another house, to be erected on the third lot, at the same price pro rata as stipulated for the other two. All three of the houses were to be constructed of the same materials, and were to be completed within the same time. The plaintiffs erected the three houses pursuant to the contract: Held, construing Gen. St. 1894, § 6235, that it was not necessary, in order to perfect their lien, for the plaintiffs to file a separate lien upon each house, or to apportion the amount of their entire lien between the several houses, but that the balance due on the contract might be included in one lien statement, and a lien therefor claimed on all of the lots.JOHNSON V. SALTER, Minn., 72 N. W. Rep. 974.

77. MINING CLAIMS Application for Patent.-Occu pants of lots in a town located on public lands of the United States, who have built on and improved the same, have a possessory right, which entitles them to contest the issuance of a patent to the claimant of a mining location covering such lots, though neither they nor the authorities of the town have taken any steps to secure title to themselves.-BONNER V. MEIKLE, U. S. C. C., D. (Nev.), 82 Fed. Rep. 697. 78. MORTGAGES Authority to Receive Payment.Authority of a mortgage company, successor to the business of dealers in mortgage securities, to receive payment for C of a mortgage which said dealers had taken in their own name, and assigned to C, and which B, treasurer of C, had in his possession, is not shown by the fact that it was practically the uniform practice of B to collect through the company the interest and principal of all mortgages procured from it or its predecessors in the business, either by authorizing it to collect specific claims, or by accepting from it money which had been paid it, and then discharging the mortgage.-Church Assn. OF MICHIGAN V. WALTON, Mich., 72 N. W. Rep. 998.

80. MORTGAGE Homestead.-The owner of a homestead conveyed it, without consideration, to a friend, who executed a trust deed on the property, and then reconveyed it. The agent of the lender had notice that the conveyance was made to evade the homestead law: Held, that the trust deed was void.-STEPHENSON V. YEARGAN, Tex., 42 S. W. Rep. 626.

81. MORTGAGES-Record.-One who acquires a mort. gage without actual notice of a prior though unre corded purchase-money mortgage, which latter was placed on record at the time of the recordation of the deed to the mortgagor, takes a llen subject to such prior mortgage.-CONTINENTAL INVESTMENT & LOAN Soc. v. WOOD, Ill., 48 N. E. Rep. 221.

82. MORTGAGE-Trusts.-A deed by a mortgagee of the mortgaged land, in trust for the benefit of M, and subject to her control and disposal during her coverture with G, and after her death in trust for G, on like condition, and on his death to their children, gives her the absolute power to dispose of the property covered by the deed (the mortgage debt and the lien), to the exclusion of the subsequent beneficiaries.-SLAUGHTER V. BERNARDS, Wis., 72 N. W. Rep. 977.

83. MORTGAGES-Usurious Loan.-A mortgage was tainted with usury, where the officer of the corporation to whom it was given, who consummated the loan, deducted a certain sum from the sum for which such mortgage was given, as such act of the officer must be imputed to the corporation whom he represented in such transaction.-CAMDEN FIRE INS. Co. v. REED, N. J., 38 Atl. Rep. 667.

84. MORTGAGE BY MARRIED WOMAN.-Where a married woman has executed a note and mortgage to se

cure the payment of a sum which, from the recitals in such note and mortgage, appears to have been loaned to her, and upon the faith of her separate estate, she is not entitled to impeach the transaction by showing that the papers were executed to secure the payment of her husband's debts, and not her own, unless she alleges in her plea, and proves, that at the time of their execution the lender knew that the transaction was merely colorable, and was a scheme or device by which her own property was pledged to the payment of the debt of her husband.-TEMPLES V. EQUITABLE MORTG. Co., Ga., 28 S. E. Rep. 232.

85. MORTGAGE FORECLOSURE-Defenses.-A breach of covenants in a deed against incumbrances or for good title is no defense against proceedings to foreclose a mortgage given on the land, for part of the considera. tion money, except in cases where there has been an eviction by title paramount or an action is pending to try the title to the mortgaged premises. A further exception exists where actual fraud in the transaction is alleged and proven.-FRENCHE V. MCCONNELL, N. J., 38 Atl. Rep. 687.

86. MORTGAGE Foreclosure-Judgment-Lien.-The judgment for money in an action on a note and to foreclose the mortgage securing it is in personam and final, so as to be a lien on other property of the defend. ant therein, though the judgment of foreclosure is not final.-MCCASKILL V. GRAHAM, N. Car., 28 S. E. Rep. 264. 87. MUNICIPAL CORPORATIONS-Bond Issues-Recitals. -"Where a municipal body has lawful authority to issue bonds, dependent only upon the adoption of cer tain preliminary proceedings, and the adoption of those preliminary proceedings is certified on the face of the bonds by the body to which the law Intrusts the power, and upon which it imposes the duty, to ascer tain, determine and certify this fact before or at the time of issuing the bonds, such a certificate will estop the municipality, as against a bona fide purchaser of the bonds, from proving its falsity to defeat them."-HEED V. COMMISSIONERS OF COWLEY COUNTY, KAN., U. S. C. C., D. (Kan.), 82 Fed. Rep. 716.

88. MUNICIPAL CORPORATIONS-Defective SidewalksNotice. A city is not, as a matter of law, charged with notice of a defect in a sidewalk, consisting of a decayed plank, if it has existed for six months or more, and such sidewalk has been for such period in a dan. gerous condition, because of such plank being allowed to remain therein; but the question of notice is for the jury.-CITY OF DECATUR v. BESTEN, Ill., 48 N. E. Rep.

186.

89. MUNICIPAL CORPORATIONS-Public Improvements. -An assessment for a street improvement is not necessarily void for failure to assess certain property fronting on the line of the improvement, since the mere fact of contiguity is not conclusive evidence that such property was specially benefited.-HOLDOM V. CITY OF CHICAGO, Ill., 48 N. E. Rep. 164.

90. MUNICIPAL CORPORATIONS-Public ImprovementSpecial Assessment.-Injunction will not lie to restrain collection of a special assessment for a street improve ment after the work has been accepted by the city, and the contractor paid, on the ground that the improvement was not done in accordance with the ordinance authorizing it; the proper remedy being mandamus to compel the city authorities to complete the work in the manner contemplated.-CALLISTER V. KOCHERSPER GER, Ill., 48 N. E. Rep. 156.

91. MUNICIPAL CORPORATIONS-Special Assessments. -Under Act April 15, 1875, § 1, providing that sidewalks may be constructed by special taxation "of the lot, lots, or parcels, of land touching upon the line where such sidewalk is ordered," an assessment may be made on any piece of land so lying, though it be part of an unplatted railroad right of way extending through the State.-ILLINOIS CENT. R. Co. v. PEOPLE, I., 48 N. E. Rep. 215.

92. MUNICIPAL IMPROVEMENTS-Assessments.-Private property cannot be assessed for an improvement, un less actually benefited thereby, and then only to the

extent of such actual benefit.-CITY OF CHICAGO V. ADCOCK, Ill., 48 N. E. Rep. 155.

3. NEGLIGENCE.-In the absence of a statute fixing the standard, no act of human conduct can be declared, as a matter of law, to be negligence, unless all the facts and circumstances are either admitted or are indisputable, and the inferences therefrom will admit of no contrariety of opinion among reasonable men, and the only inference is that the act evidences an entire disregard of care, and is shocking to the mind of a man of ordinary prudence.-IRVIN V. GULF, C. & S. F. RY. Co., Tex., 42 S. W. Rep. 661.

94. NEGLIGENCE-Proximate Cause.-Whether negli gence is the proximate cause of an injury is a question of fact for the jury.-WEST CHICAGO ST. Ry. Co. v. FELDSTEIN, III., 48 N. E. Rep. 193.

95. NEGLIGENCE-Trespasser.-An ascending and descending cage of an elevator may be said to be of such a character as to hold out an implied invitation to a five year old child to approach it and satisfy his childish curiosity, and thereby render inapplicable the rule relieving a private owner of property of liability for injuries sustained by strangers or trespassers from the unsafe condition of his property.-SIDDALL V. JANSEN, Ill., 48 N. E. Rep. 191.

96. NUISANCE-Liability of Tenant.-A tenant for years is not responsible in damages to a third person for maintaining and keeping in repair, upon the demised premises, a structure, erected thereon by his landlord prior to the commencement of his term, which operates to the nuisance of such third person. The remedy of the injured party is against the landlord alone.-MEYER V. HARRIS, N. J., 38 Atl. Rep. 690.

97. OFFICERS-Interest in Public Contracts.-Under Rev. St. 1894, § 2136 (Rev. St. 1881, § 2049), forbidding that certain officers shall be interested directly or indirectly in any contract for the construction of any" public work, an indictment charging that such an offi. cer became "interested in the construction of" certain public works, by "being connected with [another] as joint subcontractors" therein, was insufficient, since it does not show that any contract for the work had been let by the public authorities.-STATE V. FEAGANS, Ind., 48 N. E. Rep. 225.

98. OPTIONS-Stock Transactions - Contracts.-One employing another to act for him in buying or selling in a certain market will be held as intending that the business shall be conducted according to the general usage and custom of that market, whether or not he in fact knows of the custom.-TAYLOR V. BAILEY, Ill., 48 N. E. Rep. 200.

99. PLEADING-Authority of Agents.-Where plaintiff alleged that defendant owed him a certain sum as a yearly salary agreed upon, for services rendered, and defendant admitted that its agent employed plaintiff on its behalf to perform sald services, but denied a contract to pay a yearly salary, it was not necessary for plaintiff to show that said agent had authority to make the contract as alleged.-CROSS V. ATCHISON, T. &S. F. RY. Co., Mo., 42 S. W. Rep. 675.

100. PRINCIPAL AND AGENT-Contract for Sale of Bonds. An agent employed to sell bonds, who is ig norant of their legal status, has a right to presume that they are valid; and if he find a purchaser able and willing to buy at a price and on terms satisfactory to the owner of the bonds, and the sale fails because of their invalidity, the agent is entitled to his commis sions, though by his contract he is to be paid only if the sale is effected, and the money realized therefrom by the seller.-BERG V. SAN ANTONIO ST. RY. Co., Tex., 42 S. W. Rep. 647.

101. PRINCIPAL AND SURETY-Notice.-Burns' Rev. St. 1894, § 1224 (Horner's Rev. St. 1897, § 1210), provides that one bound as surety on a contract in writing, upon which the right of action has accrued, may, by written notice, require the obligee "forthwith" to institute an action on the contract; and section 1225, Burns' Rev. St. 1894 (section 1211, Horner's Rev. St. 1897), provides

that, if the obligee does not comply, the surety shall be discharged: Held, that notice to "sue the note which I signed as surety, ⚫ or I will not continue to be responsible as surety," is insufficient.-MCMILLIN V. DEARDORFF, Ind., 48 N. E. Rep. 233. 102. PROCESS Service Foreign Corporations.-An agent of a non-resident newspaper corporation, who is empowered to solicit advertisements, make contracts therefor, and receive payment, and who carries on the business at an office having the name of the newspaper on its windows, is “a managing agent,” through whom the corporation may be served, under Code Civ. Proc. N. Y., § 432.-BREWER V. GEORGE KNAPP & CO., U. 8. C. C., E. D. (N. Y.), 82 Fed. Rep. 694.

103. RAILROAD COMPANY-Authority of Chief Surgeon. -The chief surgeon of a railroad company has no im. plied authority to contract in its behalf for surgical attendance upon employees injured in the course of their employment.-BURKE V. CHICAGO & W. M. RY. Co., Mich., 72 N. W. Rep. 997.

104. RAILROAD COMPANY - Partnership.-Where the receiver of a railroad operates the same jointly with another railroad, paying the latter some proportion of the gross proceeds from the traffic thereon, the relation between the parties is that of lessor and lessee, and not that of partners.-HOUSTON & T. C. R. Co. v. MCFADDEN, Tex., 42 S. W. Rep. 593.

105. RECEIVER - Personal Contracts.-While a receiver is ordinarily, and from considerations of public policy, prohibited from purchasing as an individual, what he sells as receiver, or purchasing as receiver what he sells as an individual, yet, where the parties consented beforehand to such transaction, where the transaction was clearly for the benefit of the trust property, and the trust property has received the full benefit thereof, the parties cannot afterwards be heard to object to such transaction.-PATTERSon v. WARD, N. Dak., 72 N. W. Rep. 1013.

106. RECEIVER OF FOREIGN CorporatioN.-Whether, after a foreign corporation doing business in this State, has passed into the hands of a receiver in the State of its domicile, a receiver will be appointed in this State, and, if so, whether the domiciliary receiver will be appointed here, will depend upon the volume and kind of business done in this State, and whether any special interest of the creditors or citi zens in this State is likely to be involved in the settlement of the insolvent affairs.-IRWIN V. GRANITE STATE PROVIDENT ASS'N, N. J., 38 Atl. Rep. 680.

107. REPLEVIN-Judgment.-It is proper to refuse an instruction substantially covered by other instructions. In replevin against a sheriff who had levied execution on the alleged partnership interest of the judgment debtor in property which plaintiff claims as sole owner, it is a good defense to show that the latter held himself out as partner of said debtor and represented to defendant that the debtor had a partnership interest in the property seized, though no partnership in fact existed.-JANES V. GILBERT, Ill., 48 N. E. Rep. 177.

108. SALE-Conditional Sales-Installments.-The delivery of a sewing machine under a contract providing for the payment of a certain sum in advance, and a certain sum each month for a certain number of months, may constitute a conditional sale, though such contract was denominated a "lease," and failed to provide that title should pass on payment of the last installment.-SINGER MFG. Co. v. GRAY, N. Car., 28 S. E. Rep. 257.

109. SALES-Fraud of Buyer.-One relying upon the rating given by a commercial agency is not bound to examine the detailed statement made to the agency bythe person rated, to protect himself from fraudu. lent misrepresentations therein.-AULTMAN, MILLER & Co. v. CARR, Tex., 42 S. W. Rep. 614.

110. SUBROGATION-TO Rights of Mortgagee.-One who makes a loan to discharge a first mortgage, pursuant to an agreement with the mortgagor that he shall

have a first mortgage on the same land to secure it, but there is at the time another mortgage on the land, of which the lender is ignorant, will be subrogated to the rights of the first mortgagee.-HOME SAV. BANK OF CHICAGO V. BIERSTADT, Ill., 48 N. E. Rep. 161.

111. TAXATION-Assessment.-In an action to fore. close a tax lien, the defendant cannot defeat the tax on the ground that the property was not sufficiently described in the assessment, when such description was furnished to the assessor by the defendant himself--SCOLLARD V. CITY OF DALLAS, TEX., 42 S. W. Rep.

640.

112. TAXATION-Execution.-A tax collector has no authority of law to issue a tax execution against land in rem if its owner is in possession thereof at the time when it becomes the officer's duty, because of the owner's having made default in returning the land, to make a return for him.-NORRIS V. COLEY, Ga., 28 S. E. Rep. 222.

113. TAXATION-Privilege Tax-Cigar Stands-Exemp. tion.-Under Acts 1897, ch. 2, § 14, providing that no one shall be exempt from the privilege taxes imposed by the act, "except as herein provided," there cannot be an implied exemption in favor of one who runs a cigar stand, because he also carries on another business that is licensed.-KNOXVILLE CIGAR Co. v. Cooper, Tenn., 42 S. W. Rep. 687.

114. TELEGRAPH COMPANIES-Negligence.-Where, in an action against a telegraph company for damages for not transmitting a message, the evidence shows a failure to transmit, and the only conflict in the evidence is as to delivery of the message to the company for transmission, it is proper to refuse to submit to the jury the question as to the company's liability for failing to deliver a message adressed to one who resides outside the company's free delivery limits.WESTERN UNION TEL. CO. V. LYLES, Tex., 42 S. W. Rep. 636.

115. TRESPASS-Nonsuit-Damages.-The committing of a trespass upon the rights of another is per se a legal injury, from which some damage to the plaintiff will be inferred. In the absence of proof showing the amount of such damage, it is error to nonsuit the plaintiff. Nominal damages, at least, can be recov. ered.-LANCE V. APGAR, N. J., 38 Atl. Rep. 693.

116. TRIAL-Directing Verdict.-Where the facts are clear and undisputed, and conclusively show lack of authority in an agent, question as to his authority in a given particular being the matter in issue, It is the duty of the court to determine the issue by peremptory instruction to the jury; but the contrary is the rule if the evidence be doubtful or conflicting as to a material fact, or if the established facts admit of conflicting inferences determinative of the issue.-AMERICAN SAW CO. OF NEW YORK V. FIRST NAT. BANK OF TRENTON, N. J., 38 Atl. Rep. 662.

117. TRUSTS.-The trustee of a naked legal trust cannot, without the consent of the cestui que trust, com. promise or yield an accrued right of the cestui que trust. -BIZZELL V. MCKINNON, N. Car., 28 S. E. Rep. 271.

118, TRUSTS Estate of Deceased Trustee.-Where cestuis que trustent, on the death of their trustee, brought suit against the administrator of his estate for the recovery of the trust fund, and obtained a decree ordering payment thereof to the successor of such deceased trustee, with costs to be paid in the course of administration, from which decree such administrator prosecuted an appeal to the appellate court, pending which he died, whereupon the administrator de bonis non continued the prosecution of such appeal, finally to the supreme court, where the decree was affirmed, it was error, in a subsequent proceeding for an accounting as to such trust estate, to allow the administrator de bonis non for the costs incurred in such litigation in the circuit, appellate and supreme courts, including the printing of briefs and abstracts, out of such trust fund, instead of the estate of his intestate.-HAINES V. HAY, III., 48 N. E. Rep. 218.

119. USURY-Rights and Remedies.-While titles to property, made as part of a usurious contract, are void, the right to set up the usury and have the conveyance declared void, rests only with the maker and his per sonal representatives and privies. A stranger in in. terest will not be heard in an attack on a title claimed to be void for usury.-SCOTT V. WILLIAMS, Ga., 28 S. E. Rep. 243.

120. VENDOR AND PURCHASER-Auctioneers-Memo randum of Sale.-An auctioneer employed to sell land cannot bind the vendors by a memorandum signed by him some time after the sale, and after his authority has been revoked by the vendors to the knowledge of the vendee.-QUINZEL V. SCHMIDT, N. J., 38 Atl. Rep. 665.

121. VENDOR AND PURCHASER — Improvements.-An agent made a contract to sell land to defendant at a price less than he was authorized to sell it. He had sold other land in the same survey for the same owners, and had acted as their agent for years. De fendant, supposing the agent had full authority to sell as agreed upon, occupied the land for a year, making valuable improvements thereon, without being notified that said contract was invalid: Held, he was entitled to payment for the improvements he had made, where the owner refused to permit him to comply with the contract made with the agent. VAN ZANDT V. BRANT LEY, Tex., 42 S. W. Rep. 617.

122. WAREHOUSEMEN-Loss of Goods - Negligence.Where a plaintiff shows delivery of property to another for storage for hire, and failure to return the same upon demand, a prima facie case of negligence is established. But, if defendant thereupon shows that the failure to deliver is due to the "Act of God," the burden shifts to plaintiff to establish that the failure was due to loss through want of the exercise of ordi nary diligence and care in the storage of the property. -AMERICAN BREWING CO. v. TALBOT, Mo., 42 S. W. Rep.

125. WILLS-Construction-Nature of Estate.-Testa. tor devised land to his wife, in trust for her use during her life, and at her death "to our child or children, their heirs and assigns;" and directed his wife, when his children became 25 years old, to pay over such por. tions of his estate equal in all to half of his estate, to be equally divided, and become the absolute portion of said children, He added a proviso that, in case of his wife's death following his, and the death of his children after his, without issue or surviving husband or wife, then his estate should be divided equally be tween his heirs and his wife's heirs. His wife and one child survived him: Held, that the estate vested in the child on the death of testator, and on the death of the child before his mother vested in her.-MCCONNELL V. STEWART, Ill., 48 N. E. Rep. 201.

126. WITNESS-Transaction with Decedent.-Where a bank sues an administrator on a note made by his intestate, plaintiff's cashier is incompetent, under Code, § 590, as a party in interest, to testify to an alleged conversation between himself and defendant's intestate, in which it was admitted that the note had not been paid. MOREHEAD BANKING CO. v. WALKER, N. Car., 28 S. E. Rep. 258.

junction should have been overruled as it was, and it was unnecessary in that court, and on a review of the question in an appellate court it would be unnecessary to consider whether the question of the impairment of contract was or is involved. This decision leaves the restraining order of Judge Showalter in force, but it does not dispose of the main question involved in the case as to the impairment of contract, which will ultimately be brought before the Supreme Court of the United States.

NOTES OF IMPORTANT DECISIONS.

CARRIERS OF PASSENGERS - INJURY CONTRIBUTORY NEGLIGENCE.-The duty owing by a railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross and the trespasser who ventures upon the tracks of a railroad company are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence. A railroad company owes to one standing toward it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care; and the question of whether or not he is negligent, under all circumstances, must be determined on due consideration of the obligations of both the company and the passenger. This distinction is well illustrated by the decision of the Supreme Court of the United States, in Warner v. Baltimore & O. R. R. Co., 18 S. C. Rep. 68. In that case it appeared that one who had procured a railroad ticket necessarily had to cross, from the depot, an intervening track, in order to reach his train after it had stopped at the platform, and in so doing was struck and killed by a train coming at full speed in the opposite direction. It was held that the case was not governed by the strict rules as to stopping, looking and listening applicable to trespassers or to strangers crossing tracks, and the question whether plaintiff was guilty of contributory negligence should have been submitted to the jury. The court calls attention to the decision of the New York Court of Appeals in Terry v. Jewett, 72 N. Y. 344, the doctrine in which was approved in Brassell v. Railroad Co., 84 N. Y. 246, and is supported by the following authorities: Railroad Co. v. Shean, 18 Colo. 368, 33 Pac. Rep. 108; Railroad Co. v. Anderson, 72 Md. 529, 530, 20 Atl. Rep. 2; Baltimore & O. R. Co. v. State, 60 Md. 463, 465; Railroad Co. v. White, 88 Pa. St. 333, 334; Klein v. Jewett, 27 N. J. Eq. 550;

Wheelock v. Railroad Co., 105 Mass. 208. The supreme court adds that "to concede the rule, and, in a given case, to take a passenger beyond its protectien by holding that one who goes in proper time to a station for the purpose of taking a train over the road, and has a ticket for travel thereon, is not to be considered as a passenger until he has manifested by some outward act his intention to board a train and become a passenger, is to admit the rule on the one hand and on the other to deny it. It is also clear that to say that one who goes to a station to take a train must exercise the same circumspection and care as a traveler on the highway or a trespasser, unless by some implication the corporation has invited the person to deport himself as a passenger, and that such implication must be determined as matter of law by the court, and not of fact by the jury, is, in effect, under the form of a qualification, to destroy the rule. The situation of the tracks, the location of the station building and the waiting room, the coming of the local train, and its stopping to receive passengers in a position which required the latter to cross a track in order to reach the train, involved necessarily a condition of things which, under one view of the testimony, constituted an implied invitation to the passenger to follow the only course which he could have followed in order to take the train; that is, to cross the track to the waiting train. While it is true, as was said in Terry v. Jewett, supra, that such implied invitation would not absolve a passenger from the duty to exercise care and caution in avoiding danger, nevertheless, it certainly would justify him in assuming that, in holding out the invitation to board the train, the corporation had not so arranged its business as to expose him to the hazard of danger to life and limb unless he exercised the very highest degree of care and caution. The railroad, under such circumstances, in giving the invitation, must necessarily be presumed to have taken into view the state of mind and of conduct which would be engendered by the invitation; and the passenger, on the other hand, would have a right to presume that in giving the invitation the railroad itself had arranged for the operation of its trains with proper care."

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MORTGAGE — FORECLOSURE—STAY LAW-RETROACTIVE OPERATION.-The Supreme Court of Washington decides, in Swinburn v. Mills, 50 Pac. Rep. 489, that Laws 1897, ch. 50, pp. 70-76, entitled "An act relating to the sale of property under execution and decree and the confirmation of sheriffs' sales," etc., and providing (section 10) that "in case of foreclosure of mortgages or other liens nothing shall prevent the sale of the entire premises included within the mortgage or lien," includes mortgages as well as executions; that section 18, providing that "this act shall not apply to judgments entered prior to the taking effect thereof, nor to executions which shall issue thereupon, but proceedings thereunder shall be had in all respects in the manner now provided