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city council passes an ordinance requiring the wires within a designated district to be placed in subsurface conduits, the ordinance, whether & proper exercise of the police power or not, is valid, and must be obeyed, unless the plaintiff can establish by satisfactory evidence that tbe city council did not enact the ordinance in the exercise of a fair discretion, but arbitrarily or dishonestly. The allegations of the complaint, liberally construed, are sufficient to bring the case within the rule stated, and upon this ground alone I concur in the conclusion of the court that the complaint states a cause of action.
I dissent from so much of the decision that is to the effect that telepbone companies are given, subject only to a proper exercise of the police power, the right, by Gen. St. 1866, ch. 34, $ 28, as amended by Laws, 1881, ch. 73 (Gen. St. 1894, $ 2641), to use the public streets of the municipali. ties of the state, without the permission of the corporate authorities, for the purpose of erecting and maintaining their posts and wires therein, provided such posts be located as in no way to interfere with the safety or convenience of ordi. nary travel in such streets. It seems unreasonable to conclude that the legislature intended by this statute to repeal, pro tanto, existing special laws giving to the municipalities of the state the control of their streets, and to control tbe perpetual right upon telegrapb and telephone companies to enter upon any and all of the streets of such municipalities, without consent of the governing body thereof, and erect and maintain therein their poles and wires, subject to no control or limitation except such as is incidental to the exercise of the police power.
I am of the opinion tbat the plaintiff has no right to maintain its poles and wires in the streets of the defendant city by virtue of Gen. St. 1894, $ 2641, but that its rights therein depend upon the cbarter provisions and ordinances of the city. The plaintiff, by virtue of the existing cbarter provisions of the city, on January 24, 1883; the city ordinance of tbat date, referred to in the record as "Ordinance A;" the amendment of the charter 34 days thereafter (Sp. Laws 1883, ch. 3, $ 13); and by its acceptance of the ordinance,acquired a qualified contract right to maintain its telephone exchange system in the streets of the city. The right, however, to bave the poles and wires removed from the surface of the streets, and placed underground, whenever, in the opinion of the city council, public interest so required, was expressly reserved, as a part of the contract. This stipulation is something more than the mere right to regulate and control the streets of the city and the business of the plaintiff in the exercise of the police power. That right is inalien. able, and need not be reserved. While the city council, by virtue of tbis provision of the contract, cannot confiscate the plaintiff's property, nor wholly exclude it from the streets of the city, yet it does commit the question as to when, and to what extent, public safety, convenience, and comfort require that the defendant's poles should be removed from the surface of the streets, and its wires placed underground, to the discretion, judgment, and decision of the city council. It is the arbitrator agreed upon to determine the question, between the city and the plaintiff, whether public interests at any particular time require that the wires be placed below the surface of the street; and its decision, when made, whether it be correct, wise or just, is conclusive, unless it has acted in the premises arbitrarily or dishonestly. When, as in this case, the
en, as in this case, the
NOTE.-The Authority of Municipalities Over Tele. phone, Telegraph and Electric Companies in Ordering the Removal of Poles or Other Obstructions.-A queetion very often litigated at the present time, and on which the autborities are not in unison, is the rigbt of municipalities, under cbarter provisions giving them power to regulate the use of streets, etc., to compel telephone, telegraph and electric companies to bury their wires, and to prevent the further use of poles or other tixtures on the bighway which were erected by these companies under general state autbority. It must first be recogoized that where a tele. phone company erects its lipe in a street by the consent of the state and city, and pays damages therefor, itis pot a nuisance. Brown v. Southwestern Telegraph & Telephone Co. (Tex. Civ. App.), 44 S. W. Rep. 59. And it must also be furtber noticed, however, tbat a municipality cannot deprive itself, by contract or ordinance, of the rigbt to exercise the police power delegated by the statute to license and regulate the use of it streets by telephone and telegraph companies. Borough of Norristown v. Telephone Co. (Pa. Com. Pl. 1898), 15 Montg. Co. Law Rep. 9.
With these two general principles in mind, let us examine the authorities on the right of a municipality to regulate the erection of poles, and to wbat extent this right can be exercised under the police power. In Kentucky it was held, under Const., sec. 163, providing that po telephone company shall be permitted to erect its poles along the streets of a city without the consent of the proper legislative body of the city being first obtained, but furtber providing that when charters have been heretofore granted conferring such rights, and work bas in good faith been begun thereunder, the provisions of this section shall not apply, where a city council bad, without legislative autbority prior to the adoption of the present constitution, attempted to grant the right to erect telepbone poles and wires along and over the streets of the city, the city has the right to compe the removal of such poles and wires erected without the consent of the city council after the adoption of the constitution. East Temp. Telephone Co. v. City of Russellville, 51 S. W. Rep. 308. In Wisconsin, Rev. Stat. 1898, sec. 1778, authorizes telephone companies to locate poles and wires in public streets. A city charter authorized the city council by ordinance or resolution to keep streets free from incumbrances and to regulate their use, and provided that no obstruction should be placed in streets with. out a written permit from the board of public works. which was given power to regulate tbe placing of telephone lines in streets, parties aggrieved by a decision of the board having the right to appeal to the city council. Held, that a telephone company has no right to place poles in the streets of said city,
except under the direction of the board of public without their consent, or opportunity of being works, though neither the council nor the board of beard. public works bas passed any ordinance or by-law
One of the difficulties of this question is encoun. regulating the placing of telephone poles in streets.
tered in the construction of the acts of congress auCity ot Marshfield v. Wisconsin Telephone Co., 78 tborizing telegraph companies to erect and maintain N, W. Rep. 735. But in the case of Michigan
their lines along the postroads of the United States. Telepbone Co. v. Benton Harbor, 80 N. W. Rep. 386, | Tbe question to what extent tbis authorization goes the Supreme Court of Michigan held that Pub. Acts in interferring with the right of the state to regulate 1895, providing that municipal authorities way
and maintain its own bigbways, has been very often regulate or probibit the use of telephone poles in the
raised. For instance, in the first place, it has been streets, does not repeal Acts 1883, providing that beld that the Act of July 24, 1866, Rov. Stat., sec. telephone companies may maintain wires, with
5263, authorizing telegraph companies to maintain necessary fixtures, along any street or bigbway in
and operate their lines along the postroads of the the state, which shall not injuriously interfere with
United States, but so as not to interfere with ordinary its other public uses, since it only confers such travel thereon, applies equally to telepbone comauthority on municipalities subject to the general law panies. City of Richmond v. Southern Bell Tele. in reference to their streets.
phone & Telegraph Co., 85 Fed. Rep. 19. Tbis case, A franchise granted to a telephone company of
however, was subsequently reversed and the act of constructing and operating its lines along and upon
congress upder consideration held to have no appli. streets is subordinate to the rights of the public in a
cation to telephone companies whose business is that street for the purpose of travel. Cipcinpati Incline
of electrically transmitting articulate speech between Plane Railroad Co. v. Telegraph Association, 12 L.
different points. City of Ricbmond v. Southern Bell R. A. 541. State legislation, therefore, compelling
Telephone & Telegraph Co., 174 U.S. 761. This electric wires in the streets of a city to be placed
case seems to bave authoritatively settled the ques. under the surface of the streets is an exercise of the
tion whether the phrase "telegraph companies" police power, and not an unlawful attempt to
when used in this connection includes telepbone regulate commerce, or an invasion of the rights of a
companies as well. And again it was beld that the telegraph company. Western Union Telegraph Co.
right given by this statute is permissive only v. New York, 38 Fed. Rep. 552. But it was recently
and subject to all state or local legis. beld that a grant to a telegraph company to run and
lation regulating its exercise and such per. maintain wires over and through streets does not
mission does not affect the right of a munici. include permission to lay them underground.
pality in the exercise of its police powers to enact Commonwealth v. Warwick, 185 Pa. St. 623. This
and enforce ordinances intended to promote the case seems to lead to the dilemma of a company
safety and convenience of the public in the use of its authorized by the state to maintain its wires over the
streets. Michigan Telephone Co. v. City of Charlotte, streets being compelled by a municipality to do what
93 Fed. Rep. 11. In a later case it was held tbat this they bave no right to do under their charter, i. e., to
act does not authorize compulsory proceedings to place them under the ground. But it is plain that a
obtain a right of way over private property for such municipality cannot be permitted to act arbitrarily
lines, and condemnation of such right of way can in a matter of this kind. Thus, an ordinance provid.
only be made by virtue of some law of the state wbere ing tbat no telephone wire shall be stretched across
the property is situated. The very recept case of City any public street without the consent of the to‘vnsbip
of Toledo v. Telegraph Co., 107 Fed. Rep. 10, seems committee, was held not to be a regulation and
to bave gone further than any other case on this sub. restriction within the provisions of the statute giving
ject, and ought to definitely settle the question of tbe to telephone companies the right to stretch wires
rights of telephone and telegraph companies operat. over streets in incorporated cities and towns, under
ing under the provisions of the act of congress of certain conditions, subject to such “regulations and
1866. In this case it was held tbat an interstate restrictions" as may be imposed by the corporate
telegraph company which had accepted the pro. authorities. Inbabitants of Summit Township v, Tel.
visions of the act of 1866 was not entitled to erect and ephone Co. (X. J. 1898), 41 Atl. Rep. 146. And again,
maintain its lines over the streets of a city without wbere an agreement between a city and telephone
complying with the reasonable regulations of the city company as to the mode of use of its streets bas
for the erection and maintenance of such lines and expired by limitation, the city cannot oust the com.
without procuring a permit therefor from the city. pany from the use and occupation of the streets until
It might be fairly stated to be the rule deduced it made to appear that no agreement can be made,
from the authorities tbat telepbone or telegraph comand tbat the company, after such failure to agree,
papies operating under provisions of a statute giving delays unreasonably to apply to the court to fix the
them the right to place their wires and fixtures over mode of use, as prescribed by law. State v. The
the roads and highways of the state cannot be arbi. Central Union Telepbone Co., 14 Ohio Cir. Ct. Rep.
trarily deprived of such right by municipal ordinance
or regulation. Even where tbe municipality has power The point as to the constitutionality of municipal
under its charter to regulate the placing of poles and
other obstructions on the streets of the city, still such ordinance, requiring the removal of wires to under
regulation or restriction must be reasonable, and the ground conduits, does not seem to have been raised successfully. Thus, in the case of Geneva v. Tele
municipality is not the sole judge of that fact. But phone Co., 62 N. Y. S. 172, it was held that Laws
where the municipality has no such express power to 1897, authorizing board of public works of the city
regulate the use of the streets, it may still prohibit
and order the removal of obstructions on the streets of Geneva to require telephone companies to move their wires from poles to underground conduits
of the city under its general police power. But in whenever it shall, by resolution, determine that
this case also its action must be shown to be a public safety requires such removal, was not uncon
reasonable exercise of the police power and neces. stitutional, as imposing taxation on such corporations
sary to protect the property, health or general welfare of the inhabitants of the municipality.
BOOK REVIEWS. AMERICAN STATE REPORTS, VOL. 70.
One of the most pleasant duties of the editor of the CENTRAL Law JOURNAL, and one wbich he is called upon to undertake with increasing frequency, and, of course, increasing delight, is the review of each successive volume of the American State Reports. The seventy ninth volume of this excellent series of annotated reports, just received, is a conspicuous example of the superiorities of this series over others of similar character; first, in its judicious selection, of only the best considered cases; second,in its learned and exbaustive monograpbic notes, treating only the latest and livest questions of law, and third, in its excellent workmanship, delighting tbe eye and suiting itself admirably to the needs and conveniences of the busy lawyer. Out of many exhaustive mono. graphs we select the following as being of special interest: “Wbát Marriages Are Void," p. 361; "When Does the Title of a Statute Embrace But One Subject, and What May be locluded Thereunder," p. 456; “Title Acquired by Purcbaser at His Own Execution Sale," p. 947; "What Words Create Condi. tions Subsequent,” p. 747; “Partnership After Deatb," p. 709; "Constitutionality of Civil Service Laws," p. 560. Published by the Bancroft. Whitney Company, San Francisco, Cal.
lorination must be detioltely stated.-IN RE VEEDER, N. Mex., 65 Pac. Rep. 180.
4. BANKRUPTCY Allowance of Attorney's Fees.Bankr. Act 1898 presupposes that attorneys employed to file a voluntary petition in bankruptcy will arrange with their client for the prepayment of their lees for the services required in the ordinary course of the proceedings, and the provision of section 64b, cl. 3, contemplates the allowance from tbe estate by the court, in its discretion, of additional fees for eltraordinary services which may bave been required from such attorneys, which should be fixed at such sum as is equitable in view of the lees already recelved and the rights of creditors.-IN RE SMITH, U. S. D. C., E. D. (N. Car.), 108 Fed. Rep. 39.
5. BILLI-Notes Execution Purchaser.-An execution purchaser of a note takes it subject to all equlties existing against it in the hands of the original maker. -XEALE V. HEAD, Cal., 65 Puc. Rep. 132.
6. BOILDING AND LOAN ASSOCIATIONs-Sale-Share bolder's Contract-Rescission-Vendor's Llen.-Where plaintiff executed a deed of trust to a boilding and loan association to take up a note for the purcbase price of the lot, and to pay for material which bad been used in erecting a building on it, and the association, without the consent of its stockholders, assigned its assets to defendant, and ceased business, the dePendant was entitled, on plaintiff's rescinding his contract, to be subrogated to the vendor's lien, add to a foreclosure of the lien.-NORTH TEXAS SAV. & BLDG. ASAN. V. JACKSON, Tex., 63 8. W. Rep. 344.
7. BURGLARY-Evidence.- Where one witness in a prosecution for burglary testities to baving seed & man running from the burglarized house, evidence of another witness that defendant's shoes corresponded with tracks found at the place of the burglary is ad. missible, though it is not shown that the tracks were made by the man running from the house. - PEOPLE V. ROWELL, Cal., 65 Pac. Rep. 127.
8. CARRIERS-Relation of Carrier and PassengerHow Created.-The relation of carrier and passenger, which will bring a carrier under the obligation to ex: ercise the bigb decree of care and caution for the safety of a person inposed by such relation, can only be created by contract, express or implied.–FABLET v. CINCINNATI, H. & D. R. Co., U. S. C. C. of App., Sixth Circuit, 108 Fed. Rep. 13.
9. COMMISSIONER OF PUBLIC LANDS-Powers-Illegal Exercise-Injunction.-Plaintiff alleged that defendant, as commissioner of public lands, threatened to lease certain public land adjoining a city of which plaintiff was an inhabitant and taxpayer, and tbat the occupation of such lands by the lessees would contaminate the city water supply, and result in irrepa • rable injury to the inbabitants of the city. Held, that the threatened injury was too remote to require il court of equity to inquire as to whether the threatened acts were within the exercise of the powers of the commissioner.-CITY OF TACOMA V. BRIDGES, Wash., 66 Pac. Rep. 186.
10. CONTRACT-Agreement to Support Another.Where a conveyance was executed in consideration of the grantee's agreement to support au imbecile sister of the grantors, he cannot refuse to furnish that support becanee in
amove with blm
01 ALL tho Carront Opintop. of ALL tho Stato and Torritorial Coarts of Last Resort, and of tho Supremo, Ciroult and District Conrts of the Upitod States, oncopt tbono tbat aro Pabllobod in Fall or Commontod apon in our Noton of Im. portant Decisions and oxcopt thos0 Opinion. In which po Important Legal Principles aro Dio. cnssod of Interest to the Profession nt Largo.
. 12 ARKANSAS.......
..5, 7, 11, 22, 43, 47, 48 KENTUCKY.
...10, 25, 36, 44 NEW MEXICO...
......2, 3, 23, 41 OREGON....
.......1, 39 TEXA 8, 6, 12, 13, 14, 16, 17, 18, 19, 20, 26, 28, 29, 32, 33, 34,
37, 40 UNITED STATES C. C. OF APP., .............8, 30, 38, 46, 49 UNITED STATES D. C.. UTAH.............
....... 24 WASHINGTON....
.....9, 21, 27, 31, 35, 45
1. ACCOUNT STATED-Attorney and client. Where an attorney made out and delivered to his client a statement of his account for services rendered, sbow. jog an itemized schedule of debits and credits and the balance due, such account became an account stated, unless onjected to within a reasonable time.-CRAW. 13. CRIMINAL EVIDENCE – Homicide-Self-DefenseDying Declarations.- Where defendant sbot deceased as the latter was crawling toward defendant's house, and defendant testified that be bailed deceased, and the latter made & move as it to draw a pistol, de. ceased's dying declaration that he had no weapon was admissible as a part of the res gestæ.-GRUBB V. STATE, Tex., 68 S. W. Rep. 314.
13. CRIMINAL Law-Allbi - Instruction.-An instruc. tion that the plea of alibi merely traverses the issue tendered in the indictment, and is not an independent fact, and therefore the burden of proof is not on the defendant to establish it, was properly refused.SAENZ I. STATE, Tex., 63 S. W. Rep. 316.
14. CRIMINAL LAW-Court's Jurisdiction.-Under the general laws of Texas, the county court has copcur. rent jurisdiction with tbe justice courts over all mis. demeanors that said courts bove jurisdiction to finally try.-BRADY V. STATE, Tex., 63 8. W. Rep. 327.
15. CRIMINAL LAW – Larceny - fraudulent Intent.Where defendant sold a horse, which he did not own, to ad innocent purchaser, who alterwards took pos. session of it in another county, the fact tbat the purchaser bad no fraudulent intent, when taking the borse, is not a defense to defendant, when charged with larceny of the borse, since defendant had the fraudulent intent, and the purchaser was acting as de tendant's agent.-WALLS V. STATE, Tex., 63 S. W. Rep.
16. CRIMINAL LAW-Murder in First Degree-Alibi.An instruction that the burden of showing an alibi is on the defendant, but, if the testimony in the wbole case raises a reasonable doubt of defendant's pres. ence wbep the crime was committed, he should be ac. quitted, is not erroneous as shifting the burden op defendant to show his innocence.-RAYBURN V. STATE, Ark., 63 Pac. Rep. 366.
17. CRIMINAL LAW-Theft-Sufficiency of Evidence.Prosecutor engaged in a game of poker with five strangers, one of whom, the defendant, was dealing the cards. During the course of the play, defendant dealt prosecutor four aces and another four kings. Delendapt then went out, and another took bis place as dealer. When it came to a "showdown,” prose. cutor stated what he held, but declined to show bis band, One of the others then grabbed his cards, say. ing, "You have got a loul; you bave six cards ;" and on placing them on the table there were six cards. Thereupon the players grabbed for their money, prosecutor failing to get any. Prosecutor testifed that he had five cards until the player grabbed his hand, and that he thought that defendant was present, and joined in the grabbiog. All the other witnesses testified that tbey did not see defendant present or grab for money. Held, that the evidence was insuffi. cient to sustain & conviction for theft.-HERNANDEZ 1. STATE, Tex., 63 S. W. Rep. 320.
18. CRIMINAL TRIAL-Counsel - Sickness – Intoxica. tion-Continuance.- Where the sickness of defend. ant's leading counsel was voluntarily produced by the 988 of intoxicating liquor, and defendant was repre. septed at the trial by able counsel, it was not error to refuse a continuance.--COLEMAN V. STATE, Tex., 63 S. W. Rep. 322.
19. DIVOBCE Validity-Collateral Attack.--The ob. jection that a decree of divorce is void, because tbe parties thereto were not residents of the state when the divorce was granted, cannot be raised to defeat the confirmation of the report of commissioners in a sult by the wife to partition community property, since such questions were passed on by the court granting the divorce.-MOOR V. Moor, Tex., 63 8. W. Rep. 347.
laration as tedding to sbow a motive for tbe sboot. lug, where the beel bad evidently been stolen, MEDINA V. STATE, Tex., 68 8. W. Rep. 881.
21. EVIDENCE-Federal Census.-Tbe federal cepous is competent evidence to prove the population of a county.-STATE V. NEAL, Wash., 65 Pac. Rep. 188.
22. FIBE INSURANCE Policy - Dwelling House.Where, in an action on a fire polloy on a building "while occupied as a dwelling house," the complaint falls to allege that the building was so Occupied at the time the fire occurred, the complaint does not state a cause of action, since there could be no recovery us. less such fact was proved, and the facts pecessary to be proved must be alleged.-ALLEN V. HOME' INS. CO. OF NEW YORK, Cal., 66 Pac. Rep. 188.
23. FRAUD-Presumptions.-Wher the facts upon which fraud is predicated consist as well with hon. osty as with dishonesty, the law presu nes in favor of honesty.-FIRST NAT. BANK OF ALBUQUERQUE V. LES. SER, N. Mex., 65 Pac. Rep. 179.
24. FRAUD-Special Deposit-Fraud ot Depositor.-A complaint alleging that plaintit made a special de. posit with defendant bank, to be loaded on real estate, but that the bank loaned it to H without any security, and knowing tbat he was insolvent, 18 suficient to support that a recovery for fraud on the part of the bank in procuring I, who was indebted to it; to ex. ecute a new pote to plaintiff, and thereupon transfer. ring the amount of the loan from the plaintiff's ac. count to that of tbe bapk.-LARSEN V. UTAH LOAN & TRUST Co., Utab, 65 Pac. Rep. 208.
25. FRAUDULENT CONVEYANCE - Debts or HusbandLiability.-Land levied on by plaintiff was conveyed to the wife by a third person. The execution creditor, though he could easily bave obtained knowledge of the wife's title, made po attempt to gain possession until more than five years bad expired after the con. veyance. Held, that he was not then entitled to main. tain a motion for possession on the ground that the property had been fraudulently conveyed to the wife to defraud her husband's creditors, since, if any fraud existed, the creditor did not use ordinary diligence to discover the same.-GREEN V. SALMON, Ky., 63 S. W. Rep. 270.
26. HABEAS CORPU8-Custody - Appeal.-Defendant sued out a writ of habeas corpus, and was romanded to custody, whereupon he appealed. Instead of being retained in custody, he was given bis freedom on & recognizance. Held, that the appellate court bad po jurisdiction of the defendant, and his appeal must be dismissed.-EX PARTE MOMINN, Tex., 68 8. W. Rep. 322.
27. HOMICIDE – Judgment - Sentence Death Warrant.- Ballinger's App. Codes & St. $$ 6993, 6996, pre. scribe the proceedings to be taken when judgment of death is rendered, and include the provision tbat "the judgesball appoint a day for the execution whicb shall pot be less than 30 por more than 90 days from the time of judgment, and the sheriff or oficer to whom a death warrant 18 delivered shall return the game within 20 days after the time axed for execution." Act March 8, 1901, relating to the death warrant, the contents thereof, the return, and ixing the place of execution, amended sections 6993, 1995, supra. Held, that mandamus would lie to compel the judge of the superior court to issue a death warrant against a de. fepdant convicted before the amendment, tbough the day fixed therein would necessarily be after the amendment took effect.-STATE V. SUPERIOR COURT OF PIERCE CO., Wash., 65 Pac. Rep. 183.
28. HOMICIDE -Murder-Acquittal-Manslaughter.Where defendant was acquitted of murder, and con victed of manslaughter, and on appeal the judgment was reversed, he was not entitled in the gucceedins
Where the evidence shows that it may bave appeared to defendant that he was in danger of his life or of serious bodily harm from more assallants than one, acting together, an instruction on sell-defense, falling to charge that defendant had a right to defend against and to kill either assallant, is erroneous.-SEELEY V. STATE, Tex., 63 8. W. Rep. 309.
30. INDICTMENT-Conspiracy to Defraud the United States-Description of Offense.--An indictment under Rev. St. § 5440, charging a conspiracy to defraud the United States by depriving it of the title to certain lands by means of a fraudulent entry under the bome. stead laws, which avers tbat the entry was made, and that by means of it the accused obtained possession of the land, and cut the timber thereon, is suficient, and need not allege that the land was subject to homestead entry. The conspiracy constitutes the offense, and it need not be shown how the overt act tended to effect its purpose, or that it was successful.-GANTT v. UNITED STATES, U.S.C. C. of App., Fifth Oircuit, 108 Fed. Rep. 61.
31. INSURANCE-Premiums – Non. ayment-Forleit. ure.- Where a life insurance policy called for an annual premium, non-payment of which forfeited the policy, but provided that the assured might, with the consent of tbe company, pay the premium in quar. terly installments, the assured, having chosen the lat. ter method, was bound thereby, and the policy was forfeited by his failure to pay the installments, though there was no provision in the policy regarding forleiture for non-payment of installments.-NIXON v. TRAVELERS' IN8. Co. OF HARTFORD, CONN., Wash., 65 Pac. Rep. 195.
32. JODGMENT Amount Remittitur.-Where the judgment 18 in excess of plaintiff's demand as shown by his pleadings, it will be reversed, unless remitted to the amount claimed.-TEXAS & P. Ry. Co. y. MITCHELL, Tex., 68 8. W. Rep. 336.
33. JURY-Discussion-Defendant's Failure to Teg. tify.- Where jurors discussed the failure of defend. ant, charged with arson, to testify, and some of the jurors attempted to explain such failure, there was reversible error.-BUESSING V, STATE, Tex., 63 S. W. Rep. 318.
34. LANDLORD AND TENANT-Lien for Rent-Tenant's Goods Retained.- Where plaintiff claimed a landlord's lion on a safe left on his premises as against purchasers thereot from the tenant, the issue as to whether or not there was any rent due to plaintiff should have been submitted to the jury.-MYAR V. EL PASO GROCERY CO., Tex., 63 8. W. Rep. 337.
35. LANDLORD AND TENANT Rent Action-Judg. ment.-Where defendant leased plaintiff's premises for one year, paying one month's rent in advance, and at the expiration of the month offered to gur. render the premises, which plaintiff refused, an action to recover the second month's rent in advance, de. cided against plaintiff, and Ip which the only material issue was the validity of the lease, was a bar to an ac. tion after the expiration of the year to recover rent, since, the defendant pot having been in use and oc cupation, recovery would necessarily depend on the lease.-DOLAN V. SCOTT, Wash., 65 Pac. Rep. 190.
36. LIFE INSURANCE -Failure to Pay Premium Note at Maturity-Waiver of Forfeiture.-Neither the fact that the company retained the notes nor the fact that
ment from being binding on him.-SOUTHERN ROCK ISLAND PLOW 00. V. PITLUK, Tex., 63 8. W. Rep. 854.
88. LOAN TO PAY INTEREST ON MORTGAGE COUPONS Lender's Right to Preference over Mortgage.-Tbat money was borrowed to pay interest on matured rail. road mortgage coupons is no ground for giving the lender a preference over the mortgage; and this, though the loan was necessitated in part by the ap. plication of current income to the payment of the por: chase money for locomotives which become subject to the mortgage under an after-acquired property clause. -CONTRACTING & BOILDING CO. OF KENTUCKX Y. CONTINENTAL TRUST Co. OF NEW YORK, U. S. C. C. of App., Sixth Circuit, 108 Fed. Rep. 1.
39. MASTER AND SERVANT.Where laborers were fur. nisbed by an employment agency to a railroad promoter, and such laborers committed & tres pas8 OD plaintiff's land, and cut timber thereon without right, under the impression that the land was a part of the right of way, the employment agency could not be rendered liable for the trespass under the doctrine that a master who hired bis servants to another is nevertheless liable for their negligence, be being re. sponsible for employing unqualified and careless persons, since the injury did not result from any Degli gence in the selection of the laborers pired to the promoter.-SWACKHAMER V. JOHNSON, Oreg., 65 Pac. Rep. 91.
40. MASTER AND SERVANT-Injury to Employee-Neg. ligence of Fellow.servant.-Where a servant was not negligent, the master was liable il regligent, it such pegligence was the cause of the injury to the servant, though the negligence of plaintiff's follow-cervant may have contributed to the injury.-TEXAS & P. RI. CO. V. MAUPIN, Ttx., 63 8. W. Rep. 346.
41. MECHANICS' LIENS-Fees of Master-Sale under Decree.-A master who incurs expenses by having drawn up a notice of sale, etc., before the time limited for the redemption of property has expired, does so at his own risk, and cannot recover back such expenses, if the mechanics' liens for which the sale was to be made are paid before the expiration of the tipe lim. Ited for redemption.-NEHER V. CRAWYORD, N. Mes, 66 Pac. Rep. 166.
42. MECHANICS' LIENS-Foreclosure.-Wbere miners perform labor for the lessee of a mine under & con. tract with him alone, they are not entitled, under Rev. St. par. 2276, to a judgment against the owner of the fee, foreclosing mecbanics' liens on the freebold.GRIFFIN V. HURLEY, Ariz., 65 Pac. Rep 147,
43. MORTGAGES-Deficiency-Judgment- Transfer of Mortgage-Porsonal Liability.-Where the mortgagor conveyed the premises to one who assumed the mort. gage, which fact was known to the mortgagee, who agreed in writing with such grantee that the time for payment should be extended, it was error to enter de. ficiency judgment against the mortgagor, since the mortgagor stood in the relation of surety, and was therefore discharged from personal liability.-HERD v. Toouy, Cal., 65 Pac. Rop. 139.
44. MORTGAGE-Undertaking to Pay Mortgage.-A deed conveying about 100 acres of land, wbicb recitea that the grantees undertake to support the grantors for life, and that it is understood that the grantees are to pay off a certain mortgage “on 25 acres of land berebr ann.