a loan of money and giving of security for its repayment.-MEARS V. STROBACH, Wash., 40 Pac. Rep. 621. 37. DEED-Description. - Where a grantor conveys part of a lot by a deed describing it by metes and bonds, and subsequently conveys the balance of the lot to another, describing it as being bounded by the land previously conveyed, the grantee in the first conveyance is limited to the tract described in his deeds by metes and bonds, though less than it was the intention of the parties thereto to convey.-ProBETT V. JENKINSON, Mich., 63 N. W. Rep. 646.

38. EQUITY-Reformation of Instrument. - Plaintiff made a certain payment to defendant bank, and received in exchange a note signed by a firm composed of the officers of the bank, and the business of which was transacted in the bank's office. He subsequently gave a check to his wife, which was also exchanged at the bank office for a similar note. Plaintiff and his wife could both read and write, and had transacted considerable business with banks. Plaintiff retained the notes for two years, and, upon failure of the firm, began suit to reform the notes and change them into certificates of deposits of the bank, on the ground that he intended to deposit his money with the bank: Held, that plaintiff was not entitied to a decree.-MURPHY V FIRST NAT. BANK OF CEDAR FALLS, Iowa, 63 N. W. Rep.

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39. EVIDENCE - Books of Account. - In an action against a wife to recover an account alleged to have been incurred by her absent husband as a family ex. pense, for which the property of either is made liable by Code, § 2214, it appeared that plaintiff kept no books of original entry, but entered sales on slips, and at the close of the day entered them on a ledger, which did not show the kinds of goods sold: Held, that the ledger was not admissible as a book of original entries.-WAY V. CROSS, Iowa, 63 N. W. Rep. 691.

40. EVIDENCE-Declarations of Agent. The declarations of agents and employees, concerning matters as to which they have no authority to speak for the master, and not made in connection with the performance of any duty, or the transaction of any business for the employer, are mere hearsay, and inadmissible against the principal.-MISSOURI PAC. RY. CO. V. JOHNSON, Kan., 40 Pac. Rep. 641.

Income of Trust Fund.-Where a fund is given to executors, to keep invested and pay over the interest to a legatee during his life, a trust is created, and the income of such fund cannot be reached by a judgment creditor of the legatee in satisfaction of his judgment, by supplementary proceedings under the act respecting executions.-LINN V. DAVIS, N. J., Atl. Rep. 129.

taining a suit by simple contract creditors of the corporation, who were neither parties nor privies to the foreclosure suit, for relief from the fraud of the corporation and stockholders, except that the court cannot interfere with the possession of the property by the trustee or receiver.-BRIERFIELD COAL & IRON Co. v. GAY, Ala., 17 South. Rep. 618.

45. FEDERAL COURTS-Circuit Court- Jurisdiction.The Circuit Court has jurisdiction in a general creditors' suit properly pending therein, for the collection and distribution of the assets of an insolvent corporation, to hear and determine an ancillary suit instituted in the same cause by its receiver, in accordance with its order, against debtors of such corporation, so far as in said suit the receiver claims the right to recover from any one debtor a sum not exceeding $2,000. -WHITE V. EWING, U. S. S. C., 15 S. C. Rep. 1018.

46. FIXTURES.-It was not necessary to allege that plaintiff was the owner and holder of the notes in suit, where he averred that before maturity he bought them from, and they were indorsed to him by, the payee, and that defendants, as makers and indorsers, were indebted to him for their amount. Machinery placed in a building and fastened by bolts to a brick foundation thereby becomes a part of the realty, and, with the latter, subject to an existing vendor's lien thereon.-SIMPSON, HARTWELL & STOPPLE V. MASTERSON, Tex., 31 S. W. Rep. 419.

47. FRAUDULENT CONVEYANCES-Innocent Purchaser. -T, a stockholder to a large amount in an insolvent bank, on the day of the failure of such bank conveyed a large quantity of real estate, constituting all his property, to his children, in consideration of natural love and affection. The children of T subsequently conveyed portions of such real estate to purchasers for valuable consideration and mortgaged other portions. None of the purchasers or mortgagees had actual notice of T's indebtedness at the time of the conveyances to his children: Held, that the record of the deeds in consideration of love and affection was not enough to put such purchasers or mortgagees upon inquiry, and they were entitled to hold the land, as against the receiver of the bank. - YARDLEY V. TORR, U. S. C. C. (Penn.), 67 Fed. Rep. 857.

48. FRAUDS, STATUTE OF Agreement Relating to Land.-Where the owner of the lot and the street number appears on the agreement, the omission of the name of the city or town in which the lot is located does not render the description indefinite.-PRICE V. MCKAY, N. J., 32 Atl. Rep. 130.

49. GARNISHMENT Receiver as Garnishee. - A receiver is not a "public officer," within the meaning of How. Ann. St. § 8096, providing that "no person shall be adjudged a garnishee by reason of any money in his hands as a public officer."-COHNEN V. BLACK, Mich., 63 N. W. Rep. 641.

50. GIFT-Assignment - Consideration. -The allegation in a petition that the note in suit was assigned to plaintiff "for a good and valuable consideration" is sustained by evidence that the consideration was "natural love and affection." - MEYER V. KOEHRING, Mo., 31 S. W. Rep. 449.

51. HUSBAND AND WIFE - Conveyance-Validity.-In an action to set aside a conveyance made by a husband as in fraud of his deceased wife's interest in community property, evidence showing what property the husband and wife respectively had at the time of their marriage, and what property they afterwards acquired, is admissible. Declarations by the husband after his wife's death as to what was community property, and his statements claiming as his other property belonging to his wife or the community, are also admissible to show fraud in connection with the community property in controversy.-SMITHEAL V. SMITH, Tex., 31 S. W. Rep. 422.

Preferences. A transfer of property by an insolvent debtor to one of his creditors to secure an existing debt may constitute an unlawfu 61. LANDLORD'S LIEN - Waiver.-Under Code, § 3017, giving a landlord a lien for rent on all crops grown on the premises, the lien exists as against one who buys the crops not knowing they were raised on leased premises.-BLAKE V. CHAS. COUNSELMAN & CO., Iowa, 63 N. W. Rep. 679.

62. LIEN-Personal Judgment.-Where, in an action to enforce a mechanic's lien, a decree is rendered enforc ing the lien, and also embracing a personal judgment against defendant, plaintiff may voluntarily relinquish the right to enforce the lien, owing to the invalidity of the decree in that respect, and still enforce the per sonal judgment.-FINCH V. TURNER, Colo., 40 Pac. Rep.

565.

63. LIMITATION OF ACTION New Promise by Ex. ecutrix.-An independent executrix has power, before a claim against deceased is barred, to suspend the run. ning of limitations by her promise to pay the claim.DANIEL V. HARVIN, Tex., 31 8. W. Rep. 421.

64. LIMITATION OF ACTIONS-Continuing Nuisance.Defendant constructed a ditch through plaintiff's land over which it had secured a right of way, and, several years thereafter, by the gradual percolation of water from such ditch, owing to the character of the soll, damages resulted to plaintiff's land: Held, that the nuisance was a continuing one, and damages could be recovered for injuries occurring within six years be fore suit. CONSOLIDATED HOME SUPPLY DITCH & RESERVOIR CO. V. HAMLIN, Colo., 40 Pac. Rep. 583.

65. MALICIOUS PROSECUTION - Probable Cause.- In an action for malicious prosecution, it is for the court to determine whether certain admitted or clearly proven facts constituted probable cause. - SMITH V. LIVERPOOL & LONDON & GLOBE INS. Co., Cal., 40 Pac. Rep. 540.

66. MANDAMUS TO GOVERNOR.-The governor of this State, acting as governor, is not an officer inferior to this court, and cannot be compelled by mandamus to perform a duty not strictly ministerial. Mandamus will not lie to compel the governor to revoke an order suspending a member of the board of trustees of charitable institutions, based on charges preferred which the governor deems worthy of credit.-HOUSE HOLDER V. MORRILL, Kan., 40 Pac. Rep. 664.

67. MANDAMUS.-The warden of the penitentiary can not, by mandamus, compel the board of directors of that institution to examine the adjusted bills and accounts of the warden incurred in carrying on the business of the penitentiary and indorse the warden's report or statement of the same, the duty of the board in the premises being to the public rather than to the warden.- CHASE V. BOARD OF DIRECTORS OF STATE PENITENTIARY, Kan., 40 Pac. Rep. 665.

68. MARRIAGE-Evidence. The fact that slaves after their emancipation continued to live together as husband and wife until the death of the wife (a period of 30 years) shows a valid marriage.-COLEMAN V. VOLLMER, Tex., 31 S. W. Rep. 413.

69. MASTER AND SERVANT-Negligence. It is the duty of a railroad company to not only furnish reasonably safe machinery and appliances for the operation of its road, but to use reasonable care and diligence to maintain them in such condition.--ATCHISON, T. & 8. F. R. CO. V. NAPOLE, Kan., 40 Pac. Rep. 669.

70. MECHANIC'S LIEN-Contract. - Where a contract was contained in an offer in writing and in an acceptance by telegram, one claiming a mechanic's lien under it, who had possession of the telegram only, while the owner of the building had the offer, did not "have" a written contract, within the meaning of Rev. Civ. St. art. 3165, providing that, if the lien claimant "have" no written contract, it will be sufficient to file an itemized WARNER ELEVATOR MANUF' account of the claim.

CO. V. MAVERICK, Tex., 31 8. W. Rep. 353.

71. MINING CLAIM-Notice of Location.-Under Gen. Laws, div. 5, § 1477, requiring a person making a location of a mining claim to file a declaratory statement thereof on oath, a statement which, on its face, ap creditor holds security upon two funds, with liberty to resort to either for the payment of his demand, and another creditor holds a junior security upon one only of the funds, the former will be compelled to exhaust the fund which he alone can reach before resorting to the other fund, and thereby depriving the latter creditor of his security, yet the rule is one of equity, and cannot be invoked by the creditor against another in cases where it would injuriously affect the rights of the prior creditor or third person.-STATE BANK OF FLORIDA V. ROCHE, Fla., 17 South. Rep. 652.

81. PARTNERSHIP-Contract by one Partner. - The general rule is that one partner has no implied authority to bind the firm by an instrument under seal, but where such an instrument has been executed by one partner in the firm name, in the scope of the partnership business, it may be ratified by the other partners by prior or subsequent oral assent, or by implication from acts or declarations of such partners.-TISCHLER V. KURTZ, Fla., 17 South. Rep. 661.

82. PARTNERSHIP Advancements by Partners.Where the amount of advances made by a partner to the firm is paid him out of firm funds, the debt is satisfied; the contention that, because he was entitled to one half of the firm funds, he only received from the firm one-half of the debt, being untenable. -THOMPSON V. BECK, Nev., 40 Pac. Rep. 516.

83. PARTNERSHIP-Authority of Partner.-A partnership formed to carry on the business of general contractors and builders being a non trading partner. ship, a person who accepts from one of the partners a firm note, signed by him, and secured on the firm's chattels, is charged with notice that under the partnership agreement the partner had no authority to execute the note or mortgage on behalf of the firm.SNIVELY V. MATHESON, Wash., 40 Pac. Rep. 628.

84. PLEADING Counterclaim.-A landlord, in an action for rent, sued out an attachment, and, upon its being quashed, filed an amended petition in equity for the foreclosure of the lien under the lease, as a mortgage: Held, that the filing of the amended petition was not the beginning of a new action, hence damages caused to defendant by the attachment could not be pleaded as a counterclaim, as they were not an existing cause of action at the time of the commencement of the suit, as required by Code, § 2659.-YOUNGERMAN V. LONG, Iowa, 63 N. W. Rep. 674.

85. PROCESS-Abuse-Levy on Exempt Property.-An action will lie against one who maliciously, and with out probable cause, garnishes the exempt earnings of his debtor, knowing them to be exempt, with the purpose of harassing the latter's employers, and thereby compel him to pay the debt out of such exempt money in order to avoid discharge.-NIX v. GOODHILE, Iowa, 63 N. W. Rep. 701.

86. PUBLIC LANDS-Grants-Riparian Rights. - Where the government grants lands on the bank of a freshwater stream, without reservation, in States where the common law prevails, all unsurveyed islands between the middle line of the stream and the bank pass by the grant, and the riparian owner cannot be divested by a subsequent survey and grant of the islands. -GRAND RAPIDS & I. R. CO. V. BUTLER, U.S. S. C., 15 S. C. Rep. 991.

87. QUIETING TITLE-Title to Support.-He who comes into equity to get rid of a legal title as a cloud upon his own must show clearly the validity of his own title and the invalidity of his opponent's. Equity will not act in such cases in the event of a doubtful title; and a party, to be relieved and to succeed in contests of this character, must do so on the strength of his own title, and not on the weakness of his adversary's.-LEVY V. LADD, Fla., 17 South. Rep. 635.

88. RAILROAD COMPANY-Injury-Contributory Negligence.-Absence of contributory negligence must be proved by plaintiff, and any presumption of its absence arising from the assumption that one's instincts of self-preservation will make him diligent is over

come by evidence that a railroad employee, off duty, while walking along a track on his way home, was struck by a train which he had reason to expect, and which he could have heard when 400 feet away.-BAKER V. CHICAGO, R. I. & P. RY. Co., Iowa, 63 N. W. Rep. 667.

89. RAILROAD COMPANY-Negligence.-Where the engineer of a train saw children ahead, in a dangerous position, on a railway bridge having two tracks, knew that another train was close at behind on the other track, and that the place to stand on the bridge between the two tracks was less than three feet, having a plank walk one foot wide,-the jury is justified in finding him negligent for not stopping his train, when he could have done so, although he thought the children would go on the plank walk.-SUTZIN V. CHICAGO, M. & ST. P. RY. Co., Iowa, 63 N. W. Rep. 710.

90. RAILROAD COMPANIES Trespasser. By paying money to a brakeman on a freight train, a trespasser does not become a passenger, nor does he obtain any of a passenger's rights; for it is not within the scope or authority, apparent or real, of a brakeman to col. lect fare.-MCNAMARA V. GREAT NORTHERN RY. Co., Minn., 63 N. W. Rep. 726.

91. RAILROAD COMPANY - Right of Way.-In a suit to enjoin interference with plaintiff railroad company's right of way, defendant cannot attack the capacity of plaintiff's corporate grantor to acquire a right of way and operate a railroad thereon.-KANSAS CITY & S. E. RY. Co. v. KANSAS CITY & S. W. Rr. Co., Mo., 31 S. W. Rep. 451.

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93. RECEIVER - Property in Custodia Legis-Attachment.-Property which has been seized by attachment issuing out of the Circuit Court, and delivered to a claimant on the execution of a statutory bond, is in the custody of the law, and cannot, except in assertion of a paramount lien, be transferred by a court of equity to a receiver at the instance of another creditor of the attachment defendant.-WILLIAMS V. DISMUKES, Ala., 17 South. Rep. 620.

94. REMOVAL OF CAUSES.-The mere fact that the defendant is a United States marshal justifying under a writ of attachment issued from the Federal Court for this district, does not confer upon him any right of removal of the cause to that court.-WALKER V. COLEMAN, Kan., 40 Pac. Rep. 640.

95. SPECIFIC PERFORMANCE.-As a general rule, an action for the specific enforcement of a contract relating to chattels will not lie, because the law affords adequate and complete redress in an action for damages. -NORTHERN TRUST CO. V. MARKELL, Minn., 63 N. W. Rep. 735.

96. SPECIFIC PERFORMANCE Statute of Frauds.Where the owner of land contracts to convey the same to another, who is in possession thereof conjointly with him, the payment of the price and subsequent surrender of exclusive possession to the vendee, who makes valuable and permanent improvements on the property, are sufficient to take the contract out of the statute of frauds.—PECK V. STANFIELD, Wash., 40 Pac. Rep. 635.

98. TAXATION-Excessive Assessment.-The fact that property has been assessed at an excessive valuation does not render the assessment absolutely void, and, on application for judgment for delinqent taxes, the court may reduce the same, and give judgment for an amount found to be just.-PACIFIC COUNTY V. ELLIS, Wash., 40 Pac. Rep. 632.

99. TENDER-Payment into Court.-To abate interest from the time of a tender of the principal and interest due, the tender must be kept good by bringing the money into court as offered.- DEACON V. CENTRAL IOWA INV. Co., Iowa, 63 N. W. Rep. 673.

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100. TRADE-MARK Unfair Competition Fraud of Plaintiff.-Fraud, such as to disentitle a plaintiff to re lief against unfair competition in his business, cannot be predicated of statements which, owing to the brevity required by the limited space of a label, are not minutely accurate; nor of the use on two classes of goods of labels which might be mistaken for each other, the statements on both being true; nor of the use, to a limited extent, of the name of a firm to which the plaintiff believed itself to have succeeded; nor of the use of "trade talk" in advertisements.-CLARK THREAD CO. V. ADMITAGE, U. S. C. C. (N. Y.), 67 Fed. Rep. 896.

101. TRUST AND TRUSTEE-Validity.-The fact that the person to whom a chattel mortgage in trust for creditors was given was insolvent will not invalidate it. Where the subject of a chattel mortgage in trust for creditors was electrical goods, the fact that the mort gagee was unskilled in the use and handling of such goods will not invalidate the trust.-LEWIS V. ALEX ANDER, Tex., 31 S. W. Rep. 414.

102. VENDOR'S LIEN.-A conveyance of an interest in land to one who owned the remaining interest, made for the purpose of effecting a sale of the whole tract to another, the deed reciting that the consideration had been paid, is inconsistent with the reservation of a vendor's lien on the land.-SCHEERER V. AGEE, Ala., 17 South. Rep. 610.

103. WAREHOUSEMAN- Parties.-A bailor, who has pledged her warehouse receipts for cotton in store, cannot, either in her own name, or for the use of the pledgee, bring replevin for the cotton.-SELLECK V. MACON COMPRESS & WAREHOUSE CO., Miss., 17 South. Rep. 603.

Central Law Journal.

ST. LOUIS, MO., AUGUST 23, 1895.

The Eighteenth Annual Meeting of the American Bar Association, which will convene at Detroit, Michigan, on the 27th of August, will undoubtedly be an interesting event, if one is to judge from the announcement made in the published programme. In addition to the usual interest which these recurring meetings excite in many prominent members of the bar, in all portions of the country, there will be some noteworthy addresses. The annual address will be made by Hon. William H. Taft of Ohio, Judge of the Circuit Court of Appeals of the United States. Papers will be read by William Wirt Howe of Louisiana, and by Richard Wayne Parker of New Jersey on "The Present Scope of the Constitutional Guarantees of Liberty and Private Property." There will be interesting reports of the different committees, meetings of the Section of Legal Education, whereat many entertaining addresses will be made, and the usual banquet, which though last, is not least in importance.

The subject of building restrictions, now often inserted in deeds, being of more or less recent use, and springing from modern needs is lacking somewhat in light from authorities. The construction of an ordinary and plain building restriction is without difficulty, but questions frequently arise in reference to the building line established by a deed where the vendee of the land proposes to erect a porch in front of the line. The recent decision of Reardon v. Murphy, by the Supreme Judicial Court of Massachusetts sheds some light upon this question. It was held in that case that a restriction in a deed "that no building shall be placed at a less distance than twenty feet from said easterly line of P street" is violated by the erection, within the prohibited distance of a piazza, eight feet wide, encircled by a railing, and having a roof supported by posts, attached to a house, and extending along its entire front. In Attorney General v. Gardiner, 117 Mass. 492, a structure three feet high, erected within a restricted space for coal bins, while considered as no part of Vol. 41-No. 8.

the defendant's house, was held to be of itself a building. The same has been held as to a pavillion. Buck v. Adams, 45 N. J. Eq. 552, 17 Atl. Rep. 961. See, also, Blakemore v. Stanley, 159 Mass. 6, 33 N. E. Rep. 689. Bay windows are undoubtedly part of a house, and cannot extend over restricted ground. Sanborn v. Rice, 129 Mass. 387, 395; Payson v. Burnham, 141 Mass. 547, 6 N. E. Rep. 709; Manners v. Johnson, 1 Ch. Div. 673. In Bagnall v. Davies, 140 Mass. 76, 2 N. E. Rep. 786, the restriction was that no building should be erected within 20 feet of a certain street. The front line of the defendant's house was twenty feet from the street. In front of this was a piazza, the front line of which was 14 feet from the street. The piazza was covered by a continuation of the roof of the building, which extended to within less than 14 feet of the street. In the roof was a protecting dormer window, by means of which a portion of a room in the second story 7 1-4 feet wide, out of which this window opened, was carried to a point 17 feet from the street. The posts which supported the projecting portion of the second story were 6 inches in diameter, and supported by brick piers resting on the ground. It seems that the defendant in the case of Reardon v. Murphy contended that the court in Bagnall v. Davies did not order the piazza disturbed. But while the opinion does not state in terms that the posts were within the restriction it does say that the "portions of the roof and of the dormer window which extend beyond the front wall towards the street are extensions of the building, and a part of it, within twenty feet of the street, within the meaning of the restriction." As the court says, there can be no ground for a distinction between a piazza covered by an extension of the main roof of a house and one covered by its own roof and attached to the house.