Coston v. Page, 9 Ohio St. 397; Talbot v. Pierce, 14 B. Mon. 158, 164; Hawkins v. Albright, 70 Ill. 87; Jones v. Swank, 51 Minn. 285; Ellison v. Tallon, 2 Neb. 14; Citizens State Bank v. Baird, 42 Neb. 219; Wynn v. Wilmarth, 1 S. Dak. 172; Bamberger v. Halberg, 78 Ky. 376.

The effect of the intervention was to make the interveners virtually defendants to the writ of attachment. By virtue of their acquired interest in the property, they had acquired the same right that defendants had to traverse the affidavit for attachment. If that attachment was falsely and wrongfully sued out and defendants failed or refused to make defense to it, the interveners had the right to do so in order to remove it as an impediment to their better right of seizure and sale in satisfaction of their execution. To this extent they were entitled to stand in the shoes of the defendants. Campbell v. Morris, 3 H. & McH. 553; Clark v. Meixsell, 29 Md. 221. This situation illustrates, also, the reasonableness of the rule that imposes the burden of proof upon the plaintiffs, to sustain the attachment. If it were upon the interveners and especially in a case where there might be collusion between the plaintiff and defendant, their proceeding would rarely be productive of results. It follows that the court erred in imposing the burden of proof upon the interveners, and that the judgment must be reversed.

5. In respect of the charge of collusion, however, between the parties, the rule is different. That issue is separable from the other, and upon it the interveners have the affirmative and must assume the burden of proof. If the facts warranting the attachment should not be proved, it would be quashed without regard to the question of collusion; for no plaintiff should have the benefit of an advantage obtained by false or reckless swearing, even if there has been no collusion and the defendant simply remains indifferent to the charges against him. Even if proof should be made of conduct on the part of the defendants which, under ordinary circumstances, would justify attachment, the writ ought nevertheless to be quashed upon proof of fraudulent collusion between the plaintiff and defendant. If the facts were such as to bring the case within the provisions of the General Assignment Act (27 Stat. 474), such an attempt to give a preference would be as much within the prohibition of the statute as an attempt to accomplish the same end by private contract. Indeed, an attempt to use the process of the court for an unlawful purpose would be far more reprehensible.

For the error pointed out above, the judgment will be reversed, with costs to the appellants, and the cause remanded with direction to set aside the verdict and grant a new trial. It is so ordered. Reversed and remanded.

NOTE. It will be observed in the foregoing case, that the grounds of attachment stated by the plaintiff in his affidavit, were that the defendants were disposing of their goods with intent to hinder, delay and defraud their creditors in the collection of their

debts. The issue framed, upon an intervention by junior execution creditors, was, "whether the ground of attachment set forth in the plaintiff's affidavit, existed at the time of the issuance of the attachment." Upon this issue the court of appeals held, reversing the court below, that the burden of proof devolved upon the plaintiff to prove the ground of attachment stated. Now the question arises, when will the plaintiff be deemed to have established the ground of attachment in such a case? Will it be sufficient for him to show a fraudulent disposition of goods by the debtor, without reference to his intent toward any particular creditor, or must he go further and show an intent on the part of the debtor to defraud him, the plaintiff, in the collection of his debt? We cannot but conclude that this requirement is satisfied, for the time being at least, by satisfactory proof that the debtor was disposing of his property with intent to defraud creditors, without reference to his intentions toward the plaintiff. The presumption in such s case should be that the debtor intends to defraud all of his creditors. If this were not true, a plaintiff against whom no suspicion of collusion with the defendant could be directed, might be deprived of the benefit of his attachment by his failure to produce evidence of a kind which he could not be expected to command. The state of the debtor's mind, or the nature of his intentions, could only be proved by outward manifestations, and these would apply as well to one creditor as another. But it is to be remembered that a fraudulent and collusive attachment is greatly assisted by the fact that the debtor is, in truth, dispos ing of his goods with intent to defraud real creditors. Examination of the reports will show that in nearly every collusive attachment that has been attacked i the courts, the grounds of attachment stated were that the defendant was fraudulently disposing of his prop erty. No other kind of attachment lends its aid so ef fectively to the collusive parties. It is an easy matter for the defendant to give color to the claims of the plaintiff, either by inculpatory statements, or by overt acts, such as secreting his goods, or shipping them out of the jurisdiction. In nine cases out of ten the de fendant is, as a matter of fact, disposing of his goods with intent to defraud real creditors, and the fraudu lent parties rely upon that fact to help them confuse the jury, who might not, in every case, discriminate between genuine creditors and impostors. The de fendant is really insolvent, and seeking to put his property beyond the reach of creditors as fast as he can, and he, with the collusive plaintiff, artfully avail himself of that fact to give the attachment the sp pearance of good faith. We are, therefore, led to cor clude that suspicious circumstances appearing in the case, such as inculpatory statements and declarations made by the defendant to the plaintiff and embraced in the plaintiff's affidavit, the failure of the defendant to take advantage of glaring defects in the attach ment and obvious grounds of defense, the failure of the plaintiff to protect his interest at a sale under the attachment, friendly communication and business intercourse between the parties after the attachment, and the like, should be clearly and satisfactorily ex plained by the plaintiff to the court, under penalty of a dissolution of the attachment. In this connec tion we may here advert to the language of the court in Lowenstein v. Aaron, 12 South. Rep. 269 (69 Miss.). "While the issue which the plea in abatement te ders is, in its general aspect, the existence or non-eistence of the grounds of attachment contained in the affidavit of the original attaching creditor, yet to con fine the investigation with rigid inflexibility to the

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 generally, but not true in any proper sense as to the orig. inal attacher, who bases his right to an attachment upon such alleged ground. The original at

tacher cannot, by fraudulent collusion with the debtor, manufacture grounds for attachment, and then avail himself 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 Shepard 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 Shinn on Attachment, § 487 (1896); Speyer v. Ihmels, 21 Cal. 280, and Posey v. Underwood, 1 Hill (S. C.), 262. If the plaintiff colludes with the defendant, the attachment will be vacated whether 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 plaintiff'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. Gladwin, 10 Cal. 227; Patrick v. Montader, 13 Cal. 434; Davis v. Eppinger, 18 Cal. 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 v. 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 Iowa, 451; Peters v. Conway, 4 Bush (Ky.), 265; Bamberger 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. Oppen. heimer, 25 Md. 350; Hardesty v. Campbell, 29 Md. 533; 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. Thornton, 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 South. Rep. 439; Jump v. Batten, 35 Mo. 193; Henson v. Tootie, 72 Mo.632; Claflin v. Sylvester, 99 Mo. 276; Buckman v. Buck. mau, 4 N. H. 319; Webster v. Harper, 7 N. H. 594; Blaisdell v. Ladd, 14 N. H. 129; Kimball v. Wellington, 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. Ramsey, 74 Tex. 589; Pitkins v. Johnson, 2 S. W. Rep. 459; Freiburg v. Freiburg, 74 Tex. 122; Sanger v. Trammell, 66 Tex. 361; Johnson v. Heidenheimer, 65 Tex. 263; Grabenheimer v. Rindskopf, 64 Tex. 49; Nenny 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. (7th

Ed.) §§ 273, 276, 278; 1 Wade on Att. § 54, 286; Waples on Att. (2d Ed.) §§ 796, 798, 792; Shinn on Att. ch. "Intervention." CHAPMAN W. MAUPIN.

Washington, D. C.

CORRESPONDENCE.

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 the testimony adduced. GILBERT H. STEWART.

BOOK REVIEWS.

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 servant 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 question as to relief in equity, other than by appellate proceedings against judgments, decrees, and other Judicial determinations. An able note also accompanies this case. Green v. Coast Line R. R. Co. (Ga.), treats of claims which 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.

BOOKS RECEIVED.

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 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. LV. San Francisco: Bancroft-Whitney Company, Law Publishers and Law Booksellers. 1897.

HUMORS OF THE LAW.

Judge: "Don't you think that this is a matter which could be settled out of court?"

Plaintiff: "Can't be done, your honor, I thought of that, but the cowardly defendant will not fight."

"Oh," said the lady lecturer, "I have had such a delightful conversation with the gentleman you saw bow to me as we left the train. He told me the emancipation of woman had been his life work for ever so many years." "Yes," said the woman who had come to meet her, "that is so. He has been a divorce lawyer ever since I could remember."

A good story is told of a Glasgow baillie on the occasion of a witness being sworn before him. "Hold up your right arm," commanded the lineal descendant of Baillie Nicol Jarvie. "I canna dae't," said the witness. "Why not?" "Got shot in that airm." "Then hold up your left." "Canna dae that eithergot shot in the ither airm, too." "Then hold up your leg," responded the irate magistrate; "no man can be sworn in this court without holding up something."

A Georgia lawyer, who had a case in which conviction for his client seemed certain, closed his argument with a scriptural quotation. To the amazement of all, the jury returned a verdict of "Not guilty," without leaving their seats. After court had adjourned, the lawyer adproached the foreman.

"I am curious to know," he said, "just on what point of law you based your verdict?"

"It warn't no law point, Colonel," replied the foreman, "but we couldn't jest git over the Scripture." Timid Traveler-"Is this a law-abiding community, my friend?"

Reckless Resident-"Why say, podner, there's more law abidin' in this community than you've any idee of. There's fourteen lawyers, five judges an' six prosecutin' attorneys, ter say nuthin' uv deputy sheriffs and bill collectors, all planted over in that cemetery."

An old lawyer in Paris had instructed his client to weep every time he struck the desk with his hand, but forgot and struck the desk at a wrong moment. She promptly fell to sobbing and crying. 'What is the matter with you?" asked the judge. "Well, he told me to cry as often as he struck the table." "Gentlemen of the jury," cried the unabashed lawyer, "let me ask you how you can reconcile the idea of crime in conjunction with such candor and simplicity?"

1. ADMINISTRATION-Executors-Sale of Land in Foreign State. An executor and his sureties are not liable on his bond for the proceeds of lands in a foreign State, sold by him under power conferred by the will, said will never having been probated in the State where the lands lie, so as to authorize such sale.-Ex MONS V. GORDON, Mo., 41 S. W. Rep. 998.

2. ATTACHMENT - Levy - Appraisement.-Under sec tion 197 of the Code of Civil Procedure an attachment levy on personal property is sufficient and valid if the officer, with the order of attachment in hand, goes to the place where the goods and chattels of the defend ant are found, and there declares, by virtue of said or der, that he attaches such property at the suit of the plaintiff, and thereupon takes such possession as de vests the defendant's possession and gives to the officer a claim of dominion, coupled with the power to exercise it, over the attached property.-DODSON V. WIGHT MAN, Kan., 49 Pac. Rep. 790.

3. BILLS AND NOTES-Mortgages-Non-negotiability. -The stipulation in a note which includes the cove nants of a mortgage by which the maker agrees to pay the taxes on the property, assessments, insurance, and waste, renders the note non-negotiable.-DONALDSON V. GRANT, Utah, 49 Pac. Rep. 779.

4. BILLS AND NOTES-Promissory Note-Negotiabil ity.-A note falling due in the hands of the paye ceases to be negotiable. Afterwards indorsers take it subject to the same defenses that could have been made to it in the hands of the payee. The stipulation to pay attorney's fees in case of suit binds the maker to pay them as a part of the costs of the remedy, but he cannot be required to pay more than the fees actu ally charged. They are for the attorney, not for the plaintiff.-SALISBURY V. STEWART, Utah, 49 Pac. Ber

777.

5. CONSTITUTIONAL LAW-Polygamous Children - la heritance. Where the legislature of the State by sta 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 terr tory, a motion for a rehearing or new trial shall be en tertained on their application who were parties at arf time within one year after the act took effect, and the court is required to entertain the motion for a new trial or rehearing regardless of when the judgment c decree became final, the legislature assumed a contro over the judiciary not warranted by the constitution, and such a statute, destroying vested rights, and the finality of judicial determinations, is unconstitutions and void.-IN RE HANDLEY'S ESTATE, Utah, 49 Pac. Rep

7. CORPORATIONS-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 execution 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 corporation from the time of filing the required certificate in the office of the secretary of state, an agreement between such subscribers prior to organization, or be. tween them and such organized body prior to such filing 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., 38 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 indictment was read to the jury on behalf of the State, as declarations tending to prove guilt, it must be presumed, in the absence of a certificate showing that the bill of exceptions contains all the evidence, that whatever foundation was necessary for the admission of such testimony was laid.-STATE V. CHILDERS, Oreg., 49 Pac. Rep. 801.

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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 mortal illness, and desired to provide for the payment of his debts, he had conveyed his real estate to plaintiff, in trust to pay his debts, with the desire to avoid proceedings 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 maker, 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 line or lines lengthwise through a part or all of the column of names in the rejected groups; a partial erasure 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 names of candidates he does not wish to vote for, and writing the name or names of his choice below, so that the remaining part shall express his vote on the question submitted, etc.: Held, that such statute is mandatory, and a failure to thus prepare a b llot vitiates it.- HOPE 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 filled in the State court alleged that complainant was the

author of a certain song; that the song and accompanying music were his 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 assignment such as is provided for by the statute of the United States," and also prayed an injunction to restrain 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 rules of the common law, and hence that the suit was not removable from a State to a federal court.-HOYT V. BATES, U. S. C. C., D. (Mass.), 81 Fed. Rep. 641.

15. INJUNCTION-Jurisdiction.-A trustee in possession 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 value, as such stock could, under Rev. St. arts. 2349, 2352, be levied on only by notice.-SUMNER V. CRAWFORD, 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 by 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, providing that a debtor may prevent insolvency proceedings until declared insolvent by a jury.-MERRILL V. Bow. LER, R. I., 38 Atl. Rep. 114.

17. INTOXICATING LIQUORS-Indictment-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.-HESS 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 examine the claim therefor, and to draw his warrant for it, mandamus will issue to compel him to act, but not to direct how or to what effect he shall act; since, in passing on the quality of the work and materials, reasonableness of the charge, etc., he must exercise his discretion and judgment.-IRWIN-HODSON CO. v. KINCAID, Oreg., 49 Pac. Rep. 765.

20. MASTER AND SERVANT- Dangerous Premises-As sumption of Risk.-A coal mining company was ac customed to place a danger signal on rooms on which standing gas had 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 not 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 sigual: 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 B. Co. v. DESERANT, N. Mex., 49 Pac. Rep. 807.

21. MASTER AND SERVANT-Unsafe 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 hazards of the service, to furnish a reasonably safe place to work and to keep it in reasonably safe repair.-LOUISVILLE & N. R. Co. v. JOHNSON, U. S. C. C. 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 Co. v. IBEX MINE & SMELTING CO., Utah, 49 Pac. Rep. 768. 23. MORTGAGES-Mechanics' Liens-Priority.-Chapter 30, Sess. Laws 1892, declaring that debts of corporations or natural persons due for services performed by laborers 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 property 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 lienholders.SALT LAKE LITHOGRAPHING CO. v. IBEX MINING & SMELTING Co., Utah, 49 Pac. Rep. 832.

24. MUNICIPAL CORPORATIONS—Acts of De Facto Offi. cers.-A city ordinance is not void, though 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 the expira. tion of the time for which they were appointed to fill vacancies, having 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. R. Co. v. OCALA St. & S. R. Co., Fla., 22 South. Rep. 693.

26. MUNICIPAL CORPORATIONS-Estoppel-Violation of Contract. A city which voluntarily made a purchase of property with which to complete drainage improvements 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 rendered the drainage assessments invalid and uncollectible, 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 claims 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. 646.

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27. PARTNERSHIP Participation in Profits. agreement by a party who loans money to, and becomes surety for, a lessee, stipulating for a share of the profits of the leased property, does not make him liable for unpaid rent, as a partner, though the contract provides that no subletting or assignment 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 unchanged. In September, 1892, the firm, then in a precarious financial condition, gave the father a note for $5,181, representing his original capital and some accrued profits due under 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 assignment was hence fraudulent as to its creditors.-JOHNSON V. ROTHSCHILDS, Ark., 41 S. W. Rep. 996.

29. RAILROAD COMPANY-Assignment of Lease.-The assignee of a railroad lease for a term of 30 years, hav ing operated the leased road for a long time, and elected to recover the sums due to the lessee from the lessor under the lease, cannot escape the obligations resting on the lessee, on the ground that the lessor has never consented to the assignment, as stipulated in the lease.-SCHMIDT V. LOUISVILLE & N. R. Co., Ky., 41 S. 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 is at or below the contract price, the buyer cannot 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. JUDIK, 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 of his death at the hands of his pursuers.-Ro88 V. WESTERN UNION TEL. Co., U. 8. C. C. of App., Fifth Circuit, 81 Fed. Rep. 676.

83. WILLS-Specific Devises - Payment of Debts.Under a will devising a particular field to an adopted daughter, another field to his nephew, subject to a legacy of $500 to a niece, and devising and bequeath ing the balance of the land and estate, subject to a be quest of $150 to his adopted daughter, to his wife, all 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 claim to which he supposed there was a good defense. -IN RE PIT MAN'S ESTATE, Penn., 38 Atl. Rep. 133.

34. WILLS-Testamentary Capacity. Where there a a want of testamentary capacity at the time a will b executed, such will never takes effect, or is not 80 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 impeached 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 evi dence tending to impeach him by proof of contradio tory statements previously made, and by showing he general bad character, it was erroneous to charge generally that, "when it is sought to impeach a wit 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., S. E. Rep. 669.