The Central Law Journal

such attorney to vote in behalf of his clients at the election of trustee.-IN RE SCULLY, U. S. D. C., E. D. (Pa.), 108 Fed. Rep. 372.

6. BANKRUPTCY Secret Partner in Bankrupt.Where a person was adjudged a bankrupt, as sole owner of a business conducted in the name of a company, and has been treated as such sole owner throughout the proceedings,-the only assets received by the trustee being the property of such business, and the only creditors those of the concern,-distribution of the estate will be made on that basis, notwithstanding evidence showing that another person was a secret partner in the business, which interest he denies.-IN RE HARRIS, U. S. D. C., N. D. (Ohio), 108 Fed. Rep. 517.

7. BANKRUPTCY-Stay of Attachment Suit-Vacation after Bankrupt's Discharge.-A stay order restraining the prosecution of an action against a bankrupt, entered under Bankr. Act 1898, § 11a, is in its nature temporary only, and should ordinarily be vacated as a matter of course, on application of the creditor, after the bankrupt has been discharged. The fact that the bankrupt had given a bond in the action to release an attachment prior to his bankruptcy, and the effect of the discharge on the liability of the sureties under the state statute, are matters which cannot be taken into consideration by the court on a motion to vacate such stay; but both parties alike should be remitted to their rights,remedies, and defenses under the law in the court in which the action is pending.IN RE ROSENTHAL, U. S. D. C., S. D. (N. Y.), 108 Fed. Rep. 368.

8. BANKRUPTCY-Stay of Execution against Trustee. -The assets of a bankrupt in the custody of a court of bankruptcy are distributable under its order alone, and are not subject to levy by a sheriff to satisfy a judgment against the trustee, who is entitled to an order restraining such a threatened levy.-IN RE NEELY, U. S. D. C., S. D. (N. Y.,, 108 Fed. Rep. 371.

9. BENEFICIAL ASSOCIATIONS-Assessments-Records -Evidence.-Where, in an action on a benefit certifi cate, defendant introduced parol evidence to show that at a certain meeting deceased was reported for non-payment of dues, and at a subsequent meeting suspended, defendant could not be heard to complain of a charge requiring defendant to establish such facts by more than a preponderance of the evidence; it appearing that a record of such actions should have been kept, the notice which would come to deceased from the records being essential.-WALLACE V. FRATERNAL MYSTIC CIRCLE, Mich., 86 N. W. Rep. 853.

10. BENEFIT INSURANCE - Agents Scope of Authority. Where a representative of a mutual benefit insurance company, within the scope of his authority, accepts a surrender of a benefit certificate, and a fee for the issuance of a new one, with knowledge that the holder of the certificate is in arrears for dues or assessments, the effect of his so doing is not avoided by evidence that he acted in ignorance of the legal consequences.-MODERN WOODMEN OF AMERICA V. LANE, Neb., 86 N. W. Rep. 943.

11. BONDS - - Bona Fide Purchaser - Railroads-Lien of Laborers.-Where a purchaser gave a note to his vendor for the purchase price of railroad mortgage bonds, held that such note cannot be impounded to pay the debts of the vendor, though due to laborers for the construction of the roadbed.-UNION TRUST Co. v. DETROIT & R. ST. C. RY., Mich., 86 N. W. Rep. 788.

12. BONDS-Funding Excessive Debt Presumptively Valid if Any Part of the Debt Funded Might Have Been So. Each county bond is a separate promise, and the basis of a separate cause of action against a county. Where the facts and conditions might have been such under the law that any part of the excessive debt funded might have been valid, the legal presumption is, in an action on the bond, that these facts and con. ditions existed, and that the bond in action was issued o fund a valid portion of the debt, because the pre

sumption is that the county officers faithfully discharged their duties, and Issued the bond only after ascertaining the validity of the debt for which it was exchanged.-Board of COMRS. OF LAKE Co. V. KEENE FIVE CENTS SAV. BANK, U. S. C. C. of App., Eighth Circuit, 108 Fed. Rep. 505.

13. BOUNDARIES-Evidence-Declaration of Deceased Surveyor.-Under the rule established by decision in Texas, which, as a rule of property, is binding upon the federal courts sitting in that state, declarations of a deceased surveyor in regard to the lines and corners of a survey which was originally made by him, made on the ground while pointing out a monument placed there by him in making the survey, are admissible in evidence in an action involving the location of the survey, although at the time the declarations were made he was part owner of the land embraced in such survey, and interested in a controversy then pending as to its boundaries. The objection that such declarations were self-serving is not fatal, since they could not be used as evidence during his lifetime, or while his testimony was obtainable.-TRACY V. EGGLESTON, U. S. C. C. of App., Fifth Circuit, 108 Fed. Rep. 323.

14. BROKERS - Commissions.-Evidence is admissible, in an action for commission for effecting the exchange of real estate, of conversations between plaintiff and the person with whom defendant afterwards exchanged lands, in reference to such exchange, where the statements therein were thereafter communicated to defendant.-HUFF v. COLE'S ESTATE, Mich., 86 N. W. Rep. 835.

15. BUILDING AND LOAN ASSOCIATIONS-Trust DeedExtortionate Contract.—A building and loan trust deed securing $2,000, which is procured by fraudulent representations that it is given only to secure the principal and 6 per cent. interest, when the deed requires the mortgagor to pay $24 per month on 40 shares of stock, 20 of which are for the sole benefit of the company, and $10 per month interest until the shares of a par value of $100 per share are paid for, will be canceled for fraud on the suit of the mortgagor coupled with an offer to do equity by paying the principal with 6 per cent. interest.-INGE V. INTERSTATE BLDG. & LOAN ASSN., Miss., 29 South. Rep. 998.

16. CARRIERS OF PASSENGERS - Breach of ContractAssumption of Risk by Passenger.-Plaintiff secured a ticket from the defendant company for transportation from Detroit to Chicago and return over connecting roads. It was represented that the ticket included a berth on a connecting boat, but the purser on the boat refused to honor the same, and plaintiff, refusing to pay the price demanded, slept on a couch in the cabin, and sues for physical pain suffered from a cold contracted from the fact that the cabin door was open all night. Held, that plaintiff assumed the risk of sleeping on she couch in the cabin, and could not recover.-MEWETHY V. DETROIT, ETC. R. Co., Mich., $6 N. W. Rep. 827.

17. CHATTEL MORTGAGE-Bill of Sale.-An assignment of error upon the refusal of the court to give a request will not be considered, when no exception is taken.-WETMORE V. MOLONEY, Mich., 86 N. W. Rep.

808.

18. COMMON LAW-Adoption-Effect on Prior Law as to Married Women-Lien of Judgment on Land Fraudulently Conveyed.-The adoption of the com. mon law of England by Ariz. Laws 1885, No. 68, so far as that law is not repugnant to or inconsistent with the constitution of the United States, Bill of Rights, or laws and customs of the territory, does not include an adoption of the common-law rule which precludes a husband from making a conveyance directly to his wife without the intervention of a trustee, since the pre-existing laws of the territory provide for community property of husband and wife, allowing the wife to have separate property and the absolute disposition thereof.-LUHRS V HANCOCK, U. S. S. C., 21 Sup. Ct. Rep. 726.

19. CONSTITUTIONAL LAW - Appeal by State - Equal Protection of the Laws.-The allowance of an appeal to the state from the court of one district, but not from another district, of the state in case of the grant of a new trial to an accused person, is not a denial of the equal protection of the laws guaranteed by U. S. Const. 14th Amend.-MALLETT V. NORTH CAROLINA, U. S. S. C., 21 Sup. Ct. Rep. 730.

20. CONTRACT-Construction of Government WorkAction by Breach.-Where a contract for the construction of a dry dock for the United States provided for constant inspection of the work by the government as it progressed, and such inspections were made, and on its completion the dock was examined by the board having the matter in charge, and accepted and paid for, the government is bound by such acceptance, and, in the absence of fraud, is estopped to thereafter claim that the work was not done in accordance with the contract.-UNITED STATES V. WALSH, U. S. C. C., S. D. (N. Y.), 108 Fed. Rep. 502.

21. CONTRACT-Guaranty-Varying Written Contract. -Where a written guaranty was conditioned to collect certain claims, and to pay the full amount due on a note attached, an affidavit of defense averring that the obligors were not able to collect, and substituting for an absolute agreement to pay on a day certain one to pay only in case they collected, was insufficient, as varying the terms of the written instrument.-KENT V. SILVER, U. S. C. C. of App., Third Circuit, 108 Fed. Rep. 365.

22. CONTRACT - Performance Sunday Contract.Where one party to a Sunday contract performs his part of it on week days, and the other accepts what is done, he must pay for what he receives.-BOLLIN V. HOOPER, Mich., 86 N. W. Rep. 795.

23. CONTRACT-Void Contract-Ratification.-A contract void because executed on Sunday cannot be made valid by ratifications.-ACME ELECTRICAL, ILLUSTRATING & ADVERTISING CO. v. VAN DERBECK, Mich., 86 E. W. Rep. 786.

24. CONVERSION-Evidence.-In an action for conversion of logs upon which the plaintiff had a lien, held, the evidence sustains the verdict, and the trial court committed no reversible errors in its rulings as to the admission of evidence, nor as to its instructions to the jury.-CARVER V. CROOKSTON LUMBER Co., Minn., 86 N. W. Rep. 871.

25. CREDITORS' BILL-Decree-Interest.-Where the decree in a suit in the nature of a creditors' bill orders a defendant to pay a fund in his hands into court forthwith, interest is chargeable thereon as upon any other judgment, without an express direction to that effect in the decree.-STUART V. BURCHAM, Neb., 86 N. W. Rep. 898.

26. CRIMINAL EVIDENCE-Bad Character of Accused. -It may be shown on cross-examination of defendant in a murder case, as going to his credibility, that he had been convicted of many atrocious crimes, and on his trials therefor he had denied his guilt.- PEOPLE V. HIGGINS, Mich., 86 N. W. Rep. 812.

27. DEEDS Description - Indefiniteness.-Where a deed purports to convey "all our right, title, claim, and interest in tract of land belonging to B, deceased, situated in" a certain county and state, the deed conveys nothing, since the description is destitute of data sufficient to identify any tract, and points to nothing that would authorize extrinsic evidence to make it more definite.-BUNCKLEY V. JONES, Miss., 29 South. Rep. 1000.

28. EJECTMENT-Receiver. In an action of ejectment a receiver will not be appointed to take charge of the property, and to collect rents and profits, before judgment entered.-SMITH V. WHITE, Neb., 86 N. W. Rep. 930.

29. EJECTMENT-Writ of Possession-New Trial.-The fact that in ejectment the defendant has a statutory right to a new trial does not militate against plaint iff's right to a writ of possession, since Comp. Laws §

10,986, recognizes the fact that plaintiff may lawfully have obtained possession before a motion for a new trial, and provides that he may maintain possession pending a new trial.-DAWSON V. CHIPPEWA CIRCUIT JUDGE, Mich., 86 N. W. Rep. 801.

30. EQUITY-Liability of Trustee for Default of CoTrustee-Laches.-The fact that no intention to hold a trustee for the defalcation of a co-trustee was ever disclosed until more than two years after the former's death and nearly six years after the latter's death tends to show that the effort to so hold him was an afterthought, not entitled to the approval of a court of equity.-COLBURN V. GRANT, U. S. S. C., 21 Sup. Ct. Rep. 737.

31. EQUITY-Second Mortgages.-One who, after the mortgaging of land, takes a deed from the mortgagor as security, and by arrangement with the mortgagor takes a tax deed for the benefit of the latter, and as security, is a second mortgagee, so that his interest is cut off by foreclosure of the first mortgage, and he has no standing to maintain suit to quiet title against the purchaser at such foreclosure.-VREELAND V. MONNIER, Mich., 86 N. W. Rep. 819.

32. EVIDENCE-Self-Serving Statements and Hearsay Deposited in a Public Office Incompetent Evidence.The self-serving statements of a county or municipality, made by its officers or agents, and written statements of third parties deposited or filed in its offices, are incompetent evidence to prove the facts they relate, in an issue between it and a private party, in the absence of statutory provisions which qualify them. The same rules of evidence govern the trial of an issue between a private party and a municipal corporation which control the trial of a like issue between individuals.-BOARD OF COMRS. OF LAKE CO. V. KEENE FIVE-CENTS SAV. BANK, U. S. C. C. of App., Eighth Circuit, 108 Fed. Rep. 505.

33. FEDERAL JURISDICTION-Sufficiency of Amount in Controversy.-The jurisdiction of a federal court in a controversy between citizens of different states, in which the matter in dispute is alleged to be over the sum or value of $2,000, is not terminated by ex parte affidavits denying that the property is of the value alleged, unless this fact is made to appear to the satisfaction of the court.-PUT-IN-BAY WATERWORKS, LIGHT, & RY. Co. v. RYAN, U. S. S. C., 21 Sup. Ct. Rep. 709.

34. FEES Enlargement by Government - Commis. sioners. The government has no authority to enlarge the fees above provided for (except from his contingent funds), or to impose an additional obligation upon the county for necessary stenographic services in making a transcript of the evidence received on the hearing and reported to the executive.-HILLMAN V. BOARD OF COMRS., HENNEPIN CO., Minn., 86 N. W. Rep. 890.

35. FRAUD-Representations - Annual Statement of Assets and Liabilities.-In an action to rescind a sale on the ground of false and fraudulent representations as to the financial condition of the vendee, corpora. tion, held, (1) that the annual statement, published by authority of the vendee, showing its debts and assets, is addressed to the world; (2) that a party dealing with the vendee has a right to rely on such statement; (3) that the source from which such person receives such statement is immaterial.-HAMILTON BROWN SHOE CO. V. MILLIKEN, Neb., 86 N. W. Rep. 913.

36. FRAUD-Representations to Mercantile Agency.Where it is sought to establish fraud in representa. tions made to a mercantile agency upon whose report credit was extended to a merchant, the evidence must connect the merchant with making the report upon which credit was given.-CREAM CITY HAT Co. v. TOLINGER, Neb., 86 N. W. Rep. 921.

37. FRAUDS, STATUTE OF - Part Performance.-One who has agreed to furnish a right of drainage through lands for certain money cannot, in action for the

such attorney to vote in behalf of his clients at the election of trustee.-IN RE SCULLY, U. S. D. C., E. D. (Pa.), 108 Fed. Rep. 372.

6. BANKRUPTCY Secret Partner in Bankrupt.Where a person was adjudged a bankrupt, as sole owner of a business conducted in the name of a com. pany, and has been treated as such sole owner throughout the proceedings,-the only assets received by the trustee being the property of such business, and the only creditors those of the concern,-distribution of the estate will be made on that basis, notwithstanding evidence showing that another person was a secret partner in the business, which interest he denies.-IN RE HARRIS, U. S. D. C., N. D. (Ohio), 108 Fed. Rep. 517.

7. BANKRUPTCY-Stay of Attachment Suit-Vacation after Bankrupt's Discharge.-A stay order restraining the prosecution of an action against a bankrupt, entered under Bankr. Act 1898, § 11a, is in its nature temporary only, and should ordinarily be vacated as a matter of course, on application of the creditor, after the bankrupt has been discharged. The fact that the bankrupt had given a bond in the action to release an attachment prior to his bankruptcy, and the effect of the discharge on the liability of the sureties under the state statute, are matters which cannot be taken into consideration by the court on a motion to vacate such stay; but both parties alike should be remitted to their rights, remedies, and defenses under the law in the court in which the action is pending.— IN RE ROSENTHAL, U. S. D. C., S. D. (N. Y.), 108 Fed. Rep. 368.

9. BENEFICIAL. ASSOCIATIONS-Assessments-Records -Evidence.-Where, in an action on a benefit certifi cate, defendant introduced parol evidence to show that at a certain meeting deceased was reported for non-payment of dues, and at a subsequent meeting suspended, defendant could not be heard to complain of a charge requiring defendant to establish such facts by more than a preponderance of the evidence; it ap. pearing that a record of such actions should have been kept, the notice which would come to deceased from the records being essential.-WALLACE V. FRATERNAL MYSTIC CIRCLE, Mich., 86 N. W. Rep. 853.

10. BENEFIT INSURANCE- Agents Scope of Authority. Where a representative of a mutual benefit insurance company, within the scope of his authority, accepts a surrender of a benefit certificate, and a fee for the issuance of a new one, with knowledge that the holder of the certificate is in arrears for dues or assessments, the effect of his so doing is not avoided by evidence that he acted in ignorance of the legal consequences.-MODERN WOODMEN OF AMERICA V. LANE, Neb., 86 N. W. Rep. 943.

- Railroads-Lien

11. BONDS - - Bona Fide Purchaser of Laborers.-Where a purchaser gave a note to his vendor for the purchase price of railroad mortgage bonds, held that such note cannot be impounded to pay the debts of the vendor, though due to laborers for the construction of the roadbed.-UNION TRUST Co. v. DETROIT & R. ST. C. RY., Mich., 86 N. W. Rep. 788.

12. BONDS-Funding Excessive Debt Presumptively Valid if Any Part of the Debt Funded Might Have Been So — Fach countv hond is a canarate promise, and the

sumption is that the county officers faithfully dis charged their duties, and issued the bond only after ascertaining the validity of the debt for which it was exchanged.-BOARD OF COMRS. OF LAKE CO. V. KEENE FIVE CENTS SAV. BANK, U. 8. C. C. of App., Eighth Cir. cuit, 108 Fed. Rep. 505.

13. BOUNDARIES-Evidence-Declaration of Deceased Surveyor.-Under the rule established by decision in Texas, which, as a rule of property, is binding upon the federal courts sitting in that state, declarations of a deceased surveyor in regard to the lines and corners of a survey which was originally made by him, made on the ground while pointing out a monument placed there by him in making the survey, are admissible in evidence in an action involving the location of the survey, although at the time the declarations were made he was part owner of the land embraced in such survey, and interested in a controversy then pending as to its boundaries. The objection that such declarations were self-serving is not fatal, since they could not be used as evidence during his lifetime, or while his testimony was obtainable.-TRACY V. EGGLESTON, U.S. C. C. of App., Fifth Circuit, 108 Fed. Rep. 323. 14. BROKERS Commissions.-Evidence is admissible, in an action for commission for effecting the exchange of real estate, of conversations between plaintiff and the person with whom defendant afterwards exchanged lands, in reference to such exchange, where the statements therein were thereafter communicated to defendant.-HUFF V. COLE'S ESTATE, Mich., 86 N. W. Rep. 835.

15. BUILDING AND LOAN ASSOCIATIONS-Trust DeedExtortionate Contract.-A building and loan trust deed securing $2,000, which is procured by fraudulent representations that it is given only to secure the principal and 6 per cent. interest, when the deed requires the mortgagor to pay $24 per month on 40 shares of stock, 20 of which are for the sole benefit of the company, and $10 per month interest until the shares of a par value of $100 per share are paid for, will be canceled for fraud on the suit of the mortgagor coupled with an offer to do equity by paying the principal with 6 per cent. interest.-INGE v. INTERSTATE BLDG. & LOAN ASSN., Miss., 29 South. Rep. 998.

17. CHATTEL MORTGAGE-Bill of Sale.-An assignment of error upon the refusal of the court to give a request will not be considered, when no exception is taken.-WETMORE V. MOLONEY, Mich., 86 N. W. Rep.

808.

18. COMMON LAW-Adoption-Effect on Prior Law as to Married Women-Lien of Judgment on Land Fraudulently Conveyed.-The adoption of the common law of England by Ariz. Laws 1885, No. 68, so far as that law is not repugnant to or inconsistent with the constitution of the United States, Bill of Rights, or laws and customs of the territory, does not include an adoption of the common-law rule which precludes a

19. CONSTITUTIONAL LAW — Appeal by State - Equal Protection of the Laws.-The allowance of an appeal to the state from the court of one district, but not from another district, of the state in case of the grant of a new trial to an accused person, is not a denial of the equal protection of the laws guaranteed by U. S. Const. 14th Amend.-MALLETT V. NORTH CAROLINA, U. S. S. C., 21 Sup. Ct. Rep. 730.

22. CONTRACT- Performance Sunday Contract.Where one party to a Sunday contract performs his part of it on week days, and the other accepts what is done, he must pay for what he receives.-BOLLIN V. HOOPER, Mich., 86 N. W. Rep. 795.

24. CONVERSION-Evidence.-In an action for conVersion of logs upon which the plaintiff had a lien, held, the evidence sustains the verdict, and the trial court committed no reversible errors in its rulings as to the admission of evidence, nor as to its instructions to the jury.-CARVER V. CROOKSTON LUMBER Co., Minn., 86 N. W. Rep. 871.

27. DEEDS - Description - Indefiniteness.- Where a deed purports to convey "all our right, title, claim, and interest in tract of land belonging to B, deceased, situated in" a certain county and state, the deed conveys nothing, since the description is destitute of data sufficient to identify any tract, and points to nothing that would authorize extrinsic evidence to make it

32. EVIDENCE-Self-Serving Statements and Hearsay Deposited in a Public Office Incompetent Evidence.— The self-serving statements of a county or municipality, made by its officers or agents, and written statements of third parties deposited or filed in its offices, are incompetent evidence to prove the facts they relate, in an issue between it and a private party, in the absence of statutory provisions which qualify them. The same rules of evidence govern the trial of an issue between a private party and a municipal corporation which control the trial of a like issue between individuals.-Board of COMRS. OF LAKE CO. V. KEENE FIVE-CENTS SAV. BANK, U. S. C. C. of App., Eighth Circuit, 108 Fed. Rep. 505.

34. FEES Enlargement by Government - Commis. sioners.-The government has no authority to enlarge the fees above provided for (except from his contingent funds), or to impose an additional obligation upon the county for necessary stenographic services in making a transcript of the evidence received on the hearing and reported to the executive.-HILLMAN V. BOARD OF COMRS., HENNEPIN CO., Minn., 86 N. W. Rep. 890.

35. FRAUD-Representations - Annual Statement of Assets and Liabilities.-In an action to rescind a sale on the ground of false and fraudulent representations as to the financial condition of the vendee, a corporation, held, (1) that the annual statement, published by authority of the vendee, showing its debts and assets, is addressed to the world; (2) that a party dealing with the vendee has a right to rely on such statement; (3) that the source from which such person re. ceives such statement is immaterial.-HAMILTON BROWN SHOE CO. V. MILLIKEN, Neb., 86 N. W. Rep.

money, avail himself of the benefit of the rule of part performance to take the agreement out of the statute of frauds, the only way in which legal right can be conferred on defendant being by reduction of the agreement to writing.-SCHULTZ V. HUFFMAN, Mich., 86 N. W. Rep. 823.

38. GUARDIAN AND WARD-Funds-Taxation to Guardan. The loaning of a ward's money by a guardian, at his own discretion, after permission has been granted him by the court to take and use such funds at a certain rate of interest, is an appropriation of the funds to his use, and renders him liable to taxation thereon.-CLAYTON V. TOWN OF TUPELO, Miss., 29 South. Rep. 994.

39. HIGHWAYS - - Grading Roads - Damages.-Nominal damages are not recoverable in an action against a county for damages alleged to have been sustained by reason of the grading of a street adjacent to the property of the owner, on the theory that the board of county commissioners were guilty of a breach of official duty to the plaintiff in not serving notice and having an assessment of damages sustained and special benefits received in the manner provided by stat ute.-OMAHA LOAN & TRUST Co. v. DOUGLAS CO., Neb. 86 N. W. Rep. 936.

40. HOMICIDE-Evidence.-On a trial under an indictment for murder, where circumstances are proven tending to show defendant's guilt, and there is evidence of defendant's flight after the killing, it is competent for the sheriff, who arrested the defendant next day after the homicide, to testify that, upon making the arrest, he found a pistol in the possession of the defendant, in his coat pocket; such pistol being fully identified as the one with which the defendant shot the deceased.-MAXWELL V. STATE, Ala., 29 South. Rep. 981.

41. HOMICIDE Excusable - - Dangerous Weapon.Under Rev. St. 1898, § 4367, providing that homicide is excusable when committed by accident or misfortune, in the heat of passion, on any sudden and sufficient provocation, or in sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner, the jury might find the killing accidental, and on sudden and sufficient provocation, or that the chair was not a dangerous weapon.-CAMPBELL V. STATE, Wis., 86 N. W. Rep. 855.

man

42. HOMICIDE- Manslaughter-Flight-Unavoidable Killing. Where defendant was on trial for slaughter, it was error to charge that unless, at the time of the killing, defendant was in real or apparent danger at the hands of the deceased, and the killing was unavoidable, the jury must convict him, since flight, which is one of the means of avoiding danger which was necessary to be made at common law, is not required in Mississippi.-MCCALL V. STATE, Miss., 29 South. Rep. 1003.

43. HOMICIDE-Self-Defense.-One who is the ag. gressor or who is at fault in bringing on the difficulty with another in his own house cannot, after slaying his adversary, claim in self-defense that he was under no duty to retreat from his castle.-MAXWELL V. STATE, Ala., 29 South. Rep. 981.

45. INSURANCE-Action on Policy Premature Suits. -Under Comp. Laws, § 7326, providing that suits at law may be maintained against an insurance company for claims which may have accrued, if payments are withheld more than 60 days after such claims become due, where by a policy the sum for which the company may be liable is payable 60 days after due notice an action commenced on November 24th for a loss by fire, proofs of which were furnished on September 9th, was premature, as the action did not lie until the ex

piration of 120 days from the time proofs of loss were filed.-PUTZE V. SAGINAW VAL. MUT. FIRE INS. Co. oF SAGINAW, Mich., 86 N. W. Rep. 814.

46. INSURANCE-Avoidance of Policy for Breach of Conditions-Ownership of Property.-It is the settled law of Alabama that a vendee of land in actual possession, exercising acts of ownership under a valid executory contract of purchase, and holding the bond of the vendor to make title upon full payment of the purchase money, a portion of which remains unpaid, is the unconditional and sole owner in fee-simple of said land, within the meaning of a policy of insurance which is conditioned that "the entire policy shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple." Held, that the same rule as to title applies with equal or greater reason to personal property which passes by delivery, unless the parties have expressly stipulated otherwise.- PENNSYLVANIA FIRE INS. Co. v. HUGHES, U. S. C. C. of App., Fifth Circuit, 108 Fed. Rep. 497.

47. JUDGMENT-Collateral Attack.-The title of a purchaser on a sale under a judgment of foreclosure cannot be attacked collaterally on the ground of the insanity of a mortgagor.-LUHRS V. HANCOCK, U. s. S. C., 21 Sup. Ct. Rep. 726.

Federal

49. JURISDICTION OF FEDERAL COURTS — Question. Where the declaration in an action for illegally denying to plaintiff the right to vote at a na tional election shows that the sole ground of defendants' action was the refusal of plaintiff to comply with a state law, which is admittedly valid, and applies alike to all voters within the districts where it is in force, but which was extended to the district in which plaintiff resided by an act which he claims is in conflict with the state constitution and void, it affirmatively appears from such declaration that the case involves no federal question which can give a court of the United States jurisdiction.-SWAFFORD V. TEMPLETON, U. S. C. C., E. D. (Tenn.), 108 Fed. Rep. 309.

50. JUSTICES OF THE PEACE - Jurisdiction - Service of Summons.-Service of a summons by the justice of the peace issuing the same is a nullity, and hence confers no jurisdiction of the defendant's person.-MCDUGLE V. FILMER, Miss., 29 South. Rep. 996.

51. LIFE INSURANCE

Avoidance of Policy-Breach of Warranty.-A negative answer by an applicant for life insurance to the question in the application whether he ever had any serious illness, constitutional disease, or surgical operation," is not a false representation which will avoid the policy as a breach of warranty because he has had a slight illness, or because he once broke his leg, which was set and attended to by a physician.-CARUTHERS V. KANSAS MUT. LIFE INS. CO., U. S. C. C., E. D. (Ark.), 108 Fed. Rep. 487.

52. LIMITATIONS-Insurance-Recovery of Premiums Paid.-An action against an insurance company to recover back premiums paid upon a policy of insurance which was, subsequent to its issuance, canceled and rendered inoperative by the act of the company, is not an action upon the policy, and need not be brought within the one-year limit fixed thereby.-MCCALLUM V. NATIONAL CREDIT INS. Co., Minn., 86 N. W. Rep. 892. 53. MASTER AND SERVANT - Defective AppliancesDangerous Premises.-Judgment for an employee will not be reversed, at suit of employer, for the giving of an instruction that the burden or preof is on em

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The Central Law Journal, Том 53