INVENTORS' MANUFG. CO., N. J., 37 Atl. Rep. 773. 144. VENDOR AND PURCHASER-- Fraudulent Repre. sentation of Title.-Where the vendor falsely stated that the land was swamp land, and that a deed from the county to himself was the only conveyance, and the validity of his title depended on the truth of such statements, and the purchaser, in reliance thereon, waived abstract of title, the vendor could not contend that the purchaser was not justified in relying thereon on the ground that he had equal opportunity to judge of the title.-HERMAN V. HALL, Mo., 41 S. W. Rep. 733. 145. VENDOR AND PURCHASER-Sale of Lands-Broker. -A broker for the sale of land at a price fixed cannot bind the owner by representation or contract, and the owner's offer to sell cannot be varied by the broker's letter of acceptance reciting that the purchaser understands that the property is of certain dimensions.PLANER V. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES, N. J., 37 Atl. Rep. 668. obstructed the natural flow, a plea which merely avers that defendant constructed its embankment and cal verts more than 10 years prior to the injury, and has maintained them in the same condition ever since, does not show an adverse user without further aver ring that like effects resulted at intervals during the 10 years, without complaint from plaintiff.-SHAHAN V. ALABAMA GREAT SOUTHERN R. Co., Ala., 22 South. Rep. 449. 147. WATERS-Prescriptive Rights-Riparian Proprie. tors. No prescriptive right to the use of the water of a stream can be acquired by one riparian proprietor, as against another, by a use of the water at times when such use does not interfere with the latter's use of the water, and when, as often as there is interference, the latter has protested, and sought to prevent the use.UNION MILL & MINING Co. v. DANGBERG, U. S. C. C., D. (Nev ), 81 Fed. Rep. 73. 148. WILLS-Construction.-A testator gave each of his children $5,500, payable in four semi-annual installments, and $500 per year, until said sums were paid, to his wife, and also "any balance from my semi-annual income:" Held, that the funds to be paid the children should be taken from the income, and those to the wife from the capital.-HAMMOND V. HAMMOND, MASS., 47 N. E. Rep. 535. 149. WILLS-Estate Devised.-Property was devised in trust, the income to be paid to two certain benefi ciaries for 10 years, and at the expiration of that time the principal to be paid over to them in equal shares, free of all trusts, "to them and to their children after death; the children to take among them equally the share of their father." The will further provided that if such beneficiaries, or either of them, should die leaving no descendants, whatever of the property "shall remain in their or his possession" should go to a certain corporation: Held, th it at the expiration of the 10 years the beneficiaries took the property abso lutely, the provision as to the distribution among their childr n being in case of their death before the expira tion of such time -BENTZ V. MARYLAND BIBLE SOC., Md., 37 Atl. Rep. 708. 150. WILLS-Promise by Legatee.-A father, in extremis being about to execute a will making his three chil dren his residuary devisees, stayed such execution in order to add a bequest to another person. One of the children, without the knowledge of the others, assured him that, if he should execute the will without change, his wish with regard to the intended bequest would be fulfilled. On this assurance he did so execute the doc ument: Held, that the share in the estate of the child giving the assurance must contribute a third only to wards making good the intended bequest.-YEARANCE V. POWELL, N. J., 37 Atl. Rep. 735. 151. WILL-Testamentary Capacity.-Mere ignorance by testatrix of the kind or amount of her property will not invalidate her will, but only ignorance resulting from a mental capacity to comprehend the kind and amount thereof.-IN RE LIVINGSTON'S WILL, N. J., 57 Atl. Rep. 770. 152. WILLS-Undue Influence-Evidence.-Testatrix made a will disinheriting one of her daughters, with whom she had quarreled a short time previous to the execution of the will: Held, that evidence of this quarrel was immaterial on the question of undue la fluence.-IN RE KAUFMAN'S ESTATE, Cal., 49 Pac. Rep. 192. 153. WITNESS-Cross-examination.-Where defendant is called as a witness by plaintiff, it is an abuse of dis cretion to permit cross-examination going outside the testimony in chief, and bringing out by leading ques tions matters of defense.-BISHOP V. AVERILL, Wash., 49 Pac. Rep. 237. 154. WITNESS-Impeachment.-A witness whose testi mony is attacked as a recent fabrication may support the same by proof of statements made when no motive for fabrication existed.-JONES V. STATE, Tex., 5. W. Rep. 639. Central Law Journal. ST. LOUIS, MO., SEPTEMBER 3, 1897. The laws governing the introduction of evidence naturally conform themselves to modern scientific development. The use of the X-ray in court is an apt illustration. In a recent case decided by the Supreme Court of Tennessee (Bruce v. Beall), which was an action for personal injuries, it was held that it was competent to submit to the jury an X-rays photograph, taken by a surgeon, showing the overlapping bones of one of plaintiff's legs where it was broken at the time of the accident, where the surgeon was familiar with the process by which the impression was secured, as well as with fractures, and testified that the photograph accurately represented the condition of the leg at the point of fracture, and that, by the aid of the X-rays, he was enabled to see the fracture and overlapping as if they were uncovered to the sight. It appeared that in the prog. ress of the trial a physician was introduced as a witness, who was permitted to submit to the jury an X-ray photograph taken by him, showing the overlapping bones of one of plaintiff's legs at the point where it was broken by the fall. This was objected to by the defendant's counsel. This picture was taken by the witness, who was a physician and surgeon, not only familiar with fractures, but with the new and interesting process by which this particular impression was secured. He testified that this photograph accurately represented the condition of the leg at the point of the fracture in question, and, as a fact, that by the aid of X-rays he was enabled to see the broken and overlapping bones with his own eyes, exactly as if, stripped of the skin and tissues, they were uncovered to the sight. The court said that they might, if they so desired, rest their conclusion on the general character of the exceptions taken to this testimony, but they preferred to place it on the ground that, verified by this picture, it was altogether competent for the purpose for which it was offered. "New as this process is," says the court, "experiments made by scientific men, as shown by this record, have demonstrated its power to reveal to the natural eye the entire structure of the human body, and that its various parts can be photographed as its exterior surface has been and now is. And no sound reason was assigned at the bar why a civil court should not avail itself of this invention, when it was apparent that it would serve to throw light on the matter in controversy." Maps and diagrams of the locus in quo drawn by hand are often used to aid a judge or a jury to an intelligent conception of the matters to be determined, and no one would think of questioning the competency of the testimony of a witness who stated that he knew the map or diagram to be entirely accurate, and who then used it to illustrate or make plain his statement. The pictorial representation of the condition of the broken leg of the plaintiff gave to the jury a much more intelligent idea of that particular injury than they would have obtained from any verbal description of it by a surgeon, even if he had used for the purpose the simplest terms of his art. The only case in this country wherein the exact question seems to have been determined and a similar conclusion reached, is Smith v. Grant, before a Colorado court, to which we called attention at the time, but photographs showing exterior surfaces have been admissible in numerous cases. They have been held competent on the question of identity of persons (Udderzook v. Com., 79 Pa. St. 340; Cowley v. People, 88 N. Y. 464; Luke v. Calhoun Co., 52 Ala. 118; Ruloff v. People, 45 N. Y. 213), and to identify premises (Church v. City of Milwaukee, 31 Wis. 512; Blair v. Pelhain, 118 Mass. 421), and in cases of handwriting. Marcey v. Barnes, 16 Gray, 161. As the Tennessee court very properly says it should not be understood that every photograph offered as taken by the cathode or X-ray process would be admissible. Its competency, to be first determined by the trial judge, depends upon the science, skill, experience and intelligence of the party taking the picture and testifying with regard to it, and, lacking these important qualifications, it should not be admitted; and, again, even when it is not conclusive upon the triors of fact, it is to be weighed like other competent evidence. The decision of the Court of Appeals of Kentucky in the recent case of Blackburn v. Wright, may be technically correct, but it will doubtless strike the ordinary modern practitioner as one of the nonsensical refinements of reason with which the common law abounds. The holding of the court was that words charging a plaintiff with "stealing" the door of a house are not actionable per se, because they impute only the offense of a trespass to real property and do not involve moral turpitude. Under the English rule, they say, words which impute that plaintiff has been guilty of a crime punishable with imprisonment are actionable without proof of special damages, but, if the offense imputed be only punishable by penalty or fine, the words will not be actionable without proof of special damages. It is quite true, that at common law, in order to render the charge actionable per se the act imputed shall not only be subject to an infamous punishment but also to involve moral turpitude. At common law larceny was restricted to personal property. Real estate could not be the subject of the offense of larceny, and the same rule extended to everything which adhered to the realty, or to the soil; so that if one, even with felonious intent, severed and carried away anything which formed a part of the freehold, he does not, at least by the rules of common law, commit the offense of larceny but is guilty only of trespass. In some States this rule of the common law has been materially changed by statutory enactment, but in Kentucky the common law rule seems to pre vail. NOTES OF RECENT DECISIONS. MARRIED WOMAN-NATIONAL BANK STOCK -OWNERSHIP AND PERSONAL LIABILITY.-The question presented by the case of Kerr, Receiver, v. Urie, 37 Atl. Rep. 789, before the Court of Appeals of Maryland, is whether a married woman living in one State is capable of holding stock in a national bank located and doing business in another State, and if so whether she is liable as such stockholder, under the personal liability provisions of the United States statute. The court decided in the affirmative saying, that "whatever difficulty may surround this question arises, we think, more from the manner in which it is presented in this case than from any other cause, for it can hardly be supposed that, at this day, when, by the law of most all the States, a married woman may contract as a feme sole in respect to her separate estate, she is without power to subscribe for or become the transferrer of the stock of a national bank." JUDGMENT-ACTION AGAINST DEAD PERSON. -As to the validity of judgments in favor of or against persons rendered after their death, there is great contrariety of opinion. One class of authorities holds that all such judg ments are absolutely void. Another class holds that those which are rendered in suits commenced after the death of the party are void, but that, where the parties are alive when the suits are commenced and the court once acquires jurisdiction over their persons, judgments therein rendered are not void, though the parties be dead before this rendition. Other cases take the broad position that the judgments are not void in either of the cases stated, but that they are only voidable by direct proceeding. Speaking of the cases mentioned in the first and third classes, Mr. Freeman says: "We apprehend that neither position is correct. That there should, at some time during its progress, be living parties to both sides of an action, we think indispensable; and that no sort of jurisdiction can be obtained against one who was dead when the suit was commenced against him as defendant, or in his name as plaintiff; and that no judicial record can be made which will estop those claiming under him from showing that he died before the ac tion was begun; and that a judgment for of against him must necessarily be void." Freem. Judgm. § 153. To the same effect is Black, Judgm. § 203. Vanfleet, in his work on Collateral Attack, holds that the judg ment is valid until set aside by direct attack, whether the party died before or after the commencement of the action. Sections 587. 602, and 603. The decisions upon all of the phases of the question will be found cited by these authors at the places in their works above indicated, and in the note by Freems: to the case of Watt v. Brookover (W. Va.). 29 Am. St. Rep. 816-819, 13 S. E. Rep 1007, the Supreme Court of Texas after a review of all the cases on the subject bas recently held that a judgment in an action against one dead at con mencement of the ac- MUNICIPAL CORPORATION LIABILITY FOR TORTS OF OFFICERS-FALSE IMPRISONMENT. In Royce v. Salt Lake City, 49 Pac. Rep. 290, decided by the Supreme Court of Utah, the plaintiff was arrested by a police officer of defendant city, for vagrancy, without warrant, no public offense being shown to have been committed in his presence. He was tried on a verbal charge of vagrancy in the police court, without any written complaint being filed against him, was convicted, and sentenced to imprisonment, but not to hard labor, and held without commitment from the police court. By order of the chief of police, plaintiff was put at work upon the stone quarry, where he received from a fellow prisoner the injury complained of. It was held that the acts of the chief of police, requiring him to work breaking stone, when not sentenced to hard labor, at the time of the injury, were ultra vires; that the officers were not acting as agents of the city government, but were trespassers, and the corporation is not liable to the action for damages; that authority granted by resolution of a city council, directing the marshal to work prisoners, does not confer the right to require those in custody, but illegally imprisoned, and not sentenced to hard labor, to be thus employed and that all torts or wrongful acts of an agent or officer of a municipal corporation, not resting upon contract, but which are "ultra vires," in the proper sense and meaning of the term, will not create an implied liability on the part of the corporation. The court cited the following cases as authority for the general propsition that, in such cases as this, police officers are not the servants of the corporation to the extent of involving the latter in liability: Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. Rep. 1030; Smith v. City of Rochester, 76 N. Y. 506; Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. Rep. 614; Town of Odell v. Schroeder, 58 Ill. 353; 1 Shear. & R. Neg. § 300; Mechem, Ag. §§ 111, 112; Alamango v. Board of Sup'rs, 25 Hun, 551; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 187 Rep. 781; Mayor of Albany v. Cunliff, 2 N. - MORTGAGE-REDEMPTION-RATE OF INTEREST-AMENDMENT OF STATUTE AFTER SALE.In Thresher v. Atchison, 48 Pac. Rep. 1020, decided by the Supreme Count of California, it was held that a statute decreasing the rate of interest to be paid to redeem land sold on execution is inoperative on a sale made prior to the passage of the act. The court said that it has been frequently held that a law extending the time within which a redemption may be made from a sale under a judgment will be inoperative upon a sale made prior to the passage of the act; that the purchaser at the sale acquires rights thereby of which he cannot be divested by subsequent legislation. Cooley, in his treatise on Constitutional Limitations (page 353), says: "A law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes after the sales have been made; for in such a case the contract with the purchaser, and for which he has paid his money, is that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract as much as would be the extension of the time for payment of a promissory note." Mr. Freeman, in his treatise on Executions (section 317), in discussing the effect upon the rights of the judgment debtor of a statute authorizing a redemption from a sale passed after the sale has been made, says: "But the right of the purchaser to a conveyance, or to repayment at the termination of the period allowed for redemption, is legislature will not be permitted to impair. deemed to rest upon a contract which the Hence, while the time for redemption may probably be shortened, it certainly cannot be The same principles which render void an prolonged by any law enacted after the sale." act extending the time for redemption after the sale has been made will render void an act reducing the amount of money required by the sheriff is regarded as a sale by the for a redemption from such sale. The sale judgment debtor (Blood v. Light, 38 Cal. 658); and the purchaser is entitled to rely upon the statutory provisions for redemption |