WEEKLY DIGEST

Of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of the Supreme, Circuit and District Courts of the United States, except those that are Published in Full or Commented upon in our Notes of Recent Decisions, and except those Opinions in which no Important Legal Principles are Dis cussed of Interest to the Profession at Large. ..19, 40, 43, 95, 111, 113 ..29 ..4, 81, 109 .20, 22, 41, 44, 63, 83, 107, 115 .8, 65, 112 ..48, 56, 77, 90 .13, 26, 66

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3. ARBITRATION Validity.-An agreement submitting to the final decision of arbitrators, to be selected by the parties, not only the damages arising from vio. lation of a contract between them, but also the question whether there has been any such violation, is invalid.-MILES V. SCHMIDT, Mass., 47 N. E. Rep. 115.

4. ATTACHMENT-Validity.-Evidence that the officer, after he had levied on a lot, and had undertaken to attach the lumber thereon, took possession of the lot and watched the lumber, and the testimony of the debtor that he had no control over the property thereafter, showed that the lumber was properly in the custody of the officer, subject to the order of the court.STOUT V. BROWN, Ark., 40 S. W. Rep. 701.

5. CARRIERS OF PASSENGERS Negligence Danger. ous Premises.-Where the owner of baggage enters a baggage room at a railway station at the invitation of the baggage master, for the purpose of pointing out the baggage wanted, and is injured by the falling of a defective door in an attempt to open it for the purpose of asking a street car motorman to wait, the questions of negligence and contributory negligence are for the jury; there being testimony tending to show defend. ant's knowledge of the defect, and testimony-contradicted by plaintiff-tending to show she was told not to open the door.-ILLINOIS CENT. R. Co. v. GRIFFIN, U. S. C. C. of App., Seventh Circuit, 80 Fed. Rep. 278.

6. CHATTEL MORTGAGES-Pledge.-Chattel mortgages by a cooperage company engaged in manufacturing headings, barrel staves, etc., on the cooperage ma. terial and other personal property on the company's grounds, were void, where they gave the mortgagor the right to "keep and use" the property until default in the payment of the debt secured.-FIRST NAT. BANK OF CHICAGO v. CAPERTON, Miss., 22 South. Rep. 60.

7. CONFLICT OF LAWS Actions against Foreign Corporations.-Under section 849, Code 1892, providing that a corporation existing under the laws of another State may be sued in the State, a non-resident plaintiff may sue a sleeping car company organized under the laws of Illinois to recover damages for injuries inflicted in Illinois.-PULLMAN PALACE CAR Co. V. LAWRENCE, Miss., 22 South. Rep. 53.

8. CONSTITUTIONAL LAW — Attachment.-Act 1895, repealing a ground of attachment after property was seized on that ground, does not affect the attachment of such property, for the reason that it would destroy a vested right, and thereby violate Const. art. 2, § 2, providing that no law retrospective in its operation shall be passed.-DAY V. MADDEN, Colo., 48 Pac. Rep. 1053.

9. CONSTITUTIONAL LAW - Regulation of Carriers.The proviso in section 11, Gen. Laws 1895, ch. 149, requiring railroads and transportation companies to turn over to a storage company or public warehouse. man all property which the consignee fails to call for or receive within 20 days after notice of its arrival, is unconstitutional and void, not being a lawful exercise of the police power of the State.-STATE V. CHICAGO, ETC. RY. CO., Minn., 71 N. W. Rep. 400.

10. CONSTITUTIONAL LAW Street Railroads - Franchise-License Tax.-Where a city ordinance author. ized a street railway company to change its motive power, and to operate its railway by electricity, for 35 years, with the right to collect fares at certain rates, and with the duty of keeping in repairs the street between the tracks and for two feet on each side, it was not thereby exempted expressly by implication from paying on its cars a license tax which the city was by statute authorized to impose; and hence a subsequent ordinance imposing such license, though it was imposed for revenue purposes, and not as a police regu. lation, was not void under Const. U. S. art. 1, § 10, as impairing the obligation of a contract.-CITY OF SPRINGFIELD V. SMITH, Mo., 40 S. W. Rep. 757.

11. CONTRACTS-Mutual and Dependent Agreements. -By a written agreement defendant guarantied pay. ment of C's note to plaintiff, and agreed to pay certain expenses incurred and others to be incurred. Plaint iff agreed that on defendant's paying the amount due from Cand expenses, and delivering an agreement to save him harmless from expenses to be incurred, he would assign to defendant a note and mortgage executed by others to C, and by him assigned to plaintiff as security, subject to the rights of C to pay his note and require a reassignment of the security, and of the owners of the equity to pay the mortgage debt: Held, that plaintiff's right to enforce performance of defendant's guaranty and agreement was dependent on per formance of his agreement to assign the security.GRIGGS V. MOORS, Mass., 47 N. E. Rep. 128.

12. CONTRACT-Patents-Construction.-A defendant cannot avoid liability on a contract to pay royalties for certain bicycle patents on the ground of their invalidity, where the consideration therefor has not wholly failed, and he derives profits therefrom and has not repudiated his license.-WARWICK V. STOCKTON, N. J., 37 Atl. Rep. 458.

fendants, who were designated as its agents at certain towns. Bonds given contemporaneously by defend. ants recited that the parties had entered into a contract by which defendants were liable to become indebted to plaintiff for goods to be furnished them by plaintiff, and was conditioned on defendants' paying all sums so to become due: Held, that the contract was not of agency, but of sale.-TEXAS BREWING CO. V. ANDERSON, Tex., 40 S. W. Rep. 737.

15. CONVERSION-Evidence.-The taking of plaintiff's property, and conversion by defendants, are proved by showing that it was seized and sold by a constable under direction of their attorney, by virtue of process issued in their favor against persons other than plaintiff.-ALLEN V. TYSON-JONES BUGGY CO., Tex., 40 S. W. Rep. 740.

Sale.-The

16. CORPORATION-Foreign Corporation selling by a corporation, created by another State, of goods manufactured in that State, and shipped into the State of Texas, is interstate commerce, whether the goods are sold before they are shipped, or shipped into the State of Texas and then sold; and hence the corporation need not comply with Rev. St. 1895, art. 745, requiring a foreign corporation, as a condition precedent to transacting or soliciting business in Texas, to file its articles of incorporation, and receive a permit from the secretary of State.-MILLER V. GOODMAN, Tex., 40 S. W. Rep. 718.

17. CORPORATION Transfer of Bank Stock.- Where the transferee of bank stock without knowledge of any indebtedness against such stock writes the bank in relation thereto, the response of the cashier that there was none will estop the bank from subsequently asserting the facts to be otherwise, though under 3 How. Ann. St. § 3208a8, stock, where the owner is indebted, can be transferred only with the consent of the directors.-OAKLAND COUNTY SAV. BANK V. STATE BANK OF CARSON CITY, Mich., 71 N. W. Rep. 453.

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18. CREDIT INSURANCE Insolvency of Insurer.-A policy holder in a company insuring traders against losses occurring through the insolvency of their cus tomers cannot recover for losses sustained after the company's insolvency, whether on sales made by him before or after that date, but is only entitled to a return of the unearned premium; there being no reserved value to the policy, nor any method of reinsuring.GRAY V. REYNOLDS, N. J., 37 Ati. Rep. 461.

19. CRIMINAL LAW-Argument-Propriety.-On a trial for larceny, where the prosecutor has testified that he had the stolen money in a purse, which cost him a certain amount, and the purse is put in evidence by the State, counsel for defendant may, in argument, invite the jury to inspect the purse, and, after inspection, apply their own observation and experience in determining the credibility of the testimony of the prosecutor as to its cost.-MITCHELL V. STATE, Ala., 22 South. Rep. 71.

of forgery can be had only on proof that the person who signed another's name did so without authority. -PEOPLE V. LUNDIN, Cal., 48 Pac. Rep. 1024.

21. CRIMINAL LAW Homicide Defenses.-The fact that a lost drainage tube (necessarily and properly inserted by the surgeon) found its way into decedent's spinal canal and caused his death, does not relieve from responsibility the person who, by feloniously shooting him, made the operation necessary.-CoмMONWEALTH V. EISENHOWER, Penn., 37 Atl. Rep. 521.

22. CRIMINAL LAW-Homicide-Insanity.-Insanity as a defense to crime must be proved by a preponderance of evidence. PEOPLE V. ALLENDER, Cal., 48 Pac. Rep. 1014.

23. CRIMINAL LAW-Oil Inspection-False Branding. -Under acts 20th Gen. Assem. ch. 185, § 11, providing that if any inspector of illuminating oil shall falsely brand the same, or be guilty of any fraud or culpable negligence, he shall be deemed guilty of a misdemeanor, and punished therefor, an inspecting officer

who uses instruments approved and furnished by the State board of health, and which he has no reason to believe are in bad order, if he uses them with due care, and correctly brands the oil inspected according to the results shown by the test, is not liable for any error which may have occurred.-HATCHER V. DUNN, Iowa, 71 N. W. Rep. 343.

24. CRIMINAL LAW-Proof of Alibi.-Upon the trial of an indictment, a charge to the jury that "the defendant must prove the fact of the alibi set up by him by a preponderance of evidence" is erroneous. Such an instruction deprives the defendant of any reasonable doubt his proofs may have created in the mind of the jury as to an essential ingredient of the State's case.-SHERLOCK V. STATE, N. J., 37 Atl. Rep. 435.

25. CRIMINAL PRACTICE-Statute-Construction-Embezzlement.-A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.-STATE V. MEYERS, Ohio, 47 N. E. Rep. 138.

26. CRIMINAL TRIAL-Jury- Challenges.-In a challenge for actual bias, "it must be alleged that the juror is biased against the party challenging." A challenge for actual bias, predicated upon an alleged bias on the part of the juror against the attorney for the defendant, cannot be entertained by the court.-STATE V. GORDEN, Idaho, 48 Pac. Rep. 1061.

27. DEEDS Defective Execution Ratification.-A deed ratifying a former deed, which did not pass the title because of its defective execution, cannot affect a title acquired under a deed to a third person between the date of the original deed and the date of the ratification.-UNION PAC. RY. Co. v. REED, U. S. C. C. of App., Eighth Circuit, 80 Fed. Rep. 234.

28. DEED- Parol Evidence.-In partition, where plaintiffs claim that certain deeds by their ancestor to defendants were advancements, parol evidence is admissible to show that, though the deeds expressed a consideration, they were in fact voluntary.-FINCH V. GARRETT, Iowa, 71 N. W. Rep. 429.

29. DEED-Power of Attorney-Death of Principal.Where an attorney in fact induces the wife of his principal to join in a deed, on the false statement that it was at the request of her husband, the attorney know. ing at the time that the husband was dead, the deed was void as to the wife.-TUTTLE V. GREEN, Ariz., 48 Pac. Rep. 1009.

30. DEPOSITIONS-Fraud.-Depositions taken before one of the defendants was made a party to the suit, his interest in the subject-matter of litigation having been acquired prior to the commencement of the action, are not admissible against him.-BROWN V. ZACHARY, Iowa, 71 N. W. Rep. 413.

31. DOWER - Acceptance of Devise.-A devise to a wife by her husband of a life estate, without an express provision that such estate shall be in lieu of dower, does not bar her of her distributive share of his estate, though she accepts the devise.-SUTHERLAND V. SUTHERLAND, Iowa, 71 N. W. Rep. 424.

32. EMINENT DOMAIN-Compensation of Life Tenant. -Where the owner of a life estate in certain realty puts fixtures into the building thereon, and the land is taken by the State and damages awarded therefor, such fixtures must have been included in the market value, for which compensation was given; and the life tenant cannot recover therefor under Pub. St. ch. 49, § 27, providing for compensation for damage special to a separate estate.-WILLIAMS V. COMMONWEALTH, Mass., 47 N. E. Rep. 115.

33. EQUITY-Retaining Jurisdiction.-Equity, having jurisdiction of a bill for foreclosure, may award damages for waste committed by purchasers from the mortgagor, whereby the security was rendered inadequate, such purchasers being non-residents, who could only be sued at law in a foreign State.-TATE V. FIELD, N. J., 37 Atl. Rep. 440.

34. ESTOPPEL BY DEED.-If a trustee having the legal estate diverts it by deed in due form, he cannot, in a court of law, deny the title so created.-CITY OF PERTH AMBOY V. RAMSAY, N. J., 37 Atl. Rep. 446.

35. EVIDENCE-Hearsay Evidence.-In an action to charge defendant with the value of goods bought from an alleged agent of plaintiff, with notice of plaintIff's ownership, evidence that witness had a conversation with the alleged agent, defendant not being present, which tended to prove that he was acting as plaintiff's agent, and that plaintiff owned the goods, was inadmissible, because hearsay.-LEWIS V. BELL, Tex., 40 S. W. Rep. 747.

36. EVIDENCE-Photographs.-Photographs, in order to be admissible in evidence, must be verified by proof that they are correct resemblances or true representa. tions of the subject. Whether they are so verified is a question to be decided by the judge presiding at the trial.-GOLDSBORO V. CENTRAL R. CO. OF NEW JERSEY, N. J., 37 Atl. Rep. 433.

37. EXECUTION SALE-Lien of Senior Judgment.-An execution sale under a junior judgment devests the lien of the senior judgment though no execution has been issued thereon.-MATHEWS V. NANCE, S. Car., 27 S. E. Rep. 408.

38. FEDERAL COURTS-Following State Decisions.The decisions of the Supreme Court of West Virginia holding that, under the State statutes, a bill to remove a cloud on title created by an irregular or void tax deed can be maintained by one out of possession, who relies solely on his legal title, are controlling in the federal courts. HARDING V. GUICE, U. S. C. C. of App., Fourth Circuit, 80 Fed. Rep. 162.

39. FEDERAL COURTS-State as Nominal Party.-Under Rev. St. Mo. 1889, §§ 527, 531, 532, attachment bonds are payable to the State, and may be sued on at the in stance of any party injured, in the name of the State, to his use, and defendant may avail himself of any set-off he may have against the party to whose use the suit is brought with the same effect as if such party were the plaintiff, etc.: Held, that in suits on such attachment bonds the State is merely a formal party, whose presence cannot oust the jurisdiction of the federal court.-STATE OF MISSOURI V. BOWLES MILLING Co., U. S. C. C., E. D. (Mo.), 80 Fed. Rep. 161.

40. FRAUDULENT CONVEYANCES.-A Conveyance by husband to wife for an for an inadequate consideration, with the actual intent on the part of both to hinder, delay, or defraud, his creditors, is fraudulent as against subsequent as well as existing creditors.PRESTWOOD V. TROY FERTILIZER CO., Ala., 22 South. Rep. 77.

41. FRAUDULENT CONVEYANCE Statutes.-Prior to 1895, Civ. Code, § 3442, provided that the question of fraudulent intent in the transfer of property was one of fact, and that no transfer should be adjudged fraudulent solely because not made for a valuable consideration. Laws 1895, p. 154, amended such section by adding the proviso that any transfer made without a valuable consideration by a party while insolv. ent, or in contemplation of insolvency, should be fraudulent and void as to existing creditors: Held, that the section as amended is a rule of property as well as a rule of evidence, and does not apply to prior transfers.-COOK V. COCKINS, Cal., 48 Pac. Rep. 1025.

42. GARNISHMENT-Claims by Third Persons.-Where the garnishee discloses a fund which belongs to the defendant, unless before the service of the garnishee summons the same has been assigned to the intervening claimant, the burden is on such claimant, under section 5318, Gen. St. 1894, to show that the funds belongs to him as against the plaintiff, a creditor of the defendant.-CONROY V. FERREE, Minn., 71 N. W. Rep.

383.

43. GARNISHMENT-Wages Due.-Where an employee is paid monthly in advance on the 1st day of the month, except when such days are Sundays or holidays, the employer at no time is indebted to the em

ployee so as to render him liable to garnishment.STEINER V. BANK OF MONTGOMERY, Ala., 22 South. Rep. 72.

44. GUARANTY - Consideration. A proposed purchaser of land having refused to buy unless the vendor would furnish a tenant, and a guaranty that the tenant would pay a specified rent, plaintiff, at the request of the vendor, executed the guaranty, and as a result a sale was effected: Held that, though plaintiff received no benefit from the guaranty, it was based on a sufficient consideration.-MCDOUGALD V. ARGONAUT LAND & DEVELOPEMENT CO., Cal., 48 Pac. Rep. 1021.

45. GUARDIANS-Accounting-Laches.-A ward falled for 22 years after she attained her majority to take any steps to compel her former guardian to render and settle his account in the probate court, or turn over the property in his possession. This delay was not explained or excused. During all this time there was nothing done on part of either the ward, the guardian, or the sureties on his bond by way of a recognition or admission of the guardianship as a subsisting or undischarged trust. In the meantime one of the sureties on the guardian's bond had died (nine years before suit on the bond), and from the facts disclosed by the evidence presumably the guardian had become in solvent: Held, in an action on the guardian's bond against the surviving surety, brought by the ward over 22 years after she came of age, that her laches, irrespective of any statute of limitation, was a bar to her recovery.-BRANDS V. CARPENTER, Minn., 71 N. W. Rep. 402.

46. HIGHWAYS BY PRESCRIPTION. A permissive use for 20 years of a road over the land of another is not sufficient on which to base prescriptive right in the public to the road. SMITH V. STATE, Tex., 40 S. W. Rep. 736.

47. HOMESTEAD-Extinguishment-Divorce. - Where a husband and wife had resided on the wife's property as their homestead, and he had thereby acquired a homestead right in the property: Held, a judgment of absolute divorce obtained by her against him terminated his said homestead right. - KERN V. FIELD, Minn., 71 N. W. Rep. 393.

48. INJUNCTION-Municipal Corporation.-A taxpayer may enjoin the city from entering into an unauthorized contract involving illegal expenditure and taxes, and need not wait until the tax is levied. MOONEY V. CLARK, Conn., 37 Atl. Rep. 506.

49. INSANITY. Where, in a suit to set aside an exchange of land on the ground of plaintiff's insanity, the record of an inquest held 20 days after the exchange, and adjudging plaintiff insane, was admitted, against defendant's objection, to prove insanity at the time of the exchange, defendant did not waive such objection by afterwards allowing the record to be introduced to show insanity at the time of inquest.RHOADES V. FULLER, Mo., 40 S. W. Rep. 760.

50. INSOLVENCY

Corporation-Preference to Work men. The right to a preference in payment of their wages given to workmen of an insolvent corporation is wholly statutory, and does not vest until the happening of the statutory requirements. -MINGIN V. ALVA GLASS MANUFG. Co., N. J., 37 Atl. Rep. 450.

51. INSOLVENCY- Preferences Brokers. Where a customer bought stock through a broker, and paid him part of the price as margin, and the broker undertook to carry the stock, but failed to keep it, or any stock of the same kind, in his hands, and was unable and refused to deliver such shares on demand, and the custo mer subsequently paid to the broker the balance of the price, and received the number of shares bar gained for, which were then worth more than the sum paid, having reasonable cause to know that the broker was not then solvent, and had procured the shares by purchase in the market, the transaction was a preference in violation of the insolvent laws, to the extent of the excess of the value of the shares so delivered above the sum then paid, since, on the broker's refusal to deliver, a right of action accrued to the cus

tomer, which would be provable in insolvency against the broker as a "debt," under Pub. St. ch. 157, § 26.WESTON V. JORDAN, Mass., 47 N. E. Rep. 133.

52. INSURANCE-Breach of Conditions- Incumbrances. -A mortgage drawn, but never delivered to or for the mortgagee, is not an incumbrance, within a provision avoiding a fire policy in case the property is incumbered by a mortgage. — CLIFTON COAL Co. v. SCOTTISH UNION & NATIONAL INS. Co. OF EDINBURGH, Iowa, 71 N. W. Rep. 433.

53. INSURANCE-Contract for Arbitration.-A provision in a policy of insurance requiring all questions between the insured and the insurer to be determined by arbitration, and ousting the court of jurisdiction over every part of the subject of liability and the amount thereof, is void. FOX V. MASONS' FRATERNAL ACC. ASSN. OF AMERICA, Wis., 71 N. W. Rep. 363.

54. INSURANCE POLICY-Incumbrance of Property.That the by-laws of an insuarnce company provide that the policy shall be void if during its life there be any incumbrances so as to reduce the interest of as sured to less than the amount of the insurance, with. out consent of the company, does not affect a clause in a policy thereafter issued providing that it shall be void, unless consent in writing is indorsed thereon, if the interest of the assured should thereafter be incumbered.-HOUDECK V. MERCHANTS' & BANKERS' INS. CO., Iowa, 71 N. W. Rep. 354.

55. INTOXICATING LIQUORS - Sale to Non-resident.In a suit for liquor sold in Massachusetts to a person in New Hampshire, evidence that plaintiff's selling agent, who lived in the same city with defendant, saw the latter fixing up a place of business, was informed by him that he intended to sell liquor there, and thereafter sold him the liquor, which was used at that place, warranted the court in finding that the facts that the statute of New Hampshire prohibited the sale of liquor except by town agents, and that defendant was not such agent, were known to plaintiff, and that he also knew that defendant Intended to sell in viola tion of law, sold to him with a view to such resale, and hence could not recover.-WASSERBOEHR V. MORGAN, Mass., 47 N. E. Rep. 126.

56. INTOXICATING LIQUORS - Transfer of License.-A transfer of a liquor license without the consent of the county commissioners does not pass title as against the transferror's creditors, under Gen. St. 1888, § 3071, providing that a license may, with the consent of the county commissioners, be transferred to any suitable person, but the person to whom such license "is to be transferred" shall make application, submit a recommendation, and give bond, in the same manner as an original applicant.-GILDAY V. WARREN, Conn., 37 Atl. Rep. 494.

57. JUDGMENT-Equitable Relief. Equity has jurisdiction of a sult to enjoin the enforcement of a judg. ment based on a verdict which is vitiated by the misconduct of the jury, where the complainant had lost all ground of relief at law at the time of discovering the facts. Nor does it affect the jurisdiction that the judgment is pending on error, and under a supersedeas, in the supreme court.-PLATT V. THREADGILL, U. 8. C. C., W. D. (Va.), 80 Fed. Rep. 192.

58. JUDGMENT Subrogation.-Where a notice served on a defendant states that the only judgment sought will be to be subrogated to the right of another defendant in a judgment, on default plaintiff is entitled only to the relief claimed, and cannot obtain a personal judgment against the defendant. HEINS V. WICKE, Iowa, 71 N. W. Rep. 345.

59. JUDGMENT BY DEFAULT Vacation.-Under Rev. St. 1894, § 399 (Rev. St. 1881, § 396), allowing relief from a judgment taken against a party through his excusable neglect, on motion filed within two years, the default party may show that, though the summons was left at his usual place of abode, as stated in the officer's return, he was absent, and had no actual knowledge of the suit.-KOLB V. RAISOR, Ind., 47 N. E. Rep. 177.

60. JUSTICE OF THE PEACE-Jurisdiction.-How. Ann. St. § 7317, which permits the service of process in counties adjoining that in which the court issuing it is held, in certain actions, is not invalid on the ground that it enlarges the jurisdiction of justices of the peace, contrary to the constitution, since the constitution provides that the powers and duties of justices shall be defined and regulated by law. -O'CONNELL V. MENOMINEE BAY SHORE LUMBER Co., Mich., 71 N. W. Rep. 449.

61. JUSTICES OF THE PEACE-Jurisdiction Searches and Seizures. A magistrate issuing a search warrant on the ground that property has been stolen has juris. diction to dispose of the property seized thereunder, though there is no criminal prosecution for the lar ceny; the statute not requiring a prosecution as a condition precedent to such disposition. - HAWORTH V. NEWELL, Iowa, 71 N. W. Rep. 404.

62. LANDLORD AND TENANT- Conveyance by Landlord.-A lessor conveying the premises before rent accrues cannot recover the proportionate amount due to the time of the conveyance, though there is no eviction by the grantee, or attornment to him.-HAMMOND V. THOMPSON, Mass., 47 N. E. Rep. 137.

63. LANDLORD AND TENANT Landlord's Lien on Crops. Where a lease of farm lands provides that the rent shall be paid in gold coin, and that the crops shall not be removed from the leased premises, without the lessor's consent, until the rent is paid, it gives the lessor no prior lien as against one making advances to the lessee to be secured by a mortgage on the crops, where the lease is not recorded.-FERGUSON V. MURPHY, Cal., 48 Pac. Rep. 1018.

64. LANDLORD'S LIEN-Marshaling Securities.-Where goods subject to a landlord's lien were attached and removed by a creditor of the tenant, such creditor could not compel the landlord, under the doctrine of marshaling securities, to proceed against property subsequently received on the premises by the tenant, before enforcing his lien against the goods attached.NEEDHAM PIANO & ORGAN Co. v. HOLLINGsworth, Tex., 40 S. W. Rep. 750.

67. LIMITATION Adverse Possession-Color of Title. -Under Rev. St. Wis. 1878, § 4211, providing that pos session of land shall be deemed adverse, for the pur poses of limitation, where the occupant entered "'under claim of title, exclusive of any other right, found. ing such claim upon some written instrument" an instrument is sufficient to give color of title however defective its execution or acknowledgment, and however insufficient upon its face to convey title, provided it purports to convey title and pretends conformity to the law. CITY OF LA CROSSE V. CAMERON, U. S. C. C. of App., Seventh Circuit, 80 Fed. Rep. 264.

68. MALICIOUS PROSECUTION Probable Cause.Where, in instituting a prosecution, complaining wit ness acts with such care as a reasonable and ordinarily prudent person would have acted under the circumstances, it is a sufficient showing of probable cause in an action for malicious prosecution.-ELLIS V. SIMONDS, Mass., 47 N. E. Rep. 116.

69. MASTER AND SERVANT-Assumption of Risk.-It is a question for the jury whether a boy 15 years old was of sufficient age and judgment to assume the risk of injury from the unexpected descent of the die of a stamping machine, on which he was working, and which was so constructed that the die should descend

only on a pressure on the treadle, where he had worked on similar machines for some time, and on the day before the injury saw the die descend without apparent cause, but on complaint to the die setter was told that there was nothing wrong with the machine. -VORBRICH v. GUEDER & PAESCHKE MANUFG. CO., Wis., 71 N. W. Rep. 434.

70. MASTER AND SERVANT Assumption of Risk.-A brakeman on a construction train, knowing that the road was not finished and in good repair, and that no train other than the construction train had ever passed over it, who was engaged in making safe the common working place, in accepting the service assumed all the risks incident thereto.-BALTIMORE, ETC, RY. Co. v. WELSH, Ind., 47 N. E. Rep. 182.

71. MASTER AND SERVANT Dangerous MachineryAssumption of Risk.-An adult employee, with four years' experience in operating machines similar to the one at which she had worked for some six weeks prior to her injury, except that the latter was provided with a cross belt, which was more dangerous than a straight one, assumed the obvious risks arising from the narrowness of the space in which she worked, and the absence of guards over the belt and pulleys, though, when she first began work at said machine, the superintendent, in reply to a question, assured her that there was no danger.-KENNEY V. HINGHAM CORDAGE Co., Mass., 47 N. E. Rep. 117.

72. MASTER AND SERVANT Negligence.-Where a servant was injured by the caving in of a trench neither dug nor controlled by the master, evidence that the servant made no examination, but relied on the master to provide for his safety, is immaterial.HUGHES V. MALDEN & MELROSE GASLIGHT CO., Mass., 47 N. E. Rep. 125.

73. MASTER AND SERVANT-Negligence of Fellow-servants. A railroad employee who starts upon a trip on a hand car on his own business or pleasure, assumes the risk of injury from a fast mail train, which he knows to be due, and cannot recover against the company for injury received while attempting, pursuant to an order of the foreman, to get the hand car off the track in the immediate presence of the approaching train.WRIGHT V. SOUTHERN RY. Co., U. S. C. C., W. D. (N. Car.), 80 Fed. Rep. 260.

74. MASTER AND SERVANT — Obvious Risks.-Where a turntable was in good working order, and the risk attending its operation was open and visible, a servant operating it cannot recover for an injury resulting from the fact that he supposed that, when the table was in position to engage with a certain track, there would be space between it and the wall, because there was such a space when it was in position to engage with a track on the other side.-MELOTT V. LOUISVILLE & N. R. Co., Ky., 40 S. W. Rep. 696.

75. MECHANIC'S LIEN.-The respondent held title by an unrecorded deed to real estate that complainant had improved under a contract with respondent's grantor. She from time to time, as if by the authority of her grantor, gave instructions about the work, and the complainant had no knowledge of ber title till after the work was done: Held, that he was entitled to a lien on the land for a balance due for labor and material.-PHILLIPS V. BROWNE, R. I., 37 Atl. Rep. 490. 76. MECHANIC'S LIEN - Architects.-An architect is not entitled to a lien for drawing plans and specifications for a building, under Pub. St. ch. 191, § 1, giving a lien to any person to whom a debt is due for "labor performed or furnished and actually used in the erection of a building."-MITCHELL V. PACKARD, Mass., 47 N. E. Rep. 113.

78. MECHANICS' LIENS-Limitations.-In an action to foreclose a mechanic's lien, the commencement of the action against the owner of the property does not preserve the lien as against other lienholders or incumbrancers beyond the statutory period for bringing such an action.-FALCONER V. COCHRAN, Minn., 71 N. W. Rep. 386.

79. MECHANIC'S LIEN-Mortgage-Landlord and Tenant.-Construction of a mill by a tenant having been commenced, and contract for machinery to be placed therein having been made, before a loan was made by the landlord to enable the tenant to erect the building and pay for the machinery, lien on the leasehold for the machinery is prior to the mortgage for the loan.J. B. ALLFREE MANUFG. Co. v. HENRY, Wis., 71 N. W. Rep. 370.

80. MORTGAGE Cancellation.-A mortgage of a homestead and other property will not be set aside, as to the homestead, on testimony by the wife that, though she executed and acknowledged the mortgage, she supposed it only covered the other property, and not the homestead, having been so informed by the husband, where there was nothing to question the good faith of the mortgagee, and the notary public who took the acknowledgment stated that be either read the mortgage to her, or asked her if she knew what it contained, and she answered that she did.GERMAN BANK V. MUTH, Wis., 71 N. W. Rep. 361.

82. MORTGAGES

Fraudulent Sale under Power.Where the mortgagee was guilty of negligence or misconduct in making a sale under a power in the mort. gage, so as to render the sale invalid, and the mortgagors obtained a decree setting aside the sale, with the right to redeem, but failed to exercise such right, having elected their remedy and obtained full satisfac tion, they could not maintain an action for damages based on alleged conspiracy to defraud them of the land, and fraudulently to foreclose the mortgage.DENNETT V. CODMAN, Mass., 47 N. E. Rep. 131.

83. MORTGAGES · Redemption Rate of Interest.-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.-THRESHER V. ATCHISON, Cal., 48 Pac. Rep. 1020.

84. MORTGAGE Setting Aside Decree.-A first mort gagee was made defendant in an action to foreclose a

second mortgage, and employed an attorney, who filed an answer in such case and agreed to appear and defend. Five days before suit was tried the attorney ab sconded without the knowledge of his client, and the case was tried without any evidence being offered, and judgment rendered foreclosing the mortgage and mak ing the first mortgage subject thereto: Held unavoid able casualty and misfortune, within Code, § 3154, entitling the mortgagee to have the decree set aside.ENNIS V. FOURTH ST. BLDG. ASSN. OF CLINTON, Iowa, 71 N. W. Rep. 426.

85. MORTGAGE - Vendor's Lien NoteFailure to Record. Where the holder of a vendor's lien note, which the vendor had transferred for value, neglected to record the transfer, and a person without actual no tice was induced by the vendor to loan him money and take a mortgage on a part of the land which had been reconveyed to him, the vendor having obtained from the purchaser a duplicate of the lien note, which be fraudulently produced for the mortgagee, the mort gagee had the superior equity, since the holder of the original lien note was alone chargeable with negli gence.-SOUTHERN BUILDING & LOAN BRACKETT, Tex., 40 8. W. Rep. 720.

ASSN. V.