2. ADVERSE POSSESSION-Passways Title by Prescription. To acquire the right to a pass way by prescription, it must appear that it has been claimed as a matter of right, and not by permission merely, for at least 15 years.-ABELL v. PAYNE, Ky., 62 S. W. Rep. 880.

3. ADVERSE POSSESSION-Passways Title by Prescription. As a guardian cannot acquire an interest hostile to his wards in their estate, it will be conclusively presumed that a passway which he opened over their lands for his and their convenience was permis. sive, merely, and that it so continued throughout the term of the guardianship.-PATTERSON V. GRIFFITH, Ky., 62 S. W. Rep. 884.

4. ADVERSE POSSESSION-Passways Title by Prescription. Where the right of the public to the use of a passway has become complete by adverse use, that right is not defeated by erecting obstructions which are removed by the public whenever it becomes necessary to use the passway; but there must, to defeat the right, be an adverse holding for 15 years, or a voluntary abandonment of the use by the public.POTTS V. CLARK, Ky., 62 S. W. Rep. 884.

5. ASSIGNMENTS FOR CREDITORS-Refusal of Assignee to Sue. The fact that the assignee refuses to sue for a debt due the assignor does not entitle a creditor to subject the debt, the remedy being an action to compel the assignee to execute the trust.-WEST V. GRIBBEN, Ky., 62 8. W. Rep. 869.

7. ATTORNEY AND CLIENT Services Value -Evidence-Admissibility.-Where the attorney who opposed plaintiff's assignor in the trial of a case stated to the jury all the facts on which he based the value of the assignor's legal services, but testified that he could not state their value without looking into his mind, an answer, after consideration, fixing the value was not objectionable as based on what was in the witness' mind, and not on the evidence.-ROCHE v. BALDWIN, Cal., 65 Pac. Rep. 459.

8. BILLS AND NOTES-Holder for Value-Burden of Proof. A suit on a promissory note payable to A B, agent, and by him sold, indorsed and delivered, before maturity and for a valuable consideration, can be maintained by the holder, and where the answer admits the execution of the note, but denies that plaintiff is the owner by purchase before maturity for a consideration, and alleges want of consideration in the holder, the burden of proving such allegations is on him.-YATES v. SPOFFORD, Idaho, 65 Pac. Rep. 501.

9. BRIDGES-Injuries-Measure of Damages.-Plaintiff built a bridge under a contract with the county obligating him to keep same in repair for a period of five years. The bridge having been injured by logs driven by defendant's servants, the county ordered plaintiff to rebuild and repair the same, on penalty of forfeiture of his bond, which he did. Held, that the injury resulting from the negligent driving of the logs was an injury to plaintiff, and not to the county, and hence plaintiff was entitled to maintain the suit against defendant for the damages so sustained.-CUE V. BRELAND, Miss., 29 South. Rep. 850.

10. CARRIERS-Injury to Passenger-Negligence-Res Ipsa Loquitur.-Where it is shown that an injury to a passenger was caused by the act of the carrier in op. erating the instrumentalities employed in his business, there is a presumption of negligence, which throws on the carrier the burden of showing that the injury was sustained without any negligence on his part; and hence a verdict for plaintiff for injuries against a street railroad will not be reversed because the evidence fails to show that the rate of speed of the car at the time of the accident was excessive, or that the excessive rate of speed or other negligence of defendant was the proximate cause of the injury, since it is sufficient that it fails to show that it was not s0.BASSETT V. LOS ANGELES TRACTION CO., Cal., 65 Pac. Rep. 471.

11. CARRIERS OF PASSENGERS - Collisions - Passengers-Expert Witnesses and Testimony.-A physician, after testifying to his professional qualifications, testifled, without objection, respecting the plaintiff's injuries, disease, and condition, it was not an abuse of discretion to permit him to give his opinion as to what percentage of patients with such affliction ultimately recover their health. Such evidence was admissible, since it had a direct bearing on the permanency of the disease which plaintiff claimed resulted from the injuries.-BUDD V. SALT LAKE CITY R. Co., Utah, 65 Pac. Rep. 486.

12. CONFLICT OF LAWS-Liability of Wife-Law of Domicile. If by Missouri law a wife may bind herself for a debt of her husband, and if a wife while residing in Missouri does so bind herself, the obligation will be enforced against her after she becomes a resident of this state. Capacity to become obligated on promis. sory notes is tested by the law of the domicile, not by the law of the place where the notes are payable.BAER V. TERRY, La., 29 South. Rep. 886.

13. CONTRACT-Building-Damages for Failure to Complete Building by Time Fixed.-Where a building contract stipulated that the building should be completed by January 1st, and that the contractors should pay $20 per day for each day it might remain unfinished after that time, and the building was not fully completed until the 1st of July, the owners were not entitled to the stipulated damages for the full time, as part of the building was completed, and was occupied

by the tenants of the owners, long before the 1st of July; and, under all the circumstances, the damages will be fixed at a little more than one-third of the stipulated amount.-WHITEHEAD V. BROTHERS LODGE, I. 0. 0. F., No. 32, Ky., 62 S. W. Rep. 873.

14. COUNTIES-County Warrants-Validity-Interest. -Sess. Laws 1896, p. 178, ch. 64, validated debts which Counties had contracted in excess of the limit of indebtedness. Chapter 131, § 59, provided that county warrants should bear 5 per cent. interest from the time of presentation till paid. Held, that a county warrant issued prior to 1896, and void as in excess of the debt limit, and also containing an invalid provis. ion for the payment of 8 per cent. interest, though interest on county warrants was not then authorized, was only validated by chapter 64 as to the principal, and not as to the interest, and hence the holder thereof was only entitled to 5 per cent. interest from the time chapter 131 went into effect.-MCINTOSH V. SALT LAKE Co., Utah, 65 Pac. Rep. 483.

15. COUNTIES-Removal of County Commissioner from Office. When proceedings under section 7459, Rev. St., are brought to remove a county officer, and the court finds that such officer acted honestly in mak. ing such charges against his county, and honestly believed at the time he presented his claim for allow. ance, and when he collected the same, that such charges were legal, it is error to remove him from office, and enter judgment against him for the penalty provided by said section.-PONTING V. ISAMAN, Idaho, 65 Pac. Rep. 434.

16. CRIMINAL LAW-Contempt-Right to Make Explanation before Infliction of Punishment.-Code, § 4465, allows one accused of contempt to make, at his option, a written explanation thereof under oath. Held, that where one's guilt is unquestioned, and where he advised the court in unmistakable language that he was ready for punishment if the judge was disposed to inflict it, it is not necessary that an oppor. tunity be given for such written explanation before punishment was inflicted.-HARDIN V. SILVARI, Iowa, $6 N. W. Rep. 223.

17. CRIMINAL LAW-Information-Amendment-Surprise. Where, pending a trial of a person for larceny, the information is amended by substituting therein the name of a husband for that of his wife as the owner of the property stolen, and both before and after the amendment both husband and wife were examined as witnesses, and the accused made no effort to have the trial postponed, nor availed himself of the presence of the spouses on the stand as witnesses to negative the ownership as laid in the amended information, he is properly refused a new trial, based upon a claim that he was surprised by the amendment, and that he could disprove by the wife, as newly-discov ered testimony, that the property was her paraphernal property.-STATE V. BRIGHT, La., 23 South. Rep. 993.

18. CRIMINAL LAW-Instructions-Credibility of Defendant.-An instruction to the jury in a criminal prosecution in the following language is held erroneous and prejudicial to defendant, viz.: "You will not allow yourselves to be imposed upon, nor led into the belief of unreasonable stories on the part of either the prosecution or of the defense. You must bear in mind the tendency on the part of the guilty, when accused of crime, to fabricate some story or stories which they think may effect their acquittal."-STATE v. Hoy, Minn., 86 N. W. Rep. 98.

19. CRIMINAL LAW-Sentence-Validity.-In a prosecution upon an information containing a number of counts, and where the verdict returned finds the defendant guilty of several of the offenses charged, the court should pronounce a single judgment, imposing the full measure of punishment to be imposed for all such offenses. A judgment regularly rendered on one of the offenses included in the verdict, and which has been executed in part by the imprisonment of the

defendant, is the end of the prosecution, and exhausts the power of the court in the case; and the action of the court in bringing in the defendant several years after the rendition of the judgment, and sentencing him again upon the remaining offenses embraced in the verdict, is wholly without authority.-IN RE BECK, Kan., 64 Pac. Rep. 971.

20. DEED-Description-Extrinsic Evidence to Explain Latent Ambiguity.-Where the description of land in a title bond called for "the point" of a cliff as a corner, and "thence with the cliff," it appearing that the cliff forked at the point indicated, extrinsic evidence was admissible to show which fork of the cliff was intended; the ambiguity being a latent one.HALL V. CONLEE, Ky., 62 S. W. Rep. 899.

21. DETINUE-Claim of Third Party-Time of Making. -Under the statute authorizing the interposition of a claim and the trial to the right of property by claim. ant in actions of detinue (Code 1896, § 1484), such claim can be interposed only where there has been a prelim. inary seizure of the property before trial and judgment in such detinue suit, and after the rendition of judgment no claim to the property can be interposed under the statute.-MCGLATHERY V. WILLIAMS, Ala., 29 South. Rep. 858.

22. ELECTIONS-Qualifications of Voters.-A consti. tutional provision which provides that "for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while kept at any almshouse or other asylum at public expense," preserves the voting status of the inmates of a soldiers' home at the time of the entry thereto, and such inmates cannot acquire, by reason of their presence in such soldiers' home, and while kept at public expense, the right to vote in the county and precinct in which such institution is located.POWELL V. SPACKMAN, Idaho, 65 Pac. Rep. 503.

23. EMINENT DOMAIN-Condemnation of PropertyFailure of Statute to Prescribe Course of Procedure.Ky. St. § 2852, part of charter of cities of the first class, which provides that the board of park commissioners may order the condemnation of, properiy, is valid. though the course of procedure is not prescribed fur. ther than to require that the proceeding shall be instituted by the filing of a petition; the court having power to regulate the additional procedure according to the course of the common law. -BOARD OF PARK COMBS. OF LOUISVILLE V. DU PONT, Ky., 62 S. W. Rep. 891.

24. EQUITY-Deeds Unauthorized Clause Correc tion. Where a contract of exchange provided that a warranty deed given thereunder was to be subject to an incumbrance, and the notary, without the knowledge or authority of the grantee, added in the deed, "which the grantee assumes and agrees to pay," the deed will be corrected in so far as it imposes on the grantee the assumption to pay said indebtedness. -JONES V. PRICE, Iowa, 86 N. W. Rep. 219.

25. EXECUTORS AND ADMINISTRATORS-Distribution by Executor Under Judgment Subsequently Reversed. -Where the mother of illegitimate children allowed the father to have their services until they reached their majority, in consideration of his agreement to bring them up, and to provide a home for her at his death, neither her claim under the contract nor the claims of the children under an agreement by which they worked for the father after arriving at age and permitting him to hold their wages for them are preferred claims against his estate after his death. STORY V. STORY, Ky., 62 S. W. Rep. 865.

26. EXECUTORS AND ADMINISTRATORS - Executor's Commissions-Attorney's Fees.-The widow of a testor, as executrix and life-tenant, made a contract with a corporation which was entitled to the estate as devisee in remainder, by which she transferred to it the estate in consideration of its agreement to pay her an annuity; the contract stipulating that she was to first pay off all existing debts of the estate, and make

a full statement of her accounts by a certain time, and that the transfer was made subject to "attorney's fees and costs of settlements." A disagreement having arisen as to the amount to be turned over, the executrix brought suit for a settlement of that matter. Held, that plaintiff is entitled to commissions as executrix, and also to a reasonable attorney's fee for bringing the suit.-CRUTCHER'S EXECUTRIX v. BOARD OF MISSIONS OF METHODIST EPISCOPAL CHURCH SOUTH, Ky., 62 S. W. Rep. 895.

27. FIRE INSURANCE-Forfeiture- Subsequent Legis. lation. A fire policy being already forfeited under a condition thereof by occupation by a tenant, the rights of the parties are not affected by the subsequent enactment of Code, § 1743, providing that a condition in a policy making it void before the loss oc. curs shall not prevent a recovery thereon, if it be shown that the failure to observe the condition did not contribute to the loss.-ELLIOTT V. FARMERS' INS. Co., Iowa, 86 N. W. Rep. 224.

28. FRAUDULENT CONVEYANCE Husband's Declarations as Evidence Against Wife.-Where the husband's creditors were seeking, in an action against the husband and wife jointly, to subject property in the wife's name on the ground that it had been paid for by the husband, the husband's declarations tending to show his interest were competent as evidence against the wife.-PULLINS V. PULLINS, Ky., 62 S. W. Rep. 865.

29. GUARDIAN AND WARD-Mortgage of Ward's Property-Purpose.-Under Code Civ. Proc. § 1578, providIng that the property of a minor may be mortgaged to pay or renew a lien thereon, where there are several minors owning undivided interests in the same prop. erty, each subject to a lien, the interest of each minor cannot be mortgaged to secure the aggregate of all their debts, but each must be bound only for his part thereof.-HoWARD V. BRYAN, Cal., 63 Pac. Rep. 462.

30. HIGHWAYS-Collision-Bicycles.-Plaintiff, while crossing a street at a crossing was injured by being run into by defendant on a bicycle. The accident occurred at night, and plaintiff, who was oarrying an open umbrella, did not look up and down the street before attempting to cross. A witness testified that he was 75 or 100 feet away, but saw both plaintiff and defendant just before the accident; and defendant testified that a are light was at the place, and that he saw the plaintiff when within 60 or 65 feet of him. Held, in an action for the injuries received, that a special finding that the plaintiff could not, by the exercise of ordinary care, under the circumstances, have seen the defendant in time to have avoided the collision, was not supported.-MILLS V. CONLEY, Wis., 86 N. W. Rep. 203.

31. HOMESTEAD-Liens-Validity. Where the pur chaser of realty pays the purchase price, and then borrows from the vendor, who retains a lien in the deed for the borrowed money, the purchaser does not acquire title by such payment, and by making slight and inconsiderable improvements, so as to defeat such lien by a claim of homestead.-JONES V. MALE, Tex., 62 S. W. Rep. 827.

32. HUSBAND AND WIFE-Community Estate-Rights of Widow.-One who occupies the position of widow in community and sole heir ab intestato has such an interest in the property of the community which had existed between her deceased husband and herself as to entitle her in default of the appointment of any one charged with that duty, to invoke the aid of the court for its preservation. - BARBER V. WATSON, La., 29 South. Rep. 889.

33. HUSBAND AND WIFE-Necessaries - Payment of Interest on Mortgage Debt at Wife's Request.-Under Gen. Stat. ch. 52, art. 2, § 2, declaring that the wife's real estate shall be liable for debts contracted on account of "necessaries," the wife's real estate cannot be subjected to the payment of a note executed by her and her husband for money advanced by plaintiff

at their request to pay interest on a debt secured by mortgage on a dwelling house owned by the wife, as it does not appear that the wife owed the mortgage debt, or that she or her family occupied or intended to occupy the mortgaged dwelling house; she having ample estate outside of that for their support.-WATTS V. TURNER, Ky., 62 ́S. W. Rep. 878.

34. HUSBAND AND WIFE- Property Rights-Dation en Paiement-Simulation.-The wife received amounts, made crops, and realized revenues on her separate property, for which her husband, by using same, became liable. The testimony does not prove that the husband made no revenues, and that the result of his exertions did not go to the support of the family. In the absence of that proof, the amount required is not deducted from her separate right, in order thereby to reduce them to nil, and give rise to the conclusion that the wife has no separate right, as the whole amount went to the support of the family.-LEHMAN V. COULON, La., 29 South. Rep. 879.

35. INJUNCTION-Pendente Lite.-A court of equity can, in the proper exerciseļof its jurisdiction, enforce and preserve property or rights in issue in statu quo until the hearing on the merits, and, in order to sustain an injunction for the protection of property pen. dente lite, it is not necessary for the court to decide in favor of the complainants upon the merits, or that he should present such a case as will certainly entitle him to a decree upon the final hearing; but, in order to support such an injunction, the court must be satisfied that the complainant certainly has a right as to the existence of which there is a substantial question to be decided, and that without the interim interference, such right would probably be lost or destroyed.--COXE V. HUNTSVILLE GASLIGHT Co., Ala., 29 South. Rep. 868.

36. INJUNCTION-Title to Realty-Right of Possession Under Contract.-Where a complaint in an application for an injunction stated that plaintiff was the owner of a right to pump water from a certain well, and that defendants had prevented, and threatened to continue to prevent, plaintiff from so pumping water, but there was no allegation that plaintiff was, or defendant was not, in possession of the property, plaintiff was not entitled to an ex parte injunction enforcing its alleged right to the property since it would operate to change the possession of property, which is not the proper function of a preliminary injunction. -SAN ANTONIO WATER Co. v. BODENHAMER & SIERRA WATER & POWER CO., Cal., 65 Pac. Rep. 471.

37. INSURANCE-Separate Contracts - Void as to Realty and Valid as to Personalty.-Where the insurance of personal property was evidenced by a paper attached to a policy previously issued on real estate, a breach of condition as to title, rendering vold the original policy, did not affect the insurance on the personal estate, the contracts being separate.-CONTINENTAL INS. Co. v. GARDNER, Ky., 62 S. W. Rep. 886. 38. INTOXICATING LIQUORS - Illegal Sale-Evidence. -On a trial under an indictment for selling spirituous, vinous, or malt liquors without a license, and contrary to law, where the evidence for the state connecting the defendant with the commission of the offense was circumstantial, and tended to show that the sale was made in the room of another person, testimony going to show that in said room liquors were kept and controlled by the defendant, and jointly with said other person, and that on the occasion when whisky was being sold by said other person in the defendant's presence the defendant was assisting him, and was personally concerned in the disposition of the liquor, is competent and admissible in evidence. In such a case it is not prejudicial to the defendant to allow a witness, upon his examination, to deny that he testified before the grand jury to having seen whisky bought in the house where the defendant was arrested, and where the evidence for the state tended to show the selling of the whisky complained of oc curred.-WRIGHT V. STATE, Ala., 29 South. Rep. 864.

39. INVESTMENT BY GUARDIAN – Order of Court.-A guardian, without authority of the court, purchased real estate with the money of his ward. The value of the real estate had somewhat depreciated when the ward became of age, and it was shown that during the ward's infancy money could be safely loaned at 10 per cent. per annum. Held, that the ward was entitled to recover from the guardian the amount invested by him in the house, with 10 per cent. interest, compounded annually.-SCHEIB V. THOMPSON, Utah, 65 Pac. Rep. 499.

40. JUDGMENT-Action to Set Aside-Laches.-Where defendants, against whom judgment was obtained without service of the summons, and who did not learn of the action until some time after their property was sold thereunder, commenced an action to set aside the return of service of the summons and subsequent proceedings within 10 months after the sale, and before any subsequent change in the property occurred, they were not guilty of laches. Where property was sold under a judgment obtained without jurisdiction, the fact that the purchaser redec med the property from a tax sale is no defense to an action to set aside such judgment and proceedings.-KEELY V. EAST SIDE IMP. Co., Colo., 65 Pac. Rep. 457.

41. LANDLORD AND TENANT — Forcible Entry and Detainer-Tenants in Common.-H and plaintiff owned land as tenants in common, which adjoined the defendant's right of way, and H gave defendant an option to purchase his interest. Defendant entered on the land, and began removing dirt to build a track on Its adjoining right of way, and plaintiff brought forci ble entry and detainer against both H and defendant. Subsequently H deeded his Interest to defendant. The court entered an order compelling defendant to remove not only from the land in controversy, but also from its original right of way. Held, that it was not error to modify the order by confining it to the land in controversy.-CAGWIN v. CHICAGO & N. W. RY. Co., Iowa, 86 N. W. Rep. 220.

42. LIFE INSURANCE Asssignment Husband and Wife.-An insurance policy was issued in favor of the wife of the insured if living at the time of his death, and, if not living, then to his children. The insured and his wife assigned the policy to plaintiff as collateral. The wife died before her husband. After the wife's death, a tontine dividend accrued on the policy. Held, that the wife's death defeated the assignment and all rights predicated thereon, including the dividend.-STEVENS V. GERMANIA LIFE INS. CO., Tex., 62 S. W. Rep. 824.

43. MASTER AND SERVANT — Dangerous Machinery.Where the evidence in an action for an injury to a servant alleged to have been caused by a defective machine shows that defendant was not negligent, unless he had actual knowledge of the alleged defect, and there is a finding in a special verdict that the defendant did not have such knowledge, judgment should be rendered in favor of the defendant.-GROTH V. THOMANN, Wis., 86 N. W. Rep. 178.

44. MASTER AND SERVANT-Fellow Servants.- Where, in an action against a railroad company for injury to a brakeman by being thrown from a car by the en gineer negligently and suddenly stopping the train, the injury happened in a state where the common law relating to fellow-servants had not been changed by statute, the plaintiff could not recover, since the engineer and brakeman were fellow servants, and one could have no cause of action against the master for the negligence of the other.-BREWSTER V. CHICAGO &N. W. RY. Co., Iowa, 86 N. W. Rep. 221.

45. MASTER AND SERVANT—Injury to Employee-Care Required of Employer.-Although a logging railroad is not expected or required to be laid with the same care and security, nor to be operated with the same degree of prudence, as is demanded in the construction and operation of railway tracks in use by common carriers, nevertheless such road should be so

constructed and operated as to render it reasonably safe for those whose employment necessitates their going upon such road and performing service in connection with the same.-LYNN V. ANTRIM LUMBER CO., La., 29 South. Rep. 874.

46. MASTER AND SERVANT - Servant's Acts-Master's Liability.-Plaintiff was arrested by the captain of defendant's steamboat, and chained to a post on the lower deck, and ejected before he reached his destination. The court charged that plaintiff could recover only the actual damages suffered by him, unless defendant authorized the acts complained of, or par ticipated therein or ratified them; and that the jury should not allow anything by way of punishing the defendant, unless it authorized the captain's acts or ratified them; and that, unless defendant participated in or authorized the captain's acts or ratified them, the measure of damages would be the amount which would compensate the plaintiff for all detriment proximately caused by the wrongful acts. Held, that the instructions were not erroneous as contradictory and too general.-TRABING V. CALIFORNIA NAV. & IMP. Co., Cal., 65 Pac. Rep. 478.

47. MORTGAGE-Foreclosure - Assignment.-Where, during the pendency of foreclosure proceedings, the mortgage was assigned, and the assignee was substi. tuted as plaintiff by order of court, but the original mortgagee was retained as a party plaintiff, the decree of foreclosure providing that the original mort gagee take nothing, but that the amount recovered was due the assignee, the retention of the original mortgagee as a party plaintiff, though erroneous, was harmless, and not cause for reversal.-ORANGE GROWERS' BANK V. DUNCAN, Cal., 65 Pac. Rep. 469.

48. MUNICIPAL CORPORATIONS-City Treasurer-Pay. ment of Claim-Effect of Judgment.-Where judgment had been rendered for plaintiff in an action against a city treasurer and board of trustees to compel pay. ment of a claim against the city, such judgment was sufficient to justify the treasurer in paying the claim, though the trustees refused to. approve it, or issue a warrant thereon.-FRESNO CANAL & IRRIGATION Co. v. MCKENZIE, Cal., 65 Pac. Rep. 473.

49. PARTNERSHIP-Compensation of Partner for Personal Service.-The surviving partner cannot complain of the refusal of the court to allow him more than $2,000 for his personal services for the three years he continued the business, the general rule being that neither partner is entitled to compensation for his services unless the articles so provide; and whether this case is an exceptional one it is not necessary to decide, and the administrator and heirs of the deceased partner do not complain of the allowance made.-BARBER'S ADMX. V. MURPHY'S ADMR., Ky., 62 S. W. Rep. 894.

50. PARTNERSHIP-Settlement-Surviving Partner.A deceased partner's will provided that the business of the firm should be settled gradually, so as to not injure the estate or prejudice the surviving partner. There was no evidence that the deceased's executors or legaters were dissatisfied with the management of the estate. Held, that a delay of five years in the settlement of the firm affairs by the surviving partner did not justify an order directing the deceased's executors to sell the deceased's interest in the firm. The fact that a surviving partner bid on the deceased partner's interest when it was offered for sale by the deceased's executors did not constitute a waiver of the surviving partner's right to settle the firm business.IN RE AUERBACH'S ESTATE, Utah, 65 Pac. Rep. 489.

51. PAYMENT - Application - Evidence.-Defendant, on making a payment to plaintiff on account, directed that the money should be applied to bills which had been guarantied by his co-defendant, and it was so ap. plied. Subsequently defendant made other payments to a bank to take up sight drafts drawn by plaintiff. Plaintiff received but one letter containing directions as to the application of payments, and the subsequent

payments were applied on unguarantied bills, and a suit instituted on a balance due on those guarantied. Held, that the evidence was not sufficient to justify the direction of a verdict for defendant, since the question whether there was an application of pay. ments as claimed by defendant was for the jury.BISHOP V. HART, Iowa, 86 N. W. Rep. 218.

52. PLEADING AND PRACTICE-Amendment-Conver sion. In an action brought for a conversion of certain cattle, and in the trial of which it appears that the defendant did not in fact sell the cattle in question, but that they were sold by another under the direction of defendant, who knowingly received the proceeds of sale, and converted the same, it is not error for the district court, before another trial of the cause is had, to permit the plaintiff to so amend his petition as to charge defendant with a conversion of the proceeds of such sale.-EMPORIA NAT. BANK V. LAYFETH, Kan., 64 Pac. Rep. 973.

53. PLEADING AND PRACTICE-Bill of Review-NewlyDiscovered Evidence.-To sustain a bill of review on the ground of newly-discovered evidence, it must not only appear that the additional evidence was not known at the time of the former hearing, and could not have been ascertained by the exercise of proper diligence, but the newly discovered evidence, with the other evidence already in the case, must entitle the complainant to a decree different from, and more beneficial to the complainant in the bill of review than the one rendered in the original case.-ALLGOOD v. BANK OF PIEDMONT, Ala., 29 South. Rep. 855.

54. PRINCIPAL AND AGENT-Accounting-Illegality.An agent intrusted with money to purchase property at a judicial sale under an agreement which had for one of its objects the suppression of competition at the sale, and who executes the agreement by making the purchase, cannot withhold a surplus portion of the fund placed in his hands on the ground that the agreement by which he obtained it was illegal, as against public policy, but must account for it to his principal.-HARDY V. JONES, Kan., 64 Pac. Rep. 969.

55. PRINCIPAL AND SURETY-Joint Bond Executed by Separate Purchasers.- Where the several purchasers of horses sold by a commissioner executed a joint bond for the aggregate price, each sale being reported by the commissioner as a separate sale, each purchaser was a principal in the bond for the amount of his purchase, but only a surety for the other pur chasers as to the remainder of the bond.-BridgeWATER V. ENGLAND, Ky., 62 S. W. Rep. 882.

56. REAL PROPERTY-Land Grants-Swamp Lands.Acting under the acts of the general assembly of Iowa granting swamp lands to the respective counties wherein situate, a county claiming a tract as a swamp land under the act of congress of September 28, 1850, granting swamp land to the several states, sold the land to a purchaser, who, after paying taxes thereon for several years, abandoned it; and plaintiff afterwards purchased it at a sale for delinqueut taxes. A railroad company claimed the tract as indemnity land under the act of congress of 1856 granting lands to aid the construction of certain railroads, and after plaintiff took possession of the land the selection of the railroad company was allowed, and the land certified to and accepted by the state as a railroad land by the interior department. Held, that the interior department had full authority to determine whether the land was swamp land, and did determine that it was not, by so certifying it to the state, and that, after accepting the land under such certificate, the state could not claim it as swamp land, nor could it give the right to another to make such claim.-YOUNG V. CHARNQUIST, Iowa, 86 N. W. Rep. 205.

57. SCHOOLS AND SCHOOL DISTRICTS-Value of Prop erty-Award.-A county superintendent of public instruction, in determining the proportion of the pres eat value of a school house or other property justly duз a new school district formed out of territor

taken from another district, acts in a judicial or quasijudicial capacity. After an award has been made by him, and the amount thereof paid by the old district, his power is exhausted, and an allowance increasing the original award, made 15 months after the first determination, is void.-ROBINET V. SCHOOL DIST., Kan., 64 Pac. Rep. 970.

58. SUBROGATION-Payment of Mortgage Note.-One who, without interest as creditor, co-debtor, or heir, pays the mortgage note of another, acquires no subrogation to the rights of the creditor, unless it be expressed and made at the same time as the payment. He has a claim for reimbursement against the party for whose benefit the payment was made, but only as ordinary creditor.-HUTCHINSON V. RICE, La., 29 South. Rep. 898.

59. SURETIES AND SURETYSHIP-Assignment of Debt to Surety.-A surety may purchase the debt for which he is bound, and take an assignment thereof and of a mortgage by which it is secured, and maintain an ac tion thereon against the principal.-WILKERSON V. TICHENOR, Ky., 62 8. W. Rep. 869.

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60. TAXATION-Local Assessment Rights of Purchaser. Where property is pursued in enforcement of a local assessment, to secure which the statute grants the first lien, it suffices to proceed contra dictorily with the man in possession as owner, under recorded title translative of ownership. And the purchaser at the sale which follows acquires a good title by the adjudication; for it is a proceeding in rem,—one to enforce a real charge, a debt on the property, irrespective of the person owning.-KELLY V. MENDEL SOHN, La., 29 South. Rep. 894.

61. TITLE IN GOODS SOLD-Assignment for Creditors. -Where defendant, prior to the making of an assign ment by a brewing company for the benefit of creditors, had purchased from the company and paid for $200 worth of beer, to be delivered to him in the usual course of business, but no packages had been set apart for him, the title to all the beer on hand at the time of the assignment passed to the assignee as between him and defendant.-STEIN BREWING CO.'S ASSIGNEE V. EBERHARD, Ky., 62 8. W. Rep. 881.

62. VENDOR AND PURCHASER-Immovable PropertyRedeemable Sales.-Redeemable sales of immovable property, unaccompanied by delivery of the thing sold, will be considered, as between the parties, in the absence of evidence to the contrary, as mere contracts of security, and the vendee out of possession may take his position equally with the vendor.-MARBURY V. COLBERT, La., 29 South. Rep. 871.

63. VENDOR AND PURCHASER Vendor's Lien - Purchase of Property.-The purchase, as such, of a sugarrefinery outfit and plant, who assumes payment of claims secured by vendor's lien upon the machinery, bas no greater right to contest and repudiate such claims than his vendors had.-WOODS V. CARENCRO SUGAR MFG. Co., La., 29 South. Rep. 888.

64. WILL Mental Capacity. - A person who is rational may dispose of his property according to a fixed purpose of his own, although such purpose, ac cording to the notions of other persons, might be irrational; and therefore it was error to instruct the jury to find the paper in contest not to be the last will of the decedent if they believe she was under such defect of reason or mental weakness that she did not know the natural objects of her bounty or the charac ter and value of her estate, and was not able to make a rational survey of the same, "and dispose of it in a rational manner," according to a fixed purpose of her own.-WARREN'S DEVISEES V. O'CONNELL, Ky., 62 8. W. Rep. 890.

65. WILLS-Trusts-Charitable Bequests - Capacity of Beneficiaries.-The fact that an unincorporated educational society receives a charitable devise, and thereafter becomes incorporated, does not defeat its right to the devise.-IN RE WINCHESTER'S ESTATE, Cal., 65 Pac. Rep. 475.