the accident, when plaintiff's condition had much improved, and while under the care of another competent physician, he called on a physician of great reputation as a medical expert, made certain statements as to his condition and symptoms, and requested an opinion and physical examination. This expert was produced on the trial, and his evidence was mainly relied on by plaintiff on the question of his injuries: Held, that these circumstances showed that plaintiff called on the expert physician merely to qualify him to testify in his favor, and that hence his statements to the latter were inadmissible.-DELAWARE, L. & W. R. Co. v. ROALEFS, U. S. C. C. of App., 70 Fed. Rep. 21. 27. FRAUDULENT CONVEYANCE - Securing Surety.-A failing debtor may protect his surety by a transfer of goods reasonably proportioned in value to the amount of the debt.-KEATING IMPLEMENT & MACHINE CO. V. TERRE HAUTE CARRIAGE & BUGGY CO., Tex., 32 8. w. Rep. 556. 28. GARNISHMENT-Claim in Tort.-A claim in tort for damages is not subject to garnishment until merged in a final judgment.-KREISLE V. CAMPBELL, Tex., 32 S. W. Rep. 581. 29. GUARANTY. -The guarantors on a note given for the purchase price of a machine may avall themselves of the defense of breach of warranty to the vendee and maker of the note, and plead the failure of the consideration passing from the payee to him as a failure of the consideration passing to them, where their guaranty was made at the time of the execution of the note, and for no independent consideration.-WALTER A WOOD MOWING & REAPING MACH. CO. V. LAND, Ky., 32 S. W. Rep. 607. 30. INJUNCTION TO RESTRAIN COLLECTION OF TAXNot Granted, When. A federal court will not enjoin the collection of a tax which is only a personal charge against the party taxed, or charge upon his personal property.-LINEHAN RAILWAY TRANSFER CO. V. PENDERGRASS, U. S. C. C. of App., 70 Fed. Rep. 1. 31. INSURANCE-Iron Safe Clause. -A clause in a fire policy on a stock of liquors, etc., in a saloon, providing that the insured should keep his books in a fireproof safe at night, and at all times when the store mentloned in the policy was not actually open for business, is valid, and the effect thereof cannot be defeated by showing that the insured maintained the saloon in connection with his hotel; that the saloon was kept open for business both night and day, and was closed only on Sunday; that the insured kept but one set of books for the hotel and saloon; that he was obliged to frequently refer to the same for the settlement of his guests' accounts, and for that reason kept them under a counter, and they were not placed in the safe oftener than once a month.-SOUTHERN INS. Co. v. PARKER, Ark., 32 S. W. Rep. 507. 32. INSURANCE Vacancy of Building. Where a vacancy permit was attached to a policy on buildings owned by two persons, and defendant instructed its local agents to cancel said permit at the expiration thereof, and said instruction was shown to one of said owners, defendant was not liable for a loss occurring after the permit expired, though the local agents had consented to temporarily extend the permit.-McLEARY V. ORIENT INS. Co., Tex., 32 S. W. Rep. 583. 33. INSURANCE POLICY-Burden of Proof. In an action on a certificate of insurance, issued subject to all the conditions in an open policy which was retained by the insurer, it is not necessary for the insured to allege and prove compliance with the conditions of said policy, as that is a matter of defense.-MERCHANTS' INS. CO. V. ARNOLD, Tex., 32 S. W. Rep. 579. 34. JUDGMENT-Satisfaction-Attorney and Client.An attorney of record has no power to satisfy a judg. ment upon receiving less than the amount due thereon, without the consent of his client.-FAUGHNAN V. CITY OF ELIZABETH, N. J., 33 Atl. Rep. 212. 35. LANDLORD AND TENANT-Tenant's Administrator. -On the death of a lessee his administrator is bound to perform the conditions of the lease.-WILCOX V. ALEXANDER, Tex., 32 S. W. Rep. 561. 36. LIFE INSURANCE-Application-Rescission of Con tract. That defendant company agreed to issue plaintiff a life insurance policy on which the premiums should be payable semi-annually, while the policy actually delivered provided for their annual payment is no ground upon which to base an action for deceit.NEW YORK LIFE INSURANCE CO. V. MILLER, Tex., 32 S. W. Rep. 550. 37. LIMITATIONS-Action on Mortgage. A mortgage executed in 1883, securing an open account, recited that it was given for $594, the receipt of which it acknowledged; that it was to become void if the mortgagors paid $594, with interest at 10 per cent. per annum thereon, 24 months from its date, to the mortgagee. A pay. ment of $75 was indorsed on it October 20, 1887. Held, that the recitals did not show a promise to pay, and make the mortgage evidence of the debt, so as to make the 18 years limitation applicable, instead of the 3years, relating to debts on open account, in bar of foreclosure, under Act March 31, 1887.-HOLIMAN V. HANCE, Ark., 32 S. W. Rep. 488. 38. MALICIOUS PROSECUTION- Probable Cause. - In suits for malicious prosecution, the question of the existence of reasonable cause the facts not being in dispute-must be decided by the court. - BELL v. ATLANTIC CITY R. CO., N. J., 33 Atl. Rep. 211. 39. MARRIAGE- Validity.- A person having a wife living and undivorced cannot contract a second valid marriage; and his relations with another woman, though assumed under the forms of a regular marriage, confer on her no rights in the husband's property as community property, as such rights, being con. ferred by statute, depend on a valid marriage.-CHAPMAN V. CHAPMAN, Tex., 32 S. W. Rep. 564. 40. MASTER AND SERVANT - Fellow-servants. The employees of a railroad company running a through freight are not fellow servants of employees of the same company running one of its local freights, pick ing up freight and empty cars.-GALVESTON, H. & S. A. RY. Co. v. WORTHY, Tex., 32 S. W. Rep. 557. 41. MASTER AND SERVANT-Payment. If a workman agree with his employer to take pay for his work in part in merchandise, the merchandise so furnished does not constitute 8. ground of set off; it is a payment, and goes in deminution of the claim for work. CUM. BERLAND GLASS MANUF'G CO. V. STATE, N. J., 33 Atl. Rep. 210. 42. MASTER AND SERVANT- Railroad Employees.-A car cleaner, while at work inside a coach on a side track, was injured by another coach being kicked against it at an unusual and dangerous rate of speed: Held, that he was exposed to the hazards and dangers of railroading, and could recover under the doctrine laid down in Pearson v. Railroad Co., 49 N. W. Rep. 302, 47 Minn. 9.-MITCHELL V. NORTHERN PAC. R. Co., U. S. C. C. (Minn.), 70 Fed. Rep. 15. 43. MECHANIC'S LIENS-Filing of Contract.-When it appears by the contract that the builder is to do all the work and furnish all the materials necessary for the construction of a building, it is not necessary to file the specifications with the contract in order to protect such building from the liens of mechanics and material-men under the provisions of the second section of the mechanics' lien law. LA FOUCHERIE V. KNUTZEN, N. J., 33 Atl. Rep. 203. 44. MORTGAGE FORECLOSURE.-In an action to foreclose a mortage, an objection to the admissibility of a judgment foreclosing mechanics' liens on the property in favor of some of defendants, on the ground that plaintiff was not a party to such foreclosure proceedings, is without merit, where plaintiff conceded that it was admissible for a specific purpose, and the court ruled that plaintiff was not bound by it.-LAND MORTGAGE BANK OF TEXAS 5 LIMITED V. QUANAH HOTEL CO., Tex., 32 S. W. Rep. 573. 45. NEGLIGENCE. A complaint alleging that defend ant negligently operated its hand car at a speed of more than 15 miles an hour, by a noisy and disorderly crew, from behind an obstruction near a crossing; that the operation thereof in such manner was calculated to frighten a very gentle horse, and did frighten plaintiff's horse, which was of that character, -failing to aver that what was complained of was unusual, and such as common prudence would condemn,-does not state a cause of action based on defendant's negligence.-MCCERREN V. ALABAMA & V. RY. Co., Miss., 18 South. Rep. 420. 46. NEGLIGENCE-Blasting.-Plaintiff, while walking along a public road about dusk, was struck and injured by a rock thrown from G's mill race, over 100 yards away, where blasting was being done by an em. ployee of G. No means were taken to restrict the flight of rock within safe limits, nor was any danger notice given: Held, that G and his servant were liable.-CATES V. LATTA, N. Car., 23 S. E. Rep. 173. 47. PARTNERSHIP-Power of Partner - Mortgages.The implied power of one partner to mortgage firm property is revoked by a dissent of his copartners, known to the mortgagee when he takes his mortgage. -CARR V. HERTS, N. J., 33 Atl. Rep. 194. 48. PRINCIPAL AND AGENT-Notice to Agent. Since a railroad station agent has no apparent power to contract for the company for the shipment of goods from another station, notice to such agent of the necessity for dispatch in shipment thereof is not notice to the company.-MISSOURI, K. & T. RY. CO. OF TEXAS V. BELCHER, Tex., 32 S. W. Rep. 518. 49. PRINCIPAL AND SURETY-Official Bond. -The fact that municipal authorities intrusted with the duty of requiring and accepting official bonds of officers, knowing that an officer was in default, failed to inform those intending to become sureties of the facts, or falsely represented to them that he was not in default, and had discharged his duties with fidelity, will not avoid the bond.-CITY OF HALLETTSVILLE V. LONG, Tex., 32 S. W. Rep. 567. 50. RAILROAD COMPANIES-Killing Stock. In an ac tion for killing stock, where defendant, by the uncontradicted testimony of its employees in charge of the train, proves that the killing could not have been avoided by the exercise of ordinary care, a verdict for plaintiff is not supported by the evidence.-MCGHEE V. GUYN, Ky., 32 8. W. Rep. 615. 51. RAILROAD COMPANIES - Killing Stock. In an action against a railroad company for damages for killIng a cow, evidence that defendant company failed to post notice of the animal killed, as required by statute, is incompetent, in the absence of an allegation of such failure in plaintiff's statement of his cause of action.ST. LOUIS & S. F. RY. CO. V. KIMMONS, Ark., 32 S. W. Rep. 505. 52. RAILROAD COMPANY - Negligence. A railroad company is not ordinarily liable for injuries sustained at a crossing on proof merely that it knowingly used a track "so constructed and maintained as to be dangerous to the public;" it appearing that said road was necessarily dangerous, but such liability must depend upon the care taken to avoid accident.-TEXAS & P. RY. CO. V. WARREN, Tex., 32 8. W. Rep. 578. 53. RAILROAD COMPANIES - Negligence - Defective Crossing.-In an action for injuries occasioned by the running away of plaintiff's horse while on a bridge erected by defendant railroad company over a ditch at a crossing of its track, alleged to have been caused by defendant's negligence in not properly constructing and maintaining the bridge, the company was bound to show ordinary care only. It was error to charge that it was defendant's duty to erect and main tain a "safe" and suitable bridge across and over the ditch cut by it along the side of its railway, or that, if it was necessary for the bridge to be erected, "it was the duty of the railroad to erect and maintain such a bridge so that the highway should be restored to as passable a condition, and so kept, as was consistent with the use of the railroad company, and, if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or bannisters upon the bridge."-ST. LOUIS, I. M. & S. RY. CO. V. AVEN, Ark., 32S. W. Rep. 500. 54. RAILROAD COMPANY-Street Railways - Mortgage Foreclosures. A claim for damages for personal in juries, caused by the negligence of a street railway company five months before the appointment of a receiver in mortgage foreclosure proceedings, is not entitled to priority of payment over the mortgage debt out of the earnings accruing during the receivership. Such a claim is not based upon any considerations inuring to the benefit of the mortgage security, or tending to keep the road a going concern.-ST. LOUIS TRUST CO. V. RILEY, U. S. C. C. of App., 70 Fed. Rep. 32. 55. RECEIVERS-Compensation.-Where a receiver is appointed at the instance of plaintiff, and the appointment revoked on appeal, but, pending the appeal, such appointee gives bond, and proceeds with the management of the property, he is entitled, on final settle ment, to be paid his expenses and commissions out of the proceeds in his hands as receiver, regardless of the ultimate result of the litigation.-ESPUELLA LAND & CATTLE CO. V. BINDLE, Tex., 32 S. W. Rep. 582. 56. SUNDAY LAW - Work of Necessity.-Where, on a trial for Sabbath breaking, the State proves that de fendant performed labor on Sunday, not apparently a work of necessity, the burden is on defendant to show that such work was of necessity.-SIPLEY V. STATE, Ark., 32 S. W. Rep. 489. 57. WILLS-Charities-Trusts. A bequest to a church, "to be used in solemn masses for the repose of my soul," is not valid as a direct bequest to the church for its general uses. -FESTORAZZI V. ST. JOSEPH'S CATH OLIC CHURCH OF MOBILE, Ala., 18 South. Rep. 394. 58. WILLS-Community Property.-A devise to testator's wife of "all that portion of land I own" between certain lines, "including my homestead," is a disposi tion of such lands as the property of testator in en tirety, so that the widow must elect to take thereunder or claim her community interest.-CHACE V. GREGG, Tex., 32 S. W. Rep. 520. 59. WILL-Issue. Where a will in one clause provided that on the death of the last of three daughters leaving issue "said issue to take the distributive share of the trust capital belonging to his, her, or their mother, and the residue of said capital fund, if any, to be divided equally among the children of my said three daughters; that is, my grandchildren to inherit in the right of their respective mothers," and a subsequent clause provided "that, should the last survivor of my said three daughters die without issue, then the cap ital of the trust fund shall be divided among the chil dren and issue of said three daughters in the manner before stated," only the issue of said three daughtere were entitled to inherit upon the death of their mother, or upon the death of the last survivor, and the issue of said issue were not so entitled.-GAMMELL V. ERNST, R. I., 33 Atl. Rep. 222. 60. WITNESS-Competency of Wife. -Code 1892, § 1739, provides that a husband and wife may testify for each other "in all cases." Section 1740 provides that a person cannot testify "to establish his own claim" against the estate of a deceased person which originated dur ing the life of decedent: Held, that a wife is a competent witness for her husband in establishing his claim against a decedent's estate arising out of a deed to him from decedent.-SAFFOLD V. HORNE, Miss, 18 South. Rep. 433. 61. WITNESS Impeachment. - Where an attempt is made to impeach a witness by showing that he has made contradictory statements out of court, he may be supported by proving that, shortly after the transaction to which his testimony relates, he made statements of the matter to others, similar to those given in evidence.-DICKER V. STATE, Tex., 32 8. W. Rep. 541. INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- IN VOLUME 41. A separate subject-index for the "Digest of Current Opinions" will be found on page 511, follow- ABSTRACTS OF TITLE, right of an abstractor of title to inspect public rec- the need of the abstract, 323. the make-up of the abstract, 323. ACTION, will lie against one maliciously garnishing the ex- survival of, 348. for the malicious prosecution of an ordinary civil ALIEN, land law of Missouri, 39. AMERICAN BAR ASSOCIATION, announcement of the eighteenth annual meeting of address of Mr. Chief Justice Brewer before the, 283. owner of domestic animal not in general liable for liability of tenant in common for injuries to co- APPEALS AND APPELLATE PROCEDURE, appeal as a supersedeas in contested election cases, 107. on a second appeal of a case a court will not ordi- the law of the case, 189, 197. from order for new trial, burden of showing error a new point in Wisconsin appellate practice, 423. ASSIGNMENT, rights of assignee of contract;resting on ground of ASSOCIATION, in contemplation of law, an association of persons ATTACHMENT, jurisdiction of choses in action, 284. of stock in a foreign corporation, 398. ATTORNEY AND CLIENT, compensation for legal services, 187. BAIL, right of, pending appeal, 88. BAILMENT, liability of barber for loss of customer's hat, 463. the payment of forged bill of exchange by drawee, liability for failure to collect check deposited, 90. president of bank liable in an action for a false liability of collecting bank for the proceeds of a BARBER, liability of, for loss of customer's hat, 463. BICYCLE, whether is a "vehicle" and subject to toll on high- the rights of bicyclists, 283. BILLS AND NOTES. See NEGOTIABLE INSTRUMENT. BOND, of city treasurer, liability of sureties for defalcation BOUNDARIES, of land bordering on stream, 472, 474. injunction against, 337. CONTRACT-Continued. validity of foreign gambling contracts in the courts of Illinois, 223. of service, terminable by notice, 230. nature of notice, 231. waiver of right to notice by employee, 231. reduction of damages because of an employment where a physician employs another to assist hig under a statute designating as embezzlement a rescission by principal of unauthorized contract of between husband and wife for personal services, interpretation and construction of contract in re- CONTRIBUTORY NEGLIGENCE. See NEGLIGENCE. ratification by a corporation of unauthorized act corporate assets as a trust fund, 59. State legislation against foreign corporations, 152. the right of foreign corporation to transact busi State may prescribe terms and conditions whether CARRIERS OF GOODS, the rightful owner of personal property in the pos- CARRIERS OF PASSENGERS, liability of, for money as baggage, 30. liability of the carrier for damages for failure of right of purchaser of section in a sleeping-car to liability of, for torts of its servant causing injury to CEMETERIES, liability of, for trespass in making illegal disinter- CHAMPERTY, the status of, in the United States, 368. CHATTEL MORTGAGE, judgment on notes, 358. effect of power in the mortgagor to take possession COMBINATION, legality of agreement of members of association to CONFLICT OF LAWS, enforcement of decree for alimony in foreign juris- validity of securities taken by a foreign corpora- validity of foreign gambling contracts in Illinois, 223. CONSPIRACY, legality of agreement among members of associa- CONSTITUTIONAL LAW, retroactive effect of State statute relating to the construction of act prohibiting the adulteration constitutional number of jurors, 287. an information in the nature of a quo warranto, filed what constitutes a peddler within the constitu- validity of inheritance tax laws in general, 483. recovery of money paid on illegal contract, 30. one who contracts with the firm to sell it certain how jurisdiction may be acquired in a State coun validity of stock subscription induced by fraud withdrawal before incorporation by subscriber, liability of corporations for exemplary damages, when corporation is liable for exemplary daw difference of opinion as to circumstances under comments upon these different theories, 309. view that exemplary damages may be awarded CORPORATION-Continued. the federal doctrine on this question, 312. attachment of stock of a non-resident in a foreign where the general statute of a State relating to of several States, their legal status, 476. CORRESPONDENCE, 39, 79, 98, 118, 138, 157, 177, 237, 277, COUNTERCLAIM. See PLEADING. DECEIT, in an action for deceit in representing that defend- the value of honest intentions, 368. DEED, a reservation in a deed of a lien on crops to be a son's interest in his father's estate is a mere building restriction in, 145. conveying land bordering on stream-what con- DESCENT AND DISTRIBUTION, the presumption that children born while their on an issue as to the legitimacy of a woman's the marriage of a woman with one alleged to be the what constitutes legitimacy, 14. right of a murderer to inherit from or profit by a son's interest in his father's estate is a mere direct inheritance tax laws, 443, 483. DIGEST OF CURRENT OPINIONS, 16, 40, 59, 80, 100, 120, DIVORCE, following sentence of imprisonment for life, 1. under what circumstances a divorce terminates DURESS, of goods, what constitutes, 114, 118. ELECTION AND VOTERS, 72. right of bail pending appeal, 88, when defendant on trial for a felony, who is on incestuous intercourse with relation of half blood, in prosecution for selling a book, only parts of twice in jeopardy, 177. the modern law of self-defense, 185, 295. the omission of the word "deliberately" or its constitutional number of jurors, 237. under a statute providing that one convicted of effect of the separation of the jury in criminal the right to shoot a burglar, 315. where defendant was given property by the prose- effect of the presence of strangers during delibera- consent in larceny, 409. one accused of homicide should be tried by the admissibility of declaration of injured female in CURTESY, by husband in the land held by him in trust for his of the husband in the land of his divorced wife, 174, 176. CUSTOM AND USAGE, evidence of, as to practice of physicians, 286. constitutionality of the South Carolina registration- appeal as a supersedeas in contested election cases, 107. does an alderman duly elected and qualified vacate forms of ballots to be used under the Australian arrangement of names on ballots, 285. certificate of nomination under the Australian bal- scratching of ballots under the Australian ballot ELECTRICITY, whether electric wires are fixtures within the liability for damages caused by electric wires, 364 |