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at work in a mine with mine owner's consent, but not as employee, having knowledge of the dangerous condition of the mine, held to have assumed the risk. -Sloss Iron & Steel Co. v. Knowles, 30 South. Rep. 584.
148. MASTER AND SERVANT – Puty to Provide Sale Place.-Duty of manufacturer to provide safe place for employee to work in held to extend to passageway in mill used by other employees with employer's consent.--Edwards v. Tilton Mills, N. H., 50 Atl. Rep. 102.
149. MASTER AND SERVANT-Evidence as to Efficacy of Tools.-Opinion of witness in action for death of railroad employee, assisting to restore derailed car, as to efficacy of jackscrews for such purpose, held admissible.-Louisville & N. R. Co. v. Jones, Ala., 30 South. Rep. 586.
150. MASTER AND SERVANT-Knowledge of Servants.A railroad is.chargeable with the knowledge of its servante in charge of a passenger train as to injuries bappening to a passenger during the operation of the train.- Wheeler v. Grand Trunk Ry. Co., N. H., 50 Atl. Rep. 103.
151. MECHANICS' LIENS-Action on Bond.-Under · Hill's Apn. Laws, $$ 27, 29, plaintiff held entitled to bring in bis own name action on a bond to recover pay for materials furnished to party with whom he had contracted for certain work.-United States v. McCann, Oreg., 66 Pac. Rep. 274.
152. MECHANICS' LIENS-Indian Territory Law.-A material-man has a lien on the building and interest of its owner in the land in the Choctaw Nation on which the building is situated.-Arnold v. Campbell, Ind. T., 64 S. W. Rep. 532.
153, MECHANICS' LIENS-Personal Judgment Against Grantee of Owner.-In 'an action to foreclose a me. chanic's lien, a personal judgment may be rendered against the grantee of the owner of the property, who assumed the debt.-San Francisco Pav. Co. v. Fairfield, Cal., 66 Pac. Rep. 255.
154. MECHANICS' LIENS-Priority of Mortgage for Precedent Debt.-Mortgage given for a precedent debt held entitled to a priority over a subsequent mechan. ic's llen for alterations, within Mechanic's Lien Act 1898, p. 538.-Reed v. Rochford, N. J., 50 Atl. Rep. 70.
155. MECHANICS' LIENS-Work Performed for Ex. ecutor of Estate.-An agreement of the purchaser of the estate property to pay for work done thereon under a contract with the executor held not to give contractor an equitable mechanic's llen on the prop erty.-San Francisco Pav. Co. v. Fairfield, Cal., 66 Pac. Rep. 255.
156. MORTGAGES-Agreement to Accept a Surrender. -An agreement of a mortgagee to accept a surrender of the mortgaged premises and to deliver up the note secured by the mortgage held unenforceable, it made without a new consideration.-Borcherdt v. Favor, Colo., 66 Pac. Rep. 251.
167. MORTGAGES-Deed and Title Bond.-A deed and title bond held to constitute a mortgage, and not a conditional sale.--Borcherdt v. Favor, Colo., 66 Pac. Rep. 251.
158. MORTGAGES-For Loan Subsequently Delivered. -A mortgage to seoure a sum, a part of which is to be delivered after the mortgage's execution and delivery, held to be a potential lien for the full sum.-Reed y. Rochford, N. J.,50 Atl. Rep. 70.
159. MORTGAGES - Renewal Note Continues Mort. gagee's Priority.--The renewal of a noin mortgage anno
Residents.- Where a larmer removed his family to a neighboriog town to have his children educated, he did not abandon his domicile, and his personal prop. erty was not subject to municipal taxation.-Mont. gomery v. City of Lebanon, Ky., 64 8. W. Rep. 509.
102. MUNICIPAL CORPORATIONS-Taxation of Farm Lands. The fact that land embraced within the boundary of a city is used for farming purposes does
t exempt it from taxation by the city.-Bell County Coke & Improvement Co. v. City of Pineville, Ky., 64 8. W. Rep. 525.
163. NAVIGABLE WATERS-Legislative Grant to Erect Dam.-Legislative grant of authority to erect dam at outlet of lake held a complete defense to a suit for injunction to restrain a corporation from changing tbe water level of a lake.-State v. Sunapee Dam Co., N. H., 50 Atl. Rep. 108.
164. NEGLIGENCE- Child Incapable of Contributory Negligence.-Child between 7 and 14 years old beld prima facie incapable of contributory negligence.Tatwiler Coal, Coke & Iron Co. V. Enslen, Ala., 30 South. Rep. 600.
165. NEGLIGENCE-Light on Breakwater.-A contract between the United States and contractors for erec. tion of a breakwater, providing for erection of a light on the work by the contractors, held not to relieve the latter from liability to third persons whose property is damaged by extinguishment of light during storm.-Harrison v. Hughes, U. 8. D. C., D. (Del.) 110 Fed. Rep. 545.
166. NEGLIGENCE-Rule of Contributory Negligence. -Ooe may recover for injuries, though his own negli gence exposed bim to the danger, if the injuries were caused by the other's lack of care after becoming aware of the danger.-Tully v. Philadelphia, W. & B. R. Co., Del., 50 Atl. Rep. 95.
167. NEW TRIAL-Newly.Discovered Evidence. - A new trial should not be granted for newly discovered evidence, where no diligence is shown.-Olardy v. Wil. son, Tex., 64 S. W. Rep. 489.
168. NEW TRIAL — Newly.Discovered Evidence. - A motion for a new trial held properly overruled, where newly discovered evidence was insufficient to create & probability of a different result.-Woolsey v. Jackson, Ind. T., 64 S. W. Rep. 548.
169. NUISANCE-Abatement of Saloon.-The fact that a place where intoxicating liquor is sold is declared a common nuisance by statute does not justify its abate. ment by any person without process of law.-State , Stark, Kan., 66 Pac Rep.. 243.
170. PARTIES – Order of Intervention.- An order granting intervention will not be vacated after hear. ing, because granted ex parle, where the court would be required to repder it.- Percy Summer Club v. Astle, U.S.C.O., D. (N. H.), 110 Fed. Rep. 486.
171. PILOTS-Degree of Skill.-Pilots on the Delaware river are required to exercise the care and skill of river pilots and harbor pilots, and are chargeable with knowledge of natural objects on shore and of the significance of fixed lights.-Harrison v. Hughes, U. S. D. C., D. (Del.), 110 Fed. Rep. 545.
172. PLEADING-Demurrer to the Evidence.-A demurrer to the evidence, interposed by defendant after he has opened his proof, is too late.-Sands v. Southern Ry. Co., Tenn., 64 S. W. Rep. 478. 173. PLEADING-Motion to Correct Complainant Not contesting claimants to public lands while the matter is pending before the land department.-Humbird v. Avery, U. 8. C.,C.ID, (Klon.), 110 Fed. Rep. 465.
176. PUBLIC LANDS – Legislative Resolution. – A legislative resolve granting 200 acres in a particular township to each Revolutionary soldier held a grant in præsenti.-Banton v. Crosby, Me., 60 Atl. Rep. 86.
177. PUBLIC LAND8-Number of Entries to One Per800.-Under Rev. st. ch. 102, $ 3, one person could make any number of entries and surveys, not ex. coeding 200 acres each.-Uhlv. Reynolds, Ky., 64 8.W. Rep. 498.
188. PUBLIC LANDS – Previously Entered Land.Every entry, survey, or patent is void in so far as it embraces land previously entered, surveyed, or patented.-Uhl v. Reynolds, Ky., 64 S. W. Rep. 498.
179. PUBLIC LANDS- Uncertainty in not Describing Prior Grants.-A patent Vests the patentee with title to all vacant and unappropriated land within the ex. terior boundary, the patent pot being vold for uncer. tainty by reason of the failure to describe prior grants included within the bonndary.-Uhl v. Reynolds, Ky., 64 8. W. Rep. 498.
180. QUO WARRANTO - Director's Title to Omee.Stockholders of a corporation held entitled to maintain a writ of quo warranto to determine title to office of directors.- Commonwealth v. Stevenson, Pa., 60 Atl. Rep. 91.
181. RAILBOAD8–Care;Towards Trespassers.-The care required of a rallroad towards trespassers or licensees is to retrain from grogs negligence or willful careles. ness.-Tully v. Philadelphia, W. & B. R. Co., Del., 50 Atl. Rep. 96.
182. RAILROAD8-Retroactive Effect of Fence Laws.Ky. St. $ 1797, requiring railroad companies to fence rights of way acquired free of charge, does not apply to sneh rights of way acquired prior to the enactment of the statute.-Ringo v. Chesapeake & O. Ry. Co., Ky., 64 8. W. Rep. 622.
183. RAILROAD8-Reverter of Right of Way.-Right of way granted by deed providing that it was exclusive for one year, held not to revert to grantor on railroad company's failure to enter within the year.-Virginia & S. W. Ry. Co. v. Crow, Teon., 64 8. W. Rep. 485.
184. RAILROADS – Rules as to Ripging Bells. A jury held entitled to consider a railroad's roles as to ripglog a bell on approaching a crossing on the subject of the necessity of such precaution and the negligence of the company.-Hecker v. Oregon R. Co., Oreg., 66 Pac. Rep. 270.
185. RAILROAD8-State Reduction of Rates.-Violation of Constitution.-Where the net earnings of a rall. road company on local business within a state are ipsuficient to pay one ball of the interest on its valid bonded debt justly chargeable upon such earnings, a state regulation reducing rates, which would mate. rially reduce such earnings, is unreasonable and a vio. lation of the company's constitutional rigbtg.-Ohi. cago, M. & St. P. Ry, Co. v. Smith, U. S. C. C., D. (Vt.), 110 Fed. Rep. 473.
186. RAILROAD8-Statutory Presumption as to Killing Stock.-While there is a statutory presumption that the killing of stock by a train was the result of neg. ligence, the burden is on the owner to show that the killing was by a train.-Southern Ry. Co. v. Forsythe, Ky., 64 8. W. Rep. 506.
187. RECEIVERS-Discharge on Motion of Trespassers of Land in His Possession.-Where a receiver 18 ap. pointed to collect a judgment, he should not be dig. charged on the motion of trespassers on the land of which he is in possession under such judgment.McAllaster v. Edgerton, Ind. T., 64 S. W. Rep. 583.
188. RECEIVERS - Sale. - A motion for the sale of
Val. Electric R. Co., U. 8. 0. C., D. (Vt.), 110 Fed. Rep. 473.
189. REPLEVIN- Fraud Under General Denial.-Un. der the general denial in replevin defendants may show that the chattel mortgage under which plaintiff claims the right to possession was obtained by fraud or deception.-Payne V. McCormick Harvesting Mach. Co., Okl., 66 Pac. Rep. 287.
190. REPLEVIN-General Verification.-Each several cause of action set out in a complaint in replevin 18 verified by a general verification to the complaint.Harris v. Castleberry, Ind. T., 64 8. W. Rep. 541.
191. SALVAGE-Degree of Skill Required.-While or. dinary skill is required from a salvor, yet in case of necessity one without nautical skill may undertake a rescue in good faith, using such ability as he pos. 8e88e8.-The Henry Steers, Jr., U. S. D. C., E. D. (N. Y.), 110 Fed. Rep. 578.
192. SCHOOLS AND SCHOOL DISTRICTS – Judgment Confessed by Director.-Judgment agalust school dig. trict, confessed by director, held yoid for want of au. thority.-Moore v. School Dist. No. 71, Okl., 66 Pac. Rep. 279.
193. SCHOOLS AND SCHOOL LANDS- School Lands a Trust.-Under Const. art. 7, § 6, and Rev. St. 1895, 88 8902, 3906, 4271, counties held to hold school lands and proceeds thereof in trust, and liable for any diversion thereof.-Board of School Trustees of Laredo v. Webb County, Tex., 64 S. W. Rep. 486.
194. SHIPPING-Liability for Injury where Charter is Violated.-The fact that a charterer puts the vessel to a different use from that specified in the charter does not render him liable to the owner for an irjury to the vessel, if it appears that the unauthorized use did not cause or contribute to the damage.-Sutcliff v. Selig. man, U. S. D. C., S. D. (N. Y.), 110 Fed. Rep. Rep. 560.
195. SHIPPING-Using Ship as War Dispatch Boat.The breaking out of a war during the term of a time charter does not affect the rights or liabilities of the charterer, who is not bound to employ the vessel in the safest business, but may employ it in any service which is lawful and not in violation of the charter.The Ely, U. S. D. C., S. D. (N. Y.), 110 Fed. Rep. 563.
196. SHIPPING-Walving Charter Provisions.- Where a charter expressly provides the lay days for loading and discharging, and fixes the amount of demurrage to be paid for overtime consumed by the charterer, the owner cannot be held to have waived such pro. vision, except upon clear evidence.-Henningsen v. Watkins, U. 8. D.O., E. D. (Va.), 110 Fed. Rep. 574.
197. SPECIFIC PERFORMANCE — Indefinite or Alter. nate Agreements.-Specific performance of agreement to pay & debt, or, in default, to execute a mortgage, cannot be denied on the ground that it is indefinite and in the alternative.-Allender v. Evans-Smith Drug Co., Ind. T., 64 S. W. Rep. 558.
198. SPECIFIC PERFORMANCE-Oral Promise to Furnish Money.-An oral agreement to furpish the money required to complete a railroad is not such a definite and precise contract as to warrant a decree for its specific performance.-Bibber.White Co. White River Val. Electric R. Co., U. S. C. C., D. (Vt.), 110 Fed.
Kep. 472. | 199. STATUTE-Construction of Arkansas Statute in | Indian Territory.- Where a statute of Arkansas is put
in force in the Indian Territory by act of congress, it is incumbent on the courts in the territory to adopt the construction of such statutes by the Supreme Court of Arkansas.-Boyt v. Mitchell, Ind. T., 64 8. W. Rep. 610.
200. STATUTES—"Person" Does Not Include State.The word "person," in a statute, does not necessarily include state.-Banton y. Griswold, Me., 50 Atl. Rep. 89.
lroad nranarty in tha honda al naaimana danlad an
constitutes negligence as a matter of law is only ap. plicable to street railroads on a public street, where the attending conditions are such that reasonable care and prudence would require such precautions.Tacoma Ry. & Power Co. v. Hays, U. 8. C. C. of App., Ninth Circuit, 110 Fed. Rep. 496.
202. SUBROGATION-Purchaser at Execution Sale.Purchaser at execution sale on money judgment held not entitled, on paying purchase money, to subroga. tion to creditor's claim against judgment debtor.Gray v. Denson, Ala., 30 South. Rep. 595.
203. SUNDAY-Presumption of Delivery of Deed.-In ejectment, burden of overcoming presumption that deed made on Sunday and delivered on that day is on person presenting it.-Williams v. Armstrong, Ala., 30 South. Rep. 553.
204. TAXATION-Vacating Tax Certificate--Tender of Tax.-Equity will not require a tender of tax equitably due, as a condition precedent to vacating a tax cer tificate as cloud on the title.-Title Trust Co. v. Ayls. worth, Oreg., 66 Pac. Rep. 276.
205. TERRITORIES- Enforcing Cherokee Statutes of Marriage.-Under Act. Cong. June 28, 1898, $ 26, the Cherokee statutes relating to marriage with one not a citizen of the nation, and removal therefrom, cannot be entorced by the federal courts.-McAllaster v. Ed. gerton, Iod. T., 64 S. W. Rep. 583.
206. TOWAGE-Moderate Gale.-A tug held liable for the loss of her tow, which she cut adrift during a moderate gale off Cape Cod.- The O. L. Halenbeck, U. S. D. C., S. D. (N. Y.), 110 Fed. Rep. 656.
207. TRADE-MARKS AND TRADE-NAME8- H. Bitters Violating "Hostetter's."- Acts held to establish fraud. entitling plaintiff, the owner of a trademark known as "Hostetter's Bitters," to an injunction against de. fendant for furnishing a substitute for guch bitters marked "H. Bitters."-Hostetter Co. v. Martinoni, U. S. O.O., N. D. (Cal.), 110 Fed. Rep. 524.
208. TRADE MARKS AND TRADE-NAMES - "Rem-Sho" as Violating “Remington."- Wrongful use of name *Remington," in connection with word “Sholes," is not affected by subsequent shortening to “Rem.Sho." -Wyckoff v. Howe Scale Co. of 1886, U. S.C.C., D. (Vt.), 110 Fed. Rep. 520.
209. TRIAL-Form of Instructions.-When proper in. structions are given, it is no ground of exception that they are not given in the form requested.-Wheeler v. Grand Trunk Ry. Co., N. H., 50 Atl. Rep. 103.
210. TRIAL-Instruction Favoring One Phase of Evidence.-An instruction giving undue prominence to a phase of the evidence, favorable to the person asking it, is properly refused.-Louisville & N. R. Co. v. Jones, Ala., 30 South. Rep. 586.
211. TRIAL-Proper Wording of Instructions.-Anin. struction should clearly and intelligently set forth the law as applicable, without being conflicting, contra. dictory, confusing, or misleading.-Paype v. McCor. mick Harvesting Mach. Co., Okl., 66 Pac. Rep. 287.
212. TRUBT8-Endorsement of Beneficary not a Rati. fication.-An indorsement by a beneficiary relative to a conveyance by her trustee, baving an interest in the trust estate, of all his property in trust to pay certain mortgages, held not a ratification of the mortgages as a charge on her interest in the trust ostate.-Dudley V. Eastman, N. H., 50 Atl. Rep. 101.
213. USURY-Agreement to Pay Debtg.- Agreement between insolvent debtor and another, by which the latter was to pay the former's debts and become sub. rogated to the rights of his creditors, and subsequent settlement, including compensation for services, held not to constitute usury.-Pettyjohn v. Wilkin, Okl., 66 Pac. Rep. 281.
214. VENDOR AND PURCHASER-False Representation
the vendors falsely represented that they had title as heirs to certain lands, to which they in fact had no title.-Begley v. Eversole, Ky., 64 6. W. Rep. 513.
215. VENDOR AND PURCHASEB– Waiving Lien by Taking Note.-Where, as part of the consideration for real estate sold to a wite, plaintiff took the note of the husband and two other signers as his gureties, the vendor's lien is thereby waived.-Shrimsher v. New ton, Ind. T., 64 S. W. Rep. 534. - 216. VENUE-Condition of Sufficient Bond.-The court cannot grant a change of venue on condition that de. fendant furnish & gufficient bond.-Ellis v. Fitzpat. rick, Ind. T., 64 S. W. Rep. 567.
217. VENUE-Removal Without Notice to Defendant, -A non-resident, not having designated an attorney on whom notice or other process may be served, cap. not complain that defendant's motion for removal of cause was heard without notice to him.-Terry v. Skinner, U.S.C.C., E, D. (N. Car.), 110 Fed. Rep. 494.
218. WAREHOUSEMEN-Stipulation as to Leakage.-A notice printed across the face of a warehouse receipt for barrels of liquor that loss by leakage was at owner's risk will be deemed a part of the contract, where the receipt was accepted and goods stored with knowledge of such notice.-Tauseig v. Bode & Haslett, Cal., 66 Pac. Rep. 259.
219. WILLS-Omitting to Mention Child.-Under Ind. T. Ann. St. 1899, $ 3572 (Mansf. Dig. Ark. $ 6500), an intentional or accidental omission of a testator to men. tion a child entitled it to apply to the court for re. lief.-George v. Robb, Ind. T., 64 S. W. Rep. 616.
220. WILLS-Remainder After Lite Estate.-Under will limiting remainder after life estate to 8 and his heirs in equal shares, 8 held to take proportionate sbare as tenant in common with his children.-Smith V. Smith, Tenn., 64 8. W. Rep. 483.
221. WITNESSES-As to Absence of Witnesses.-ID an action for Injuries by a passenger against carrier, plaintikt, after testifying on cross-examination that the physicians treating her are absent, may explain such absence and testify to her effort to procure their attendance.- Southern Ry. Co. v. Orowder, Ala., 30 South. Rep. 592.
222. WITNESSE8-Attorney as to His Employment.Defendant's attorney was properly permitted to tes. tity as to his employment on a motion to set aside & default judgment in favor of plaintiff entered on stipulation of such attorney.-Security Loan & Trust Co. v. Estudillo, Cal., 66 Pac. Rep. 257.
223. WITNESSES – Oross-Examination, - Defendant may properly cross-examine plaintiff's witness as to apy matter in issue, though no inquiry was made in respect thereto on the direct examination.-Sands v. Southern Ry. Co., Tenn., 64 S. W. Rep. 478.
224. WITNESSES – Cross-Examination. - Plaintiff's cross.examination of witness, showing that defendant paid witness' way to the trial and was to pay his expenses, held permissible.-Southern Ry. Co. v. Crowder, Ala., 30 South. Rep. 592.
225. WITNESSES-Disqualification Because of Hearing Evidence.-A witness coming into court after trial had commenced held not disqualified because he heard some of the state's evidence and was not under rule with the other witnesses.- Pile v. State, Tenn., 64 S. W. Rep. 477.
226. WITNESSES-Impeachment for Misconduct.-It was improper to permit & witness to be impeached by showing specific acts of misconduct pot contradictory of her statements as a witness.-Roberts v. Johnson, Ky., 64 8. W. Rep. 526.
227. WITNESSES-Surprise.-A party who has been surprised by the testimony of his own witnesses apon material fagt may be permitted by the court, in its
TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD-
IN VOLUME 53.
A separate subject-index for the “Digest of Current Opinions” will be found on page 502, follow.
certain per centum of fat, 221.
evidence of intimacy prior and subsequent to the
offense charged, 245.
failure of "cropper" to comply with contract, 302.
United States, 363.
not a provable debt in bankruptcy, 205.
speak or print its doctrines, 241.
a remedy for anarchism, 471.
action against railroad for killing dog, 243.
Senator Vest's famous dog speech, 273.
assignment of unearned salary, 382.
for personal injury, 393.
common-law doctrine of maintenance still in
force independent of statutory enactments, 11.
payment of money in the ordinary course of busi-
ness as a preference under the bankrupt act, 1.
of "laborers and employees," 82.
payment may be considered a preference, 263. a
payment of money as a preference, 283.
lunatic bankrupts, 351.
deposit,in name of another, 162.
penalty upon national banks for taking usury, 409.
universal congress of lawyers, 195.
recognition of illegitimate child by putative
legitimation of bastard child by its father, 71.
vested interest of beneficiary under a policy of
life insurance, 184.
consent of member to change in by-laws, 390.
pelled or whose contract is violated, 391.
society or association and a member, 425.
dies within the order, 450.
unitormity in the law of commercial paper, 93.
fant non nariekin
CARRIERS OF GOODS,
depending, on the nature of the consignment,
usage or contract, 308.
bar action by passengers, 252.
to inform himselt, 281.
certain limits, 50.
practical features of the Central Law Journal, 401.
torts of charitable institutions maintained by tax.
for religious services and partly.as a source of
ligence causing personal injuries or death, 224.
right of action for wrongful death of unborn child,
state tax on peddlers and drummers as affecting
interstate commerce, 324.
doing business in its territory, 462.
contempt of court, 161.
dies exist, 312.
of court, 311.
forbearance as a consideration, 7.
neous contracts, 166.
its performance without the consent of the other,
contracts in restraint of trade, 343.
liability of agent, auctioneer or Intermeddler with.
the law of China, 432.
interstate commerce, 324.
lation of interstate commerce, 443.
federal common law, 44.
combinations for immoral purposes, as, to over-
throw society or government, 241.
laws limiting hours of private daily employment
constitution taxing mortgages, 41.
cise of the police power, 48.
tion of malt liquors, 81.
- --I10 property for street 1
issue of stock for property, 2.
for services, 113.
holders not a penalty, 165.
for stock, 181.
company in fraud of its creditors, 223.
by insolvent corporations, 244.
for fraud and negligence, 263.
ital stock, 348.