I dissent from so much of the decision that is to the effect that telephone 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 municipalities 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 ordinary 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 the perpetual right upon telegraph 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 that 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 charter provisions and ordinances of the city. The plaintiff, by virtue of the existing charter provisions of the city, on January 24, 1883; the city ordinance of that 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 have 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 inalienable, and need not be reserved. While the city council, by virtue of this 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

city council passes an ordinance requiring the wires within a designated district to be placed in subsurface conduits, the ordinance, whether a proper exercise of the police power or not, is valid, and must be obeyed, unless the plaintiff can establish by satisfactory evidence that the 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.

NOTE. The Authority of Municipalities Over Telephone, Telegraph and Electric Companies in Ordering the Removal of Poles or Other Obstructions.—A question very often litigated at the present time, and on which the authorities are not in unison, is the right of municipalities, under charter 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 fixtures on the highway which were erected by these companies under general state authority. It must first be recognized that where a tele phone company erects its line in a street by the consent of the state and city, and pays damages therefor. it is not a nuisance. Brown v. Southwestern Telegraph & Telephone Co. (Tex. Civ. App.), 44 S. W. Rep. 59. And it must also be further noticed, however, that a municipality cannot deprive itself, by contract or ordinance, of the right 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 what extent this right can be exercised under the police power. In Kentucky it was held, under Const., sec. 163, providing that no 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 further providing that when charters have been heretofore granted conferring such rights, and work has in good faith been begun thereunder, the provisions of this section shall not apply, where a city council had, without legislative authority prior to the adoption of the present constitution, attempted to grant the right to erect telephone 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 Tenn. 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 the 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 works, though neither the council nor the board of public works has passed any ordinance or by-law regulating the placing of telephone poles in streets. City ot Marshfield v. Wisconsin Telephone Co., 78 N. W. Rep. 735. But in the case of Michigan Telephone Co. v. Benton Harbor, 80 N. W. Rep. 386, the Supreme Court of Michigan held that Pub. Acts 1895, providing that municipal authorities may regulate or prohibit the use of telephone poles in the streets, does not repeal Acts 1883, providing that telephone companies may maintain wires, with necessary fixtures, along any street or highway in the state, which shall not injuriously interfere with its other public uses, since it only confers such authority on municipalities subject to the general law in reference to their streets.

A franchise granted to a telephone company of constructing and operating its lines along and upon streets is subordinate to the rights of the public in a street for the purpose of travel. Cincinnati Incline Plane Railroad Co. v. Telegraph Association, 12 L. R. A. 541. State legislation, therefore, compelling electric wires in the streets of a city to be placed under the surface of the streets is an exercise of the police power, and not an unlawful attempt to regulate commerce, or an invasion of the rights of a telegraph company. Western Union Telegraph Co. v. New York, 38 Fed. Rep. 552. But it was recently held that a grant to a telegraph company to run and maintain wires over and through streets does not include permission to lay them underground. Commonwealth v. Warwick, 185 Pa. St. 623. This case seems to lead to the dilemma of a company authorized by the state to maintain its wires over the streets being compelled by a municipality to do what they have no right to do under their charter, i. e., to place them under the ground. But it is plain that a municipality cannot be permitted to act arbitrarily in a matter of this kind. Thus, an ordinance providing that no telephone wire shall be stretched across any public street without the consent of the township committee, was held not to be a regulation and restriction within the provisions of the statute giving to telephone companies the right to stretch wires over streets in incorporated cities and towns, under certain conditions, subject to such "regulations and restrictions" as may be imposed by the corporate authorities. Inhabitants of Summit Township v, Telephone Co. (N. J. 1898), 41 Atl. Rep. 146. And again, where an agreement between a city and telephone company as to the mode of use of its streets has expired by limitation, the city cannot oust the com. pany from the use and occupation of the streets until it made to appear that no agreement can be made, and that the company, after such failure to agree, delays unreasonably to apply to the court to fix the mode of use, as prescribed by law. State v. The Central Union Telephone Co., 14 Ohio Cir. Ct. Rep. 272.

without their consent, or opportunity of being beard.

One of the difficulties of this question is encountered in the construction of the acts of congress authorizing telegraph companies to erect and maintain their lines along the postroads of the United States. The question to what extent this authorization goes in interferring with the right of the state to regulate and maintain its own highways, has been very often raised. For instance, in the first place, it has been held that the Act of July 24, 1866, Rev. Stat., sec. 5263, authorizing telegraph companies to maintain and operate their lines along the postroads of the United States, but so as not to interfere with ordinary travel thereon, applies equally to telephone companies. City of Richmond v. Southern Bell Telephone & Telegraph Co., 85 Fed. Rep. 19. This case, however, was subsequently reversed and the act of congress under consideration held to have no appli cation to telephone companies whose business is that of electrically transmitting articulate speech between different points. City of Richmond v. Southern Bell Telephone & Telegraph Co., 174 U. S. 761. This case seems to have authoritatively settled the question whether the phrase "telegraph companies" when used in this connection includes telephone companies as well. And again it was held that the statute is permissive only subject to all state or local legisits lation regulating exercise and such permission does not municiaffect the right of a pality in the exercise of its police powers to enact and enforce ordinances intended to promote the safety and convenience of the public in the use of its streets. Michigan Telephone Co. v. City of Charlotte, 93 Fed. Rep. 11. In a later case it was held that this act does not authorize compulsory proceedings to obtain a right of way over private property for such lines, and condemnation of such right of way can only be made by virtue of some law of the state where the property is situated. The very recent case of City of Toledo v. Telegraph Co., 107 Fed. Rep. 10, seems to have gone further than any other case on this subject, and ought to definitely settle the question of the rights of telephone and telegraph companies operat ing under the provisions of the act of congress of 1866. In this case it was held that an interstate telegraph company which had accepted the provisions of the act of 1866 was not entitled to erect and maintain its lines over the streets of a city without complying with the reasonable regulations of the city for the erection and maintenance of such lines and without procuring a permit therefor from the city.

right given by this and

It might be fairly stated to be the rule deduced from the authorities that telephone or telegraph com panies operating under provisions of a statute giving them the right to place their wires and fixtures over the roads and highways of the state cannot be arbitrarily deprived of such right by municipal ordinance or regulation. Even where the municipality has power

under its charter to regulate the placing of poles and

BOOK REVIEWS.

AMERICAN STATE REPORTS, VOL. 79.

One of the most pleasant duties of the editor of the CENTRAL LAW JOURNAL, and one which 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 exhaustive monographic notes, treating only the latest and livest questions of law, and third, in its excellent workmanship, delighting the eye and suiting itself admirably to the needs and conveniences of the busy lawyer. Out of many exhaustive monographs we select the following as being of special interest: "What Marriages Are Void," p. 361; "When Does the Title of a Statute Embrace But One Subject, and What May be Included Thereunder," p. 456; "Title Acquired by Purchaser at His Own Execution Sale," p. 947; "What Words Create Conditions Subsequent," p. 747; "Partnership After Death," p. 709; "Constitutionality of Civil Service Laws," p. 560. Published by the Bancroft-Whitney Company, San Francisco, Cal.

1. ACCOUNT STATED-Attorney and Client.-Where an attorney made out and delivered to his client a statement of his account for services rendered, show. ing an itemized schedule of debits and credits and the balance due, such account became an account stated, unless objected to within a reasonable time.-CRAW FORD V. HUTCHINSON, Öreg., 65 Pac. Rep. 84.

2. APPEAL-Findings of Court-Equity.-The find. ings of a court which tries a case without a jury, and without delegating its powers to a master or referee, is entitled to as much if not more consideration than the findings of a master or referee, and the judgment or decree will not be disturbed unless the evidence is manifestly insufficient to sustain it.-BADARACCO V. BADARACCO, N. Mex., 65 Pac. Rep. 153.

formation must be definitely stated.-IN RE VEEDER, N. Mex., 65 Pac. Rep. 180.

4. BANKRUPTCY - Allowance of Attorney's Feee.Bankr. Act 1898 presupposes that attorneys employed to file a voluntary petition in bankruptcy will arrange with their client for the prepayment of their fees for the services required in the ordinary course of the proceedings, and the provision of section 64b, cl. 3, contemplates the allowance from the estate by the court, in its discretion, of additional fees for extraordinary services which may have been required from such attorneys, which should be fixed at such sum as is equitable in view of the fees already received and the rights of creditors.-IN RE SMITH, U. S. D. C., E. D. (N. Car.), 108 Fed. Rep. 39.

5. BILLS-Notes - Execution Purchaser.-An execution purchaser of a note takes it subject to all equities existing against it in the hands of the original maker. -NEALE V. HEAD, Cal., 65 Pac. Rep. 132.

6. BUILDING AND LOAN ASSOCIATIONS-Sale-Shareholder's Contract-Rescission-Vendor's Lien.—Where plaintiff executed a deed of trust to a building and loan association to take up a note for the purchase price of the lot, and to pay for material which had 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 defendant was entitled, on plaintiff's rescinding his contract, to be subrogated to the vendor's lien, and to a foreclosure of the lien.-NORTH TEXAS SAV. & BLDG. ASSN. V. JACKSON, Tex., 63 S. W. Rep. 344.

7. BURGLARY-Evidence.-Where one witness in a prosecution for burglary testifies to having seen a 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 admissible, 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 high decree of care and caution for the safety of a person imposed by such relation, can only be created by contract, express or implied.-FARLEY 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 that the occupation of such lands by the lessees would contaminate the city water supply, and result in irreparable injury to the inhabitants of the city. Held, that the threatened injury was too remote to require a 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., 65 Pac. Rep. 186.

10. CONTRACT-Agreement to Support Another.Where a conveyance was executed in consideration of the grantee's agreement to support an imbecile sister of the grantors, he cannot refuse to furnish that sup port because the imbecile refuses to remove with him to another state, as he is bound to furnish the support under such reasonable circumstances as may best conduce to her comfort and convenience.-LAIN V. MORTON, Ky., 63 S. W. Rep. 286.

11. CORPORATIONS - Collateral Security - PledgeeRight of Action.-Certificates of stock, assigned as security for an indebtedness, give the holder, as pledgee of the stock, a right to maintain an action to compel defendant corporation to recognize it as a stockholder, after an illegal levy of assessments on the stock and sale thereof for delinquency.-HERBERT KRAFT CO. BANK V. BANK OF ORLAND, Cal., 65 Pac. Rep. 144.

12. CRIMINAL EVIDENCE- Homicide-Self-DefenseDying Declarations.-Where defendant shot deceased as the latter was crawling toward defendant's house, and defendant testified that he hailed deceased, and the latter made a move as if to draw a pistol, deceased's dying declaration that he had no weapon was admissible as a part of the res gestæ.-GRUBB V. STATE, Tex., 63 S. W. Rep. 314.

13. CRIMINAL LAW-Alibi - Instruction.-An instruction 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 V. STATE, Tex., 63 S. W. Rep. 316.

14. CRIMINAL LAW- Court's Jurisdiction.-Under the general laws of Texas, the county court has concur. rent jurisdiction with the justice courts over all misdemeanors that said courts have 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 an innocent purchaser, who afterwards took pos session of it in another county, the fact that the purchaser had no fraudulent intent, when taking the horse, is not a defense to defendant, when charged with larceny of the horse, since defendant had the fraudulent intent, and the purchaser was acting as de. fendant's agent.-WALLS V. STATE, Tex., 63 S. W. Rep. 328.

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 whole case raises a reasonable doubt of defendant's pres. ence when the crime was committed, he should be acquitted, is not erroneous as shifting the burden on defendant to show his innocence.-RAYBURN V. STATE, Ark., 63 Pac. Rep. 356.

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. Defendant then went out, and another took his place as dealer. When it came to a "showdown," prose. cutor stated what he held, but declined to show his hand. One of the others then grabbed his cards, say. ing, "You have got a foul; you have 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 testified

that he had five cards until the player grabbed his hand, and that he thought that defendant was present, and joined in the grabbing. All the other witnesses testified that they did not see defendant present or grab for money. Held, that the evidence was insuffi cient to sustain a conviction for theft.-HERNANdez V. 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 use of intoxicating liquor, and defendant was represented at the trial by able counsel, it was not error to refuse a continuance.-COLEMAN V. STATE, Tex., 63 S. W. Rep. 322.

19. DIVORCE - Validity-Collateral Attack.-The objection that a decree of divorce is void, because the 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 suit by the wife to partition community property, since such questions were passed on by the court granting the divorce.-MoOR v. MOOR, Tex., 63 S. w.

laration as tending to show a motive for the shootlug, where the beef had evidently been stolen.MEDINA V. STATE, Tex., 68 S. W. Rep. 381.

21. EVIDENCE-Federal Census.-The federal census is competent evidence to prove the population of a county.-STATE V. NEAL, Wash., 65 Pac. Rep. 188.

22. FIRE INSURANCE - Policy Dwelling House.Where, in an action on a fire policy on a building "while occupied as a dwelling house," the complaint fails 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 un. less such fact was proved, and the facts necessary to be proved must be alleged.-ALLEN V. HOME INS. CO. OF NEW YORK, Cal., 65 Pac. Rep. 138.

23. FRAUD-Presumptions.-Where the facts upon which fraud is predicated consist as well with hon. esty as with dishonesty, the law presumes in favor of honesty.-FIRST NAT. BANK OF ALBUQUERQUE V. LESSER, N. Mex., 65 Pac. Rep. 179.

24. FRAUD-Special Deposit-Fraud of Depositor.-A complaint alleging that plaintiff made a special deposit with defendant bank, to be loaned on real estate. but that the bank loaned it to H without any security, and knowing that he was insolvent, is sufficient to support that a recovery for fraud on the part of the bank in procuring H, who was indebted to it, to ex. ecute a new note to plaintiff, and thereupon transfer. ring the amount of the loan from the plaintiff's ac count to that of the bank.-LARSEN V. UTAH LOAN & TRUST CO., Utah, 65 Pac. Rep. 208.

25. FRAUDULENT CONVEYANCE Debts of HusbandLiability.-Land levied on by plaintiff was conveyed to the wife by a third person. The execution creditor, though he could easily have obtained knowledge of the wife's title, made no attempt to gain possession until more than five years had expired after the conveyance. 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 CORPUS-Custody - Appeal.-Defendant sued out a writ of habeas corpus, and was remanded to custody, whereupon he appealed. Instead of being retained in custody, he was given his freedom on a recognizance. Held, that the appellate court had no jurisdiction of the defendant, and his appeal must be dismissed.-EX PARTE MCMINN, Tex., 68 S. W. Rep. 322. 27. HOMICIDE – Judgment - Sentence Death Warrant.-Ballinger's Ann. Codes & St. §§ 6993, 6996, prescribe the proceedings to be taken when judgment of death is rendered, and include the provision that "the judge shall appoint a day for the execution which shall not be less than 30 nor more than 90 days from the time of judgment, and the sheriff or officer to whom a death warrant is delivered shall return the same within 20 days after the time fixed for execution." Act March 8, 1901, relating to the death warrant, the contents thereof, the return, and fixing the place of execution, amended sections 6993, 6995, supra. Held, that mandamus would lie to compel the judge of the superior court to issue a death warrant against a defendant convicted before the amendment, though 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

Where the evidence shows that it may have appeared to defendant that he was in danger of his life or of serious bodily harm from more assailants than one, acting together, an instruction on self-defense, failing to charge that defendant had a right to defend against and to kill either assailant, is erroneous.-SEELEY V. STATE, Tex., 63 S. 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 home. stead laws, which avers that the entry was made, and that by means of it the accused obtained possession of the land, and cut the timber thereon, is sufficient, 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 Circuit, 108 Fed. Rep. 61.

31. INSURANCE-Premiums - Non ayment-Forfeit. 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 the company, pay the premium in quarterly installments, the assured, having chosen the latter 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 forfeiture for non-payment of installments.-NIXON V. TRAVELERS' INS. CO. OF HARTFORD, CONN., Wash., 65 Pac. Rep. 195.

32. JUDGMENT - Amount Remittitur.-Where the judgment is 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. v. MITCHELL, Tex., 68 S. W. Rep. 336.

33. JURY-Discussion-Defendant's Failure to Testify. 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 lien on a safe left on his premises as against purchasers thereof 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-Judgment. 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 surrender the premises, which plaintiff refused, an action to recover the second month's rent in advance, decided against plaintiff, and in 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 not 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 Moturity Waiver of Forfeiture Neither the

ment from being binding on him.-SOUTHERN ROCK ISLAND PLOW Co. v. PITLUK, Tex., 63 8. W. Rep. 354.

38. LOAN TO PAY INTEREST ON MORTGAGE COUPONSLender's Right to Preference over Mortgage.-That money was borrowed to pay interest on matured railroad 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 purchase money for locomotives which become subject to the mortgage under an after-acquired property clause. -CONTRACTING & BUILDING CO. OF KENTUCKX V. 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 furnished by an employment agency to a railroad promoter, and such laborers committed a trespass on 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 his servants to another is nevertheless liable for their negligence, he being responsible for employing unqualified and careless persons, since the injury did not result from any negli gence in the selection of the laborers nired 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 if regligent, if such negligence was the cause of the injury to the servant, though the negligence of plaintiff's fellow-servant may have contributed to the injury.-TEXAS & P. Rr. Co. v. MAUPIN, Tex., 63 S. 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 time lim. Ited for redemption.-NEHER V. CRAWFORD, N. Mex., 65 Pac. Rep. 156.

42. MECHANICS' LIENS-Foreclosure.-Where minere perform labor for the lessee of a mine under a contract with him alone, they are not entitled, under Rev. St. par. 2276, to a judgment against the owner of the fee, foreclosing mechanics' liens on the freehold.GRIFFIN V. HURLEY, Ariz., 65 Pac. Rep 147,

43. MORTGAGES-Deficiency-Judgment-Transfer of Mortgage-Personal 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. TUOHY, Cal., 65 Pac. Rep. 139.

44. MORTGAGE-Undertaking to Pay Mortgage.-A deed conveying about 100 acres of land, which recites that the grantees undertake to support the grantors for life, and that it is understood that the grantees are