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certificate providing that the portion of the business to be carried on out of the State is the selling of its manufactured products. -STICKLE V. LIBERTY CYCLE Co., N. J., 32 Atl. Rep. 708.

17. EVIDENCE-Public Record. - Under the rule that admits the best attainable evidence of which a case in Its nature is susceptible, the public record of a dulyacknowledged written instrument is admissible in evidence, when material, upon proof that the original is beyond the jurisdiction of the court and is neither owned nor controlled by the party in whose favor the record of such instrument is offered.-STATE V. SERENSON, S. Dak., 64 N. W. Rep. 130.

18. EVIDENCE-Certificate of Acknowledgment. - In ejectment, where the question at issue is the execution of a deed by a man and his wife, the original contract of sale signed by the man and his wife is admissible in evidence, though not acknowledged as required by law.-CARR V. FRICK COKE CO., Penn., 32 Atl. Rep. 656.

19. FRAUDULENT CONVEYANCE-Deed to Husband.Where land bought at foreclosure with a wife's money is, through her ignorance of business methods, conveyed to her husband, deeds from the husband to their son, and from him to the wife, will not be set aside, as in fraud of the husband's creditors, though induced by a suit against the husband.-BECK V. SHULTZ, N. J., 32 Atl. Rep. 695.

20. FRAUDS, STATUTE OF - Contract. - The value of work and labor supplied under a contract void by the statute of frauds is recoverable upon the theory that a benefit has been recovered, from which springs an implied undertaking to pay the value of such work and labor.-BANKER V. HENDERSON, N. J., 32 Atl. Rep. 700. 21. GARNISHMENT - Affidavit - Foreign Notary.-Under Code, § 1106, providing that for the authorization of his official acts a notary must provide a seal of office, an issue in garnishment cannot be made up on an affidavit, purporting to have been taken in Tennessee, to which no seal is attached, and which does not show that the person who signed the same was a notary, and it is not shown that, under the laws of Tennessee, a notary public had authority to administer an oath in matters not pertaining to the common law duties of a notary public.-ALABAMA NAT. BANK V. CHATTANOOGA DOOR & SASH Co., Ala., 18 South. Rep. 74.

22. HIGHWAYS-Law of the Road-Bicyclers.-Under Act May 7, 1889, § 3, making it a penal offense for any person to willfully "ride or drive any horse or any other animal" on sidewalk; and Act April 23, 1889, providing that bicyclers shall be subject to the same re strictions as are imposed on persons using carriages drawn by horses,-one who rides a bicycle on a sidewalk is subject to the punishment prescribed for a violation of the former act. - COMMONWEALTH V. FORREST, Penn., 32 Atl. Rep. 652.

23. INSURANCE POLICY.-In an action on a fire insurance policy, a plea setting up that plaintiff failed to comply with a clause in the policy requiring her to keep the last inventory and accounts of purchases and sales in an iron safe is demurrable, as failing to state a defense to the whole action, where, in addition to stock, the policy covers fixtures and furniture.MITCHELL V. MISSISSIPPI HOME INS. Co., Miss., 18 South. Rep. 86.

24. INSURANCE - Waiver of Conditions - Estoppel.One S, the general agent of certain insurance companies, called upon plaintiff and asked to be allowed to place some of the insurance on plaintiff's stock. He inquired how much insurance plaintiff intended to carry, and plaintiff told him $10,000, and subsequently authorized him to place $10,000, of such insurance. S afterwards delivered to plaintiff policies, including two of $2,500 each, to which were attached riders allowing other insurance to the amount of $27,500, and which both contained the condition that if the assured should have or afterwards effect other insurance, without the written consent of the company, the policy should be void, and which also provided that

only certain specified officials should have authority to waive or modify the conditions of the policy. When plaintiff received the policies, he examined them to see that the amounts were correct, but, relying on his conversation with the agent, did not examine them further, and placed them in his safe: Held, that by delivering the policies with knowledge, through their agent, of the amount of insurance intended to be taken, the companies waived the condition as to other insurance, and were estopped to set the same up, after a loss; plaintiff having a right to reply on such knowledge of the agent.-FIREMAN'S FUND INS. CO., U. S. C. C. of App., 69 Fed. Rep. 71.

25. LANDLORD AND TENANT - Notice to Quit.-Under 2 Hill's Code, 549, subd. 3, making a tenant guilty of unlawful detainer who, on notice requiring in the alternative payment of rent or surrender of the premIses, given by the person "entitled to the rent," fails to pay the rent or surrender the premises, a notice to quit, signed by a joint owner of premises in his own name, and as one of the executors and as attorney, In fact of the other executors of the estate, which holds the remaining interest requiring payment of rent due or surrender of the premises to him, is good.-GIL-. MORE V. H. W. BAKER CO., Wash., 41 Pac. Rep. 124.

26. LANDLORD AND TENANT - Denial of Landlord's Title. Where it is shown that a tenant is in possession of property by permission of his landlord: Held, that he is estopped from denying the title under which he holds.-HAMILL V. JALONICK, Okla., 41 Pac. Rep. 139.

27. MANDAMUS - School Board.-Mandamus will not lie to control or dictate the action of school officers in matters official intrusted to their judgment, or concerning which they are authorized to exercise a sound discretion.-HINTZ V. MOULTON, S. Dak., 64 N. W. Rep.

135.

28. MECHANICS' LIENS - Railroad Contractors. The Florida statute of June 3, 1887, which gives a superior lien to any persons "who shall perform any labor upon or for the benefit of any railroad," etc., is to be construed as extending its benefits to a railroad contractor who has furnished work and labor for construction, as well as to those actually performing labor.-COUPER V. GABOURY, U. S. C. C. of App., 69 Fed. Rep. 7.

29. MINING LEASE.-A license for possession of a mining claim, which, by the terms of the instrument creating it, is made exclusive and irrevocable, and which, by reason of expenditures of the licensee in the development of the mines under the agreement, has become a license coupled with an interest, under which possession may be maintained against the world, is a lease within Act Feb. 20, 1891, § 1, securing a lien for work and materials furnished for the working of a mine, which shall attach to the mine, provided that this section shall not apply to the owners of a mine worked by a lessee.-STINSON V. HARDY, Oreg., 41 Pac. Rep. 116.

30. MORTGAGE - Possession-Crops.-A mortgagee of real estate, in the absence of an agreement to the con. trary, has the right at any time to take possession of the mortgaged premises, if he can obtain it peaceably, and to take the crops that may be growing thereon, and apply the proceeds therefrom to the mortgage debt.-BANGOR SAV. BANK V. WALLACE, Me., 32 Atl. Rep. 716.

31. MUNICIPAL BONDS IN AID OF RAILWAYS.-A town was authorized by act of legislature to subscribe to aid the construction of a railroad, and to issue bonds for the amount, but there was no provision for the exchange of bonds for stock, and stock was not mentioned in the act. The bonds were in fact voted as a donation, and the vote was by the constitutional twothirds required in cases of donation, which fact was recited in the bonds themselves. Subsequently, by an act amending the railroad charter, so as to authorize a consolidation with another company, it was provided that "the donation" of bonds thus agreed to be made should be paid over to the consolidated company; and

by another act, amending the city charter, the city was authorized to levy and collect a special tax for interest and sinking fund to pay the bonds, and interest was accordingly paid for 11 years: Held, that this was a ratification of the bonds, both by the legislature and the city.-MAYOR, ETC., OF CITY OF COLUMBUS V. DENNISON, U. S. C. C. of App., 69 Fed. Rep. 58.

32. MUNICIPAL CORPORATIONS-Limit of Indebtedness. -Held, following the decision of the Supreme Court of Pennsylvania, that the language of article 9, § 8, of the constitution of that State, limiting the debt of cities to 7 per cent. of the assessed valuation of taxible property therein, means the valuation fixed by the city authorities for city taxation, not made by county officers for county purposes.-DUPONT V. CITY OF PITTSburgh, U. S. C. C. (Penn.), 69 Fed. Rep. 13.

33. MUNICIPAL CORPORATION Officers - Contracts with City. In the absence of a penal prohibitive statute, on grounds of public policy alone, an express contract entered into between the mayor and council of a city of the second class and one who is at the time a councilman of such city, for the performance of services for the city, will not be enforced. Such contract, while not absolutely void, may be avoided by the city, at will, so long as it remains executory; but when it was entered into in good faith, was for the doing of lawful and necessary work for the city, and has been, without objection, fully executed, the city receiving and retaining the benefit thereof, a recovery may be had on the quantum meruit for what the services were reasonably worth.-CITY OF CONCORDIA V. HAGAMAN, Kan., 41 Pac. Rep. 133.

34. NEGLIGENCE-Personal Injuries-Electric Wires. -A person who negligently walks into a live electric wire, of the dangerous character of which he is warned by the sparks proceeding from it, is negligent.-COOK V. WILMINGTON CITY ELECTRIC CO., Dela., 32 Atl. Rep. 643.

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35. NEGOTIABLE INSTRUMENT Premature Action on Note.-Suit cannot be commenced on a promissory note, payable at bank, on the day it falls due, after the close of banking hours of that day. The maker is entitled to the whole of the due day in which to make payment.-STATE V. HUMPHREYS, N. J., 32 Atl. Rep.

706.

36. PRINCIPAL AND AGENT - Authority.-An agent who is authorized to sell standing timber has no im. plied authority to accept a note of the purchaser as part payment, made payable in three months, to the order of the agent individually, and in no manner disclosing his agency; and in such case the principal will be sustained in asking for a rescission of the contract. -MCGRATH V. VANAMAN, N. J., 32 Atl. Rep. 686.

37. RAILROAD BONDS - Validity.-Railroad bonds issued to pay for the construction of the road are not rendered invalid by proof that the road could have been, or was, constructed for less than the amount of such bonds, if the contract for its construction was fairly made and carried out, and called for the amount of bonds actually issued, and no fraud is charged in the inception or execution of such contract.-FARMERS' LOAN & TRUST Co. v. ROCKAWAY VALLEY R. Co., U. S. C. C. (N. J.), 69 Fed. Rep. 9.

38. RAILROAD COMPANY Mortgage ForeclosureReceivership.-A court of equity has no power, upon a bill for the foreclosure of a railroad mortgage, to take into its custody or control, through a receiver or otherwise, property not covered by the mortgage, nor to make any order that will hinder or delay creditors in subjecting property not covered by the mortgage to the payment of their debts.-SCOTT v. FARMERS' LOAN & TRUST CO., U. S. C. C of App., 69 Fed. Rep. 17.

its road, or voluntarily permits it to be used by a natural person or another corporation, and therefore has no application to a case where possession is given to receivers.-EX PARTE CHARLES, Ala., 18 South. Rep. 73.

40. SALE OF CORPORATE STOCK-Assignment.-A contract for the repurchase of stock at the option of the vendee or his legal representatives, made in consideration of the purchase of the stock by the vendee, is assignable.-MITCHELL V. TAYLOR, Oreg., 41 Pac. Rep. 119.

41. SALES-When Title Passes.-In a contract for the sale of personal property, where no agreement is made as to credit, the law presumes that the parties intended to make the payment of the purchase price and the delivery of possession concurrent conditions. The vendor has the right to retain possession until the purchaser is ready to perform his part of the contract, or, if the goods have been delivered with the expectation of immediate payment, and this condition is not performed, the vendor may retake possession of the same.-GEORGE W. MERRILL FURNITURE CO. v. HILL, Me, 32 Atl. Rep. 712.

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39. RAILROAD COMPANY -Receivers-Service of Summons. The provisions of Act Feb. 26, 1887, for service of summons where a railroad corporation has per mitted its road to be used by any other person or corporation, refer exclusively to cases in which a railroad corporation voluntarily parts with possession of

43. WILLS-Description of Legatees.-A bequest of a law library to "nephews who may read law. Not to be sold," was a bequest to such of testator's nephews as had taken up the study of the law with the purpose of being admitted to the bar and practicing the profession, or as had already been admitted and were practicing, but did not include one who, though regis. tered as a student, and having read for a year, had abandoned all intention of being admitted.-IN RE BENSON'S ESTATE, Penn., 32 Atl. Rep. 654.

44. WILL-Devise of Survivors.-Testator devised his residuary estate to his executors, to be equally divided among his five children, the shares of the sons to be paid them when they attained 21 years of age, the daughters to receive the interest on their respective shares yearly during their lives; "but if either of them die without issue her share is to go to her surviving brothers and sister equally to be divided among them" Held that on the death of a brother who left children, such children were not entitled to any part of the daughter's share.-ASHHURST V. POTTER, N. J., 32 Atl. Rep. 698.

45. WILL Description.-Where testator devised to his daughter "the house and lot of land situate on the northwesterly side of" a certain street, and testator owned two lots on the north side of that street, on which a double house (covering both lots, and which was let as two houses) was built, held that testator intended to give the daughter the double house, and the land on which it stood, the land having been conveyed to testator as one parcel, though also described in the deed to him, by numbers, as two city lots.-WEBB V. CARNEY, N. J., 32 Atl. Rep. 705.

46. WITNESS-Transaction with Decedent.-Under R. L. § 1002, providing that where one of the parties to the contract in issue is dead the other party shall not testify in his own favor, except to meet testimony of living witnesses produced against him as to matters taking place after the first party's death, it was proper, in an action on a note by the transferee of the deceased payee, not to permit defendant to testify as to conversations in regard to the note which occurred in de cedent's life time and while he owned the note, though had with plaintiff, and though plaintiff was a compe tent witness thereto in his own behalf.-FARRINGTON V. JENNISON, Vt., 32 Atl. Rep. 641.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 11, 1895.

case.

The remarks of Mr. Justice Brewer, before the American Bar Association, regarding delays in the administration of the law, are deserving of attention. Mr. Justice Brewer says that while the administration of justice would soon be considered a mockery if first impressions controlled every case, yet greater expedition could be attained without detracting from the fullest examination of every He suggests that the time of process be shortened; that the right of continuance be curtailed; that when once a case has been commenced the right to interfere or to take jurisdiction of any matter that can be brought by either party into the pending litigation be denied to every other court; that the right of review be limited; that all review be terminated in one Appellate Court, and that instead of assuming that injury was done if error be shown, the party complaining of a judgment or decree be required to show affirmatively that if the error had not been committed the result must have been necessarily different. What he has to say in reference to criminal cases, appears more radical. He suggests that in criminal cases there should be no appeal, and that while he says it with reluctance, a jury could be trusted to do justice to the accused with more safety than an Appellate Court to secure protection to the public by the speedy punishment of a criminal. Tardy justice, he insists, is often gross injustice. This suggestion, in relation to the finality of criminal trials in the first instance, may be expected to give rise to considerable criticism, though there can be no doubt that the right of review in criminal cases has been and is being seriously abused to the detriment of the general public.

The rights of bicyclists have again been successfully asserted in a recent case tried before a Pennsylvania nisi prius court, the value of the opinion being, of course, simply argumentative. The suit was one for damages brought by a wheelman against a teamster, who drove his heavy wagon against the Vol. 41-No. 15.

wheel and smashed it. The wheel was left in the street against the curb, while the owner went into a house. On the trial the court, in explaining to the jury the law bearing upon the case, set forth beyond all cavil the rights of bicyclists upon the public thoroughfares. They have no right upon sidewalks at all, any more than have other vehicles, but they have the same rights upon highways and streets that all other conveyances have. If one is left leaning against a curb stone, the man who runs into and damages it does so at his peril. Upon the streets a wheelman is entitled to his share of the roadway, and the man who negligently or recklessly runs him down must answer to the law. Upon the strength of such a charge as that, the jury promptly returned a verdict for the owner of the wheel.

The Supreme Court of Oregon has been justly criticised for its opinion in the late case of Schmidt v. The Oregon Gold Mining Company, 40 Pac. Rep. 406. The decision is an extraordinary one and it is difficult to understand how a reputable court could have fallen into so grievous an error. The legal proposition laid down is that in cases where it is provided by contract of loan on mortgage, that judgment upon foreclosure may be taken also for costs and attorneys' fees, that attorneys for the mortgagee may take a decree in their own favor for the amounts claimed against their clients as fees, may have the amount of compensation fixed and made a first lien on the amount recovered, without notice to their clients or giving their clients an opportunity to be heard. The record of the case shows to what abuses this remarkable deliverance may lead. A parcel of property sold for $9,000, the attorneys took $5,500 and after other costs were paid, the mortgagor received but a little over $2,500. The interest simply was in default and the mortgage was therefore subject to foreclosure, but the attorneys, instead of taking a decree in favor of their clients, took it in their own favor and against their clients for the amount claimed as fees, insisted upon it as the first lien and were upheld by the Supreme Court of the State, which affirmed the action of the

lower court, and holding that relief could not be given the injured mortgagee upon appeal. It is to be hoped that the decision will not be followed as a precedent by other courts.

NOTES OF RECENT DECISIONS.

RELIGIOUS SOCIETIES-RULES OF GOVERNENFORCEMENT BY MENT-RES JUDICATA

COURTS OF LAW. - The Supreme Court of Nebraska in Pounder v. Ash, 63 N. W. Rep. 48, decided a very interesting case on the subject of the conclusiveness of the decrees of an ecclesiastical tribunal acting within the bounds of its authority, and the power of the courts of law to enforce such decrees by appropriate proceedings. It held, overruling its former decision, in 36 Neb. 564, 54 Ν. W. Rep. 847, that when charges have been, preferred against a minister of the gospel, and he has been adjudged guilty by the highest tribunal of the church organization before which the matter has been presented, has been deposed from the ministry, and expelled from membership in the church, the courts of law will recognize such a judgment of the church tribunal, and enforce its observance, when regularly brought to their notice; and in an action for the purpose, will enjoin the one against whom it was rendered from further acting in the capacity of a minister, or enjoying the rights of a member of the particular church organization; and, when it further appears that the church property was conveyed to the organization or its trustees for church purposes, and in such a manner that it is subject to the control of the general association or governing power of the church, and its rules and laws, will also enjoin such person and member of the local congregation, or any others who have combined with him, from excluding from the church building and property, and from its use for any proper purpose, or from disturbing, in or during such use, any parties or ministers appointed to take charge of the congregation and church, by the then recognized and appointive power, disclosed to be such by the evidence in the case, or in so excluding and disturbing a presiding elder of the church from or in its proper occupancy or use, or any members in good standing who desire to worship therein in a regular manner, and according to the established rules and ordinances of the church.

FOREIGN ATTACHMENT - JURISDICTION OF CHOSES IN ACTION-PRIORITY OF LIENS.-In National Fire Ins. Co. v. Chambers, 32 Atl.

Rep. 663, decided by the Court of Chancery of New Jersey, complainant, a fire insurance corporation, created by the laws of Connecticut, and doing business by an agent in New Jersey, and also in Pennsylvania, and having voluntarily subjected itself to suit in the Pennsylvania courts by service of process upon its agent there, became indebted to a resident of New Jersey upon a loss by fire occurring in New Jersey. A creditor of the New Jersey creditor, who resided in Massachusetts, sued out of a court of Pennsylvania a writ of foreign attachment against the resident of New Jersey, and served the same upon the agent of complainant in Pennsylvania. Afterwards the resident of New Jersey assigned his claim against complainant to another resident of New Jersey who sued complainant in a New Jersey court of law to recover the amount due from complainant to its creditor in New Jersey, whereupon complainant filed its bill of interpleader in this court, and paid the amount of its debt into court; after which the Massachusetts creditor and the New Jersey assignee interpleaded. The court, in a lengthy and exhaustive review of the authorities, held that the proceeding in the Pennsylvania court gave the Massachusetts creditor a lien upon the debt superior to the right of the assignee. The rule that, in order to give a court jurisdiction in cases of foreign attachment, the res must be within the territorial jurisdiction of the court, applies only to tangible chattels capable of actual seizure, and not to choses in action. Jurisdiction to fasten choses in action by garnishee process depends upon the ability to serve process of garnishment upon the debtor of the absent defendant within the territorial jurisdiction of the court. The doctrine advanced by certain judges that, in order to bring the res within the jurisdiction, the court may pro hac vice treat the situs of the debt as following the domicile of the debtor, and not that of the creditor, considered, and doubted; and, semble, that a chose in action, strictly speaking, has no situs. A corporation is capable of having several domiciles, and of being sued at the same time in more than one jurisdiction. The contrary doctrine advanced and acted upon by the court in Douglass v. Insurance Co., 33 N. E. Rep. 938, 138 N. Y. 209, was examined and repudiated.

ELECTIONS AND VOTERS-AUSTRALIAN BALLOT LAW-BALLOTS-ARRANGEMENT OF NAMES -CERTIFICATE OF NOMINATION.-A late number of the American Law Register calls attention to some late decisions of interest on the subject of the Australian ballot act. The Supreme Court of Wisconsin held, in State v. City of Janesville, 62 N. W. Rep. 933, that as the Australian ballot law only provides for the form of ballots used at elections of officers, the form of ballot prescribed by another statute for use at a special election to determine the amount of a liquor license is not affected by the former act. The Australian ballot law of Pennsylvania (June 10, 1893, P. L. 419, § 14), does not repeal the acts providing a method and a ballot for an election on the question of increasing the debt of a township; the former section applies only to State questions: Evans v. Willistown Township, 3 D. R. 395. But the ballot law of Illinois (June 22, 1891, § 16), which prescribes the form of ballot for an election on the adoption of "a constitutional amendment or other public measure," has been held to repeal all other laws prescribing ballots and modes of voting in questions relating to municipal affairs: County of Union v. Ussery, 147 Ill. 204, 35 N. E. Rep. 618. According to a recent decision of the Supreme Court of Nebraska, in Woods v. McNerney, 63 N. W. Rep. 23, (1) The officer charged with the preparation of the official ballot is given discretion in regard to the arrangement of the names, etc., so far as is not inconsistent with the spirit and purpose of the law, which discretion will not be interfered with by the court; and therefore (2) When the officer, in preparing the ballot, arranged the names of certain candidates, nominated by two parties, on single lines, thus:

FOR LIEUTENANT GOVERNOR. James N. Gaffin, of Colon. Democrat and People's Independent.

he could not be mandamused to arrange them thus:

FOR LIEUTENANT-GOVERNOR.

James N. Gaffin. People's Independent.

Democrat.

The Supreme Court of Illinois has lately ruled, that under the Australian ballot law of that State (June 22, 1891, P. L. 108), which provides that voting shall be by ballots printed and distributed at public expense, that no other ballots shall be used, and that

the voter shall prepare his ballot by making a cross opposite the name of the candidate of his choice, or by writing in the name of the candidate of his choice in a blank space on said ticket, and making a cross opposite thereto, voters are not confined to the names printed on the official ballot, but may write thereon the name of any person for whom they wish to vote, and vote for that person. Sanner v. Patton, 40 N. E. Rep. 290. The same court has also held, that when several independent candidates, nominated by petition, were placed in one column on the official ballot, headed "Citizen's Ticket," a voter, who marked the circle opposite that heading, voted for all the candidates in that column. Murphy v. Battle, 40 N. E. Rep. 470. In a recent case in the Supreme Court of Montana, Stackpole v. Hallahan, 40 Pac. Rep. 80, the person nominated by a political convention as a candidate for the office of county treasurer sent his declination to the central committee, and no certificate of his nomination was ever filed with the county clerk. The committee, being empowered to fill vacancies on the ticket, nominated another candidate. The certificate of this second nomination failed to show the name of the person for whom such candidate was substituted, the cause of the vacancy, that he was nominated to fill a vacancy, or that the central committee had power to fill such vacancy. But as no objection on these grounds was made until after the election, the fairness of which was not questioned, the court held: (1) That the provisions of the Australian ballot law of that State, prescribing the facts to be stated in the certificate of nomination, and the manner in which a nomination may be declined, and the resulting vacancy filled, should not, under such circumstances, be held mandatory; and therefore (2), the election was not invalid, though the statute requires that a candidate declining a nomination shall so notify the officer with whom his certificate of nomination is filed, in writing, and that the certificate of the nomination made to fill the vacancy shall state the cause of the vacancy, the name of the person for whom the new nominee is to be substituted, and the fact that the committee was authorized to fill vacancies. The Supreme Court of Appeals of Virginia has just decided, that the statute of that State adopting the Australian Ballot

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