more than the item not covered by the special verdict will be reduced to the amount of such special verdict with the omitted item added.- ENGSTROM V. MERRIAM, Wash., 64 Pac. Rep. 914.

40. PUBLIC LANDS-Cutting and Removal of Timber. -The act of June 3, 1878, authorizing citizens and residents of the states of Colorado, Nevada and the territories, and "all other mineral districts of the United States," to fell and remove timber on the public domain, does not apply to the state of Oregon, there being no such mineral district.-UNITED STATES V. ENGLISH, U. S. C. C., D. (Ore.), 107 Fed. Rep. 567. 41. MARINE INSURANCE Construction of Policy.-A marine insurance policy covered all shipments of oil from foreign ports to Philadelphia or Boston, or "via port or ports, and at and thence to Providence, with privilege of transshipment, including risk of craft to and from the ship or vessel; such craft to be considered a separate risk." The policy covered "leakage amounting to five per cent. on each barrel over ordinary leakage, which is agreed to be 2 per cent." Other provisions of the policy were: "Not liable for particular average, nor for leakage unless occasioned by stranding or collision with another vessel." "The perils which said insurance company takes on itself are of the seas, fires, pirates, and all other perils, losses, or misfortunes to the detriment of said goods." Held, that the contract authorized oil shipped from Mediterranean ports to Philadelphia or Boston to be carried over land from either place to Providence,this being the shortest and safest route,-and hence that the company was liable for leakage under the policy, though there was nothing to show whether it occurred on land or water.-PHETTE PLACK V. BRITISH & FOREIGN MARINE INS. Co., R. I., 49 Atl. Rep. 33.

42. MARITIME LIENS-Charter Provisions-Lien of Owner on Cargo for Charter Money.-A provision in a time charter, which leased the ship for the term, and made the charterer owner for the voyages made there under, reserving to the owner, "a lien upon all car goes and all subfreight for charter money due under this charter," cannot be construed to give the owner a lien upon cargo owned by third persons, and shipped under contract with the charterer, for charter money due; nor has he any lien on such cargo, under either the charter or the maritime law, to compel the shipper to pay the freight to him, such lien being cre ated by the maritime law in favor of the person in possession of the ship. The only effect of such provis. ion purporting to give the owner a lien upon cargo is to bind such cargo as is owned by the charterer to the extent of the charter money due.-AMERICAN STEELBARGE CO. V. THE CITY OF EVERETT, U. S. D. C., D. (Mass.), 107 Fed. Rep. 964.

43. MARITIME LIENS-Supplies Furnished in Foreign Port-Contract with Owner.-Where, under a contract with the owner, supplies are furnished to a vessel within the same port or state in which the contract is made, the presumption is that the dealings are not with the ship or upon her credit, but upon the personal responsibility of the owner; and no lien exists in such a case unless a credit of the ship is proved to be within the intention of the parties.-PRINCE V. OGDENSBURG TRANSIT Co., U. S. C. C., D. (Mass.), 107 Fed. Rep. 778.

44. MASTER AND SERVANT-Knowledge by the Latter of Danger.-In order for the knowledge by the servant of the condition of premises or machinery com plained of to absolutely and unconditionally prevent his recovery as a matter of law, the condition must have been such as to threaten immediate danger, and that a man of ordinary prudence and caution would not have worked under said condition.-CARDWELL V. CHICAGO, ETC., RY. Co., Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

ballasting, or violation of defendant's order not to hoist two loads at the same time on the same side of the derrick. The jury found against the last cause. Evidence tended to show that there was no visible weakness in the derrick, but that the accident may have been caused by a change of ballast, for which defendant would be responsible. Held, that a verdict for plaintiff was not against the evidence.-SHERMAN v. J. W. BISHOP CO., K. I., 49 Atl. Rep. 39.

46. MISTAKE OF LAW- Practice. Where one of two joint defendants, against whom a judgment is ren. dered in the district court, appeals to the common pleas division of the supreme court, without joining his co defendant therein, under the belief that such joinder is not necessary, and the appeal is dismissed, it is a mistake of law, and is not sufficient to authorize the granting of a new trial in such court.-BASSETT V. LOWENSTEIN, R. I., 49 Atl. Rep. 39.

47. MORTGAGES Assignment - Subsequent Incum. brancer. A note secured by a mortgage was indorsed before maturity by the payee to L, and thereafter, but before the note matured, the payee released the mortgage of record. Lindorsed the note to a partnership, and after maturity it was sold under an order of court as partnership assets, and purchased by plaintiff, who had no knowledge of the release of the mortgage. Held, that the fact that plaintiff purchased the note after maturity did not postpone his llen in favor of a subsequent bona fide incumbrancer of the mortgaged property, on the ground that plaintiff was estopped from denying actual knowledge of the release as shown by the record, since plaintiff was entitled to assert the rights of L.-FISCHER V. Woodruff, Wash., 64 Pac. Rep. 923.

48. MUNICIPAL CORPORATIONS City PrintingAward.-Allegations that a city charter provided that bids should be submitted for the city printing, and that the city council should accept the lowest proposal, and appoint the bidder city printer; and that plaintiff filed a bid to do the city printing for 21 cents per inch for the first insertion, and 20 cents per inch for each subsequent insertion; and that plaintiff's competitor bid 35 cents per inch for the first insertion, and 30 cents per inch for subsequent insertions, measure to be by nonpareil type, matter set solid; and that the city council appointed plaintiff's competitor city printer on the ground that plaintiff's bid was ambigu. ous; and that there was a general custom that printing was to be measured by nonpareil type set solid. and that plaintiff's bid was made with reference thereto; and that the city council maliciously and fraudulently accepted the bid of plaintiff's competitor with the intention to defraud plaintiff,-stated facts sufficient to constitute a cause of action.-TIMES PRINTING CO. V. CITY OF SEATTLE, Wash., 64 Pac. Rep. 940.

49. MUNICIPAL CORPORATIONS-Liability for Grading -Ordinance.- Plaintiff seeks to recover from the defendant city, damages alleged to have been caused by the grading of a certain street of said city. The grad ing was done by the street commissioner under the direction of the city council. The city's charter authorized it to enact ordinances for grading and im. proving its streets. There was in this instance no ordinance enacted. Held, that the city was not liable; it could act only by ordinance and no ordinance had been enacted.-KOEPPEN V. CITY OF SEDALIA, Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

50. MUNICIPAL CORPORATIONS-Police Commission ers-State Officers.-The board of police commissioners for the city of Newport, appointed by the governor by and with the consent of the senate, is a state board or commission, within Gen. Laws, ch. 17, § 4, provid ing that the attorney general, whenever requested, shall act as the legal advisor of all state boards, and shall represent such boards in litigation, since the duties of such commissioners are of a general nature, rather than municipal.-IN RE POLICE COMRS., R. I., 49 Atl. Rep. 37.

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NEGLIGENCE-Duty of One Injured to Call a cian.-An injured person does not at his peril e to call in a physician, he is not called upon to more than exercise reasonable care to prevent an tavation of his injuries.-WFBB V. RAILWAY CO., App. (K. C. Div., May 6, 1901, not yet reported ) NEGLIGENCE-Right of Judgment Defendant to over Over.- A judgment was recovered against an etrie street-railroad company for damages for sing the death of the plaintiff s husband, who was ed by receiving an electric shok from a telephone which he was required to handle in the course of work as an employee of the telephone company; complaint in the action alleging that the charge lectricity which killed the deceased was received

a feed wire of defendant, which it negligently mitted to cross and rest upon the telephone wire. ing paid the judgment, the railroad company ught an action to recover over against the teleone company, alleging that the crossing of the tes was due to the negligence of the latter com. Held, that such action could not be mained, since the judgment upon which it was based necessarily recovered upon an adjudication that railroad company had been guilty of actual and tive negligence, which rendered it at least a joint Heasor, and precludes it from recovering over.ANTA CONSOL. ST. RY. Co. v. SOUTHERN BELL TEL. ONE & TELEGRAPH CO., U. S. C. C., N. D. (Ga.), 107 Rep. 874.

PARTNERSHIP - Accounting-Where a partner appropriates funds of his firm, and falsifies its acCnts, he will be required to account to his partner all damages thereby sustained by the firm, to ber with interest, and then allowed to retain his lon of the partnership assets.-BINGHAM V. KEYWash., 64 Pac. Rep. 942.

PLEADING AND PRACTICE - Justice Court-State ht.-A statement before a justice of the peace must out the facts constituting plaintiff's cause of ac, and show the nature thereof, as for example ether it is based upon contract or negligence.OMON GRAIN CO. V. RAILROAD, Mo. App. (K. C. Div., 6, 1901, not yet reported.)

5. PLEADING AND PRACTICE - Party in Interest.-In alt by the assignee of G, the buyer of certain war. subsequently found to be void, to recover the te paid therefor, evidence that the buyer signed check given in payment, "G, Agent," and that his e's money was kept in bank under that account, that all the money G used in his business was tunder the same account, and that both G and his esigned the assignment of the claim arising out of sale of the warrants, did not establish that G's fe, and not G, was the real party in interest in such e; ard plaintiff was not, therefore, subject to be suited for failure of the complaint to allege G's e as the real purchaser.-LATIMER V. BAKER, sh, 64 Pac. Rep. 898.

. PLEDGES

"

Foreclosure

Title. Where the edgee of city warrants sold them at public sale to self for a small fraction of their face value, at a time hen the warrants had no market value because their alidity was disputed by the city, and when the rever of the insolvent pledgor had no money to pay e debt, the sale being solely to secure title to the Arrants, so that the pledgee could handle them more inveniently, and not for the purpose of paying the bt, such sale conveyed no title, and the receiver 88 entitled to redeem the warrants by payment of le debt and proper expenses incurred by the pledgee. MUHLENBERG F. CITY OF TACOMA, Wash., 64 Pac. ep.925.

7. PRINCIPAL AND AGENT - Contracts-Rescissionthority.-Where the president of a corporation bold profit by the rescission of a contract made on half of himself and others with the corporation, e fact that he made the contract for the company ould give him no authority to rescind it, to the det

riment of his principal. -WALLACE V. OCEANIC PACKING CO., Wash., 64 Pac. Rep. 938.

58. PUBLIC LANDS Cancellation Notice.- Public lands were entered under 20 Stat. 89, providing for sale on application stating that such lands were unfit for cultivation, and valuable chiefly for stone or timber, and all requirements there of were complied with. The entrymen conveyed the tracts to defendant by warranty deeds recorded in the auditor's office of the county where the lands were located. The land department, before instituting proceedings to cancel the entries, was notified by its agent of the transfers. On ex parte hearing, the commissioner of the general land office canceled the entries, and issued patents to the land to plaintiff's grantors. Held, that defendant was entitled to notice of the proceedings for cancellation.-WHITNEY V. SPRATT, Wash., 64 Pac, Rep. 919.

59. PUBLIC LANDS-Cutting Timber-Act Prohibiting -Cutting for Use in Quartz Mill.-The proviso to the act of June 3, 1878, § 4, prohibiting the cutting and removal of timber on the public domain, provides that It shall not prevent any miner from clearing land in working his claim, or from taking timber to support his improvements. Held, that the taking of the tim ber for use in a quartz mill adjacent to the land from which it was cut was not within the proviso, and hence was prohibited by the act.-UNITED STATES V. ENGLISH, U. S. C. C., D. (Oreg.), 107 Fed. Rep. 867.

60. RAILROADS-Liability for Killing Cattle.-It is the duty of a railroad company in operating its trains to be on the lookout for cattle at public road crossings, and it is liable for running down such animals thereat, not only if it saw them in time to have avoided the accident, but also if it could have so seen them by the exercise of ordinary care. This applies to a cow which was on such crossing and having been frightened by an approaching train ran down the track for about 200 yards where she was struck.SPENCER V. M., K. & T. RY., Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

61. SALE-Construction of Contract.-A sale of all the ice in certain ice houses, for a price based upon the quantity shown by an agreed survey made before the contract was reduced to writing, is a sale in bulk, and not of the quantity shown by the survey.-GAGE V. CARPENTER, U. S. C. C. of App., First Circuit, 107 Fed. Rep. 886.

62. SALE-Implied Warranty-Contract Construed.Defendant sold to plaintiff in bulk all the ice stored in certain ice houses, with the understanding that plaint. iff purchased it to resell in the general course of the ice business in a city. Defendant did not put up the ice, but bought it after it was stored, and had never seen it, and so stated to plaintiff, also telling him from whom he purchased it, and that he had no other information as to its condition or quality than the statements of such seller. Held, that under such circumstances there was no implied warranty by defendant that the ice was all of merchantable quality.-GAGE V. CARPENTER, U. S. C. C. of App., First Circuit, 107 Fed. Rep. 886.

63. SALES-Implied Warranty of Quality.-An impl ́ed warranty by a seller of an article which is in exist ence, as to quality or against defects which are not obvious, arises only where the circumstances are such as entitle the buyer to rely upon the knowledge or opportunity of insection which the seller possesses and he does not possess.-GAGE V. CARPENTER, U. S.-C. C. of App., First Circuit, 107 Fed. Rep. 886.

64. SCHOOL AND SCHOOL LANDS- Rescission-Tax Sale. Where a state canceled a sale of school lands for nonpayment of installments due on the purchase price, a purchaser under a subsequent sale for county taxes acquires no interest in the lands.-STATE V. FROST, Wash., 64 Pac. Rep. 899.

65. STATUTE OF FRAUDS- Pleading. When the con. tract is not denied, the statute of frauds must be spe cifically pleaded; but if denied, the statute may be in

voked at the trial without being specifically pleaded. The defense, however, is an affirmative one, and even when the contract is denied the defense will be deemed waived unless it is timely presented. The defense ought to be urged by objecting to the evidence, or by demurrer to the evidence, or in some such way. If no such objection is inade, but on the contrary, de. fendant introduces evidence to disprove the contract, the defense of the statute will be held to have been waived, even though defendant raises it by instructions asked at the close of the whole case.-ROYAL REMEDY AND EXTRACT CO., Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

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66. STREETS Public Use Loading and Unloading Freight.-The appropriation, whether by custom or ordinance, of a street adjacent to a railroad freight house to the use of teams, trucks and wagons in loading and unloading merchandise, is a legitimate public use of the street, of auch importance that a mere trespasser, seeking to interfere therewith, should receive scant favor from a court of conscience.-GENERAL ELECTRIC RY. CO. V. CHICAGO, I. & L. RY. Co., U. S. C. C. of App., Seventh Circuit, 107 Fed. Rep. 771. 67. TAXATION - Defaulting Tax Collector Commissions-ights of Sureties.- Code, Alabama 1896. § 4097, provides that a collector of taxes may retain his commissions when he makes payment into the state treas ury. Section 4037 provides that he must also, on or before January 10th and April 10th in each year, ac. count to the auditor under oath for the amount of taxes, etc., and on such accounting shall be allowed by the auditor the amount then due him for commissions, fees, etc. Held, both in view of the statute, and independent thereof, that a defaulting tax collector was not entitled to commissions on money which be failed to pay over, and his sureties could not claim a credit therefor.-WALEER COUNTY, ALA. ▼. FIDELITY & DEPOSIT Co. OF MARYLAND, U. S. C. C. of App., Fifth Circuit, 107 Fed. Rep. 851.

68. TRUSTS AND TRUSTEES-Duties and Liabilities of Trustee. A syndicate was formed for the purpose of purchasing certain stocks and real estate owned by one of the members, at agreed prices. Some of the members contributed their proportion of the required fund, which was placed in the hands of one of their number as custodian. An executive committee was also created. After a time the seller insisted that the purchase should be completed or the option surrendered, and the custodian paid over to him the fund collected. The seller conveyed to the custodian a portion of the property, which at the option price exceeded in value the amount he received, and also a large amount of the stocks, subject to a pledge thereof to secure an indebtedness which the contributions due from the remaining members of the syndicate were more than sufficient to meet. The project was subsequently abandoned, and nothing further was done toward carrying out the plans of the syndicate. Held, in a suit by members of the syndicate against the legal representatives of the seller and the custodian after their deaths, that it must be presumed, in the absence of evidence to the contrary, that the custodian paid over the money by direction of the exe. eutive committee, and with the knowledge and con. sent of all the persons concerned, and, there be'ng no evidence of bad faith, that neither he nor the seller who received it could be charged with liability for its misappropriation, under the circumstances.-HOGG V. HOAG, U. S. C. C., S. D. (N. Y ), 107 Fed. Rep. 807.

69. UNITED STATES COURTS-Amount in Controversy -Joinder of Causes of Action.-A federal court has Jurisdiction of an action at law between citizens of different states to recover an amount in excess of $2,000, based upon a number of separate claims, some of which were assigned to the plaintiff by others, where the joinder of such claims is permitted by the statute of the state, and the assignors were all resi dents of states other than that of defendant's resi dence, although no one of the claims is alone sufficient

in amount to give the court jurisdiction.-BRIGHAMHOPKINS CO. v. GROSS, U. S. C. C., D. (Wash.), 107 Fed. Rep. 769.

70. UNITED STATES COURTS - Intervention-Refusal -Granting Appeal as of Course.-There being two kinds of intervention, one belonging to the class of cases in which leave to intervene is entirely discretionary, and the other to that class in which the right is absolute, and it being sometimes difficult to deter. mine to which a particular intervention belongs, the correct practice for a chancellor, after refusing leave to intervene, is to grant an appeal as a matter of course, if prayed for, as the intervenor otherwise would be entirely without remedy if the refusal should be a mistake.-United States V. PHILIPS, U. S. C. C. of App., Eighth Circuit, 107 Fed. Rep. 824. 71. UNITED STATES COURTS - Jurisdiction of Removed Cause Diverse Citizenship.-Though the cir cuit court cannot acquire jurisdiction by original process issued therefrom in a controversy between citizens of different states unless defendant is a resi dent of the district, yet where defendant, pursuant to the statute of removal, has a cause removed from the state to the federal court on the ground of diverse citizenship of the parties without regard to the resi dence of defendant, the latter cannot thereafter object to jurisdiction on account of its non-residence in the district.-WOODCOCK V. BALTIMORE & O. R. Co., U. S. C. C., N. D. (Ohio), 107 Fed. Rep. 767.

72. VERDICT-Compensatory and Punitive Damages Separately Stated.-Jury, in their verdict, under section 595, Rev. St., should state separately the compensatory and punitive damages, and where both kinds of damages are claimed by plaintiff and the jury return a verdict finding in his favor generally and in a lump sum, such verdict is bad.- JOHNSON V. BEDFORD, Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

73. WILLS-Devise-Life Estate.-The title in question depended upon a will which contained, among others, the following provision: "It is my will that if any of my children or grandchildren should die without issue, I wish their share to be equally divided among my remaining heirs, and so as to all my children and grandchildren." Held, that the devisees received only a life estate. Cross v. Hoch, 149 Mo. 325, discussed and held to be just in point.-KRULL V. LEA, Mo. App. (K. C. Div., May 6, 1901, not yet reported.) 74. WILLS Rule in Shelley's Case Modification.Pub. St. ch. 18, § 2, provides that no person seised in fee simple shall have a right to devise any estate in fee tail for a longer time than to the children of the first devisee, and a devise for life to any person and to the children or issue generally of such devisee, in fee-simple, shall not vest a fee-tail estate in the first devisee, but an estate for life only, and the remainder shall, on his decease, vest in his children or issue gen. erally, agreeably to the direction of such will. Testa. tor provided that after the decease of his wife, S, onethird of his estate should go to his son, C, for and dur ing the term of his natural life, and that after his decease the estate so given as a life estate should go to the heirs of C, and to their assigns, forever. Held, that an estate in fee-simple was vested in C on the death of S.-IN RE MANCHESTER, R. I., 49 Atl. Rep. 36. 75. WITNESSES - Physician and Patient - Privilege Waived. The provisions of the statute (Sec. 4659, Rev. St.) rendering physicians incompetent to testify to information acquired by them from their patients and which was necessary to enable them to prescribe for and treat said patients create a privilege in favor of the patients which they may lawfully weive. Thus where the patient goes upon the stand and fully tes tifles to all the secrets of the sick room, telling what was done by the physician and all about the treatment, he thereby waives the privilege of the statute, and the opposite party has the right to call the physi cian as a witness and to examine him in relation to the matter-WEBB V. RAILWAY CO., Mo. App. (K. C. Div., May 6, 1901, not yet reported.)

Central Law Journal.

ST. LOUIS, MO., AUGUST 9, 1901.

One of the most interesting and perplexing problems of law was recently decided by the Appellate Court of Indiana in the case of Guethler v. Altman, 60 N. E. Rep. 355, where it was held that a store keeper had no right of action against a school teacher and members of a school board because of their maliciously dissuading pupils, by threats and otherwise, not to trade with him, no dishonesty or anything of a reproachful nature being imputed to him. The court reviews the authorities as follows:

"There seems to be some conflict in the cases as to whether a party is liable in damages for wrongfully and maliciously inducing another to break a contract with a third party. The better-reasoned cases hold there is no liability unless certain relations exist. In Lumley v. Gye, 22 Law J. Q. B. 463, it is held there is a liability if the contract is for exclusive personal services. In Jones v. Stanley, 76 N. Car. 355, the rule is applied to every case where one person maliciously persuades another to break any contract with a third person. In Boyson v. Thorn, 98 Cal. 578, 33 Pac. Rep. 492, 21 L. R. A. 233, it is held the action will not lie unless the relation of master and servant, or other personal relation, exists. Bourlier v. Macauley, 91 Ky. 135, 15 S. W. Rep. 60, 11 L. R. A. 550, holds that the action will not lie unless the party breaking his contract has, by coercion or deception, been procured to do so against his will or contrary to his purpose, or the party breaking the contract is within the statutory exception of apprentices, menial servants, and others whose sole means of living is by manual labor. See, also, Chambers v. Baldwin, 91 Ky. 121, 15 S. W. Rep. 57, 11 L. R. A. 545. We know of no

right of Flood and Taylor, had done no unlawful act, and used no unlawful means in procuring their dismissal; that his conduct was therefore not actionable, however malicious or bad his motive might be; and that, notwithstanding the verdict, Allen was entitled to judgment. (1898), Law J. Ch. 383.

See Lyons v. Wilkins In the case at bar no contract relation existed, and reasoning from the above cases, we must conclude that there is no right of action for maliciously persuading the pupils not to enter into any contract of purchase, or make any purchases, of merchandise from appellant. If the language used had imputed dishonesty or anything of a reproachful character, appellant could have his action, but that is not the case made by the pleading."

How far a geographical name may be used for trade purposes and become the subject of a trade-mark, is well illustrated in the late case of La Republique Francaise v. Saratoga Vichy Springs Co., 107 Fed. Rep. 459. It seems that the name "Vichy," a geographical name applied to mineral waters by the owners of springs in the Commune of Vichy, France, to designate the locality of origin, and indicate the general characteristics of their waters, long favorably known to the trade, was very prominently displayed on labels on bottles purporting to contain "Saratoga Vichy Water," the "Saratoga" over it being in far less conspicuous type, so that, if the bottles stood on a table or shelf, the word "Vichy" was the marked and prominent object of sight, but otherwise purchasers would not mistake it for the French article. It was held by the court that the effect of such a label was to represent to purchasers unaccustomed to the article that the water in such bottles came from the French wells, and that the use of the name in such form would be enjoined. The court bases its decision upon the following argument: It is true that a mere geographical name, without at