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Coston y. Page, 9 Ohio St. 397; Talbot v. Pierce, debts. The issue framed, upon an intervention by 14 B. Mon. 158, 164; Hawkins v. Albright, 70 Ill. junior execution creditors, was, "whetber the ground 87; Jones v. Swank, 51 Minn. 285; Ellison v. of attachment set forth in the plaintiff's afidavit, ex. Tallon, 2 Neb. 14; Citizens State Bank v. Baird,
isted at the time of the issuance of the attachment." 42 Neb. 219; Wynn v. Wilmarth, 1 s. Dak. 172;
Upon this issue the court of appeals beld, reversiog Bamberger v. Halberg, 78 Ky. 376.
the court below, that the burden of proof devolved
upon the plaintiff to prove the ground of attachment The effect of the intervention was to make the
stated. Now the question arises, when will the interveners virtually defendants to the writ of at- plaintiff be deemed to bave established the ground of tachment. By virtue of their acquired interest attachment in such a case? Will it be sufficient for in the property, they bad acquired the same right bim to show a fraudulent disposition of goods by the that defendants had to traverse the affidavit for debtor, without reference to his intent toward aby attachment. If that attachment was falsely and
particular creditor, or must be go furtber and show wrongfully sued out and defendants failed or re
an intent on tbe part of the debtor to defraud him, fused to make defense to it, the interveners had
the plaintiff, in the collection of his debt? We cannot
but conclude that this requirement is satisfied, for the the right to do so in order to remove it as an im
time being at least, by satisfactory proof tbat the pediment to their better right of seizure and sale
debtor was disposing of his property with intent to in satisfaction of their execution. To this extent defraud creditors, without reference to his intentions they were entitled to stand in the shoes of the de- toward the plaintiff. The presumption in such s fendants. Campbell v. Morris, 3 H. & McH. 553; case should be that the debtor intends to defraud all Clark v. Meixsell, 29 Md. 221. This situation il- of his creditors. If this were not true, & plaintiff lustrates, also, the reasonableness of the rule that
against whom no suspicion of collusion with the de imposes the burden of proof upon the plaintiffs,
fendant could be directed, might be deprived of the to sustain the attachment. If it were upon the
benefit of his attachment by his failure to produce
evidence of a kind which he could not be expected to interveners and especially in a case where there
command. The state of the debtor's mind, or tbe might be collusion between the plaintiff and de
nature of his intentions, could only be proved by fendant, their proceeding would rarely be pro- outward manifestations, and these would apply as well ductive of results. It follows that the court erred to one creditor as another. But it is to be remembered in imposing the burden of proof upon the inter- that a fraudulent and collusive attachment is greatly veners, and that the judgment must be reversed. assisted by the fact that the debtor is, in truth, dispos5. In respect of the charge of collusion, how
ing of his goods with intent to defraud real creditors
. ever, between the parties, the rule is different.
Examination of the reports will show that in nearly That issue is separable from the other, and upon
every collusive attachment that bas been attacked in
the courts, the grounds of attachment stated were that it the interveners have the affirmative and must
the defendant was fraudulently disposing of his prop assume the burden of proof. If the facts war
erty. No otber kind of attachment lends its aid so el ranting the attachment should not be proved, it fectively to the collusive parties. It is an easy matter would be quashed without regard to the question for the defendant to give color to the claims of the of collusion; for no plaintiff should have the plaintiff, either by inculpatory statements, or by overt benefit of an advantage obtained by false or reck- acts, such as secreting his goods, or shipping them out less swearing, even if there has been no collusion
of the jurisdiction. In pine cases out of ten the do and the defendant simply remains indifferent to
tendant is, as a matter of fact, disposing of his goodi
with intent to defraud real creditors, and the fraudethe charges against him. Even if proof should
lent parties rely upon that fact to help them conluse be made of conduct on the part of the defendants
the jury, who might not, in every case, discriminate which, under ordinary circumstances, would
between genuine creditors and impostors. The de justify attachment, the writ ought nevertheless tendant is really insolvent, and seeking to put his to be quashed upon proof of fraudulent collusion
property beyond the reach of creditors as fast as be between the plaintiff and defendant. If the facts can, and he, with the collusive plaintiff, artfully asals were such as to bring the case within the provis- himself of that fact to give the attachment the sbions of the General Assignment Act (27 Stat. 474), pearance of good faith. We are, therefore, led to con
clude that suspicious circumstances appearing in the such an attempt to give a preference would be as much within the probibition of the statute as an
case, such as inculpatory statements and declarations
made by the defendant to the plaintiff and embraced attempt to accomplish the same end by private
in the plaintiff's affidavit, the fallure of the defendant contract. Indeed, an attempt to use the process
to take advantage of glaring defects in the attack of the court for an unlawful purpose would be ment and obvious grounds of defense, the failure a far more reprehensible.
the plaintiff to protect bis interest at a sale under tb? For the error pointed out above, the judgment attachment, friendly communication and business ?Pwill be reversed, with costs to the appellants, and tercourse between the parties after the attachment
, the cause remanded with direction to set aside and the like, should be clearly and satisfactorily ex the verdict and grant a new trial. It is so
plained by the plaintiff to the court, under penalty
of a dissolution of the attachment. In this congela ordered. Reversed and remanded.
tion we may here advert to the language of the court
in Lowepstein v. Aaron, 12 South. Rep. 269 (6) Mes): NOTE.--It will be observed in the foregoing case, "While the issue which the plea in abatement tep that the grounds of attachment stated by the plaintiff ders is, in its general aspect, the existence or non-e** in his affidavit, were that the defendants were dispos.
istence of the grounds of attachment contained in tbe ing of their goods with intent to hinder, delay and affidavit of the original attaching creditor, yet to con defraud their creditors in the collection of their fine the investigation with rigid inflexibility to ide
Ed.) $$ 273, 276, 278; 1 Wade on Att. $ 54, 286; Waples on Att. (2d Ed.) $$ 796, 798, 792; Shion on Att. ch. "Intervention."
CHAPMAN W. MAUPIN. Washington, D. C.
VIEW BY JURY.
To the Editor of the Central Law Journal:
In your issue of Sept. 3d, 1897, you have an article on p. 196, on “Views” and “Evidence.” The subject there discussed was passed upon by the Circuit Court of Ohio in the case of Columbus v. Bidlingmeier, 7 0. C. C. R. 136, and by the Supreme Court of Ohio in Machrader v. Williams, 54 O. S. R. 344, the holding in both cases being that the view by the jury is solely to enable them to apply tbe testimony adduced.
GILBERT H. STEWART.
very letter of the inquiry, would, we think, defeat in a large measure the beneficent purpose of the stat. ute. The alleged grounds of attachment may be true as to the subsequently attaching creditors-true gen. erally, but not true in any proper sense as to the orig. inal attacher, who bases bis right to an attachment upon such alleged groupd.
The original at. tacher cappot, by frauduleut collusion with the debtor, manufacture grounds for attachment, and then avail bimself of them to defeat junior attachers, who take out writs in good faith predicated upon the very grounds alleged in the senior attachment." In addition to the authorities cited by Mr. Justice Shep. ard in the principal case, to the proposition that the burden devolves on the plaintiff to prove the grounds of attachment stated by him, when denied by interveners, see 1 Shion on Attachment, § 437 (1896); Speyer v. Ihmels, 21 Cal. 280, and Posey v. Underwood, 1 Hill (S. C.), 262. If the plaintiff colludes witb the defendant, the attachment will be vacated wberber the plaintiff's claim is fictitious or not. Comer v. Heidlebach (Ala.), 19 South. Rep. 719. See, generally, upon the right of junior attachment or execution creditors to intervene and contest the plaintitt's right to an attachment and the practice upon such intervention, the following cases: Briggs v. French, 2 Sumner, C. C. 251; Lodge v. Lodge, 5 Mason, C. C. 407; Sannoner v. Jacobson, 47 Ark. 31, 14 S. W. Rep. 458; Hardware Co. v. Deere, 53 Ark. 140; Rice v. Dorrian, 57 Ark. 541; McKinty v. Glad. win, 10 Cal. 227; Patrick v. Montarler, 18 Cal. 434; Davis v. Eppinger, 18 Çal. 378; Speyer v. Ihmels, 21 Cal. 280; Thompson v. Rose, 16 Conn. 71; Smith v. Gettinger, 3 Ga. 140; Harvey v. Jewell, 84 Ga. 234; Yates y. Dodge, 123 Ill. 50; Tool v. Lamphere, 8 Ill. App. 399; Lytle v. Lytle, 37 Ind. 281; U. S. Express Co. v. Lucas, 36 Ind. 361; Selz v. Beldin, 48 lowa, 451; Peters v. Conway, 4 Bush (Ky.), 265; Bam: berger v. Halberg, 78 Ky. 376; Moore v. Stege, 93 Ky. 27; Gilkison v. Bond, 44 La. Ann. 841; Gover v. Barnes, 15 Md. 576; Howard v. Oppenheimer, 25 Md. 350; Hardesty v. Campbell, 29 Md. 633; Clark v. Meixsell, 29 Md. 228; Pierce v. . Jackson, 6 Mass. 242; Whitten v. Smith, 11 Mass. 211; Strong v. Wheeler, 5 Pick. 410; Adams v. Paige, 7 Pick. 542; Carter v. Gregory, 8 Pick. 165; Lambert v. Craig, 12 Pick. 199; Fairfield v. Baldwin, 12 Pick. 388; Hale v. Chandler, 3 Mich. 531. Contra: Henderson v. Thorn. ton, 37 Miss. 448; Paine v. Holliday, 68 Miss. 298, 8 South. Rep. 676; Lowenstein v. Aaron, 69 Miss. 341; First Nat. Bank v. Cochran, 14 Soutb. Rop. 439; Jump V. Batten, 35 Mo. 193; Henson v. Tootie, 72 10. 632; Claflin v. Sylvester, 99 Mo. 276; Buckman v. Buck. man, 4 N. H. 319; Webster v. Harper, 7 N. H. 594; Blaisdell v. Ladd, 14 N. H. 129; Kimball v. Welling. ton, 20 N. H. 439; Pike v. Pike, 24 N. H. 384; Page v. Jewett, 46 N. H. 441; Clough v. Curtis, 62 N. H. 409; Reed v. Ennis, 4 Abb. Pr. (N. Y.) 393; Walker v. Roberts, 4 Rich. (S. C.) 561; Myers v. Whitehart, 24 S. C. 196; Orr v. Harris, 82 Tex. 293; Kollette v. Seibel, 7 Tex. Civ. App. 260; Goodbar v. Nat. Bank, 78 Tex. 461; Zadick v. Shafer, 77 Tex. 501; Heiden. heimer v. Johnson, 76 Tex. 200; Bateman v. Rumsey, 74 Tex, 589; Pitkins y. Johnson, 2 S. W. Rep. 459; Freiburg v. Freiburg, 74 Tex. 122; Sanger v. Trammell, 66 Tex. 361; Johnson v. Heidenheimer, 65 Tex. 203; Grabenheimer v. Rindskopf, 64 Tex. 49; Neony v. Schleuter, 62 Tex. 327; Peticolas v. Carpenter, 53 Tex. 23; Murray v. Eldridge, 2 Vt. 308; Harding v. Harding, 25 Vt. 487; Ludington v. Hull, 4 W. Va. 130, and the following text writers: Drake on Att. (7tb
AMERICAN STATE REPORTS, Vol. 54.
This volume contains many cases of special interest and value. We note particularly Goodloe v. Memphis & Charleston R. R. Co. (Ala.), wherein it is held that the doctrine of respondeat superior, in the law of master and servant, has no application when the serv. ant actually wills and intends an injury or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. Appended to this case is an exhaustive note on the subject of acts of servant for which the master is not answerable. Little Rock & Ft. Smith Ry. Co. v. Wells (Ark.), is another good case. Therein is considered the ques. tion as to relief in equity, other than by appellate proceedings against judgments, decrees, and other judicial determinations. An able note also accom. panies this case. Green v. Coast Line R. R. Co. (Ga.), treats of claims wbich take precedence over mortgages of railway and like property. Many other valuable cases with annotations are to be found in the volume Published by Bancroft-Whitney Co. San Francisco.
Law Latin, a Treatise in Latin, with Legal Maxims
and Phrases, as a Basis of Instruction. By E. Hilton Jackson, A. M. LL. M., Instructor in Law and Law. Latin in the Summer School of the Columbian University. Washington, D. C. John
Byrne & Company, 1897. The American State ports, 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. LV. San Francisco: Bancroft-Whitney Company, Law Publishers and Law Booksellers. 1897.
HUMORS OF THE LAW.
..2, 29 MARYLAND.
....13,32 Judge: “Don't you think that this is a matter which MISSOURI...
........, 12 could be settled out of court?"
.............6 Plaintiff: "Can't be done, your honor, I thought of NEW MEXICO. that, but the cowardly defendant will not fight."
.......... 9, 11, 18, 19 "Oh," said the lady lecturer, “I have bad such a PENNSYLVANIA......... delightful conversation with the gentleman you saw RHODE ISLAND
.....8, 16 bow to me as we left the train. He told me the eman' SOUTH CAROLINA.
.30,17 cipation of woman bad been bis life work for ever so TENNESSEE.
...34 many years.” “Yes," said the woman who had come
...15 to meet her, "that is so. He has been a divorce law.
UNITED STATES C. O............
...........4 yer ever since I could remember."
UNITED STATES O. C. OF APP..
..21, 26, 27, 2 A good story is told of a Glasgow baillie on the oc.
.3, 4, 6, 92, 13 casion of a witness being sworn before him. “Hold up your right arm," commanded the lineal descend.
1. ADMINISTRATION-Executorg-Sale of Land in Porant of Baillie Nicol Jarvie. "I canna dae't," said the
eigo State.-An executor and his soreties are not liable witness. “Why not?" "Got shot in that airm."
on his bond for the proceeds of lands in a foreigo “Then hold up your left.” “Canna dae that either- State, sold by hin under power conferred by the will, got shot in the ither airm, too.” “Then hold up your wald will never having been probated in the State leg," responded the irate magistrate; "no man can be where the lands lie, so as to authorize guch sale.-EX sworn in this court without holding up something."
MON8 V, GORDON, Mo., 41 8. W. Rep. 998. A Georgia lawyer, who had a case in which convic
2. ATTACHMENT — Levy - Appralgement.-Under see. tion for his client seemed certain, closed his argument
tion 197 of the Code of Civil Procedure an attachment with a scriptural quotation. To the amazement of
levy on personal property is sufficient and valid is the
officer, witb the order of attachment lo hand, goes to all, the jury returned a verdict uf "Not guilty," with.
the place where the goods and chattels of the defendout leaving their seats. After court had adjourned, apt are found, and there declares, by virtue of said or the lawyer adproached the foreman.
der, that he attaches such property at the suit of the “I am curious to know," he said, "just on what plaintift, and thereupon takes such possession as de point of law you based your verdict?"
vests the defendant's possession and gives to the officer “It warn't no law point, Colonel," replied the fore. a claim of dominion, coupled with the power to erer. man, "but we couldn't jest git over the Scripture."
cise it, over the attached property. -DODSON V, WIGHT:
MAN, Kap., 49 Pac. Rep. 790. Timid Traveler-"Is this a law-abiding community,
3. BILLS AND NOTES-Mortgages-Non-negotiability, my friend?”
-The stipulation in a note which includes the core Reckless Resident-"Why say, podner, there's more
nants of a mortgage by which the maker agrees to pas law abidin' in this community than you've any idee the taxes on the property, assessments, insurance, sod of. There's fourteen lawyers, five judges and six waste, renders the note non-negotiable.-DONALBEOS prosecutin' attorneys, ter say nuthin' uv deputy sher- V. GRANT, Utah, 49 Pac. Rep. 779. iffs and bill collectors, all planted over in that ceme. 4. BILLS AND NOTES-Promissory Note – Negotiabiltery."
ity.-A note falling due in the bands of the paper An old lawyer in Paris bad instructed his client to
ceases to be negotiable. Afterwards indorsers takel
subject to the same defenses that could have been weep every time he struck the desk with his hand,
made to it in the hands of the payee. The stipulation but forgot and struck the desk at a wrong moment.
to pay attorney's fees in case of suit binds the maker She promptly fell to sobbing and crying. "What is
to pay them as a part of the costs of the remedy, bar the matter with you?” asked the judge. “Well, be he cannot be required to pay more than the fees actutold me to cry as often as he struck the table." "Gen. ally charged. They are for the attorney, not for the tlemen of the jury,” cried the unabashed lawyer, plaintiff.-SALISBURY V, STEWART, Utab, 19 Pac. Rep. “let me ask you how you can reconcile the idea of
777. crime in conjunction with such candor and simpli. 5. CONSTITUTIONAL LAW-Polygamous Children - la city?"
heritance. Where the legislators of the State de star ute declares that in all cases involving the right of polygamous children to inherit, determined against them before the act in any of the courts of the ter
tory, a motion for a rehearing or new trial shall be *** WEEKLY DIGEST
tertained on their application who were parties at any
tine within one year after the act took effect, and the OF ALL the Current Opinions of ALL the State
court is required to entertain the motion for a mi
trial or rebearing regardless of when the judgment er and Territorial Courts of Last Resort, and of
decree became final, the legislature assumed a control the Sapreme, Circuit and District Courts of the over the judiciary not warranted by the constitotloz, United States, except those that are Published and such a statuto, destroying vested rights, and te In Fall or Commented upon in our Notes of
finality of judicial determinations, is unconstitutional
and yold.-IN RE HANDLET': Estate, Utah, 49 Pac. Rep. Recent Decisions, and except those Opinions in which no Important Legal Principles are Dis.
6. CORPORATIONS-Apportionment of Stock-Increase cussed of Interest to the Profession at Large.
of Capital.- Where a corporation increases its capital
stock, each holder of original stock is entitled to a por ARKANSAS......
tion of the new stock, because it includes an undirided
part of the common property, of every part of whes FLORIDA.........
he is an owner, and of whicb a conveyanco cat be GEORGIA......
made only with his consent, or by legal process." KANSAS.......
.2, 7, 30 JUNES V. CONCORD & M. R. R., N. 7., 88 Atl. Bep, IN.
7. CORPORATIOxs-Liability of Stockholders.-No liability for the debts of a corporation can be enforced against a stockholder until a judgment upon the debts has been rendered against the corporation, and an ex. ecution issued thereon, and returned nulla bona, or until the corporation has been dissolved, or has suspended business for more than one year.-MERRILL V. MEADE, Kan., 49 Pac. Rep. 787.
8. CORPORATIONS-Transfer of Stock.-Under the laws of the State of Maine (Rev. St, 1883, tit. 4, ch. 48, § 19), providing that the signers of articles of incorporation, and their successors and assigns, shall be a corpora. tion from the time of filing the required certiticate in the office of the secretary of state, an agreement be. tween such subscribers prior to organization, or be. tween them and such organized body prior to such fil. ing of such certificate, is invalid to prevent the transfer of stock without first giving the corporation the option of purchase.--IRELAND V. GLOBE MILLING & REDUCTION CO., R. I., 33 Atl. Rep. 116.
9. CRIMINAL LAW.-Where defendant in a criminal prosecution did not offer himself as a witness, and his testimony as taken on a former trial on the same in. dictment was read to the jury on behalf of the State, as declarations tending to prove guilt, it must be presumod, in the absence of a certificate showing that the bill of exceptions contains all the evidence, that what. ever foundation was necessary for the admission of such testimony was laid.-STATE V. CHILDERS, Oreg., 19 Pac. Rep. 801.
10. CRIMINAL LAW – Instructions.-A charge in the form, "does such a witness (naming him) say" thus and so? (repeating the testimony), violates Const. 1895, art. 5, $ 26, providing that judges shall not charge jurors in respect to matters of fact, but shall declare the law," since the charge states the testimony, though it be in interrogative form.-STATE V. STELLO, S. Car., 278. E. Rep. 659.
11, DEED OR MORTGAGE — Assignment for Benefit of Creditors.--A declaration of trust executed by a solv. ent person contemporaneously with an absolute deed recited that whereas the maker was in a state of mor. tal illness, and desired to provide for the payment of bis debts, he had conveyed his real estate to plaintiff, in trust to pay his debts, with the desire to avoid pro. ceedings in the courts; it being declared that the deed was a conveyance in trust, with full power to sell, the balance, after payment of debts, to be returned to the inaker, his heirs, executors, or assigns: Held, that the deed and agreement did not constitute a mortgage, but passed the absolute legal title to the land.-LADD V. JOHNSON, Oreg., 49 Pac. Rep. 756.
12. ELECTIONS - Preparing and Marking Ballots.Rev. St. 1889, $ 4781, as amended by Act April 4, 1891, and Act April 18, 1893, provides that on receipt of his ballot the elector shall prepare his ballot "by crossing out the groups" he does not wish to vote by drawing a lige or lines lengthwise through a part or all of the column of names in the rejected groups; a partial era: sure of a group by lines lengthwise of the column or in any other manner than by the erasure of a name to substitute another to be taken as a rejection of the whole group; and "then make all changes on one group" by striking out the name or dames of candidates he does not wish to vote for, and writing the name or names of his choice below, so thut the remaining part sball express bis vote on the question submitted, etc.; Held, that such statute is mandatory, and a failure to thus prepare a blot vitiates it. - IIOPE V. FLENTGE, Mo., 41 S. W. Rep. 1002.
13. EXECUTION - Lien-Priorities. - Existence of a mortgage whereby legal title to the mortgaged prop. erty is in the mortgagee, with only an equity of redemption in a judgment debtor, does not defeat the lien of execution, though the aid of equity is neces. sary for its enforcement.--GREEN V. WESTERN NAT. BANK OF BALTIMORE, Md., 38 Atl. Rep. 131.
14. FEDERAL COURTS-Copyright Cases.-A bill filed in the State court alleged that complainant was the
author of a certain song; that the song and accom. panying music were bis property; and that defendants, without his knowledge, procured a copyright thereon. The bill prayed that defendants be ordered to assign the copyright to complainant, "by instrument of ag. signment such as is provided for by the statute of the United States," and also prayed an injunction to re. strain defendants from interfering with his right to the use of the song: Held, that this was not a suit arising under the copyright laws of the United States, so as to be within the jurisdiction of the federal courts, but was one merely involving the title to the copyright, which depended on the roles of the common law, and hence that the suit was not removable from a State to a fed. eral court.-Hort v. BATES, U.S. C. C., D. (Mass.), 81 Fed. Rep. 641.
15. INJUNCTION-Jurisdiction.-A trustee in possesBion of goods conveyed to him by a firm to be sold to pay debts can by injunction compel the restoration of certain goods seized and taken from his possession under execution against one of the partners, on showing that by reason of the taking of such goods the remainder of the stock would be greatly depreciated in válue, as such stock could, under Rev. St. arts. 2349, 2352, be levied on only by notice.-SUMNER V. CRAW. FORD, Tex., 41 S. W. Rep. 994.
16. INSOLVENCY-Trial by Jury.-Gen. Laws, ch. 274, providing for the distribution of an assigned insolvent estate without providing for a jury trial of the valid. ity of claims presented against the estate, is not con. trary to Const. art. 1, § 15, which provides that "the right of trial ly jury shall remain inviolate," since at the time of the adoption of the constitution there was no provision for a jury trial of such claims, and this especially in view of section 18 of said chapter, provid. ing that a debtor may prevent insolvency proceedings until declared insolvent by a jury.- MERRILL V. Bow.
R. I., 38 Atl. Rep. 114. 17. INTOXICATING LIQUORS-Iudictment-Duplicity.An indictment should not be quashed because it contains three counts, each of which sets out a distinct misdemeanor.-STATE V. BECKROGE, S. Car., 27 S. E. Rep. 658.
18. MALICIOUS PROSECUTION-Probable Cause.-On a preliminary examination, a finding that there is suffi. cient cause for holding the accused to answer is only prima facie evidence of probable cause, and may be overcome by competent evidence on a trial for malicious prosecution.-HÉSS V. OREGON GERMAN BAKING Co., Oreg., 49 Pac. Rep. 803.
19. MANDAMUS-Secretary of State.-Under Hill's Ann, Laws, $ 2848, providing that the secretary of state shall cause to be printed blank assessment rolls and other forms, and section 2208, subd. 7, requiring him to ex. amine the claim therefor, and to draw his warrant for it, mandamus will issue to compel him to act, but not to direct bow or to what effect he shall act; since, in passing on the quality of the work and materials, rea. sonableness of the charge, etc., he must exercise his discretion and judgment.-IRWIN-HODSON CO. V. KIN. CAID, Oreg., 49 Pac. Rep. 765.
20. MASTER AND SERVANT- Dangerous Premises-Ag sumption of Risk.-A coal mining company was ac. customed to pace a danger signal on rooms on which standing gas bad been detected, and such signal was well understood by all employees to be an imperative command prohibiting entrance with a naked light into any room or place where danger was thus indicated. There was no danger from the standing gas if it were pot ignited. An employee went to work in the mine with knowledge of the rule, and that an explosion in another room would endanger life in his own room, and relying on his fellow.servants' observance of the danger signal: Held, that he assumed the risk, and the company was not chargeable with negligence in not providing a safer place in which to work.-CER RILLOS COAL R. Co. V. DESERANT, N. Mex., 49 Pac. Rep. 807.
21. MASTER AND SERVANT-Unsate Premises.-In an action by a railway brakeman for injuries suffered in uncoupling cars through an alleged defect in the track, an instruction that defendant "undertook to furnish plaintiff a reasonably safe place to work" is erroneous, defendant's true obligation being to exercise ordinary and reasonable care, having regard to the bazards of the service, to furnish a reasonably safe place to work and to keep it in reasonably safe re. pair.-LOUISVILLE & N. R. CO. V. JOHNSON, U. 8.0.0. of App., Seventh Circuit, 81 Fed. Rep. 679.
22. MECHANICS' LIEN-Extent.-A lien for lumber used in several structures on the same tract, under one contract, may exist on the whole, when they constitute one plant.-SALT LAKE LITHOGRAPHING 00. v. IBEX MINE & SMELTING CO., Utah, 49 Pac. Rep. 768.
23. MORTGAGES-Mechanics' Lleng-Priority.-Chapter 30, Serg. Laws 1892, declaring that debtsjof corporations or natural persons due for services performed by la. borers within six months before the seizure of the debtor's property on process, or the suspension of his business by the action of creditors, or before his prop. erty shall be put into the bands of a receiver or trustee shall be treated as preferred, does not affect the rights of existing grantees, mortgagees, or liepholders.SALT LAKE LITHOGRAPHING CO. V. IBEX MINING & SMELTING CO., Utah, 49 Pac. Rep. 832.
24. MUNICIPAL CORPORATIONS-Acts of De Facto Om. cers.-A city ordinance is not void, tbougb voted for by those who were merely de facto councilmen, and passed at a meeting at which there was not a quorum of de jure councilmen present, the acts of the de facto councilmen, who were holding over after tbe expira. tion of the time for wbich they were appointed to fill vacancies, buving been performed with the full knowl. edge of the other members of the council, who had the right to reappoint them upon the failure to have an election at the proper time.-PENCE V. CITY OF FRANKFORT, Ky., 41 S. W. Rep. 1011.
25. MUNICIPAL CORPORATIONS - Control of Streets Street Railroads.--The powers of a municipal corpora. tion over its public streets are held in trust for the public benefit, and cannot, in the absence of clearly delegated authority, be surrendered or delegated by contract to private parties, either corporate or natural. -FLORIDA CENT. & P. 1. Co. V. OCALA St. & 8. R. Co., Fla., 22 South. Rep. 693.
26. MUNICIPAL CORPORATION8-Estoppel-Violation of Contract.-A city which voluntarily made a purcbase of property with which to complete drainage improve. ments under authority conferred by an act of the leg. islature, and issued in payment therefor warrants on the drainage fund, a part of which it had collected, and the remainder of which it contracted to collect, but afterwards abandoned the work, and thus ren. dered the drainage assessments invalid and uncollecti. ble, and otherwise obstructed their collection, is estopped to set up, in defense to an action against it on the warrants, that it had, previous to their issuance, discharged cltims against the drainage fund in excess of the amount collected. – WARNER V. CITY OF NEW ORLEANS, U. S. C. C. of App., Fifth Circuit, 81 Fed. Rep. 616. 27. PARTNERSHIP Participation in Profits.
AN agreement by a party who loans money to, and be. comes surety for, a leggee, stipulating for a share of the profits of the leased property, does not make him liable for unpaid rent, as a partner, though the con. tract provides that no subletting or assigoment shall be made without his consent. – RANDLE V. BARNARD, U.S.C.C. of App., Seventh Circuit, 81 Fed. Rep. 682.
28. PARTNERSHIP – Sharing in Profits. - A merchant conducting a business in his own name entered into an agreement with his sons in 1879 whereby they took the business, conducting it in their names, while the father left his capital in the business and acted as buyer for the firm, receiving a portion of the profits. In 1888, the father's health having failed, he ceased to purchase for the firm, but the other terms of the
agreement remained uncbadged. In September, 1891, the firm, then in a precarious financial condition, gave the father a note for $3,181, representing bis original capital and some accrued profits due poder the agree. ment. In January, 1893, the firm assigned for the benefit of its creditors, naming the father as preferred creditor: Held, that the father was a partner of the firm, and the assigament was hence fraudulent as to its creditors.-JOHNSON V. ROTHSCHILDS, Ark., AI S. W. Rep. 996.
29. RAILROAD COMPANY -- Assignment of Lease.-Tbe assignae of a railroad lease for a term of 30 years, har. ing operated the leased road for a loug time, and elected to recover tbe sums due to the lessee from the leggor under the lease, cannot escape the obligations resting on the lessee, on the ground that the lessor has never consented to the assigoment, as stipulated in the leage.--SCHMIDT V. LOUISVILLE & N. R. CO., Ky., 41 8. W. Rep. 1015.
30. SALE -Breach of Contract - Damages, - Where a seller of personal property prior to the time of delivery notifies the buyer that he will not deliver the property purchased, and the buyer upon the receipt of such notice purchases the same kind of property from another at its then market value, which is in advance upon the contract price, and where at the time delivery was to have been made the market value of such property ia at or below the contract price, the buyer cagnot re: cover from the seller such advance price paid. —YORKDRAPER MERCANTILE CO. V. LUSK, Kan., 49 Pac. Rep. 788.
31. SPECIFIC PERFORMANCE - False Representations, -Specific performance will not be decreed against a purchaser at auction of a ground rent, the statement In the advertisement and by the auctioneer that it was a well-secured rent being false.-CRANE V. JODIK, Md., 38 Atl. Rep. 129.
32. TELEGRAPHS-Delay- Proximate Cause.-The de lay of a telepraph company in delivering a message warning the person to whom it is addressed that armed men are pursuing him is not the proximate cause o! bis death at the hands of his pursuers.-R088 V. WEST ERN UNION TEL. CO., U. 8. C. C. of App., Fifth Circolt, 81 Fud. Rep. 676.
83. WILLS - Specific Devises – Payment of Debts, Under a will devising a particular field to an adopted daughter, another field to bis nephew, subject to a legacy of $500 to a niece, and devising and bequeatbing the balance of the land and estate, subject to a be quest of $150 to bis adopted daughter, to his wife, a!! three devises are specific, and must therefore con tribute to payment of the debts, for which no provision Was made, and most of which were adjudged against the estate after death of testator, on a clalın to wbich he supposed there was a good defense. - IN RE PIT MAN'S ESTATE, Pepp., 38 Atl. Rep. 133.
34. Wills-Testamentary Capacity. - Where there is a want of testamentary capacity at the time a will la executed, sucb will never takes effect, or is not made and executed as to take effect, without repub lication, though a statute giving testamentary capacity be subsequently passed.
MITCHELL V. KIMBROUGHT, Tenn., 41 S. W. Rep. 993.
35. WITNESS – Impeachment.-A witness imbesched by disproving the facts testified to by him cannot be sustained by proof of general good character. Con sequently, where evidence was introduced tending to impeach a witness in this manner, and also other en dence tending to impeach him by proof of contradio tory statements previously made, and by showing general bad character, it was erroneous to obarys generally that, "wben it is sought to impoach a Fil ness by either of these modes, the credibility of the witness may be restored by proof of general good character,” The effect of such a charge would be to allow proof of good character to restore the witness to credibility, even though the truth of his testimony had been actually disproved. -- BELL V. STATE, Ga., 35 S. E. Rep. 669.