BREWING CO. v. WALSH, U. S. C. C., D. (Minn.), 84 Fed. 101. FEDERAL COURTS-Jurisdiction-National Bank. -A suit by a national bank against its former managing officers to charge them with losses sustained by reason of their having made loans to one individual in excess of 10 per cent. of the capital stock, and other loans without personal security, in violation of the national banking statutes, the right of recovery being claimed under Rev. St. § 5239, is one arising under the laws of the United States.-NAT. BANK OF COMMERCE OF TACOMA, WASH., V. WADE, U. S. C. C., D. (Wash.), 84 Fed. Rep. 10. 102. FEDERAL COURTS - Jurisdiction - Property in Custody of State Court.-A circuit court of the United States will not entertain an action to recover property in possession of the defendant as receiver of a State court, though brought by a citizen of another State, who is not a party to the proceedings in the State court, unless leave to sue its receiver is obtained from that court.-Ross v. HECKMAN, U. S. C. C., D. (Wash.), 84 Fed. Rep. 6. 103. FEDERAL AND STATE COURTS-Conflict of Jurisdiction. A federal court will not appoint a receiver for a corporation when it appears that a State court of competent jurisdiction has already appointed a receiver therefor, who has taken possession of all its assets.-GARNER V. SOUTHERN MUT. B. & L. ASSN., U. S. C. C. of App., Fifth Circuit, 84 Fed. Rep. 3. ARMSTRONG V. 104. FRAUD-Burden of Proof.-A plaintiff who alleges fraud must clearly and distinctly prove the fraud alleged in the bill. The onus probandi is on him, and, the fraud is not strictly and clearly proved as it is alif leged, relief cannot be granted. BAILEY, W. Va., 28 S. E. Rep. 766. 105. FRAUD-School Warrant-Indorsement by Treasurer.-Under Comp. Laws, § 3507, characterizing as actual fraud any "acts fitted to deceive," and "conniv. ance with intent to deceive or to induce another to enter into a contract," where a treasurer of a school district, confederating with another to assist him in procuring money, and for the purpose of misleading the public, indorsed upon a school warrant illegally issued that the same had been presented for payment and refused because of a lack of funds, and also officlally certified that the same would be paid as soon as funds were at hand, and thereby induced an innocent purchaser to take the warrant for a valuable consider. ation, he is liable to such purchaser.-WHITBECK V. SEES, S. Dak., 73 N. W. Rep. 915. 106. FRAUDS, STATUTE OF-Contracts Relating to Land. -An oral contract which could not be performed without a grant from the defendant to the plaintiff of an interest in lands, whether such interest be a fee or easement, is void, under the statute of frauds.-TILLIS V. TREADWELL, Ala., 22 South. Rep. 983. 107. FRAUDULENT CONVEYANCES.-The mere fact that a debtor has been wronged out of his property, or has wasted it, or negligently allowed it to pass into the hands of others, gives his creditor no right to have the transaction set aside.-JOHNS V. JORDAN, Kan., 51 Pac. Rep. 889. of 108. FRAUDULENT CONVEYANCES Grantee.-A purchaser of property from an insolvent, Knowledge who gives in good faith his negotiable note therefor, having no knowledge of intent on the part of the seller to defraud his creditors, acquires good title.-LIGON V. TILMAN, Tex., 43 S. W. Rep. 1069. 109. GARNISHMENT-Loss of Lien.-That money due to several tenants in common upon a policy of fire insurance was, after the dissolution of a garnishment which had been served upon the insurance company at the instance of a creditor of one of these tenants, collected from the company, and used in rebuilding the property destroyed, affords no reason for defeating the garnish. ment.-ENNIS V. HARALSON, Ga., 28 S. E. Rep. 839. 110. GIFT-Savings Bank Book.-The delivery of a savings bank deposit book, issued to the depositor as evidence of and which shows the actual indebtedness 271 of the bank, consummates the gift, and no other formality is necessary to vest the possession and title in donee.-WATSON V. WATSON, Vt., 39 Atl. Rep. 201. 111. GUARDIAN AND WARD-Accounting.-Where a guardian or other fiduciary or trustee does an act, and it is sought to make him liable for a loss consequent thereon, on the theory that his act was injudicious and improvident, if the act was in entire good faith, and the fault only an error of judgment and want of sharpsighted vigilance, and the act be one which, as a prudent man, he might have done in his own matters, he cannot be made liable.-WINDON V. STEWART, W. Va., 28 S. E. Rep. 776. 112. HABEAS CORPUS-Former Jeopardy.-The question of former jeopardy on the part of the petitioner cannot be inquired into in habeas corpus proceedings, but such plea must be presented and tried in the court having jurisdiction to try the petitioner on the charge for which he stands committed.-MILLER V. CASE, Kan., 51 Pac. Rep. 922. 113. HOMESTEAD-Waiver.-A waiver of a homestead and exemption right, even though such right be inchoate only, is valid, and will be binding upon the person making the waiver when the right becomes complete.-PRATHER V. SMITH, Ga., 28 S. E. Rep. 857. 114. HOMESTEAD-What Constitutes.-The owner of 340 acres, on which he lived, sold 4 acres in one corner, over which a private way from his residence to the highway passed, which was otherwise used only as pasture: Held that, there being sufficient left to satisfy all homestead demands, the homestead was not impressed on the part sold, so as to require the wife to join in the deed.-NEIMAN V. SCHUSTER, Tex., 43 S. W. Rep. 1075. 115. HOMESTEAD EXEMPTION-"Aged Person."- While the term "aged," as applied to human beings, is not, for all purposes, susceptible of precise definition, and while it is not practicable to arbitrarily fix a period of life at which the condition of being aged may be said to have certainly begun, it is safe to hold that a man 66 years old is entitled to an exemption of his property from levy and sale, under that clause of the constitution (Civ. Code, § 5912) allowing this right to "every aged or infirm person." This is true although the applicant may be a hale and hearty man.-ALLEN V. PEARCE, Ga., 28 S. E. Rep. 859. 116. HUSBAND AND WIFE-Wife as Surety for Husband. Where a bank is informed by a broker that a loan is wanted on the obligation of a certain person as drawer, and his wife as indorser, and the loan is made on such proposition, it has notice that she is a mere surety; and, in the absence of any part in the transaction by her other than signing her name as indorser at her husband's request, or of the receipt of any part of the money, the bank cannot enforce the debt against her, under Code 1886, § 2349, providing that the wife shall not, directly or indirectly, become the surety of her husband.-CONTINENTAL NAT. BANK OF MEMPHIS, TENN., V. CLARKE, Ala., 22 South. Rep. 988. 117. HUSBAND AND WIFE-Wife's Separate Property.The husband cannot convey title to choses in action and securities belonging to the wife without her consent; and, so long as her separate property can be identified, she can recover it in the hands of third parties, although it may have been conveyed for value, and the party who received it was ignorant of the wife's title.-COLEMAN V. FIRST NAT. BANK OF WAXAHACHIE, Tex., 43 S. W. Rep. 938. 118. INJUNCTION-Conspiracy to Commit Tort-Parties.-The rule is as well settled in equity as it is at law that where a right of action arises ex delicto the tort may be treated as joint or several, at the election of the injured party. Where a conspiracy by the members of certain labor organizations had been formed to injure the business of a corporation, it was accordingly held that the corporation might treat the tort as joint or several, and maintain a suit against all or against any number of the conspirators, to enjoin them from carrying the same into effect.-HOPKINS V. OX LEY STAVE Co., U. S. C. C. of App., Eighth Circuit, 83 Fed. Rep. 912. 119, INJUNCTION-Misapplication of Firm Funds.-The active member of a firm deposits the funds thereof, to the amount of $1,800, in a bank, in the firm name. The other member of the firm (who is insolvent), without the consent or knowledge of his partner, wrongfully obtains a certificate in his individual name for such deposit, and transfers it to a foreign bank. At the instance of the active member of such firm, a court of equity will enjoin the application of such funds to the payment of such certificate until the partnership can be settled in a suit for that purpose.-GROBE V. ROUP, W. Va., 28 S. E. Rep. 699. 120. INSOLVENCY-Trustee-Notice.-An unrecorded conditional contract of sale of personal property in the vendee's possession will be considered an absolute sale as to the trustee of the vendee in insolvency, and the fact that he had notice of the lien prior to his appointment will not impute notice to the creditors whom he also represents.-NATIONAL CASH REGISTER CO. v. WOODBURY, Conn., 39 Atl. Rep. 168. 121. INJUNCTION-Railroad Company - Parties.-One acting under authority of an ordinance of the city council cannot be restrained, at the suit of the owner of abutting property, from constructing in a public street a private switch, subject to municipal control, and connecting with the line of a public carrier, as the validity of the ordinance granting the right can only be assailed by an officer acting in the name of the people of the State, or by a bill for injunction brought by the city.-COFFEEN V. CHICAGO, M. & ST. P. RY. Co., U. 8. C. C. of App., Seventh Circuit, 84 Fed. Rep. 46. 122. INJUNCTION BOND-Damages.-In assessment of damages on an injunction bond in a suit wherein respondent was enjoined from cutting off appellant's water supply, no damages can be recovered for water supplied to appellants while such injunction was in force, when the order did not preclude respondent from suing to recover the water rates as fast as they became due; appellants being solvent during that time and for several years thereafter.-EDMISON V. SIOUX FALLS WATER CO., S. Dak., 73 N. W. Rep. 910. 123. INSOLVENCY-Bank-Preferred Claim.-When an agent, in accordance with a long course of business, deposits in his own name as agent moneys of his prin. cipal, with his knowledge and consent, in a bank which becomes insolvent, the moneys so deposited will not be declared a trust fund in favor of the latter, and established as a preferred claim.-STATE V. MID. LAND STATE BANK, Neb., 73 N. W. Rep. 922. 124. INSURANCE-Application-Statement as to Interest. Where it is stipulated in a fire insurance policy that the application on which it is based shall be a part of the contract, and a warranty by the assured, and that, if the interest of the latter in the property be not truly stated therein, the policy shall be void, the par. ties have settled for themselves what shall be material, and the assured cannot be permitted, in case of loss, to escape the consequences of making a false answer to a question. He cannot be allowed to claim that an answer is immaterial which he has contracted should be considered material.-CERYS V. STATE INS. Co. OF DES MOINES, IOWA, Minn., 73 N. W. Rep. 849. 125. INSURANCE-Assessment-Record.-The record of an assessment of a mutual insurance association, reciting that the resolution ordering the assessment "was unanimously adopted by the directors as a body, and by the executive committee," is prima facie evidence against the members of the association.-ANDER. SON V. MUTUAL RESERVE FUND LIFE ASSN., Ill., 49 N. E. Rep. 205. 126. INSURANCE-Condition against Mortgage.-A provision in a policy against mortgages on the insured property is not violated by the giving of a mortgage, where the condition on which it was to be effective is not complied with.-WEIGEN V. COUNCIL BLUFFS INS. Co., Iowa, 73 N. W. Rep. 862. 127. INSURANCE-Property Rented for Illegal Pur poses.-The mere fact that a house is let to and occu pied by a lewd person, which, with the knowledge of the owner, is to be used by her for purposes of prostitution, does not of itself avoid a policy of insurance issued thereon in favor of the owner. The contract of insurance is not so connected with the contract of rental as to prevent, in case of loss, the maintenance of an action on the policy by the owner.-PHENIX Ins. Co. v. CLAY, Ga., 28 S. E. Rep. 853. 128. INTOXICATING LIQUORS-Illegal Sales.-Evidence that a person bought of defendant a bottle of whisky, and also several bottles of "hop ale," which had the appearance, taste and effect of beer, without defendant in any way indicating his protest, or refusing to accept the money, was sufficient to show a sale of in toxicating liquors.-WILLIAMSON V. STATE, Tex., 43 8. W. Rep. 983. 129. INTOXICATING LIQUORS-Sales to Minors.-A seller of a glass of intoxicating liquor, delivering it to a minor at the purchaser's request, is not guilty of sell ing or giving it to the minor.-BARTMAN V. STATE, Tex., 43 S. W. Rep. 984. 130. JUDGE Disqualification.-A district judge who is a taxpayer in a city is not so interested in an action to recover a judgment upon the obligations of the city as to disqualify him on the trial of the case.-THORN BURGH V. CITY OF TYLER, Tex., 43 S. W. Rep. 1054. 131. JUDGMENT.-A judgment or decree of this court takes effect, at latest, from its date, and not from the receipt and recordation of the mandate in the office of the court below.-LONG V. PERINE, W. Va., 28 S. E. Rep. 701. 132. JUDGMENT Equitable Relief-Negligence of At torney. A court of equity will not afford relief against a judgment or decree obtained against a party through the negligence of his attorney.-FUNK V. KANSAS MFG. Co., Neb., 73 N. W. Rep. 931. 133. JUDGMENT - Estoppel against United States as Formal Party.-In a suit in which the government has no interest, but which is brought in its name by a pri vate party, to enforce his own rights, a prior adjudica tion by a State court, determining the same issues ad versely to him, is available as a defense, notwithstand ing the formal presence of the United States as party. -UNITED STATES V. DES MOINES VALLEY R. Co., U. S. C. C. of App., Eighth Circuit, 84 Fed. Rep. 40. 134. JUDGMENT Execution.-Since, under McLain's Code, § 4321, none but the court which rendered a judg ment can award execution against one deceased after its rendition, the judgment creditor cannot enforce payment of the judgment out of deceased's real estate in a county other than that in which the judgment was rendered.-HANSEN'S EMPIRE FUR FACTORY V. TRA BOUT, Iowa; 73 N. W. Rep. 875. 135. JUDGMENT-Impeachment-Usury.-The change in the statute, declaring that usurious contracts shall be deemed to be for an illegal consideration, instead of void, does not change the doctrine authorizing equity to relieve against a judgment obtained, by default, upon a contract tainted with usury.-GREER V. HALE, Va., 28 S. E. Rep. 873. 136. JUDGMENT-Lien.-Under Gen. St. § 3034, provid. ing that a judgment shall only be a lien on such real estate as can be levied on under an execution on the same judgment, no lien attaches upon land for which the judgment debtor has only a bond for a title, and has no equitable right to have a title.-SWEENEY V. PRATT, Conn., 39 Atl. Rep. 182. Res Judicata. In an action against an estate on a note given by decedent and others to plaintiff for a stock of goods and accounts, defendant set up a written guaranty by plaintiff that a specified sum should be realized from the accounts, and a breach of the guaranty: Held, that the defense was barred by a judgment in favor of plaintiff in a prior action brought against him by a firm composed of the makers of such note for a breach of said guaranty, in which it was determined that said firm had failed to use due diligence in the collection of the accounts, within the meaning of the guaranty.-KELLOGG V. THOMPSON'S ESTATE, Mich., 73 N. W. Rep. 893. 138. JUDGMENTS Vacation.-In the absence of a showing by a party that he was prevented from mak ing a valid defense by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part, he will not be entitied, after expiration of the term of court, to have the judgment vacated.-WILSON V. SMITH, Tex., 43 S. W. Rep. 1086. 139. JUDGMENT BY DEFAULT.-An affidavit in an ap plication to set aside a default, which properly excuses failure to answer, and sets up a plea of discharge in insolvency as a defense, is within Code Civ. Proc. § 473, providing that the court may relieve a party of a judgment taken against him through mistake or excusable neglect, since the plea is not technical, but goes to the merits as a plea in bar.-TUTTLE V. SCOTT, Cal., 51 Pac. Rep. 849. 140. JUDGMENTS BY DEFAULT-Service of Process.-It is error to enter a judgment by default upon an amended petition, where the defendant, although a citation issued upon the original petition had been served on him, was not cited to answer the amended petition, and did not waive citation, accept service, nor enter his appearance in the cause, and neither appeared nor answered at any time or in any manner in the suit. PENA V. PENA, Tex., 43 S. W. Rep. 1027. 141. JUSTICE'S COURT Misnomer.-A misnomer in a justice's summons is amendable, and is waived and cured by appearance and plea to the action.-WEIMER V. RECTOR, W. Va., 28 S. E. Rep. 716. - Docket Entries.-The 142. JUSTICES OF THE PEACE transcript of a justice's docket, noting the return of a summons by an officer, is not so conclusive as to render a judgment void for the reason that such returns as set out in such transcript is defective, as the justice is not required to make other than a brief note of such return in his docket.-MOREN V. AMERICAN FIRE CLAY Co., W. Va., 28 S. E. Rep. 728. 143. LANDLORD AND TENANT-Contract to Repair.-If a landlord covenants to make repairs to premises, the tenant may notify him to do so; and, if he fails or refuses to comply with such covenant, the tenant may make the repairs, and, in an action instituted by the landlord, may recoup the same as offsets or payment against the rent demanded.-CHEUVRONT V. BEE, W. Va., 28 S. E. Rep. 751. 144. LIFE INSURANCE struction. The holder of a life policy assigned the Assignment of Policy · Con. same to a third person, "if she survive him; otherwise to such other beneficiary, having an insurable interest on the life of the insured, as the insured may thereafter in writing nominate, with full power to the insured to change or alter or cancel this assignment at any time:" Held, that such assignment was not absolate, and the reservation of the right to change or can. cel applied to the assignment in which it was tained, and not to the one appointing a successor to the assignee.-PENN MUT. LIFE INS. Co. v. UNION TRUST CO. OF SAN FRANCISCO, CAL., U. S. C. C., N. D. (Cal.), 83 Fed. Rep. 891. con. 145. LIFE INSURANCE-Construction of Policy.-Under a life insurance policy containing non-forfeiture provisions declaring that, upon default after payment of two annual premiums, the net reserve, "less any indebtedness to the company on this policy," would be applied to the purchase of non-participating term insurance, a payment of a premium part in cash and part by a loan from the company, evidenced by a certificate signed by insured, reciting that the company has loaned the amount on the policy, constitutes an indebtedness due the company, within the meaning of such provisions.-OMAHA NAT. BANK V. MUTUAL BEN. LIFE INS. CO., U. S. C. C. of App., Third Circuit, 84 Fed. Rep. 122. 273 146. LIFE INSURANCE Surrender Value.-Under the Massachusetts forfeiture law of 1880 in all cases in which obligation to pay a cash surrender value is imposed by the statute, the holder of the policy may claim and recover the sum due.-HAZEN V. MASS. MUT. LIFE INS. CO., Mass., 49 N. E. Rep. 119. 147. LIMITATIONS-Special Defense-Pleading.-Since the statute of limitations is a special defense, it must be pleaded as a defense to a counterclaim, and will not be deemed to have been pleaded under Code Civ. Proc. § 462, providing that "the statement of any new matter in the answer in avoidance, or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party."-BLISS V. SNEATH, Cal., 51 Pac. Rep. 848. 148. MALICIOUS PROSECUTION - Probable Cause-Advice of Counsel.-One is relieved from liability for ma licious prosecution, by advice of counsel, only where he made a fair and full disclosure of all material facts known by him, and acted in good faith pursuant to the advice given.-WUEST V. AMERICAN TOBACCO Co., 8. Dak., 73 N. W. Rep. 903. 149. MANDAMUS Merchant's license.-There was no basis for the issuance of a writ of mandamus to compel a tax collector to issue to an applicant therefor a license as a merchant druggist, where he had not refused, but was ready and willing, to issue such license. -YELLOWSTONE KIT V. WOOD, Tex., 43 S. W. Rep. 1068. 150. MARRIED WOMEN Fraudulent Conveyances.The general creditors of a married woman can only subject the rents of her real estate to the payment of her debts so long as she is legally entitled to the same. -Cox v. HORNER, W. Va., 28 S. E. Rep. 780. 151. MARRIED WOMEN-Separate Estate.-In 1884 certain land in California, known as lots B and C, was conveyed to one C, a married woman, by a deed which did not recite that it was conveyed to her as her separate estate; but the consideration paid was money derived by her from the sale of a certain "lot 13," which had theretofore been conveyed to her by her husband by a quitclaim deed which was solely upon the consideration of "love and affection:" Held, that lot 13 was the separate property of the wife, and that, therefore, lots B and C, being bought with the proceeds thereof, were also her separate property.-THORPE V. SAMPSON, U. S. C. C., S. D. (Cal.), 84 Fed. Rep. 63. 152. MA TER AND SERVANT — Assumption of Risk.-A servant employed by a railroad company to assist in loading freight into its cars from a wharf cannot recover from his employer for an injury received in handling such freight, and due solely to the negligent manner in which the boxes to be loaded had been piled on the wharf by a connecting carrier, the danger being as obvious to the plaintiff as to the defendant.-CAROLAN V. SOUTHERN PAC. CO., U. S. C. C., N. D. (Cal.), 84 Fed. Rep. 84. 153. MASTER AND SERVANT-Negligence-Assumption of Risk.-A person has the right to carry on a business which is dangerous, either in itself or in the manner of conducting it, if it is lawful and does not interfere with the rights of others. He may choose his machinery and conduct the business in the manner most agreeable to himself; and the employee, entering or remaining in his service with knowledge of the dangerous character and risks of same, cannot recover for damages resulting from that peculiar service.-GREEF V. BROWN, Kan., 51 Pac. Rep. 926. 154. MASTER AND SERVANT-Negligence and Contributory Negligence.-A switchman, in endeavoring at night to couple a moving car to a standing car, took a link from the latter, set the pin in the drawhead, and went to meet the other car with the link. He inserted the link in the drawhead, and held it there with his right hand, and undertook to insert the pin, but was unable to do so because it was a little too large for the hole, and when the cars came together he injured his right hand: Held, that the railroad company was neg. ligent in not providing a suitable coupling pin.-MIS. SOURI, K. & T. RY. CO. OF TEXAS V. HAUER, Tex., 43 S. W. Rep. 1078. 155. MASTER AND SERVANT-Negligence-Presumption of Competency.-When a master has exercised due care in the employment of a servant, he may rely upon the presumption of competency, until he has notice or knowledge to the contrary.-WALKOWSKI V. PENOKEE & G. CONSOL. MINES, Mich., 78 N. W. Rep. 895. 156. MECHANICS' LIENS - Mortgages-Foreclosure.Under Comp. Laws, §§ 4338, 4339, providing that every person having an interest in property subject to a lien has a right to redeem at any time before such right is foreclosed, and that a junior lienor may redeem from a superior lien in the same manner as the owner, a junior mortgagee's right to redeem from a sale under a prior mechanic's lien is not foreclosed by an action to enforce the latter in which the mortgagee is not made a party.—AMERICAN BANKING & TRUST Co. v. LYNCH, S. Dak., 73 N. W. Rep. 908. 157. MECHANIC'S LIEN-Priority-Vendor's Lien.-The lien of a person who furnishes material for the erection of a house upon land in possession of the vendee under an executory contract of purchase is subordi. nate to the lien of the vendor, who retains the legal title to secure deferred installments of the purchase price, except in cases where the vendor himself promotes the improvement, or causes it to be made.WEST V. REEVES, Neb., 73 N. W. Rep. 935. 158. MECHANIC'S LIEN-Statement of Account.-Ac. counts of mechanic's lien claimants recited that the owner was debtor for "materials furnished and work done in plastering," and "in granolithic work, at the following houses, in the city of R, Va., viz:" giving the numbers of five adjoining houses on the south side of a certain avenue, and five houses on the north side of the same avenue, and the total amount charged: Held, insufficient, under Code, §§ 2476, 2477, and amend. ments thereto, requiring the account to show the "amount" and character of the work and materials furnished, and "the prices charged therefor," and sec. tion 2478, declaring that a substantial compliance is sufficient, where there were contracts made for the work and materials for each block.-GILMAN V. RYAN, Va., 28 S. E. Rep. 875. 159. MECHANIC'S LIEN Subcontractor.-A subcontractor cannot hold the owner of property personally liable for material furnished if the owner has paid the contractor to whom the material was sold and deliv. ered, when he has not complied with the provisions of Rev. St. 1895, art. 3296, by filing an itemized account of his claim with the county clerk.-GILMEE V. WELLS, Tex., 43 S. W. Rep. 1058. 160. MORTGAGES-Assignment-Notice of Equities.A mortgage has none of the privileges of negotiable paper, but is a mere chose in action, which an assignee takes subject to any defense existing between the original parties, unless they are estopped by their acts or otherwise from asserting it as against the assignee; but he does not take it subject to any equities of third no notice.-MOFFETT V. parties of which he has PARKER, Minn., 73 N. W. Rep. 750. 161. MORTGAGE-Foreclosure-Possession. Where a party purchased real estate-an hotel property-subject to a mortgage, and held possession of the prop erty during the entire time of the pendency of the proceedings to foreclose the mortgage, held, that his right of possession was not devested by the sale of the property in such proceedings, but remained until the sale was confirmed, and deed issued. And further held, that no right of action for the rentals for the time intervening between the foreclosure sale and the deeding of the property accrued to the party purchasing the same at the sheriff's sale.-CONDON V. MARLEY, Kan., 51 Pac. Rep. 924. 162. MUNICIPAL CORPORATIONS-Annexation of Terri. tory-Taxation -A city cannot levy a tax on property, where its situs is not within the corporate limits.CHICAGO, B. & Q. R. Co. v. CITY OF NEBRASKA CITY, Neb., 73 N. W. Rep. 952. 163. MUNICIPAL CORPORATIONS-Contract-Damage.A city cannot recover damages for failure to complete a tunnel in accordance with a contract which provides that, in case of default on the part of the contractors, the city should complete the work at their expense, when the tunnel, as constructed by the city, is essen. tially different in plan and cost of construction from that contemplated by the agreement.-CITY OF MILWAUKEE, WIS., v. SHAILER, U. S. C. C. of App., Seventh Circuit, 84 Fed. Rep. 106. 164. MUNICIPAL CORPORATIONS-Liability for Wrongs of Officers.-A quasi municipal corporation, like the board of education of a city, is never liable for the con sequences of a breach of public duty, or the neglect or wrong of its officers, unless there is a statute expressly imposing such liability.-ROCK ISLAND LUMBER & MANUFACTURING CO. V. ELLIOTT, Kan., 51 Pac. Rep. 894. 165. MUNICIPAL CORPORATIONS-Negligence.-A decla ration which names the city treasurer and other individuals as defendants, and alleges that they unlaw. fully and negligently set off skyrockets on the Fourth of July, resulting in plaintiff's injury, does not state a cause of action against the city itself.-LUCIER V. GRANGER, R. I., 39 Atl. Rep. 190. 166. MUNICIPAL CORPORATIONS-Regulation of Railroads. Where a railroad company is operating a rail. road, the track of which extends within the limits of any incorporated city or village in this State, such city or village is authorized by section 2494, Rev. St., to require such railroad company to light that part of its track which lies within the corporate limits, although the company so operating such railroad is neither the owner nor the lessee thereof.-CINCINNATI, H. & D. R. Co. V. VILLAGE OF BOWLING GREEN, Ohlo, 49 N. E. Rep. 121. 167. NATIONAL BANKS-Embezzlement.-Rev. St. § 5209, making embezzlement, abstraction, or willful misap plication of the property of a national banking association by an officer or agent a misdemeanor, applies to an agent in liquidation appointed by the stockholders.-UNITED STATES V. JEWETT, U. S. C. C., D. (Mass.), 84 Fed. Rep. 142. Defective Highway.-Evidence that the highway on which plaintiff was injured had been used in the same condition it was in on the night of the accident for 20 years, without accident, is incompetent on the question of negligence.-ANDERSON V. TAFT, R. I., 39 Atl. Rep. 191. 169. NEGLIGENCE Railroad Company - Injury to Child.-Negligence cannot be attributed to a child of the age of two years and four months; neither is a child of this age, in going upon a railroad track, such a trespasser as to forfeit redress from injury resulting from the negligence of the railroad company.-M18SOURI PAC. Ry. Co. v. PREWITT, Kan., 51 Pac. Rep. 923. 170. NEW TRIAL-Time for Moving.-A motion for a new trial filed September 14th, after a verdict and judg. ment rendered September 10th, is not in time, under Mansf. Dig. Ark. § 5153, providing that the motion "shall be made within three days after the verdict or decision was rendered."-JULINSON V. ANDERSON, I. T., 43 S. W. Rep. 950. 171. NUISANCE- Who may Complain.-If a bocm is erected and maintained on a navigable stream in violation of law, and is therefore a public nuisance, an individual has no cause of complaint aside from that of the common public, unless he suffer a special and peculiar damage therefrom, distinct and apart from the common injury.-MILLER V. HARE, W. Va., 28 8. E. Rep. 722. 172. PARTITION Conflicting Titles - Jurisdiction.Under § 1, ch. 79, Code 1891, in a suit in equity, for par tition, between parties entitled thereto, a stranger to them, claiming the land under a right wholly denying the right under which partition is sought, and distinct therefrom and hostile thereto, cannot be made a party, and compelled to submit his title to a court of equityCARBERRY V. WEST VIRGINIA & P. R. Co., W. Va., 299. E Rep. 694. 173. PAYMENT-Recovery on Ground of Mistake.-A payment made for stock of a national bank under an erroneous belief that all of an increased issue of stock authorized by the stockholders, and of which the stock paid for formed a part, had been sold, and the subscriptions therefor had thus become binding, is not voluntary, and the money may be recovered back, though the facts might have been learned by the exer cise of greater diligence and care.-BROWN V. TILLINGHAST, U. S. C. C., D. (Wash.), 84 Fed. Rep. 71. 174. PAYMENT -Voluntary Payment.-One paying as sessments on stock which he held pending an appeal taken by him in an action in which he claimed the stock as his own, and in which the decree ordered that he turn the stock to its owner upon payment of an amount found to be due him, cannot recover such assessments from the owner, though the sum ordered by the decree was not paid until the termination of the appeal, as such holding of the stock raised an invol untary trust, and the payment of the assessments was to the use of the trustee, and not the owner. - IRVINE V. ANGUS, U. S. C. C., N. D. (Cal.), 84 Fed. Rep. 127. 175. PLEADING - Gravel Road Assessment. — A com. plaint in an action to recover an amount due on a gravel road assessment certificate, and for foreclosure of the lien on a lot improved thereby, states no cause of action against one who was trustee of the school district occupying said lot.-MORROW V. SHOBER, Ind., 49 N. E. Rep. 189. 176. PLEDGE-Rights of Bank in Collateral Security.A note executed to a bank by a borrower contained a printed recital that the maker had deposited collateral security for the payment thereof, "and also of all other present or future demands of any kind of the said bank" against the maker, due or not due. It further provided that the bank should have power to sell the collateral, and apply the proceeds to the payment of the note, and should "return the overplus, if any," to the maker. The maker deposited as collateral certain shares of stock in a corporation, and subsequently increased the amount from time to time in compliance with demands of the bank on the ground that the market value of the stock had declined, leaving the margin below its requirements: Held, that the agreement was one of pledge, and to secure payment of the note only, as the power to sell was limited to that purpose, and that, on tender of payment of the note, the bank was not entitled to retain the stock as security for a loan previously made from the bank by the maker for a term of years on real estate security, and which had been assumed by a subsequent purchaser of the property. FIRST NAT. BANK OF OMAHA, NEB., V. ILLINOIS TRUST & SAVINGS BANK, U. S. C. C., N. D. (Ill.), 84 Fed. Rep. 34. Defective Statutory 179. PRINCIPAL AND SURETY Bonds. A contractor's bond, securing the payment of material furnished and labor performed in the con. struction of a public improvement, containing unau. thorized conditions protecting the city, and naming the city as obligee, instead of the people of Michigan, as required by How. Ann. St. Mich. § 8411b, is invalid as a statutory bond, but valid as a common-law obliga. tion.STEPHENSON V. MAMMOTH MIN. & MFG. CO., U. 8. C. C. of App., Sixth Circuit, 84 Fed. Rep. 114. 180. PRINCIPAL AND AGENT - Implied Authority. A widow who authorized her son to negotiate for a sale or exchange of lands did not thereby give him implied authority to enter into a contract for an exchange. HOLMES V. REDHEAD, Iowa, 73 N. W. Rep. 878. 181. PRINCIPAL AND AGENT - Ratification.-On an issue whether an insurance company had ratified its agent's agreement to make a cash rebate on a premium, the court properly refused to charge that the deposit and use by the company of the agent's check for its share of the premium, less the rebate, was not a waiver of its right to the balance of the premium, if at the time the company was steadily claiming such balance, where there was other evidence than that recited in the instruction tending to show a ratification. -NEW YORK LIFE INS. Co. V. TALIAFERRO, Va., 28 S. E. Rep. 879. 182. PRINCIPAL AND AGENT Ratification of Agent's Acts. Under a provision of a railroad mortgage that, on default in payment of any installment of interest, continuing for 60 days, the holders of one-third in amount of the bonds secured might declare the prin cipal of the debt due, by an instrument executed by them "or their attorneys in fact thereto duly authorized," and delivered to the trustee, such a declaration of maturity was signed by a person as attorney in fact for his wife and two brothers, who were bondholders. He had no written authority at the time, but an instrument ratifying his act was executed by the persons for whom he acted after the filing of a bill for foreclosure by the trustee: Held, that such ratification rendered valid and effective the act of the attorney as against the mortgagor and a second mortgagee. FARMERS' LOAN & TRUST Co. v. MEMPHIS & C. R. Co., U. S. C. C., W. D. (Tenn.), 83 Fed. Rep. 870. 183. PRINCIPAL AND AGENT-Sales. One who, on his own account, engages in the business of purchasing goods for the purpose of filling orders received by him from others, and who in fact fills the same at prices therein specified, looking for his profits to the difference between what he pays and what he receives in these transactions, is not, though in each instance the order is received before a purchase is made, the agent of the persons by whom the orders are given, but an independent dealer, buying and selling in his own behalf. CENTRAL GEORGIA LAND & LUMBER Co. v. ExCHANGE BANK OF MACON, Ga., 28 S. E. Rep. 863. 184. PROCESS Abuse.-The seizure and retention of exempt property, known by the officer to be exempt, and after its exempt character has been legally estab lished, is an abuse of process, for which the officer is liable. The judgment plaintiff will be liable, also, if, knowing the facts, he advised the seizure or retention, or participated in the officer's acts.-CASTILE V. FORD, Neb., 73 N. W. Rep. 945. - 185. PROCESs-Action against Railroad.-In an action against a railroad company to recover damages for killing a horse, the summons may be served upon a depot or station agent in the actual employment of the company, residing in the county or township wherein the action is brought; and the return of an officer showing that such process has thus been served is sufficient.-DOUGLASS V. KANAWHA & M. RY. Co., W. Va., 28 S. E. Rep. 705. 186. PROCESS-Service- Conclusiveness.- Where the original process to commence a suit is returned not executed, it may be served by any credible person, and the return of such person, verified by his affidavit, shall be evidence of the manner and time of service; but a person, in order to be competent to serve and return such process, must be a credible person. PECK V. CHAMBERS, W. Va., 28 S. E. Rep. 706. 187. PUBLIC LANDS Pre emption. A pre-emptor, settling on and improving an 80-acre tract of government land, is not entitled to extend his claim over an adjoining 80 acres in another section, upon which he has not made any improvement, nor done any act evi dencing his claim, as against a subsequent grantee of the government, merely because he was entitled to UNITED STATES V. CENTRAL PAC. pre-empt 160 acres. R. Co., U. S. C. C., N. D. (Cal.), 84 Fed. Rep. 88. |