165. MUNICIPAL CORPORATION- Slaughterhouses-Ordinances.-Rev. Ord. St. Louis 1887, § 373, which makes it a misdemeanor to operate a slaughterhouse within 300 feet of a dwelling without the written consent of the occupant of the dwelling, attempts to substitute the written consent of one or more individuals for the sanction of the law, and is invalid, since the city has not passed an ordinance which makes it a misdemeanor to operate a slaughterhouse without first having obtained permission so to do from the municipal assembly by proper ordinance.-CITY OF ST. LOUIS V. HOWARD, Mo., 24 S. W. Rep. 770.

166. MUNICIPAL CORPORATION-Street Grade.-Under Const. art. 2, § 21, prohibiting the taking or damaging of private property for public use without compensation, a city is liable for damages to property from a material change in the grade of a street for the natural surface.-DAVIS V. MISSOURI PAC. RY. Co., Mo., 24 S. W. Rep. 777.

167. NEGLIGENCE-Falling Building- Evidence.- In an action for personal injuries sustained by plaintiff while engaged in tearing down defendant's building, a statement of one of defendant's officers, made some time after the injury, and not a part of the res gestae, is Inadmissible.-WEIDEMAN V. TACOMA RAILWAY & MOTOR CO., Wash., 35 Pac. Rep. 414.

168. NEGOTIABLE INSTRUMENT — Action.-Where the owner of a note assigns it, authorizing the assignee to sue thereon and collect it, though the owner retained it in his possession, he cannot maintain an action thereon without a reassignment to him.-ANDERSON V. YOSEMITE MINING & MILLING CO., Utah, 35 Pac. Rep. 502.

169. NEGOTIABLE INSTRUMENTS Alteration. The purchasers of goods gave the seller in payment therefor their note, payable to a bank. In order to have it discounted by the bank, the seller signed his name below the makers, intending thereby to indorse the note. Afterwards he induced the cashier to change the note so as to make it payable to his order, and he immediately indorsed and guarantied it to the bank, erasing his signature on the face of the note: Held, that this alteration, though made without the makers' knowledge, did not invalidate the note, since it did not change their liability. REILLY V. FIRST NAT. BANK OF SPRINGFIELD, Ill., 35 N. E. Rep. 1120.

170. NEGOTIABLE INSTRUMENTS-Release of Surety.If a primary debtor gives to his creditor additional security for the debt trusting that thereby the creditor will be induced to refrain from pressing for immediate payment, and the creditor accepts such security, but does not agree, either expressly or by implication, to extend the time for payment, one who was surety for the original debt will not be thereby release.-DoDSON V. TAYLOR, N. J., 28 Atl. Rep. 316.

171. NUISANCE-Blasting- Negligence. - Blasting, in excavating for a building, so as to throw rocks on the street and adjacent property, is a nuisance, but giving fair warning of an impending blast absolves the excavators from damages for personal injuries, if the injured person failed to heed it.-GRAETZ V. MCKENZIE, Wash., 35 Pac. Rep. 377.

172. OFFICE AND OFFICER-Appointment to Vacancy. -Vacancy in an elective office to be filled by appointment (Const. art. 5 § 37) occurs by the death of the officer elect before the beginning of his term.-IN RE SUPREME COURT VACANCY, S. Dak., 57 N. W. Rep. 495.

173. OFFICE AND OFFICERS-State Senate-Secretary.Const. art. 3, § 7, provides that "each house shall choose its own officers and judge of the qualifications, election and return of its own members." Code, § 18 provides that "the speaker of the house of representa. tives shall hold his office until the first day of the meeting of a regular session next after that at which he was elected, and that all other officers elected by either house shall hold their offices only during the session at which they were elected:" Held, that the power to appoint a secretary of the senate is exclu

sively in each senate, which may remove him at any time without notice or hearing.-CLIFF V. PARSONS, Iowa, 57 N. W. Rep. 599.

174. PARTITION-Married Women.-A voluntary partition by exchange of deeds will not be disturbed because two of the parceners, being married women, were not joined by their husbands in the deeds. Such deeds remain as evidence of a parol partition, which, if fair, and followed by possession, will be confirmed by the court.-SUTTON V. PORTER, Mo., 24 S. W. Rep. 760.

175. PARTNERSHIP.-In an action against several defendants, impleaded as partners, the plaintiff is entitled to lay all the facts before the jury, and have their opinion as to whether the transaction is not that of a partnership, or does not, at least, entitle the plaintiff to charge the defendants as partners.-HABIG V. LAYNE, Neb., 57 N. W. Rep. 539.

176. PARTNERSHIP-Contract.-Where horses are necessary for carrying on the business of a firm in the ordinary way, the hiring of a horse for such purpose by one of the partners is within the scope of the partnership business.-SWEET V. WOOD, R. I., 28 Atl. Rep. 335.

177. PARTNERSHIP-Evidence.-On an issue as to whether plaintiff, C, was doing business with G as a firm, at a certain time, the books of a concern with whom it was claimed C and G, as such partners, did business, and which contained accounts of C and G, were admissible in evidence for defendant, the entries having been made by a disinterested person, in the usual course of business, who testified as to their truthfulness, though stating that the particulars had escaped his recollection, plaintiff being the only person familiar with the entire circumstances.-CLELAND V. APPLEGATE, Ind., 35 N. E. Rep. 1108.

178. PARTNERSHIP-Firm Note.-Firm notes given to individual creditors for the purpose of placing them on equal terms with the firm creditors in case of insolvency are fraudulent and void as against the firm creditors.-IN RE EDWARDS, Mo., 24 S. W. Rep. 758.

179. PARTNERSHIP-Fraud.-The father of a debtor being desirous to help him, but unwilling to pay his debts, sold to the son's wife, for a nominal amount, $15,000, worth of machinery, and the three entered into a partnership; the wife putting in the machinery, and the father the rest of the capital: Held, that a suit to have the property declared that of the son, on the ground that it was a fraudulent device to enable him to carry on a business of his own and avoid payments of his debts, could not be maintained.-SEIGEL v. QUIGLEY, Mo., 24 S. W. Rep. 742.

180. PARTNERSHIP Notice of Retirement.-Plaintiff, who has had no actual notice of the retirement of defendant from a banking firm of which he had been a member, is not chargeable with constructive notice thereof by the fact that the bank, after defendant's retirement, shipped some corn to him, and drew on him for the proceeds,-a transaction which never occurred during defendant's connection with the bank.-ROSENBAUM V. HORTON, Iowa, 57 N. W. Rep. 609.

181. PARTNERSHIP-Sufficiency of Complaint.-In an action by a copartnership, the failure of plaintiff to make, file, and publish a certificate stating the names and place of residence of the copartners, as required by Civil Code, §§ 2466, 2468, is matter of defense, and compliance with such provisions need not be averred and proved by plaintiff.-COOK v. FOWLER, Cal., 15 Pac. Rep. 431.

182. PLEADING Counterclaim- Unliquidated Damages.-An unliquidated claim for damages may be set up as a counterclaim, where it is within 2 Hill's Code, § 195, permiiting a counterclaim to be pleaded if it arises out of the same contract or transaction set up in the complaint.-NIVER V. NASH, Wash., 35 Pac. Rep. 880.

United States, "for the purpose of working and developing the business of said patents," with power to "nego. tiate the sale of the said patents upon terms to be agreed upon," creates a mere agency, not coupled with an interest, and gives the agent no right to convey or assign the patent without the assent of his principal. -JOHNSON RAILROAD SIGNAL CO. v. UNION SWITCH & SIGNAL CO., U. S. C. C. (Penn.), 59 Fed. Rep. 20.

184. PRINCIPAL AND AGENT-Ratification.-A principal must repudiate the acts of his agent within a reasonable time after such acts come to his knowledge, or his silence and inaction will be deemed a ratification of his agent's conduct.-ZWARTZ V. DUNCAN, Neb., 57 N. W. Rep. 543.

185. PROCESS-Service-Commencement of Action.A notice of a suit, directed to the "Des Moines Insurance Company of Des Moines, Iowa," and served on the Des Moines Insurance Company," is the com. mencement of an action against it, where the petition filed in pursuance of the notice shows that the defendant intended to be notified was the "Des Moines Insurance Company."-WOODRUFF V. DES MOINES INS. Co., Iowa, 57 N. W. Rep. 592.

186. PUBLIC LANDS-Homestead-Fraudulent Entry.The purchaser of a fraudulent homestead entry, which is thereafter canceled by the land office for such fraud, is not within Act June 15, 1880, allowing a person to whom the right acquired by an entry for homestead has been attempted to be transferred bona fide to make a cash entry. PUGET MILL Co. v. BROWN, U. S. C. C. of App., 59 Fed. Rep. 35.

187. PUBLIC LANDS-Mortgage by Pre-emptioner.-If the commissioner of the general land office has power to vacate the entry of a pre emptor, and cancel his final receipt, where the proofs upon which it was issued were regular and sufficient upon their face, he can only exercise such power when acting judicially, and he can only act judicially upon persons and matters over which he has acquired jurisdiction in the manner -prescribed by the law and rules of the interior department of the United States.-RISDON V. DAVENPORT, S. Dak., 57 N. W. Rep. 482.

188. PUBLIC LANDS-State School Lands.-Where the price of school-fund land, previously settled upon, is fixed by the commissioners' court, and the same is sold for such price to a purchaser, together with other land of another classification and price for a gross sum, without allowing the settler a chance to purchase the same, the money to be paid by the settler to the purchaser to quiet his title is the price, with interest, fixed by the commissioners' court. - WARD V. WORSHAM, Tex., 24 S. W. Rep. 843.

189. QUO WARRAN 10-Judgment.-A judgment will be reversed on appeal for a patent defect of jurisdiction, where the record shows a petition for quo warranto and a judgment of ouster, without any intervening answer, plea, demurrer, or proceedings of any kind.-COMMONWEALTH V. TAYLOR, Penn., 28 Atl. Rep. 348.

190. RAILROAD COMPANY-Electric Cars - - Frightened Horses. Where a motorman, while operating a street car, and sounding the gong, sees that the car and noise are frightening a horse, and thereby endangering the driver, it is his duty to do what he reasonably can to diminish the fright of the horse.-ELLIS V. BOSTON & L. R. CO., Mass., 35 N. E. Rep. 1127.

191. RAILROAD COMPANIES-Escaping Steam - Negligence. In order to render a railroad company liable for injuries caused by horses running away in consequence of fright caused by steam escaping from the valves of an engine, it must appear, not only that the opening of the valves was unnecessary, but also that it was done under such circumstances as to imply a failure to exercise that care which a prudent and reasonable man would exercise under similar circumstances. -OMAHA & R. V. RY. Co. v. CLARKE, Neb., 57 N. W. Rep. 545.

192. RAILROAD COMPANY - Negligence. - -A railroad company is liable for the death of a brakeman which

194. RAILROAD COMPANIES Proximate Cause. Plaintiff's cow was being driven along a street intersecting defendant's railroad track, and, when within 60 yards from the crossing, a dog chased her, and she ran onto the track, and was killed. No bell was rung, and the engine was running 20 miles an hour, instead of the rate prescribed by ordinance: Held, a question for the jury whether defendant's negligence was the proximate cause of the injury.-JEFFS V. RIO GRANDE WESTERN RY. Co., Utah, 35 Pac. Rep. 505.

-

196. REMOVAL OF CAUSES Citizenship.-A,removal on the ground of citizenship cannot be had, when, upon arranging the parties according to their real relation to the primary controversy, it appears that there are one or more alien corporations on each side. -MERCHANTS' COTTON PRESS & STORAGE Co. v. INSURANCE CO. OF NORTH AMERICA, U. S. S. C., 14 S. C. Rep. 367.

197. REMOVAL OF CAUSES - Proceedings to Probate Wills. A proceeding to establish and probate a will is not a suit "at common law or in equity," and is therefore not removable under Acts 1887-88.-IN RE CILLEY, U. S. C. C. (N. H.), 58 Fed. Rep. 977.

198. REPLEVIN - Execution.-Where, before rescission by a vendor on the ground of fraud, the goods are levied upon and taken into possession by the sheriff under an execution against the vendee, the vendor cannot maintain replevin therefor, as Code Civil Proc. § 1690, provides that no action to recover a chattel can be maintained, when it was seized by virtue of an execution against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession.-WISE V. GRANT, N. Y., 35 N. E. Rep. 1078.

199. RES JUDICATA-Judgment.-A judgment, pend ing its appeal on supersedeas bond, is not pleadable in another suit as res judicata.-MAXWELL V. FIRST NAT. BANK OF CISCO, Tex., 24 S. W. Rep. 848.

200. RES JUDICATA-Judgment.-Where a demurrer setting up want of facts alleged to constitute a canse of action, misjoinder of causes, and misjoinder of parties, is sustained generally, and plaintiff, abiding his complaint, suffers judgment, the presumption is not that each and every ground of the demurrer was held sufficient, but rather that the court would first. consider the objections to form, and, finding them well taken, would go no further; so that one pleading such judgment as an estoppel to said plaintiff's allega tions of the same facts has the burden to show that the demurrer was sustained on the first ground.-KLEINSCHMIDT V. BINZEL, Mont., 35 Pac. Rep. 460. 201. SALE Warranty.-Where an article sold on a warranty of quality is wholly worthless, a retention of it does not preclude the purchaser from defending against an action for the price.-HAYDEN V. HOUGHTON, Tex., 24 S. W. Rep. 803.

202. SALE BY BAILEE-Innocent Purchaser.-An innocent purchaser in good faith of personal property from a mere bailee gets no title to the same by virtue of sections 15-17, ch. 39, Gen. Stat. 1878, merely because such bailee was the former vendee in a conditional contract of sale which provided that the title should not pass to him until it was paid for; and he remained in possession after such contract was rescinded and terminated by mutual agreement between him and the vendor, even though such contract, or a memorandum thereof, had never been filed of record, as provided by such statute.-BJORK V. BEAN, Minn., 57 N. W. Rep. 657.

203. SALE OF PERSONAL PROPERTY-"Lease."-Where the owner of personal property delivers it to another under a writing called a "lease," whereby the title is to remain in the "lessor," and the "lessee" agrees to pay, at a time named, a certain sum as "rent," and providing that, in case of failure to pay such sum at the time specified, any sum paid shall be forfeited, and the "lessor" be entitled to take possession of the property, but that on payment of such sum the title shall pass to the "lessee," the transaction is a sale, and not a lease.-PARK & LACY Co. v. WHITE RIVER LUMBER Co., Cal., 35 Pac. Rep. 442.

Contractors'

204. SCHOOLS AND SCHOOL DISTRICTS Bonds. In an action to recover of a school district for material furnished a contractor for a school house, on the ground of defects in the bond required by Laws 1587-88, p. 15, to be taken by municipal corporations from contractors, an objection that the sureties on such bond did not justify as to their financial responsibility, as required by Laws 1887-88, p. 15, is not available in the absence of proof that the sureties were not in fact of such financial responsibility as would have warrantied them in justifying.- WADSWORTH V. SCHOOL DIST. NO. 1 OF WHATCOM COUNTY, Wash., 35 Pac. Rep. 371.

Contracts.

205. SCHOOL AND SCHOOL DISTRICTS Code, § 2077, provided that 6 per cent. should be the legal rate of interest, except that an agreement in writing might be made for 10 per cent. interest; and section 1824 provided that "all school orders shall draw lawful interest" after presentation to the treasurer, and not paid for want of funds: Held, that school directors could not contract that school orders should draw 10 per cent. interest.-PHELPS V. DISTRICT TP. OF SUMMIT, Iowa, 57 N. W. Rep. 642.

206. SET OFF Judgment for Costs.-Where a party against whom a judgment for costs has been rendered in favor of an executor takes an assignment of the fee bills owed by the executor and included in the judg· ment, they may be set off in satisfaction of the judg ment.-KEIFER V. SUMMERS, Ind., 35 N. E. Rep. 1103.

207. SPECIFIC PERFORMANCE - Contract.-Defendant contracted to pay one half of the purchase price of land in cash, and to secure the balance by a mortgage on the land: Held, that a bill to compel defendant to make the cash payment and to execute the mortgage was for specific performance, and not merely for recovery of the consideration.-NEWBERRY V. SLAFTER, Mich., 57 N. W. Rep. 574.

208. STATUTES-Constitutional Law.-The fact that an act is unconstitutional does not render unconstitutional an act passed to repeal it and to substitute another in its stead.-STATE V. FIELD, Mo., 24 S. 'W. Rep.

752.

209. STATUTES-Repeal.-A public statute authorizing and regulating election contests is in force the whole day of its approval by the governor, and so far as it repeals former acts on the same subject it immediately abates a proceeding under such acts.-TURNIPSEED V. JONES, Ala., 14 South. Rep. 377.

210. STATUTES - Title.-Act No. 418 of 1892-93 (Acts 1897-93, p. 934 936), entitled “An act to provide for and regulate the pay of State witnesses in T county," and setting apart one half of all fines collected in the courts of the county to the payment of witnesses for the State in criminal prosecutions in said courts, clerk

of the Circuit Court, and sheriff, who shall be required to appear in criminal prosecutions, violates Const. art. 4, § 2, declaring that each law shall contain but one subject, which shall be expressed in its title, and is entirely void, its provisions being so dependent on each other.- YERBY V. COCHRANE, Ala., 14 South. Rep. 355.

211. TAXATION Property of Non-residents.-Laws 1855, ch. 37, § 1, providing that non-residents doing business in the State shall be assessed and taxed on all sums invested in said business, "the same as if they were residents," does not permit the deduction of the non resident's debts from his New York investment. That deduction is to be made, if at all, from his general personal assets, at his own domicile. -PEOPLE V. BAR KER, N. Y., 35 N. E. Rep. 1078.

212. TAXATION - Restraining Collection. - A court of equity will not interfere to prevent the collection of taxes on the ground that the assessment and levy thereof are irregular or invalid, unless they are clearly inequitable, and the enforcement thereof would be against conscience. SPARGUE V. ROMINE, Neb., 57 N. W. Rep. 523.

213. TRUSTS-Sale by Trustees.-Testator devised his house to a church for a parsonage, providing that if the church suffered the premises to go to decay, so as not to be fit for the minister's family to live in, for one year, the town should take possession, and dispose of them for the benefit of its poor: Held, that such corporation, with the concurrence of the town authorities, when authorized by an act of the general assembly, could convey such property for the purpose of invest ing the proceeds in a house lot better situated for a parsonage, and that the purchaser would not take it charged with the equity of seeing that such proceeds were invested, and that the title to such lot was taken for the same purposes and held under the same trusts as the property sold, as provided by such act. - IN RE VAN HORNE, R. I., 28 Atl. Rep. 341.

214. TRUST-Vested Estate-Limitation.-A deed couveyed property in trust for the use of an infant (C), to be turned over to her, one-half when she became 18 years old, the other half when she become 25 years old, on the conditions: (1) Should C marry, and die leaving issue, the trustee should convey the property to such issue; (2) should C marry, and die before she was 25 years old, leaving no issue, the trustee should convey the property, one sixth to P, father of C, and five sixths to the grantor, provided, if P should have repaid certain money owing the trust estate, then in case of the death of C, without issue, before she was 25 years old, a third of the property should be conveyed to P, and two-thirds to the grantor: Held, that C took a vested estate, which, however, on her death before she was 25 years old, without issue, and unmarried, and without the debt to the trust estate having been paid, was divested from her, and limited over to P and the grantor in the ratio of one to five.-PATRICK V. MCMANUS, Mo., 24 S. W. Rep. 767.

215. TRESPASS-Justification.-When a house belong ing to a mother has been left by her to her children as tenants in common, and the father has continued to occupy it with his second wife, the fact that after his death his second wife has continued by sufferance as the head of the family does not give her, on leaving, a right to enter the bed-room of one of the cotenants, against the latter's protest, to take thence articles belonging to her and her husband's minor child.-MILNER V. MILNER, Ala., 14 South. Rep. 373.

216. TRESPASS TO TRY TITLE-Evidence.-In trespass to try title, a charge that the paper title introduced by plaintiff is regular on its face, and, with the proof of heirship, is sufficient to vest title in him to the land in controversy, is not on the weight of the evidence, since it is the province of the court to construe written instruments.-HOWELL V. HANRICK, Tex., 24 S. W. Rep.

823.

217. TRESPASS TO TRY TITLE-Pleading.-The proper names "Busse" and "Bosse" are idem sonans. In tres .

pass to try title, plaintiff claimed by sale under an execution against C, and defendants pleaded not guilty, and also answered specially that C caused M, who held the legal title, to convey the land to one of defendants as trustee, to sell, to pay a debt due from C to the other defendant; but did not allege any possession or right of possession: Held, that such special plea constituted no defense on plaintiff's proof of title as alleged by him.-BOSSE v. CADWALLADER, Tex., 24 S. W. Rep. 799.

218. TRESPASS TO TRY TITLE-Survey and Certificate. -In trespass to try title against the purchaser of a subsequent claim, the validity of plaintiff's survey does not depend on its proper record by the surveyor after it was made, where defendant fails to show that he is an innocent purchaser, and offers no evidence of the want of actual notice, or of the payment of a valuable consideration, other than the recitals in his chain of title.-OLCOTT. V. FERRIS, Tex., 24 S. W. Rep. $48.

219. HIGHWAYS -User under Color of Title.-The width of a highway created by use under an attempted establishment by the county commissioners is not limited to the width as used, but is that attempted to be established, the attempted establishment constituting color of title.-UPPER V. LOWELL, Wash., 35 Pac. Rep. 364.

220. VENDOR AND PURCHASER-Contract.-A vendor who waits until the last installment of the purchase price is due cannot sue the vendee for the unpaid purchase money without proof of performance, or readiness to perform, on his part; and the tender of a deed before suit is not sufficient, but it must be kept good, so that it may be taken into consideration in the entry of judgment.-HOGAN V. KYLE, Wash., 35 Pac. Rep. 399.

221. VENDOR AND VENDEE Mortgages.-Where the grantee of mortgaged premises, as a consideration for the conveyance to him, assumes and agrees to pay the mortgage indebtedness, his obligation is collateral to the mortgage and obligation of the mortgagee, and is not merged into a foreclosure of the mortgage by action to which he is made a party, but in which no attempt is made to proceed against him on his said per. sonal liability. - WASHINGTON LIFE INS. Co. v. MARSHALL, Minn., 57 N. W. Rep. 658.

222. Vendor AND VENDEE-Purchase Money.-In an action for purchase money of land, to entitle defendant to create for money paid for an outstanding title he must allege and prove facts showing a paramount title, and that the amount was reasonably paid to extinguish such title; and it being alleged that the outstanding title arose from the fact that the wife of a remote grantor failed to join in the deed of the property, which was their homestead, defendant's answer should negative the circumstances that would prevent the wife setting up her homestead rights to defeat the deed of her husband.-SMITH V. JARVIS, Tex., 24 S. W. Rep. 858.

228. WATERS AND WATER COURSES-Streams on Public Lands. The appropriator of water, who constructs a dam across the bed of a stream in public land for the purpose of raising the surface of the water to a level which will cause it to flow into his canal, does not thereby acquire such exclusive right in the bed and banks of the stream as entitles him to restrain a subsequent appropriator of the surplus water from tapping the stream for its diversion at a point above the dam and below the head of slack water.-NATOMA WATER & MIN. Co. v. HANCOCK, Cal., 35 Pac. Rep. 334.

224. WATER COURSES-Obstruction.-An information sufficiently charges an offense under section 288 of the Criminal Code when it charges the erection and keeping up of a dam in a stream, whereby an artificial pond is raised, and stagnant water is produced, whereby the air was, and now is, corrupted, offensive, and unwholesome, and manifestly injurious to public health and safety.-STATE V. KENDALL, Neb., 57 N. W. Rep. 525.

225. WATER RIGHTS-Appropriation.-The right to the use of water flowing in a stream may be acquired by actual appropriation, without compliance with the provisions of Civil Code, § 1410 et seq., for acquisition of water rights.-WATTERSON V. SALDUNBEHERE, Cal., 35 Pac. Rep. 432.

226. WATER RIGHTS-Injunction.-In an action by a lower to restrain an upper riparian owner on the same stream from diverting water through a certain small flume by temporary dams, the answer averred, inter alia, that defendant, as such owner, and also by prescriptive right, was entitled to divert more water than such flume could carry: Held, that it was not an abuse of discretion, after reversal on appeal of the judgment rendered, to permit defendant to file an amended answer omitting such defense, and averring that at the time of the alleged diversion a part of his riparian land was leased to certain tenants over whom he had no control, and who were alone liable if more water was diverted through the flume than the leased land was entitled to.-GOULD V. STAFFORD, Cal., 35 Pac. Rep. 429.

227. WILL-Bequests.-A bequest to testator's daughters H and M and the children and heirs of his sons B and C, to be divided equally between them, is per stirpes, and not per capita.-IN RE ASHBURNER'S ESTATE, Penn., 28 Atl. Rep. 361.

228. WILLS Incapacity - Evidence.-The apparent injustice of a will is to be considered, with other circumstances, to show incapacity or undue influence; and it is error to charge that such injustice is not to be considered unless the will is actually invalid on those grounds.-SIM V. RUSSELL, Iowa, 57 N. W. Rep. 601.

229. WILL-Legacies.-Testator bequeathed $200 each to her two children, and devised her real estate and the residue of her personalty to her husband. She left no personal estate, and what real estate she left was subject to a mortgage, which was foreclosed after her death: Held that, the legacies not being charged on the estate, the husband took the surplus proceeds of the mortgage sale free from any claim by the legatees. -IN RE JAMIESON, R. I., 28 Atl. Rep. 333.

230. WILL-Rights of Devisees.-Testatrix gave her property in trust for the support of her husband and children, to be "enjoyed by him and them without being liable for" their debts, on the death of the husband to be equally divided among the children, and, if either of them should die, his share to be equally divided among his children: Held, that during the trust the children could not alienate, for payment of debts, the shares coming to them at the husband's death.-IN RE BARKER'S ESTATE, Penn., 28 Atl. Rep. 365.

231. WITNESS-Impeachment-Infamous Crime.-In Ohio, în civil cases, though there is no express statutory provision concerning it, previous conviction of an infamous crime is irrelevant to impeach the credibility of a witness.-BALTIMORE & O. R. Co. v. RAMBO, U. S. C. C. of App., 59 Fed. Rep. 75.

232. WITNESS-Transactions with Decedents.-Plaintiff having paid a note signed by himself, decedent and R, as joint makers, sought to recover the amount from decedent's estate, claiming to have been only surety for decedent. He alleged that the note was a renewal of a note in which R was principal, but that when the renewal note was made, because of some transactions between decedent and R, it was agreed that decedent should be the principal: Held that, because of his interest, R was incompetent to testify for plaintiff, under Rev. St. 1881, § 498.—THORNBURG V. ALLMAN, Ind., 35 N. E. Rep. 1110.

233. WITNESS-Transactions with a Decedent.-Code, § 3639, providing that no party can be examined as to any personal transaction between him and a person at the time of such examination deceased, does not prevent an examination of such party as to facts required to be shown preliminary to his introduction of a book of account to establish a claim against a decedent's estate.-DYSART V. FURROW, Iowa, 57 N. W. Rep. 644.

Central Law Journal.

ST. LOUIS, MO., APRIL 13, 1894.

As a rule we do not deem it the province, nor have we the space to notice the deaths of prominent members of the bench and bar. We feel like making an exception however in the case of Chief Justice George W. Stone of the Alabama Supreme Court who died recently. He was one of the oldest active members of the judiciary of this country, being over eighty-two years old and for fifty years a judge on the bench. The Alabama State Reports attest his great industry and ability-the latter being so conspicuous as to give him a reputation throughout this country. Able judges are not so common that a man like Chief Justice Stone may pass away without great regret and sorrow.

The death of Hon. Sir James Fitzjames Stephen calls for at least a passing notice, in view of his standing and prominence in the legal world. He had an international reputation for his work in law reform aside from his standing as a judge. His works on Evidence and Criminal Law are standard authorities. As a Justice of the Exchequer Division of the High Court of Justice, his

The

and, upon conviction upon the trial, or if he pleads guilty, he may punish the offender by fine and costs, or imprisonment in county jail or Detroit House of the Correction, or he may require a recognizance for his good behavior for the period of three months. act in question permits the justice to accept a different recognizance, viz., one conditioned that the defendant will take the cure within a time specified, and conform to the rules and regulations of the corporation administering such cure, and that he will not drink intoxicating liquor for the period of three months. It further provides that upon appearing before the justice at the end of sixty days, and showing that he has conformed to the conditions of the recognizance up to that time, he "shall be acquitted and discharged." The effect of this, according to the Supreme Court of Michigan in Senate, etc. v. Board of Supervisors, 57 N. W. Rep. 1100, was to permit unofficial persons to prescribe rules which shall acquit persons charged with crime. These rules, they say, may be lax or stringent; but whatever they are, the justice has only to acquit if they are shown to be complied with. They may be as variable as the corporations prescribing them are numerous. "It is not within the province of the legislature to delegate to private corporations the power to make laws for the discharge of offenders." The objections made

caused some unfavorable comment and doubts were entertained by some as to hi ssanity. Under pressure of such attacks he retired from the bench in 1891. He had a remarkably clear and forcible style of writing and his short statements of the rules of evidence are models of condensation. Among his best known works are his "General View of the Criminal Law of England," "A Digest of the Law of Evidence" and "A Digest of Criminal Law."

What is known as the Michigan "Jag Cure Act" which the Supreme Court of that State has lately held unconstitutional, has been the occasion of considerable sharp contention in the daily newspapers. The statute referred to, providing for the punishment of disorderly persons allows the justice to cause the arrest and proceed to try the person charged; Vol. 38-No. 15.

raised in People v. Cummings, 88 Mich. 249. In that case it was held that a statute providing for the termination of imprisonment or discharge on parol during good behavior of sentenced criminals was unconstitutional because such releases of prisoners would be, in effect, pardons, the granting of which appertained exclusively to the executive department.

NOTES OF RECENT DECISIONS.

BANKS AND BANKING-FRAUD OF CASHIERCHECKS PAYABLE TO FICTITIOUS PERSONS.-In Phillips v. Mercantile National Bank it was held by the Court of Appeals of New York that a bank is bound by the act of its cashier in drawing checks in its name, though with the intent of embezzling the proceeds and payment of the checks by the drawee is bind