ern District of Florida. Opinion by Mr. Chief Justice WAITE.-Florida Central Railroad Company v. Schutte.

EVIDENCE-COMPETENCY OF PARTIES-DISTRICT OF COLUMBIA-ASSIGNMENT OF A LIFE POLICY AS SECURITY FOR LOANS.-1. Section 558, U. S. Rev. Stat., rendering a party incompetent to testify in an action by or against a personal representative, to any transaction with, or statement by, the deceased, unless called to testify thereto by the opposite party, or required thereto by the court, applies to the courts of the District of Columbia as fully as to the Circuit and District Courts of the United States. 2. The bill was filed by the personal representatives of Robert C. Page, for the purpose of securing for the estate of the decedent the benefit of a policy upon his life for $3.000, issued November 22, 1866, by the American Life Insurance Company of Philadelphia. The bill conceded that the defendant, Burnstine, had an interest in the policy to the extent of any loans of money by him to the assured, and prayed an account for the ascertainment of such sums. The defendant resisted the relief asked, upon the ground that, at the death of the assured, he was the absolute owner, by assignment, of the policy; and, as such, entitled to receive, to his own use, the entire sum which might be realized thereon. The amount due on the policy was $2,676.33, which was paid by the company into court, to abide the result of this suit. The court said: "The transactions between Page and Burnstine had their origin, it is conceded, in a loan of money by the latter to the former. To secure that loan, an assignment was made of Page's interest in the policy to the extent of the sum borrowed. Each subsequent assignment shows, upon its face, a similar arrangement, until that of January 7, 1873, was executed. The latter assignment. by itself, imports an absolute transfer to Burnstine of all the right, title and interest of the assured in the policy, and to the payments previously made thereon, as well as all benefit and advantage to be derived therefrom. But the circumstances disclosed in the record indicate, with reasonable certainty, that the real and only object of the execution of the assignment of January 7, 1873, was to invest Burnstine with the entire control of the policy, to the end that, thereafter, the company might deal directly with him, and, upon the death of the assured, that he might be invested with full authority to receive the proceeds of the policy, and apply them in the repayment of such sum or sums as he had loaned to Page upon the security of the policy. In other words, the last assignment may be construed as simply appointing Burnstine, upon the death of the assured, to receive from the company such sum as would then be due on the policy, and, after reimbursing himself to the extent of his loans to Page, to pay the balance to the person entitled thereto. A different construction of that instrument would place Burnstine in the position of being pecuni

arily interested in the death of Page. Unless compelled to do so, we should not suppose that he had any desire or purpose to speculate upon the life of Page, or to do more than to secure the repayment of money actually loaned by him to the assured." Reversed. Opinion by HARLAN, J.— Page v. Burnstine.

SUPREME COURT OF PENNSYLVANIA.

December, 1880.

PERSONAL INJURY-DEATH OF MINOR CHILD -CONTRIBUTORY NEGLIGENCE OF THE FATHER. —1. In an action against a railroad company for negligence, the defendant requested the court to charge: "That the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, having placed his son, seven years of age, on the lead horse, over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position; and can not recover for the loss of his son or his horse killed by the passing train." To which the court answered: "This point assumes a fact, the existence or nonexistence of which is a question for your consideration, to-wit: Whether plaintiff placed his son on a horse over which he had no control. This is for you, and we can not assume it. If it were true it would be strong evidence of negligence. It is for you to find under all the evidence in the cause, whether there was negligence either on the part of the plaintiff or of his son who was killed, which contributed to the productiou of the accident. If there was such contributing negligence, the plaintiff can not recover." The verdict was for the plaintiff: Held, that the assumption in the point forbade its affirmance, and that it could have been well refused without qualifying remarks. Held, further, that there was error in the remark that if the assumed fact were true, it would be strong evidence of negligence; for on the verity of the facts as assumed, without reference to other proofs, it would be contributory negligence per se; and as it was not certain that the error did the defendant no harm, the judgment must be reversed. 2. Where the form of the declaration shows no inconsistency in the rights sued upon, nor an apparent misjoinder of the claimants thereunder, an actual misjoinder of rights or parties must be taken advantage of on trial and not by motion in airest of judgment. A claim for statutory and common law-damages, admitting of the same pleas and judgment, may be joined in the same action. 3. In an action against a railroad company for the death of plaintiff's minor child, in which was joined a claim for the loss of personal property, it was agreed on the trial that the action should be tried as if the mother were a party, and she should be precluded by the verdict. The verdict was for the plaintiff:

Held, that no such error was apparent on the record as could be taken advantage of by motion in arrest of judgment. Judgment reversed, and new trial ordered. Opinion by TRUNKEY, J.-Pennsylvania, etc. R. Co. v. Bock.

EQUITY JURISDICTION APPLICATION FOR RECEIVER FOR OIL WELLS, PENDING AN ACTION TO TRY THE TITLE.-In an action of ejectment to try the title to the possession of lands containing oil-producing wells, an application was made for (1) an injunction restraining the defendants from drilling wells or producing or removing oil from the premises; (2) the appointment of a receiver, pendente lite, to take charge of the producing well or wells, until the rights of the parties be determined, on the ground that the defendants unless restrained, would, in whole or in part, deplete and render worthless the said oil property before said ejectment suit could be determined. The court below refused the application. On appeal this court held, that the action of the court below was right; that although, owing tothe fact that the pe-culiarity of the property in an oil well is such that an injunction to stay waste or a writ of obstrepement, will not be an adequate remedy for an owner out of possession, such fact will not authorize the appointment of a receiver to turn out the actual possessor and receive all the profits, thus assuming jurisdiction to try title upon what is merely an ejectment bill, and depriving the parties of their constitutional right of trial by jury. Schlecht's Appeal, 10 P. F. Smith, 172; Tillmes v. Marsh, 17 P. F. Smith, 507; Christie and Scott's Appeal, 4 Norris, 463. Decree affirmed. Opinion PER CURIAM.-Enterprise Transit Company's Appeal.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January, 1881.

CORPORATION-REPEAL OF GENERAL LAWMEMBERSHIP.-1. The repeal of a general corporation law can uot be construed, in the absence of express provisions, as intended to repeal the charters of corporations formed under it, especially when the manifest purpose of the repealing act is to substitute a new law, extending the provisions of the old, and perfecting its details, but not changing its general policy. 2. The facts that a person was elected a member of a corporate association, and that he paid the admission fee and annual dues assessed on him for many years, are sufficient to justify the court in finding that he was entitled to all the rights and privileges of membership, although he never signed the constitution and by-laws, such signing not being required as a condition of membership, but being necessary only to secure the right to vote and to be elected to office. 3. The benefit of membership in a corporate association, so long as it con

tinues, is a sufficient consideration for the prom~ ise of the member, implied by law from his joining the association, to pay his aunual dues. Opinion by COLT, J. United Hebrew Benevolent Assn. v. Benshind.

TORT-NEGLIGENCE-RULING.-In the trial of an action of tort brought by an infant less than seven years of age, through his next friend, to recover damages for being run over by a wagon belonging to the defendant and driven by the defendant's servant, the plaintiff claimed and offered evidence tending to show that at the time of the injury he was sitting within the limits of a highway forty feet wide, about two or three feet from a picket fence bordering on said street, not far from his residence, with an older brother five or six feet from him. Upon these facts it was held, that it was not the duty of the presiding judge to rule as matter of law that it was contributory negligence in the plaintiff to sit where he was sitting upon the street. Opinion by LORD, J.— Murley v. Roche.

DAMAGES WHERE DEATH RESULTS INTOXICATING LIQUORS-STATUTE.-In this Commonwealth there is no right of action by any person for damages occasioned by the death of another. Carey v. Berkshire R. Co., 1 Cush. 475; Shaw v. B. & W. R. R., 8 Gray, 80; Kearney v. B. & W. R. R., 9 Cush. 109; Palfrey v. Portland R. R., 4 Allen, 56. The act of 1879, ch. 297, providing for a recovery by the husband, wife, child, parent, guardian, employer or other person who shall be injured, of damages for injuries caused by the use of intoxicating liquors, can not therefore be considered to give the right by implication to recover for the death of a party through said cause. Opinion by LORD, J.-Barrett v. Dolan.

RAILROAD-MORTGAGE TO TRUSTEES-BILL IN EQUITY TO COMPEL TRUSTEES TO FOReclose. -The plaintiffs in a bill of equity alleged themselves to be holders of the bonds of a railroad company, secured by a mortgage by said company to the defendants as trustees, which mortgage provided that the mortgagor should retain possession of the mortgaged property till, and for six months after, default intered payment of some of the bonds secured by it, or interest thereon, and that thereafter the defendants, at the written request of one-half in amount of the holders of the bonds, were authorized and required to proceed to sell the mortgaged property, and apply the net proceeds of the sale to payment of the bonds in full, or ratably if the proceeds were insufficient for payment in full; that the mortgagor had been in default in the matter of the payment of interest for more than six months, and that it had signified a purpose not to pay interest on these bonds, unless the plaintiffs would accept payment at a less rate than the bonds called for; that the property was producing an income sufficient, after paying the running expenses, to pay the overdue interest on the bonds, and to pay the accruing interest; that the mortgagor was applying

the earnings to pay its unsecured debts, and to uses which did not benefit the plaintiff; and that there was danger that, if this course continued, the mortgaged debt would go on by the accumulation of interest to such amount, that the mortgage would be inadequate security for its payment. The bill was brought by the plaintiffs (about one-sixth in amount of all the bondholders), in their own behalf, and in behalf of all the bondholders who should come in to prosecute the bill. A majority of the bondholders petitioned that they might be permitted to come in and be joined as plaintiffs. The railroad company was joined with the trustees as a defendant. The defendants demurred. Held, that the bill stated a case which called for and entitled the plaintiffs to relief in equity, that all necessary persons had been made parties to it, and that therefore the demurrer was not well taken. Opinion by SOULE, J.-First Nat. Fire Ins. Co. v. Salisbury.

OF CITY TO ASSUME BY CONTRACT.-The liability of municipal corporations to compensate persons for injuries sustained by reason of a want of repair in the highways, being wholly a statute liability, it is not competent for a city to assume such liability by entering into a contract with a railroad company to keep in repair a bridge and its approaches, by means of which the legislature has provided that the public road shall pass over the railroad, the duty of repairing which bridge and approaches has by law been imposed upon the railroad company. Opinion by LORD, J.Rouse v. Somerville.

MORTGAGE OF PERSONAL PROPERTY-RECORD-DATE OF MORTGAGE.-In an action of tort against a deputy sheriff for conversion of personal property mortgaged to the plaintiff, the defendant claimed that the mortgage deed was not recorded within fifteen days from its date, as required by Statutes, 1874, ch. 111. The mortgage deed, in the in testimonium clause, was dated the "sixteenth day of June in the year 1879," and in the acknowledging clause, "July 21st, 1879," and the same was recorded July 24th, 1879. The plaintiff claimed and offered to prove that the true date of said mortgage deed was the date of its acknowledgment and delivery, towit, July 21, 1879, but the court excluded the -evidence as immaterial, and ruled that for the purposes of this trial, the date in the in testimonium clause must be taken as the date from which the fifteen days must begin to run, within which time the mortgage was to be recorded, and directed the jury to return a verdict for the defendant. Held, that the ruling was erroneous, and that the evidence offered should have been admitted. The real question is, when did the instrument first take effect as a valid contract between the parties. Opinion by LORD, J. Shaughnessy v. Lewis.

LEASE-RIGHT OF LESSEE TO REMOVE BUILDINGS-CONDITION PRECEDENT.-When a lease to

the plaintiff provided that he should pay the rent stipulated therein "and all taxes and duties levied and to be levied thereon during the term,” and that "upon the payment of rent and taxes aforementioned upon the said premises, said lessee shall have the privilege or right to remove any and all buildings erected by himself at the expiration of the aforesaid lease," it was held, that the payment by the plaintiff of the rent and taxes was a condition precedent to his right to sever the buildiugs and make them his personal property, and that the defendant's refusal to permit the plaintiff to remove them was, therefore, not a conversion for which he can be held liable in this action. Opinion by MORTON, J. Milligan ♥. Drury.

TORT-NEGLIGENT CONSTRUCTION of Drain CONTRACTOR- NUISANCE. In an action of tort for damages to the plaintiff's goods by water which flowed into the defendant's cellar, and thence into that of the plaintiff, which adjoined, it appeared that the defendant undertook to construct a drain from its cellar into the common sewer in the adjoining street. The block of buildings in which the two cellars were situated was surrounded by a plank barrier, constructed beneath the surface of the street, to prevent the tide from flowing into the cellars. To reach the sewer, the drain had to pass through this barrier. The defendant employed one Collins to do the work, and the evidence tended to show that he did the work negligently and improperly, so that, after he had finished the work, the tide flowed through the opening made in the barrier, and through the defendant's cellar into that of the plaintiff. The case having been reported to this court, it was held, that the jury would have been authorized in finding that the cause of the plaintiff's injury was the failure of the defendant to make the barrier tight after laying the drain. It was the defendant's duty to do this, and it can not shield itself from responsibility by showing that it employed a contractor to do the work (assuming such to be the fact) who was negligent. Opinion by MORTON, J.-Sturgis v. Theological Society.

COURT OF APPEALS OF KENTUCKY.

February 1881.

PREFERRED CREDITORS-PREMATURE SUITS.1. Where a deed was made in compliance with a bond executed five years before, there being no allegation that said bond was made in contemplation of insolvency, or with the design to prefer one or more creditors to the exclusion in whole or in part of others, its validity can not be affected by the subsequent insolvency of the obligor. 2. Suits brought to set aside conveyances as voluntary, and made to hinder and delay creditors, can not be maintained without judgment and return of nulla bona. Moat v. In ram, 7 Dana, 495;

Halbert v. Grant, 4 Mon. 581; Pryor v. Boyce, 6 J. J. Mar. 83. Jndgment reversed. Opinion by COFER, C. J.-Napper v. Yeager.

PAROL EVIDENCE ITS ADMISSIBILITY TO VARY WRITTEN INSTRUMENTS.-To an action on a note for $284.20 "for value received this 22d of November, 1873," appellant pleaded payment, except as to the interest, and as to that he pleaded an agreement entered into at the time of the execution of the note with appellee, to the effect that no interest was to be charged. In the issue as to the agreement, in regard to the payment of interest, there being no allegation of fraud or mistake, oral evidence was heard. Held, that the evidence as to the agreement in regard to the interest is competent. But the evidence failing to clearly establish the existence of the agreement, the judgment is affirmed. 6 T. B. Mon. 583; Wharton on Evidence, 952 and 953; Parsons on Notes and Bills, vol. 2, p. 519. Opinion by HINES, J.Elliott v. Elliott.

SALE OF OFFICE-CONTRACTS OF.-C, clerk of Louisville Chancery Court, being indebted to F in the sum of $28,000, entered into an agreement with F by which he transferred and delivered to W "all the demands and claims due to him, the said C, as fees of his said office, which had accrued between 1st August, 1877, and 27th Feb. 1878, and further agreed to assign to the said W, for a like purpose, all claims due to him, the said C, as fees of his said office, which shall accrue to him hereafter, or from the date of the agreement until the debt of F is paid-the same to operate as a transfer and assignment of such claims, demands and fees as they accrue." F instituted this action in equity, alleging that the trustee, W, had resigned his office on 10th February, 1879, and that C, defendant, had refused to have another appointed in his stead, etc., and asking for a temporary injunction restraining appellee from collecting his fees. The chancellor below adjudged the appellant entitled to fees already assigued and delivered, but dismissed the action as to his claims to the fees of the office to become due after date of contract. Said judgment is made to rest on two grounds: 1. It is an agreement to sell something not in existence. 2. The contract is against public policy. In affirming the court say: "If this contract can be enforced, it opens the door for speculation on the public offices of the State, under the guise of a contract for the loan of money; and while the loan in this case may have been in good faith, and for no such purpose, the recognition of the validity of such agreements would prove so detrimental to the public interests, that the chancellor should disregard them." Judgment affirmed. Opinion

by PRYOR, J.-Field v. Chipley.

NECESSARIES-WIFE'S LIABILITY FOR, ETC.— Appellees, husband and wife, were sued on note executed by them for a sewing machine. At time of execution of note appellees were housekeepers, the husband insolvent, and the wife possessed o

no general or separate estate. She subsequently purchased land, and suit was brought to subject same to payment of the note. Held, 1. The sewing machine, on the facts in this case, properly comes under the head of necessaries. 2. When a feme covert signs a writing evidencing a debt for which she might bind her separate or general estate, the presumption is, that the writing was intended to bind such estate; otherwise it is of no effect, as ordinarily she can not contract, and it must be inferred that something was intended by entering into the agreement. Judgment reversed. Opinion by HINES, J.-Singer Manufacturing Co. v. Harned.

MORTGAGE NOT A "WRITTEN CONTRACT" TO PAY-INTENTION, ETC.-The mortgage in this case recites that it is made to secure an indebtedness of a certain amount, without specifying how it is evidenced, and concludes: "If the said Prewitt shall well and truly pay the above named $200, then this obligation is to be void." Held, 1. A mortgage which does not contain a promise to pay, is not a "written contract" within the meaning of the fifteen years' statute of limitations; and in the absence of any other writing, the debt which the mortgage was intended to secure, is barred after the lapse of five years. 2. It is a question of intention, as to whether or not a mortgage was designed to evidence a contract to pay; but the usual object of a mortgage being to secure the payment of a debt, it will not readily be presumed that it was also intended as an evidence of the agreement to pay the debt. Reversed. Opinion by HINES, J.-Prewitt v. Watham.

PARTNER'S LIABILITY-JOINT AND SEVERAL. -1. A separate judgment may be rendered against one of several partners sued jointly upon a partnership debt; and even where all the partners are before the court, a failure to render judgment against one or more of them, is not a reversible error available to one of the partners against whom judgment was rendered. 2. As no personal judgment could be rendered against one of two partners in this case, he being a non-resident, it was error to render judgment against the other for such costs as accrued against the non-resident; but as the increased cost and interest resulting from a reversal would greatly exceed the error shown, the court will not reverse. Affirmed. Opinion by HARGIS, J.-Moore v. Estes.

QUERIES AND ANSWERS.

[** The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

13. In a sheriff's deed on the foreclosure of a mortgage by advertisement, the sheriff signs his name, but not officially. Does the want of the official char

acter to the signature render the deed void? In the body of the deed he is described by his proper name as sheriff. In the proof of acknowledgment, the acknowledging officer certifies that he is personally known to be the person described in, and who executed the deed, and to be the sheriff, etc. And in the proof of sale he swears that he is and was at the date of sale, the sheriff, etc., in fact, the deed appears in every way sufficient except that the official character of the sheriff does not appear to his signature to the deed. How does this affect the validity of the deed, if at all?

RECENT LEGAL LITERATURE.

X.

INDEX DIGEST-CENTRAL LAW JOURNAL; an Index Digest of Leading Articles, Legal Essays, Abstracts of Decisions, Reviews of Legal Literature, Legal Miscellany and Leading Cases, Published in the first ten volumes of the CENTRAL LAW JOURNAL, to which is Prefixed a Table of Cases and a Table of Legal Essays and Monographs. By John D. Lawson, author of "A Treatise on the Contracts of Common Carriers," and Editor of the CENTRAL LAW JOURNAL 1877-1881. St. Louis, Mo.: William H. Stevenson, Law Publisher. 1881.

If any man should be canonized, it is the indexmaker. It is he that makes it possible for any one to acquire much knowledge, and it is he that enables us to find what we know, whether that be much or little, just when it is needed. A book without an index is much the same as an index without a book. An index to the CENTRAL LAW JOURNAL is a thing to be particularly desired. Every lawyer knows how it is with law journals. We look over a number, and lay it down with a feeling that there is nothing in it that we care about. A week afterwards we find that we have need of something that we had thought of no importance. The unconsidered trifles suddenly become matters of urgent importance. Often we recall faintly something seen in some number or volume of a law journal; but we have a sort of despondent feeling that we shall never be able to find it again; that it is easier to go back to digests and text books, to examine piece by piece the scattered texts which we had seen somewhere brought into connection.

The index prepared by Mr. Lawson is what might be expected from his familiarity with the CENTRAL LAW JOURNAL; that is to say, about as near perfect as such a thing could be made. Hereafter it will only take a moment to find whatever may have been said on any topic in the journal in question during the period covered by the ten volumes that are already completed. The ten volumes have acquired a new value. They throw the light of contemporary thought and feeling on cases that have now passed into history; they reflect the criticisms that were made, the suggestions that still survive for contests not yet arisen. In short, with this digest the CENTRAL LAW JOURNAL becomes at once a standard work of the

-A good story is told of a western lawyer and a coal dealer. A load of coal was ordered of the coal dealer to be delivered at a residence described, but by mistake it was delivered at the house adjoining, occupied by the lawyer aforesaid, and put in the coal cellar. The coal dealer soon after, learning the mistake, and not hearing from the party at whose house the coal had been delivered, and being fearful as to what might happen to him in a contest with a lawyer, he called on the lawyer in question at his office, stating that he wanted a little advice in a small matter, and thereupon stated the aforesaid case of delivery of the coal to the wrong party, and asked what his remedy was. The lawyer stated very promptly that the party to whom the coal was delivered, if he had accepted it, was liable for its value. Said the coal dealer, "The coal was delivered at your house." "At my house?" said the lawyer, "and where is the coal now?" "It is in your coal cellar," said the coal dealer. "Ah," says the lawyer, "then I must see about this. How much was the coal?" Three dollars and a half," says the coal dealer. Turning to his desk the lawyer proceeded and wrote something on a piece of paper; handing it to the coal dealer. "There," says he, "this is your bill. I have given you the advice asked, which is five dollars. I have given you credit on the bill for the coal-three dollars and a half-the balance you can hand to me when convenient." The coal dealer left with a flea in his ear.

-At the trial of a law suit in Kansas about a team of mules, A, attorney for defendant, in cross-examination, asked B, a witness: "What was the condition of the mules when the plaintiff sold them, as compared with their condition when the defendant returned them to the plaintiff?" Ans. "I should think there was a decided improvement." Ques. "Do you mean mentally or physically?" Ans. "Physically, of course." Ques. "What is their mental condition at this time?" Ans. (After a little consideration.) "About the same as yours, I should think."

-In a recent trial befor a justice of the peace, only the defendant was represented by counsel. After the hearing of the testimony, the lawyer remarked that the case was so clear that he deemed it unnecessary to argue it, and briefly referred his honor to a few well-established principles of law applicable. The magistrate remarked, "It was stated on yesterday that my decision would be influenced by the lawyer in the case, and in order to show that I am not to be 'bamboozled' by them, I prepared an opinion on the same;" and turning to the merchant in whose store the court was held, said: "Mr. Caul, please give me my decision in this case, which I gave you to keep last night.”