statement of the bank's condition, knowingly made by defendant to plaintiff's agent, plaintiff's right to recover is not affected by the fact that the agent, being a director of the bank, might have informed himself of its true condition, it not appearing that the agent had actual knowledge of the falsity of defendant's statement.-TRIMBLE V. WARD, Ky., 31 S. W. Rep. 864.

48. DIVORCE

Barring of Dower. - Under Mill. & V. Code, $ 3330, providing that, if the bonds of matrimony be dissolved at the suit of the husband, the wife shall not be entitled to dower, a divorce obtained by the husband in a foreign State bars dower in Tennessee.THOMS V. KING, Tenn., 31 S. W. Rep. 983.

4. ELECTION OF REMEDIES. It is a well established principle of jurisprudence that one cannot judicially claim, at one and the same time, the thing and its price; nor can a litigant attack a judgment as null and void, and at the same time demand the fruits or proceeds of a sale made in execution thereof.-THOMPSON V. DANIEL, La., 17 South. Rep. 830.

45. EQUITY Setting Aside Judgment. - Equity has jurisdiction of a bill to set aside a judgment which has been suffered by a mistake, but much clearer and stronger proof of freedom from fault or negligence, in the party seeking such relief, is required, than upon an application for a new trial in the original action.FILLAGE OF CELINA V. EASTPORT SAV. BANK, U. S. C. C. of App. 68 Fed. Rep. 401.

46. EVIDENCE. -Where two experts were employed by a party to make an estimate of the cost of repairing a building that had been damaged by the defendant, and one of such experts had died, the other being called as a witness, it was not competent for such survivor to testify with respect to the opinion of his deceased associate.-COLLINS V. LANGAN, N. J., 32 Atl. Rep. 258.

47. EVIDENCE-Declarations-Ancient Boundaries.In West Virginia, in an action of ejectment, the declara. tion of a deceased person, who had owned and lived upon a part of the land in controversy, made to his son while hunting over such land, long before the controversy had arisen, is competent to prove the location of a boundary of the land which was pointed out by the declarant at the time of making the declaration. ROBINSON V. DEWHURST, U. S. C. C. of App. 68 Fed. Rep. 336.

48. EVIDENCE - Declarations - Res Gestæ.-Defendant's brakeman, when carrying home an injured child, immediately after an accident, being asked how it happened, replied that he gave the engineer the sig. nal to stop in time, but, as the engineer was looking the other way, he did not see it until it was too late: Held, that the statement of the brakeman was of a past transaction, and not part of the res geste.-ST. LOUIS, I. M. & S. RY. CO. V. KELLEY, Ark., 31 S. W. Rep. 884.

49. FEDERAL OFFENSE-Using Mails to Defraud.-An indictment under Rev. St. § 5480, alleging that defendant devised a fraudulent scheme "to be effected by opening correspondence by means of the post office establishment," though following the language of the statute, is defective, as failing to directly allege that defendant, as a part of his fraudulent scheme, designed its accomplishment through the instrumentality of the post office.-UNITED STATES V. LONG, U. S. D. C., Cal., 68 Fed. Rep. 348.

50. FEDERAL OFFENSE-Using the Mails to Defraud.An indictment under Rev. St. § 5480, for using the mails as a means to defraud, must directly allege that the fraudulent scheme itself included the intended use of the United States mail in its execution.-UNITED STATES V. HARRIS, U. S. D. C. (Cal.), 68 Fed. Rep. 347.

51. FRAUDS, STATUTE OF-Sale of Logs. The fact that logs were banked and marked with the vendee's name, ready to be put in the river, under a verbal contract that they were to be paid for when put in the river, is not a sufficient delivery to take the contract out of the statute of frauds.-CROSBY HARDWOOD CO. V. TESTER, Wis., 63 N. W. Rep. 1057.

52. GARNISHMENT - Affidavit.-In an action against two defendants, an affidavit of garnishment which states that the garnishee "is indebted to the said defendants in an amount exceeding the sum of fifty dollars" is sufficient to charge the garnishee for a debt due from him to one of the defendants alone.-AULTMAN, MILLER & CO. V. MARKLEY, Minn., 63 N. W. Rep. 1078.

53. GARNISHMENT - Goods in Carrier's Possession.The garnishment of goods in the possession of a common carrier will excuse its failure to deliver them according to contract.-LANDA V. MISSOURI, K. & T. RY. Co., Mo., 31 S. W. Rep. 900.

54. GIFT-Insanity of Donor.-A person of advanced years devised certain lands to his daughter, and, informing her and her husband of the fact, put them in possession, stating that he desired them to hold the property during his own life. A few years afterwards, the father having become a lunatic, his guardian notified the daughter and her husband to yield up the premises: Held, that a court of equity would protect the daughter and her husband in their possession, thus giving effect to the purpose of the father as expressed during his sanity.-POTTER V. BERRY, N. J., 32 Atl. Rep. 259.

55. HABEAS CORPUS-Commitment for Contempt.-On a habeas corpus proceeding by one committed for contempt, the order of commitment cannot be attacked if the court had power to make it in any supposable circumstance which might arise in the progress of the cause.-IN RE ROSENBERG, Wis., 63 N. W. Rep. 1065.

56. HABEAS CORPAS-Illegal Committance. When an accused person is held by a judge for examination be fore him, under the provisions of the habeas corpus act, the judge is invested with such powers only as are conferred on other magistrates in matters of preliminary examination.-EX PARTE AH KEE, Nev., 40 Pac. Rep.

879.

57. HUSBAND AND WIFE-Contract.-An agreement to pay board to a husband and wife may be enforced by the husband after the wife's death.-BRADLEY V. KENT'S EX'R, Dela., 32 Atl. Rep. 286.

58. HUSBAND AND WIFE-Estate by Entirety-Judgment against Husband.-Under Mill. & V. Code, § 3338, providing that the interest of the husband in the real estate of his wife shall not be sold to satisfy a judgment against him, and that the husband and wife shall not be dispossessed of such real estate by virtue of such a judgment, a purchaser of land owned by a husband and wife by the entirety at an execution sale, under a judgment against the husband, will acquire no right to the possession during the life of the wife. -COLE MANUF'G Co. V. COLLIER, Tenn., 31 S. W. Rep. 1000.

59. INSURANCE ON EXEMPT PROPERTY-Garnishment. -A provision in a policy of insurance taken out by the husband on a homestead, that, in case of garnishment in consequence of any debt of the insured, any suit on the policy by him, his representatives or assigns, shall, on application of the company, be stayed until said garnishment suit shall be disposed of, is void.-TRADERS' INS. CO. V. CHASE, Tex., 31 S. W. Rep. 1103.

60. JUDGMENT - Injunction to Restrain.-Injunction will not lie to enjoin the collection of a common law judgment entered by default, where petitioner's only excuse for the default is that his attorney, after promising to file an answer, failed to do so, and petitioner, supposing his answer would be filed and the case continued, went to his home in another county.-PAYTON V. MCQUOWN, Ky., 31 S. W. Rep. 874.

61. JUDGMENT-Res Judicata. The general rule that the judgment of a court having jurisdiction of the subject-matter, of the parties, and the process, and rendered directly upon the point in question, is conclusive between the same parties, is not applicable when the same person, though a party in both suits, is such in differents capacities-in the one, occupying a dis. tinctively representative position, such as an adminis. trator, or as a general or an ad litem guardian; in the other, as an individual.-BAMKA V. CHICAGO, ST. P., M. & O. R. Co., Minn., 63 N. W. Rep. 1116.

62. JUDGMENT-Res Judicata. A judgment upon the merits is an absolute bar to a second suit between the same parties on the same cause of action. This is termed "estoppel by former judgment." But where the second suit is on a different cause of action the operation of the judgment in the first action as an estoppel is limited to those issues of fact actually litigated, and upon the determination of which the finding or verdict was rendered. This is termed "estoppel by former verdict." Estoppel by former judgment, being a bar to the second action, must be pleaded; but estoppel by former verdict, being merely conclusive evidence of the facts actually litigated and determined in the first action need not be pleaded.-SWANK V. ST. PAUL CITY RY. Co., Minn., 63 N. W. Rep. 1087.

63. JUDICIAL SALES. - Relief under Mansf. Dig. §§ 3058, 3059, providing that, if any person refuses to pay the amount bid for any property struck off to him the officer may resell the same and recover the loss by summary proceedings, is obtainable, if at all, in a court of law. -HARDER V. SAYLE STEGALL COMMISSION Co., Ark., 31 S. W. Rep. 979.

64. JUDICIAL SALES.-Where a purchaser at a sale by a trusteee under order of court was fully cognizant of a defect in the title, equity will not relieve him from liability to comply with the terms of the sale on the ground that the defect renders the title unmarketable. -STEWART V. DEVRIES, Md., 32 Atl. Rep. 285.

65. LANDLORD AND TENANT-Rent-Statute of Frauds. -The execution of a lease under seal by one purporting to be the owner's agent may be ratified by the owner so as to take it out of the statute of frauds.BLESS V. JENKINS, MO., 31 S. W. Rep. 938.

66. LANDLORD AND TENANT-Surrender of Lease.Where defendant was in possession of a building under a lease for a term of years, retained the keys and the actual possession of the lower floor, where the office was, the fact that he moved out his stock and paid rent up to a certain date, under a verbal agreement between him and the lessor that the lease should determine at that date, but that defendant could remain

in the office until the building was rented, is not a surrender by operation of law, within Rev. St. § 2302, providing that no interest in lands shall be surrendered unless by operation of law or by conveyance in writing. -BURNHAM V. O'GRADY, Wis., 63 N. W. Rep. 1049.

67. LIBEL - Privileged Communications. Where it appears, from a complaint in an action for libel based on an allegation in a pleading in another action, that the defamatory allegation was wholly gratuitous, irrelevant, and immaterial; that it was well known by defendant to be false and untrue; that it was published without cause or justification, and with express malice -it is not privileged.-SHERWOOD V. POWELL, Minn., 63 N. W. Rep. 1103.

68. LIFE INSURANCE-Application-Warranty.-Where an application for insurance contains, under a heading "Family Record of the Applicant," a tabulated form to be filled out, containing a column for brothers, "living" and "dead," a failure of the applicant to state, in the "dead" column, the name of a brother who was born and died before he was himself born, and of whom he had no knowledge, is not a breach of warranty.-MUTUAL LIFE INS. CO. OF NEW YORK v. BAKER, Tex., 31 S. W. Rep. 1072.

69. LIFE INSURANCE - Husband's Life - Joint Rights of Wife and Children. Gen. St. 1865, ch. 15, § 115, provides that a married woman may cause her husband's life to be insured for her sole use, and that the insurance shall be payable to her for her own use. Section 18 provides that, where a policy is expressed to be for the benefit of any married woman, it shall inure to her separate use and benefit, and that of her children: Held, that a policy of insurance procured by a married woman on her husband's life, and payable to her or her legal representatives, inured to the separate use and benefit of the assured and her children jointly.REED V. PAINTER, MO., 31 8. W. Rep. 919.

A

as a mortgage. - PERSHING V. WOLFE, Colo., 40 Pac. Rep. 856.

80. MORTGAGE BY PARTNER Firm Creditors. mortgage of his interest in firm property by one partner to secure his individual debt does not abridge the rights to creditors to attach such property for firm debts.-EWART V. NAVE MCCORD MERCANTILE CO., Mo., 31 8. W. Rep. 1041.

81. MUNICIPAL CORPORATIONS-Bonds.-Bonds duly and lawfully issued by a municipal corporation cannot be rendered invalid in the hands of a bona fide holder by the fact that such corporation, though properly a city, has issued such bonds under the name of a village, it having previously been recognized as a village in an act of the legislature changing its name, and having levied and collected taxes, passed ordinances, and otherwise acted as a village.-CORNELL UNIVERSITY V. VILLAGE OF MAUMEE, U. S. C. C. (Ohio), 68 Fed. Rep. 418.

82. MUNICIPAL CORPORATION - City Indebtedness Constitutional Limit.-Where, in defense to an action to enjoin a city from carrying out a contract for paving, on the ground that it is in violation of Const. art 13, § 6, limiting the indebtedness of a city, defendants set up that the cost of the paving is payable out of a special fund assessed against the abutting land, and did not constitute a liability of the city, defendants must show that proper steps have been taken to assess the abutting lands for the paving, and that the contractor has expressly agreed to accept the fund raised by such assessment, and has walved all right to hold the city liable for the cost of the paving. -ATKINSON V. CITY OF GREAT FALLS, Mont., 40 Pac. Rep. 877.

83. MUNICIPAL CORPORATION Damages Water Courses. Where a city which is authorized by law to establish a system of waterworks, and to maintain the same indefinitely, erects a dam for the purpose of procuring a water supply, a property owner who is injured by the erection of such dam may recover damages both past and prospective. - CITY OF CENTRALIA V. WRIGHT, 111., 41 N. E. Rep. 217.

84. MUNICIPAL CORPORATION-Dedication of Street.When a space which is indicated on the plot of a town site as a public street is used, occupied, and enjoyed as such for a series of years, for the use and purposes of traffic and commerce, and private rights have been acquired with reference thereto, the dedication to public use has thereby become so effectual as to pre clude the owner of the soil from retaking the property free from the servitude of way.-ARMISTEAD V. VICKSBURG, S. & P. R. R., La., 17 South. Rep. 888.

85. MUNICIPAL CORPORATION-Ordinance-License.Under a charter empowering a city to impose a tax on vehicles for street use, and also a tax on occupation, a city may impose a license tax on vehicles for use in particular occupations, in addition to that imposed for street use.-CITY OF ST. LOUIS V. WEITZEL, MO., 31 S. W. Rep. 1045.

86. NEGLIGENCE-Breaking of Dam. The fact that one knew of the dangerous condition of a dam, and failed to Institute a special proceeding provided by Act Feb. 16, 1877, giving persons living on a stream below a dam, who deem the same insecure, the right to institute a proceeding to have the dam declared dangerous, will not bar an action by him for damages caused by a subsequent breaking of the dam.-HOL LENBACK V. DINGWELL, Mont., 40 Pac. Rep. 863.

87. NEGLIGENCE-Dangerous Premises.-Plaintiff alleged that his intestate was invited by defendant into an uncompleted building, to make certain estimates. At the head of the stairs there was a hallway, in which there was a partially open window. Deceased followed defendant up the stairs, thrust his head through the window, without knowledge that the window was part of the elevator shaft, and was struck by the descending elevator: Held, that defendant was not guilty of any breach of duty to the deceased, and therefore the facts alleged did not constitute a cause of action.PEAKE V. BUELL, Wis., 63 N. W. Rep. 1052.

viding that "any grant or conveyance which he may have made except in the hands of a bona fide purchaser for valuable consideration, is null and void except as provided in section 2288."-WILCOX v. JOHN, Colo., 40 Pac. Rep. 880.

98. PUBLIC LANDS - Railroad Land Grants-Reservations. In cases of Mexican grants by specific boundaries, lands claimed by the grantees to be within those boundaries are not public lands, within the operation of a railroad land grant, if, at the date of the latter, the question of the true location of the boundaries of the private grant is pending and undetermined.-SOUTHERN PAC. R. Co. v. BROWN, U. S. C. C. (Cal.), 68 Fed. Rep. 333.

99. QUO WARRANTO-Right of Corporation.-An action in quo warranto will lie against a railroad corporation to contest its claim to exercise a right or privilege to or in the canal lands of the State.-STATE V. PITTSBURGH, C. C. & ST. L. RY. Co., Ohio, 41 N. E. Rep. 205.

100. QUO WARRANTO-Title to Office.-The State attorney has no authority to file an information in the nature of a quo warranto against one in possession of an office.-HAWKINS V. STATE, Md., 32 Atl. Rep. 278.

101. RAILROAD COMPANY-Fires-Measure of Damages. -The measure of damages in an action to recover for an injury to a perennial crop in this case, growing grass-is the difference in the market value of the real property immediately before and its value immediately after the infliction of the injury, and, when ascertaining this difference, evidence that another crop of some character and value may be grown on the land the same growing period, and of the average yield of like crops, of the average market price, the ordinary expense of harvesting and marketing such crops, the condition of that particular crop before the injury, and any other fact existing at the time of the loss tending to show how and to what extent the injury decreased and diminished the value of the farm may be considered.-WARD V. CHICAGO, M. & ST. P. RY. Co., Minn., 63 N. W. Rep. 1104.

102. RAILROAD COMPANY-Injury to Child-Contributory Negligence.-Any contributory negligence which is a proximate cause of an injury is suflicient to defeat a recovery, though the co operating negligence of defendant was negligence per se, such as the violation of an ordinance or statute.-PAYNE V. CHICAGO & A. R. Co., Mo., 31 S. W. Rep. 885.

103. RAILROAD COMPANY Right to Use Another Track.-Railroad companies with franchises to use the same street may be required to use one track, and in the exercise of this power a company may acquire the right to use the tracks laid by another, but compensation for such use must be made.-NEW ORLEANS & C. R. Co. v. CANAL & C. R. Co., La., 17 South. Rep. 834.

104. RAILROAD COMPANY-Street Railways-Obstruction. In the absence of municipal authority regulating the use of streets in which street railways have been constructed under the law and city ordinances, and are in daily use, by persons who claim the right to use such streets in a manner which will necessarily interfere with the running of the cars on such railways, or with the appliances constructed to propel such cars, a court of equity will, when called upon, restrain a party claiming such right from interfering with or obstructing the usual and ordinary running of the cars of such street railway. MILLVILLE TRACTION Co. v. GOODWIN, N. J., 32 Atl. Rep. 263.

pressed, to escape taxation, if the act is reasonably susceptible of any other construction, whereby a revenue is secured. BOARD OF COM'RS OF CUSTER COUNTY V. ANDERSON, U. S. C. C. of App., 68 Fed. Rep. 341.

107. TAXATION Exemption Sale of Charter.-Immunity from taxation granted a corporation by its charter is personal, and cannot be transferred by a sale of the charter without the consent of the State.STATE V. MERCANTILE BANK, Tenn., 31 S. W. Rep. 999. 108. TAXATION - Exemptions. In a proceeding to recover taxes from a corporation, the regularity of the corporate existence cannot be attacked, but the immunities claimed under its charter may be questioned.-STATE V. PLANTERS' FIRE & MARINE INS. CO., Tenn., 31 S. W. Rep. 992.

Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 13, 1895.

The judgment recently rendered against the United States by Judge Ross of the United States Circuit Court of California, in the suit brought by it against the estate of the late Senator Stanford to recover a large sum of money as his personal indebtedness to the government for his share of the bonds and interest of the Central Pacific Railroad which had never been paid, though doubtless justified by the logic of law, has been violently assailed by the people of California. Judge Ross held that the issue in the case was dependent, not upon what the laws of California may or may not have provided in respect to the liabilities of stockholders of corporations organized under those laws, but upon the contract made between the United States and the railroad companies, in which defendant's testator was a stockholder. The grants contained in the Pacific railroad acts, and constituting the contract which was the basis of the suit, were, Judge Ross said, sui generis, and have been so characterized by the Supreme Court of the United States, and the whole scope and tenor of the legislation, constituting the contract under which the line of railroad and telegraph was constructed, in consideration of which the bonds in question were issued and loaned to the Central Pacific Railroad Company of California and the Western Pacific Railroad Company, respectively, unmistakably showed that no personal liability of the individual stockholders was contemplated, either by the United States on the one side, or the railroad companies and their stockholders on the other side. The Attorney-General has directed that an appeal be taken from the decision.

The decision of the second division of the Supreme Court of Missouri, in Millar v. Madison Car Co., 31 S. W. Rep. 574, is likely to prove, if it remains undisturbed, a very embarrassing precedent, in the law of appellate procedure, in Missouri. It would seem to have the effect of authorizing the appellate court in certain cases to try and Vol. 41-No. 11.

determine the cause upon the conception of the case, formed and expressed by the trial judge, in the court below, rather than upon the record. That case was a suit for personal injuries. Upon the trial the jury found a verdict for the defendant. A new trial was granted plaintiff on the ground of error in instructing the jury. The order of the lower court, granting the new trial, states that the motion therefor is "sustained for the reason that there was error, prejudicial to the plaintiff, in giving instructions Nos. 5 and 6, in the form in which they were asked and given, - these should have been modified or not given at all, and for the reason that instruction No. 9 should not have been given." On appeal from this order setting aside the verdict and granting the new trial, the second division of the Supreme Court (Gantt, P. J.) found that there was no error in the instructions mentioned and that, therefore, the trial court erred in granting a new trial on that ground, and that, since the court had specified the grounds of its ruling, the Appellate Court would look no further to see whether the new trial was not in fact properly granted, because of other errors, than those specified in the order, but, as to everything beyond the specific grounds set forth, would "proceed upon the salutary presumption indulged in favor of the correctness of the rulings of the Circuit Court; that, as the trial court had under consideration ten different grounds for a new trial and adjudged, in effect, that none of these were sufficient save those which it sustained, and which, as required by statute, it entered upon the record, the Appellate Court, indulging the presumption, must hold that there is, prima facie, no ground for disturbing the verdict of the jury except those specified in the order granting the new trial, and that, as to the other grounds, the burden is shifted to the respondent, to show that the ruling of the trial court, in granting the new trial, was right.

The divisional court, it seems to us, reaches this extraordinary result: that a case, in an Appellate Court is to be tried, not upon the record itself made by both parties and the lower court, but upon the statement of the judge of the lower court, of his impression of the merits of the controversy between the parties, set out as the grounds