live, and the result of which must necessarily affect him to the extent of the greater or less amount of taxes he might have to pay in bearing his part of the common burden with the other inhabitants of the municipality, county, etc., is not the direct and personal interest contemplated by statutes disqualifying a judge in all causes where interested, is well sustained by authority. State v. Severance (Me.), 4 Atl. Rep. 560; Foreman v. Town of Mariana, 43 Ark. 324; City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N. W. Rep. 581; Ex parte Gererro, 69 Cal. 88, 10 Pac. Rep. 261; Commonwealth v. Fletcher, 157 Mass. 14, 31 N. E. Rep. 687; City of Dallas v. Peacock (Tex.), 33 S. W. Rep. 220. See, too, White v. Hinton, 3 Wyo. 753, 30 Pac. Rep. 953; State v. Craig, 80 Me. 85, 15 Atl. Rep. 129. But when a judge owns property subject to a municipal or city tax, it seems he is disqualified because of interest to try a cause, seeking to enjoin or enforce the collection of such tax. Nalle v. City of Austin (Tex.), 22 S. W. Rep. 668; Welsel v. State, 5 Tex. Civ. App. 17, 23 S. W. Rep. 825; State v. City of Cisco (Tex. Civ. App.), 33 S. W. Rep. 244. Generally, the fact that the counsel in a cause is related to the judge will not disqualify him. It has even been held that this is true though counsel be of near relation, and their pay as counsel depend upon the success of the action. Winston v. Masterson (Tex. Civ. App.), 27 S. W. Rep. 691; Knapp v. Campbell (Tex. Civ. App.), 36 S. W. Rep. 765; Winston v. Masterson, 87 Tex. 200, 27 S. W. Rep. 768. But in a case in California, where two sons of the judge were solicitors for one of the parties to an action, and by the terms of their arrangement with their client they were to have a fourth of the subject matter of the suit as their compensation, conditioned, however, upon their success in the case, it was held that the father had such an interest in the cause by reason of his relation to the solicitors as to disqualify him. Howell v. Budd, Judge, 91 Cal. 342, 27 Pac. Rep. 747. A judge who owns stock in a corporation, no matter how much nor little, he has an interest in the subject matter of the suit concerning such corporation such as will disqualify him to sit therein. State ex rel. Colcord v. Young, 31 Fla. 594, 12 South. Rep. 673; Washington Ins. Co. v. Price, 1 Hopk. Ch. 1; Williams v. City Nat. Bank (Tex. Civ. App.), 27 S. W. Rep. 147; Place v. Butternuts Woolen & Cotton Mfg. Co., 28 Barb. 503. But while a judge would be disqualified to preside in a case in which a corporation is a party, where he is an owner of stock therein, yet he is not disqualified to so act because some of his near relatives may own stock, such interest usually being deemed too remote. Houston Cemetery Co. v. Drew (Tex. Civ. App.), 36 S. W. Rep. 802. The contrary is held, however, in the case of Place v. Butternuts Woolen & Cotton Mfg. Co., 28 Barb. 503, and it must be confessed that there is much force in the contention. Such a relative might own half or more of the stock. In this event he might have as great or a greater interest than a partner in a firm. And doubtless the best reasoning is with the contention that such an interest should disqualify the judge. But the fact that a judge may have owned stock in a corporation will not disqualify him to hear a cause in which the corporation is a party where he has, before the action is commenced regularly and in good faith sold and transferred all his stock. Nicholson v. Showalter, 83 Tex. 99, 18 S. W. Rep. 326. See, also, to like effect, Town of Andes v. Ely, 158 U. S. 312, 15 Sup. Ct. Rep. 954. That the legal title to public buildings is vested in a judge of a court and his successors in office in trust, is not such an interest as to disqualify a judge in an action by the State to punish

one charged with defacing such a building in viola tion of law. Clark v. State, 23 Tex. App. 618, 5 S. W. Rep. 115. And a justice of the peace is not disqual fied to sit in a preliminary trial of one accused of libel, though the justice is the party alleged to be libeled. Clyma v. Kennedy, 64 Conn. 310, 29 Atl. Rep. 539. Where the law provides that the various circuit judges throughout the State may exchange circuits with each other in a prescribed form, a circuit judge who has thus exchanged with another is not disqualified in a case in which the regular judge, had the exchange not been made, would have been disqualified. Evans v. State, 58 Ark. 47, 22 S. W. Rep. 1026. Where proceedings are instituted by a bar association of which the judge is a member to disbar a lawyer, the judge paying stated dues at regular periods for the privileges and rights of membership, and where, if the proceedings should not be sus'ained, the association would have to pay the cost, there is no such interest as to disqualify the judge. Ex parte Alabama State Bar Association, 92 Ala. 113, 8 South. Rep. 768. But where a judge, though a mere nominal party to an action, is nevertheless liable for the costs of process to get him into court as a litigant if the case go against him as such nominal party, he is disqualified. Collingsworth County v. Meyers (Tex. Civ. App.), 35 S. W. Rep. 414. And where a church or religious society has been incorporated according to law, a judge who is a member of the vestry having control of the church property and finances, is disqualified to sit in a cause where such religious corporation will be directly affected. State ex rel. Colcord v. Young, 31 Fla. 594, 12 South. Rep. 673. Where a judge of probate owns a claim against an estate, but determines in his own mind not to enforce or present same; and with this idea in view proceeds to exercise jurisdiction in granting letters of administration, and making like orders, he nevertheless has such an interest as disqualifies him. Sigourney v. Sibley, 21 Pick. (Mass.) 101; People v., Carillo, 24 Cal. 73. But while a probate judge could do no judicial act whereby any interest of his own in the subject-matter of the litigation might be affected, yet he may, even in regard to mattersin which he is directly interested, perform acts merely ministerial,such as permitting papers to be filed and issuing process. State v. Sornborger, 17 Neb. 523, 23 N. W. Rep. 524. If a judge should persist in acting in a case wherein he is disqualified, the remedy to prevent it is by a petition for a writ of prohibition. Howell v. Budd, Judge, 91 Cal. 342, 27 Pac. Rep. 747. If a judge, thinking he is disqualified, though he be mistaken, and for this reason refuses to act, the proper way to test his qualification is by mandamus. Foreman v. Town of Mariana, 43 Ark. 324; Ex parte Alabama State Bar Assn., 92 Ala. 113, 8 South. Rep. 767; Medlin v. Taylor, 101 Ala. 239, 13 South. Rep. 310; State ex rel. Colcord v. Young, 31 Fla. 594, 12 South. Rep. 673. Nashville, Ark.

W. C. RODGERS.

CORRESPONDENCE.

STATUTORY LIEN OF JUDGMENT,

To the Editor of the Central Law Journal: In answer (partial) to request of "Lex," published in Vol. 45, p. 398, of your Journal, I will say that in the State of Indiana an execution cannot issue on a judgment after the lapse of ten years from the date of rendition, or of the last execution, if any has been issued, without leave of court upon motion and notice,

personal or by publication, and every judgment ceases to be a lien on real estate at the expiration of ten years from the date of rendition, and lets in subse. quent lien holders, although the first judgment stands as a valid personal claim against the defendant twenty years before it is barred by the statute of limitations. W. H. B.

BOOKS RECEIVED.

The Law of Mines and Mining in the United States. By Daniel Moreau Barringer, A.M., LL.B., and John Stokes Adams, A.B., LL.B., of the Philadel. phia Bar. Boston: Little, Brown & Co., 1897. The Law of Railway Aid Bonds and Mortgages in the United States of Ameriea, with Illustrative Cases from English and Colonial Courts. By Edward Lyman Short, of the New York Bar, General Solicitor of the Mutual Life Insurance Company of New York. Boston: Little, Brown & Co., 1897.

WISCONSIN............................... WYOMING..........

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.20, 23, 52, 60, 74, 75, 85, 89

Executors

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1. ACCORD AND SATISFACTION— What Constitutes.An agreement to accept a less sum in satisfaction of a contingent or uncertain claim for a greater sum is not without consideration.-IN RE CARTER'S ESTATE, Minn., 72 N. W. Rep. 826. 2. ADMINISTRATION Compensation.Executors accepting the office with knowledge of pro. vision in will fixing their compensation are bound thereby, in the absence of extraordinary circumstances.-IN RE HAYS' ESTATE, Penn., 88 Atl. Rep. 622. 3. ADMIRALTY-Maritime Liens.-The plaintiff at the instance and request of the master of a steamer used in navigating the waters of Lake Minnetonka, furnished material and performed services for the use and benefit and on account of the vessel, in removing it from the waters of the lake, where it was sunk, and transporting it by land from the lake to the Minnesota river: Held, that the vessel was liable under the provisions of chapter 83 of the General Statutes.-THE FOREST QUEEN, Minn., 72 N. W. Rep. 809.

4. ASSINGMENTS FOR CREDITORS—Injunction.-When property has been assigned for the benefit of creditors to trustees who have filed a bill for directions as to the administration thereof, and a sale has been made by court's order, but not confirmed, the title still remain. ing in the trustees until confirmance, the property is still so far in the possession of the court that it may restrain any interference therewith, under executions issued by other courts.-FORD V. WATTS, Va., 28 S. E. Rep. 179.

5. ASSIGNMENTS FOR BENEFIT OF CREDITORS-Change of Possession.-Horses, cattle, and machinery were assigned for the benefit of creditors; and immediately thereafter the assignee moved into the ranch house, and placed a foreman in charge, and told the furnisher of food to continue the account, and he would pay the same. The property was all placed in barns, and he nailed up some doors, and put locks on all the others: Held, that the assignment was "accompanied by an immediate delivery and followed by an actual and continued change of possession," as required by Comp. Laws, § 4657.-WRIGHT V. LEE, S. Dak., 72 N. W. Rep. 895.

6. BANKS AND BANKING-Deposit of Notes-Transfer. -Where a firm has been in the habit of depositing its customers' notes with a bank for collection, the bank treating the paper as collateral security for the indebtedness of the firm to it, and crediting the proceeds on the firm's account, notes of like character, there. after deposited by the firm without any express agree. ment as to the purpose for which they are left, may, as against the firm, be retained and collected, and the proceeds applied to a balance due on the firm's account.-STUDEBAKER BROS. MANUFG. CO. v. FIRST NAT. BANK OF SULPHUR SPRINGS, Tex., 42 S. W. Rep. 673. 7. BILLS AND NOTES - Bona Fide Purchaser.-Where the maker of a note, in an action thereon by an indorsee, shows that the note was fraudulently put in circulation, the burden is on plaintiff to show that he is an innocent purchaser for value, before maturity.HART V. WEST, Tex., 42 S. W. Rep. 544.

8. BILLS AND NOTES - Liability on Draft.-A draft drawn by defendant to the order of the plaintiff was lost in transmission by mail from the city where the plaintiff was engaged in business to the city where the drawee resided, to be there presented for payment by the plaintiff's correspondent. Plaintiff failed to discover such loss for nearly six months, although it had in its possession a report from its correspondent which disclosed the fact that the draft had never reached such correspondent: Held, that the drawer was discharged from liability.-Bank of GILBY V. FARNSWORTH, N. Dak., 72 N. W. Rep. 901.

9. BUILDING ASSOCIATIONS Insolvency.-One corporator of an insolvent building association is not entitled to be paid by receivers the proceeds of a sale of such corporator's property, though his pro rata pro

portion of the deficiency of the defaulting association equals such proceeds.-MEARES V. DAVIS, N. Car., 28 8. W. Rep. 188.

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Loans.

10. BUILDING ASSOCIATIONS-Insolvency When a building and loan association is put into the hands of a receiver because of its insolvency, the mortgages held by the association become due at once, and the receiver can foreciose, and the mortgagor can redeem.-WEIR V. GRANITE STATE PROVIDENT ASSN., N. J., 38 Atl. Rep. 643.

11. CARRIERS OF Goods-Bill of Lading - Burden of Proof. Where the bill of lading under which merchandise is shipped exempts the carrier from liability for damage to the goods "if properly stowed," if the goods are damaged the burden of proving proper stowage is on the carrier.-THE ISAAC REED, U. S. D. C., N. D. (Cal.), 82 Fed. Rep. 566.

12. CARRIERS OF GOODS Bill of Lading-Damages.The bill of lading also contained a condition that the amount of any loss or damage for which any carrier became liable should be computed at the value of the property at the place and time of shipment,-a condition identical with that construed in Shea v. Railway Co., 65 N. W. Rep. 458, 63 Minn. 228, and there held to be unjust, unreasonable, and contrary to public policy, because freight charges paid or incurred by a consignee had been ignored: Held, modifying Shea v. Railway Co., that in this condition there is nothing which excludes, from a computation of damages, charges for transportation paid or incurred by or on behalf of a consignee; and that such charges-paid or unpaid-may be taken into consideration when fixing the damages; and that, so interpreted, the condition is not on its face unjust, unreasonable, or opposed to public policy.-DAVIS V. NEW YORK, O. & W. RY. Co., Minn., 72 N. W. Rep. 823.

13. CARRIERS OF GOODS-Interstate Commerce.-The shipment of freight over a number of lines of railroad from a point in one State to a point in another, at a through rate of charges, under an agreement, express or implied, for a conventional division of the charges among the different roads, constitutes a "common ar rangement for a continuous carriage or shipment," within the meaning of the interstate commerce act, and a road participating in such arrangement is subject to the provisions of the act, though its line lies entirely within one State, and its part of the joint charge is its regular local rate.-UNITED STATES V. SEABOARD RY. Co., U. S. C. C., S. D. (Ala.), 82 Fed. Rep. 563.

14. CARRIERS OF GOODS-Limiting Liability.-Where goods done up in packages are received by a carrier for transportation, he is not responsible, in case of loss, for damages beyond the value of the goods as agreed upon with the shipper; and this although the goods were lost through the carrier's negligence.MICHALITSCHKE V. WELLS, FARGO & Co., Cal., 50 Pac. Rep. 847.

15. CARRIERS OF PASSENGERS Contributory Negli gence. When a passenger train stops at a depot, and the passengers are invited to alight, and are in the act of doing so, it is not negligence for a passenger, who has been informed by one of the train officials that the train will stop-10 or 15 minutes, to go temporarily upon the platform of the coach to greet a friend, and bring her into the car.-SOUTHERN R. Co. v. SMITH, Va., 28 S. E. Rep. 173.

18. CONSTITUTIONAL LAW Convention Debates-ACcepted Construction.-When Const. art. 6, § 9, provid. ing "no person shall have the right to vote who shall not be able to read the constitution of this State," was presented before the constitutional convention for adoption, its debates disclosed that the author of the proposition referred to the Massachusetts constitution as being similar, only having added thereto the words "in the English language:" Held, said debates were not conclusive of an intention of the convention, and of the people voting for the constitution, that those who could read the constitution only when translated into a foreign language should be entitled to vote, especially where the debates indicate that some members of the convention had a contrary intention.-RASMUSSEN V. BAKER, Wyo., 50 Pac. Rep. 819. 19. CONSTITUTIONAL LAW Interstate Commerce.The Tennessee statute entirely prohibiting the importation or sale of cigarettes is invalid, as an interference with interstate commerce, In so far as it applies to cigarettes brought into the State from other States or foreign countries, and sold in the original packages of importation.-SAWRIE V. STATE OF TENNESSEE, U. S. C. C., M. D. (Tenn.), 82 Fed. Rep. 615.

20. BUILDING CONTRACTS-Defective Work.-Under a contract to do labor and furnish materials to the satisfaction of the building superintendent, and to the owner's satisfaction, the owner may refuse to pay a part of the price, where the builder has not reasonably performed his part of the contract, though the superintendent has certified that the contract had been properly performed.-PORMANN V. WALSH, Wis., 72 N. W. Rep. 881.

21. CONTRACT-Sale - Performance by Vendor.-The repudiation of a contract before the time for perform ance arrives does not constitute a breach thereof. The only effect of such repudiation is to dispense with an offer to perform by the other party if such refusal to stand by the agreement is not withdrawn before the performance is due under the terms thereof.-STANFORD V. MCGILL, N. Dak., 72 N. W. Rep. 939.

22. CONVERSION BY BAILEE-Burden of Proof.-When the bailor proves, in an action for conversion, that the bailee failed or refused, on demand, to deliver the goods, the burden is thrown on the bailee to prove, not only the loss of the goods, but also that he exercised such care in keeping them as the nature of the bailment required him to exercise.-DAVIS V. TRIBUNE JOB PRINTING Co., Minn., 72 N. W. Rep. 808.

23. CORPORATIONS-Conditional Subscription to Stock. -Parol evidence is admissible to show that a written subscription for corporate stock was not to be delivered to the corporation, or be binding, till a certain number of persons had each subscribed for a like amount.-GILMAN V. GROSS, Wis., 72 N. W. Rep. 885.

24. CORPORATIONS-Franchise-Forfeiture.-A corporation is not ipso facto dissolved by the failure to do something prescribed in its charter, rendering it liable to forfeiture, but the corporation continues de facto until forfeiture is declared in a direct judicial proceed. ing for that purpose, unless the legislature, by clear and unmistakable language, declares that the franchise shall expire ipso facto on the happening of such event.-STATE V. SPARTANBURG, C. & G. R. Co., S. Car., 28 S. E. Rep. 145.

25. CORPORATION-Stockholders' Liability-Res Judicata. In a proceeding to enforce the individual liability of a stockholder, a judgment against the corporation, rendered by a court having jurisdiction, will, in the absence of fraud and collusion, be deemed to be final and conclusive as to the amount of the indebted. ness and the liability of the corporation to pay the same.-BALL V. REESE, Kan., 50 Pac. Rep. 875.

26. COUNTIES-Refunding Indebtedness-County Warrants. Under the Kansas statute authorizing counties to refund all matured and maturing indebtedness, counties have authority to refund county warrants, as well as other indebtedness, without referring the mat. ter to a vote of the people.-SOCIETY FOR SAVINGS V.

BOARD OF COM'RS OF PRATT COUNTY, U. S. C. C., D. (Kan.), 82 Fed. Rep. 573.

27. CURTESY-Judgment Lien.-On death of a woman leaving husband and children, the husband's estate by the curtesy is superior to the rights of her judgment creditors, even though such creditors might, during the woman's life, have sold her land on execution, and so extinguished the estate by curtesy.- HAMPTON V. COOK, Ark., 42 S. W. Rep. 535.

28. CRIMINAL EVIDENCE-Homicide-Declarations.Evidence that defendant had been seen armed on several occasions, and had once threatened to kill his brother, laughingly saying he would "kill somebody before Saturday night," and, again, that he was going to kill his wife and her "protector," was not admissible, where there was no evidence connecting his being armed with the killing, nor any pretense that he and deceased were not on good terms when the remarks were made, nor that there was any improper conduct between his wife and deceased.-STRANGE V. STATE, Tex., 42 S. W. Rep. 551.

29. CRIMINAL LAW-Assault with a Dangerous Weapon. -Firing a pistol at another, who is within shooting distance, or in the direction where he is standing, merely with intent to frighten him, is an assault with a dangerous weapon, within Gen. Laws R. I., ch. 277, § 19.-STATE V. BAKER, R. I., 38 Atl. Rep. 653.

30. CRIMINAL LAW-False Pretenses.-In a prosecution for obtaining money by falsely pretending that the defendant was the owner of a city lot, it is incum. bent on the State to prove by competent evidence the falsity of the pretense, and, where there is an utter failure to prove that the defendant did not own the lot, the court should direct an acquittal.-STATE V. HURLEY, Kan., 50 Pac. Rep. 887.

31. CRIMINAL LAW-Forgery-Instructions.-Where a defendant charged with passing a forged instrument testified that he bought the instrument at a certain discount, and that he could neither read nor write, it was error to refuse a request to give a charge embody. ing such defense, as the jury might have concluded therefrom that he did not know the instrument was forged.-GARZA V. STATE, Tex., 42 S. W. Rep. 563.

32. CRIMINAL LAW-Indictment-Indorsing Names of Witnesses.-It is within the discretion of the trial court to permit the names of additional witnesses to be indorsed on an indictment at the commencement of the trial; and a judgment should not be reversed on account of such permission, unless it appears that such indorsement was an abuse of such discretion.STATE V. LOWE, Kan., 50 Pac. Rep. 912.

33. CRIMINAL LAW-Larceny-Verdict.-A verdict of gailty, in a prosecution for larceny, is fatally defective, which omits to find the value of the property alleged to have been stolen.-FISHER V. STATE, Neb., 72 N. W. Rep. 954.

34. CRIMINAL LAW-Oath of Jury-Waiver.-Though the fact that the oath prescribed in section 979 of the Penal Code had not been administered to the jury try. ing a criminal case was known to counsel for the accused while the trial was in progress, it was not too late, after verdict, to take advantage of the court's omission to have the jury duly sworn. The administration of this oath, literally or in substance, was essential to the legality of the trial, and was therefore not a matter which could be waived by the accused or his counsel, either expressly or by silence.-SLAUGHTER V. STATE, Ga., 28 S. E. Rep. 159.

35. CRIMINAL LAW-Perjury.-A charge of perjury can. not be predicated upon an oath administered by a commissioner of the circuit court, in taking bail în a criminal case, in a State where the State laws do not authorize justices of the peace to administer oaths for similar purposes.-UNITED STATES V. GARCELON, U. S. D. C., D. (Colo.), 82 Fed. Rep. 611.

36. CRIMINAL LAW-Seduction-Evidence.-As a crime (Pen. Code, § 268), seduction is not within Pen. Code, § 1108, providing that, on a trial for enticing away an un

married female of previous chaste character for the purpose of prostitution, defendant cannot be convicted upon the testimony of the woman, unless she is corroborated by other evidence. -PEOPLE V. WADE, Cal., 50 Pac. Rep. 841.

37. CRIMINAL PRACTICE-Bigamy-Indictment.-Pub. St. R. I, ch. 244, § 1, provides that one convicted of be ing married to another, etc., having at the same time a former husband or wife living, shall be imprisoned, etc.; provided, that this shall not extend to any person whose husband or wife shall be continually remaining without the State seven years together (the party be. ing married after the expiration of said seven years, not knowing the other to be living within that time), nor to any person divorced, nor to any person by reason of prior marriage made when the man was less than 14 and the woman less than 12 years old: Held, that the words contained in such proviso merely con stitute grounds of defense, and the exceptions mentioned need not be negatived by an indictment for bigamy.-STATE V. GALLAGHER, R. I., 38 Atl. Rep. 655.

38. DISCOVERY-Production of Books and Documents, -Defendants in an action for malicious prosecution may, on a proper showing, be required to produce books and papers belonging to a corporation in which they are stockholders, for the inspection of plaintiff's attorneys.-EDDY V. BAY CIRCUIT JUDGE, Mich., 72 N. W. Rep. 890.

39. DIVORCE-Desertion.-A wife who leaves her hus band merely because of a quarrel, and for over two years refuses his repeated requests to return, is guilty of willful and malicious desertion, entitling the hus. band to a divorce.-WHELAN V. WHELAN, Penn., 38 Atl. Rep. 625.

40. ELECTIONS-Nomination by Petition.-One nomi. nated by petition for office is not entitled to the party name and emblem on the ballot, where there was a regular convention of the party, which made a nomi. nation to the same office as that to which the petition related, and which convention had appropriated the name and emblem.-WHIPPLE V. OWEN, Colo., 50 Pac. Rep. 861.

41. ELECTIONS-Nomination Certificates.-A political party convention met in the place provided by the call, and the chairman of the county central committee called it to order, and before the election of a temporary chairman he entertained a motion to adjourn to another place, and declared it carried by a viva voce vote, and refused to allow a division; Held, a majority of the convention thereafter remaining, and nomi. nating officers, constituted the legal convention, as said adjournment was unauthorized. LIGGETT V. BATES, Colo., 50 Pac. Rep. 860.

42. ELECTIONS-Nominations-Revocation.-Where a committee authorized by petition among the electors of an organized party to fill a vacancy among nomi. nees for office has executed a certificate of nomination to fill a certain vacancy, it cannot subsequently rescind its action, and make another nomination.-LE BERT V. SHIRLEY, Colo., 50 Pac. Rep. 862.

43. ELECTIONS-Validity of Nomination Certificates.A nomination of a ticket by a political convention is a revocation of a power given by it to a committee on the previous day to nominate a ticket. LEIGHTON V. BATES, Colo., 50 Pac. Rep. 858.

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44. EQUITY-Specific Performance-Laches.--Diligence is required of one who seeks equitable relief, such as specific performance of a contract, for if, through un. necessary and unexplained delay, the value of the property involved has greatly increased, or the cir cumstances have changed, so that an injustice will be done to allow such equitable relief, it will not be granted.-ANDERSON V. LUTHER MIN. Co., Minn., 72 N. W. Rep. 820.

45. ESTOPPEL BY DEED.-Where the owners of property subject to a mechanic's lien sell it, and at the time regard the lien as valid and binding on the property, and sell subject to such lien, the purchaser cannot dis

pute its validity. - MICHIGAN SAVINGS & LOAN ASSN. V. ATTEBERY (Tex.), 42 S. W. Rep. 569.

46. ESTOPPEL BY DEED. - One who, in a representa. tive capacity, assumes to sell and convey to another the entire estate in land, is estopped, as against the purchaser, from asserting an estate in his own right in the same land; and this although the first sale and deed were void.-WELLS V. STECKELBERG, Neb., 72 N. W. Rep. 865.

47. ESTOPPEL.-Defendant in an action for possession of chattels for purpose of foreclosing mortgage is not estopped to prove the defense of payment because he received the surplus arising from the sale of the chattels made by plaintiff after commencement of the action.- KIDDER V. AARON, S. Dak., 72 N. W. Rep. 893. 48. EVIDENCE-Records of Interstate Commerce Com. mission.-Schedules of charges filed by a railroad com. pany with the interstate commerce commission may be proved by the testimony of the secretary of the commission, since the records of the commission cannot be brought into court, and there is no statute making certified copies thereof admissible in evidence.GULF, C. & S. F. Rr. Co. v. DIMMITT, Tex., 42 S. W. Rep. 588.

49. FEDERAL COURTS Quieting Title. - Under the statute of Nevada relating to actions to quiet title to real property, it is not necessary for the plaintiff, in bringing a suit in equity for that purpose in the federal court of Nevada, to set out specifically the character of his own title, or of the alleged title of the defendant, but it is always sufficient simply to allege that plaintiff is the owner and in possession of the property, describing it, and that the defendant is unlawfully asserting a claim thereto adverse to him.UNION MILL & MINING CO. v. WARREN, U. S. C. C., D. (Nev.), 82 Fed. Rep. 519.

50. FEDERAL COURTS-Removal of Officers-Executive Functions.-The national courts cannot rightfully interfere with executive action in any case where an executive officer is authorized to exercise judgment or discretion in the performance of an official act. - TAYLOR V. KERCHEVAL, U. S. C. C., D. (Ind.), 82 Fed. Rep. 497.

51. FRAUDULENT CONVEYANCE Presumption. - The doctrine of this court is that when a conveyance from a husband to a wife is attacked by his creditor the presumption will be indulged that such a conveyance is fraudulent.-JANSEN V. LEWIS, Neb., 72 N. W. Rep. 861.

52. GUARANTY-Construction. Where a person guar anties in writing an "account" of another, for a stated sum, parol evidence is admissible to show that the word "account" refers to an indebtedness about to be created. WALDHEIM V. MILLER, Wis., 72 N. W. Rep.

869.

53. HIGHWAYS Prescription Railroad Crossing.Where a road crossing a railroad has been fixed for 12 years or more, has been during that time used by the public, and worked under orders of the commissioner's court, and has been recognized by the railroad company as a public road, the right to a crossing by pre. scription is complete. - TEXAS & P. RY. Co. v. KAUFMAN COUNTY, Tex., 42 S. W. Rep. 586.

54. INJUNCTION BOND-Damages-Attorney's Fees.Attorney's fees are recoverable as damages upon an injunction bond; and the fact that they are not allowed in the federal court will not preclude recovery of such damages in a State court, where an action is brought upon an injunction bond given in a federal court.-MULVANE V. TULLOCK, Kan., 50 Pac. Rep. 897. 55. INJUNCTION-Public Officers Contest.-A claimant to a public office, suing for its possession, is not en titled to an injunction restraining the payment to the incumbent of the fees and salary of the office pending the determination of the contest, although such incumbent may be insolvent. LAWRENCE V. LEIDIGH, Kan., 50 Pac. Rep. 889.

56. INJUNCTION-Threatened Trespass-Sufficiency of Bill.-A bill to enjoin the commission of a threatened

trespass is sufficient, without alleging any overt act towards the invasion or destruction of complainant's rights, if it alleges threats to commit the trespass, and that it will be committed unless enjoined, and will cause irreparable injury to complainant.-UNION MILL & MINING CO. v. WARREN, U. S. C. C., D. (Nev.), 82 Fed. Rep. 522.

57. INSURANCE-Proofs of Loss-Waiver.-The furnishing of formal proofs of loss, as provided by the policy, is waived, where the company has notice of the loss, and refers the matter to its adjuster, who fully investigates it, and leads insured to believe nothing is in the way of a payment of the claim except a difference of opinion as to the value of the property.-HITCHCOCK V. STATE INS. CO. OF DES MOINES, IOWA, S. Dak., 72 N. W. Rep. 898.

58. JUDGMENTS-Collateral Attack.-On collateral at. tack it will be presumed that a court of general jurisdiction, rendering a judgment, obtained jurisdiction by a summons served within its jurisdictional limits. -STODDARD MANUFG. CO. v. MATTICE, S. Dak., 72 N. W. Rep. 891.

59. JUDGMENT-Res Judicata.- Where a person claims the whole of a stock of merchandise by virtue of a chattel mortgage executed to him by the owner, and different portions of such stock are taken from him in separate actions by different attaching creditors of the mortgagor, and he in turn brings separate replevin actions against the attaching officer to recover the different portions of the stock, and the officer defends such replevin actions in his official right, without the joinder of the attaching creditors: Held, that a final judgment against the mortgagee, on the merits, in the action first tried, is a bar to his prosecution of the others.-MCDOWELL V. GIBSON, Kan., 50 Pac. Rep. 870. 60. LANDLORD AND TENANT-Defective Premises.-In an action by a tenant against a landlord for personal injuries caused by a defect in the leased premises, proof that the defect existed at the time of the leasing, and that defendant was afterwards notified of such defect, and promised, but failed, to remedy the same, is not sufficient ground for a recovery, since there is no proof that defendant, at the time of the leasing, agreed to keep the premises in repair, or warranted them free from defects.-DOWLING V. NUEBLING, Wis., 72 N. W. Rep. 871.

61. LIMITATIONS. Where a defendant in a suit in equity makes no affirmative assertion of title to the property in suit until she has herself made a party plaintiff, the statute of limitations continues to run against her until she is made plaintiff.-BUCK V. DAVIS, Ark., 42 S. W. Rep. 54.

62 LIMITATIONS-Action for Battery.-The action for a battery which, under the provisions of section 8, subd. 1, must be brought within two years, is an action founded upon an intentionally ad ninistered injury to the person, such an injury as could be made the basis of a criminal prosecution. "Personal injury" actions, the result of negligence, are not within this statute; nor are they within the rule of ejusdem generis, as ap plied to an action for a battery.-Orr V. GREAT NORTHERN RY. CO., Minn., 72 N. W. Rep. 833.

63. LIMITATIONS Fraudulent Conveyances.-An action by a judgment creditor to set aside a conveyance by his debtor on the ground that it was executed with intent to defraud creditors is one "for relief on the ground of fraud," and the limitation of the time within which such an action must be brought is that prescribed by Gen. St. 1894, § 5136, subd. 6, to-wit, within six years after "the discovery by the aggrieved party of the facts constituting the fraud."-DUXBURY V. BOICE, Minn., 72 N. W. Rep. 838.

64. MANDAMUS TO JUDGE-When Lies.-The record on appeal disclosing a statement of facts apparently complete, mandamus will not lie to compel the district judge to amend such statement, even where he admits that the matter sought to be inserted was omitted by inadvertence, and expresses his willingness to make