95. RAILROAD COMPANY-Contributory Negligence.Where, in an action against a railroad company to recover damages for personal injuries by the running of a locomotive and cars within the limits of a city, it ap pears that such locomotive and cars were running within the limit of speed lawfully prescribed by the city, and it also appears from the evidence of the plaintiff himself that, having previously seen the mov. ing train approaching the crossing, he miscalculated the time in which he could safely cross, and placed himself on the track immediately in front of the mov. ing locomotive, was caught by the pilot, and injured, such injury is directly attributable to the negligence and want of ordinary care on the part of the plaintiff, which bar his right of recovery.-SOUTHERN RY. Co. v. BLAKE, Ga., 29 S. E. Rep. 288.

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96. RAILROAD COMPANY - Negligence.-In an action for injuries by a collision between defendant's train and a vehicle driven by the owner, in which plaintiff was riding by such owner's invitation, the court charged that if plaintiff had no control over the team, and she and the driver were each independent of the control of the other, and defendant was guilty of any negligence, it was liable to plaintiff, whether or not the driver was negligent: Held, that such instruction was not proper without the qualification that plaintiff must be free from contributory negligence.-ATLANTIC & D. R. Co. v. IRONMONGER, Va., 29 8. E. Rep. 319. 97. RAILROAD COMPANY Negligence and Contributory Negligence.-Plaintiff was riding in the daytime in a covered buggy with the owner and driver of the team. When 25 feet from the crossing, the cars could have been seen approaching for 700 feet, but at a greater distance the view was obstructed. At points 270 feet and 65 feet south of the track plaintiff and the dirver looked and listened for a train, and then proceeded across the track, where they were struck by a train not giving any warning of its approach, except a whistle one half mile away for the station. A number of persons in full view of plaintiff were gesticulating to warn her of her danger, but she did not see them: Held, that she was guilty of contributory negligence. -AURELIUS V. LAKE ERIE & W. R. Co., Ind., 49 N. E. Rep. 857.

98. RAILWAY MORTGAGES Foreclosure Sale.-An as. signee of all the rights and title of the purchasers at a railway foreclosure sale, who is admitted as a party to the proceedings, as a substitute for the purchasers, may be heard on any question affecting the purchasers' bid, but cannot question any part of the decree of foreclosure under which it obtained its title.-BALTIMORE TRUST & GUAR. Co. v. HOFSTETTER, U. S. C. C. of App., Sixth Circuit, 85 Fed. Rep. 75.

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99. REMOVAL OF CAUSES-Jurisdiction.-After moval, and the argument and overruling in the federal court of a demurrer to the complaint, the plaintiff may still move to remand on the ground that that court has no jurisdiction to hear and determine the cause.CITY OF MUNCIE V. LAKE ERIE & W. RY. Co., U. S. C. C., D. (Ind.), 85 Fed. Rep. 1.

100. REMOVAL OF CAUSES-Receiver of National Bank. -The rule that, in order to warrant the removal of a cause to the circuit court on the ground that it arises under the laws of the United States, that fact must be shown in the plaintiff's pleading, does not operate to prevent a removal, where the original pleading alleges that defendant is a national banking association, and where a receiver thereof, appointed by the comptroller of the currency, is subsequently made a defendant and petitions for removal.-SPECKART V. GERMAN NAT. BANK, U. S. C. C., D. (Ky.), 85 Fed. Rep. 12.

101. SALE-Conditional Sales.-Title to personal prop erty sold on condition remains in the seller until con. dition is complied with, so that on breach of condition he is entitled to recover the property.-WILLIAMS V. WILLIAMS, Miss., 23 South. Rep. 291.

102. SALE-Conditional Sales-Title in Vendor.-Under a contract for sale of personal property, where a portion of the price was paid and notes were given for

the balance, in which it was provided that title should remain in the vendor until such price was fully paid; that in case of default all of such notes should, at the option of the vendor, become due, whereupon such property might be taken back by the vendor, in which event all payments made should be deemed to be for the use and wear and tear of such property to the time of such retaking; and that no suit on such notes should be a waiver of the vendor's title to such property,such vendor was not entitled, after having retaken such property, on default by the purchaser, and ap plied the payments inade to that time as payments for the use and wear and tear of the property, to also recover on such notes.-PERKINS V. GROBBEN, Mich., 74 N. W. Rep. 469.

103. SALES-Failure to Remove Property-Forfeiture. -The right to recover timber, under a contract of sale providing that the purchaser is to have four years within which to remove it, is not forfeited by failure to remove it within such period, where there is no for. feiture clause in the contract.-HALSTEAD V. JESSUP, Ind., 49 N. E. Rep. 821.

104. SALE-Refusal to Accept-Damages.-The measure of damages for a breach of contract by refusal to accept goods bought is the difference between the contract price and the market price at the time and place where the tender was made and acceptance refused.DILL V. MUMFORD, Ind., 49 N. E. Rep. 861.

105. STOCK-Validity-Injunction.-An injunction was properly granted to restrain defendants from selling or exercising acts of ownership over certificates of stock in a railroad corporation, where the order authorizing the issue of the stock was afterwards revoked by the railroad commission, on the ground that the total amount of stock exceeded the value of the railroad property, which is prohibited by Rev. St. 1895, art. 4584g, and the stock was never registered in the office of the secretary of state at the instance of the railroad commission, as required by said article, and such certificates of stock were therefore void under article 4584k.-DAVIS V. SAN ANTONIO & G. S. RY. Co., Tex., 44 S. W. Rep. 1012.

106. TAXATION -Collection-Sale of Debts. - Under Code 1892, § 3826, which authorizes the sale of debts due to a delinquent taxpayer, the tax collector may sell debts due for daily wages, such debts being taxable.WHITE V. MARTIN, Miss., 23 South. Rep. 289.

107. TAXATION-License Tax-Action to Recover.-An action to collect a tax imposed on the business of selling pianos and organs, by Pub. Laws 1895, ch. 116, § 25, may be brought in the name of the State treasurer alone, since the tax is payable directly to him; and Code, § 3359, provides that he may sue for all money and property of the State not held by some person under authority of law.-WORTH V. WRIGHT, N. Car., 29 S. E. Rep. 361.

108. TAX TITLE-Lien.-In the absence of statute, the purchaser of an invalid tax title does not acquire the lien of the State by his purchase.-CROSKERY V. BUSCH, Mich., 74 N. W. Rep. 464.

109. TELEPHONE COMPANY Federal Statute - Local Ordinance.-A telephone company operating its lines in and through several States, and in particular over the streets of a city, under the authority of a city ordinance which, by its terms, was revocable by the city, duly complied with the requirements of Rev. St. §§ 5266, 5268, and thereby acquired the rights granted thereby. Thereafter the local ordinance was revoked: Held, that its previous acceptance of the terms of the ordinance did not debar it from claiming the full rights conferred by the act of congress.-CITY OF RICHMOND V. SOUTHERN BELL TEL. & TEL. CO., U. S. C. C. of App., Fourth Circuit, 85 Fed. Rep. 21.

110. TRESPASS.-Trespass on the case will not lie for money had and received for plaintiff's use.-RILEY V. LA RUE, R. I., 39 Atl. Rep. 753.

111. TRESPASS-Possession.-One cannot be guilty of forcible trespass, where the owner of the land is not

in actual use and enjoyment of the same, using it for such purposes as it is capable of.-STATE V. NEWBURY, N. Car., 29 S. E. Rep. 367.

112. TRIAL-Verdict.-Where a jury, by consent, returned a verdict, responding to all the issue submitted, to the clerk, and separated, after court had adjourned, until next morning, which verdict was recorded by the clerk when returned, they cannot be recalled in the morning, and allowed to change their verdict as to any of the issues. - MITCHELL V. MITCHELL, N. Car., 29 S. E. Rep. 367.

113. TRUSTS-Construction.-N is in nowise the bene ficial owner under deed to him, "in trust, however, for the sole and separate use, benefit, and behoof of his children," though it is declared that he "is authorized and empowered to use the rents, issues, and profits in educating and supporting said children."-NEAL V. BLECKLEY, S. Car., 29 S. E. Rep. 249.

114. TRUSTS - Following Funds.-Where an executor and trustee under a will probated in the surrogate's court of New York was found, in a compulsory accounting in that court, to be indebted in a certain sum to a devisee under the will, and the trustee invested said sum in land in New Jersey in his own name, and transferred title to his wife, the devisee was entitled to have said sum declared a lien on the land, without first obtaining a personal money judgment against the trustee in New Jersey.-LAWS V. WILLIAMS, N. J., 39 Atl. Rep. 761.

115. USURY-Penalty.-Act 1882, § 1 (18 St. at Lage, p. 36), amending Gen. St. § 1288, fixes the legal rate of interest, and provides that no recovery can be had for any portion of interest unlawfully charged, but the principal shall be deemed the legal debt, to be recov ered without costs. Section 2 provides that any person receiving a greater rate of interest than that provided for in section 1 shall, in addition to the forfeiture therein provided, forfeit also double the sum so received, to be allowed as a counterclaim to any action for the principal: Held, that receiving unlawful interest after maturity of a bond forfeits all interest after maturity, together with double the difference between the legal rate and the rate charged, and costs.-EHRHARDT V. VARN, S. Car., 29 S. E. Rep. 225.

116. VENDOR AND PURCHASER.-Where one agrees to purchase from another the timber growing upon a tract of land, and, in pursuance of such agreement, is permitted by the seller peaceably to enter and ap propriate the timber thereon to his own use, he can. not, in the absence of fraud or other circumstance justifying a repudiation by him of such agreement, after having so enjoyed the fruits of it, defeat an action for the recovery of the purchase price by showing that, at the time the agreement to purchase was made, he already held paramount title to the land in question.HARRIS V. AMOSKEAG LUMBER CO., Ga., 29 S. E. Rep. 303.

117. VENDOR AND PURCHASER-Representations of Agent.-One purchasing property from an agent, who represents it to be his own, and whose possession is lawful, has the right to presume that he is the owner, in the absence of reasonable ground for believing otherwise; and dealings between them in that capacity will bind the principal.-CONNALLY V. MCCONNELL, Del., 89 Atl. Rep. 773.

Life Estate-Liability of Owner.118. WARRANTY The purchaser of land from the life tenant and the remainder man cannot maintain an action for breach of warranty against the heirs of the tenant by reason of the remainder man's heirs setting aside the convey. ance so far as the remainder is concerned, on the ground that the privy examination of their ancestor, a feme covert, was not taken, where the purchaser enjoyed possession until after the death of the owner of the life estate.-Ross v. DAVIS, N. Car., 29 S. E. Rep. 338. 119. WILLS-Competency of Testator - Undue Influ ence. Where testator retained personal charge of his property, managing it with good judgment and discre tion, for four years after the making of his will, and the evidence showed, without contradiction, that he

clearly comprehended the nature and extent of his property and business, and who were his relatives and heirs at law, instructions to the effect that there was no evidence of mental unsoundness on the part of tes tator at the time he made such will should have been given.—PENINSULAR TRUST Co. v. BABKER, Mich., 74 N, W. Rep. 509.

120. WILLS-Construction-Nature of Estate.-A husband and wife executed a will giving "our landed es tate" to their son for life, with remainder to his heirs, and, if he died without heirs, to their daughter E or her heirs, in consideration that the son support them and their daughter A during the testators' lives, and that A was to have her support out of the land during her life, The son accepted the instrument, agreed to its terms, and went into possession of the hand: Held, that no estate vested in the son until the death of testators, whether he was in possession under such instrument or under a similar verbal contract.-ANDREWS V. ANDREWS, N. Car., 29 S. E. Rep. 351.

121. WILLS-Construction - Perpetuities.-A bequest of the use of one twentieth of the remainder of the es tate of A, at his decease to go to his legal heirs, is not obnoxious to the common law rule against perpetu ities.-HEALY V. HEALY, Conn., 39 Atl. Rep. 793.

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122. WILL-Construction-Restraint of Marriage.-A bequest of income of a certain sum to a person so long as she remains single, and bears her then name, is not in restraint of marriage, but merely on a limitation as to time.-IN RE BRUCH'S ESTATE, Penn., 39 Atl. Rep. 813. 123. WILLS Intention of Testator Limitation by Condition. Under a will, a certain clause of which de vised the residue of testatrix's estate to her grandson, and a subsequent clause provided that, if such grandson should die leaving no wife and children, the prop erty so bequeathed to him, and not used by him, should, after his decease, go to testatrix's niece and nephew, such property, on the death of such grandson without having disposed thereof, and leaving neither wife nor issue, passed to such niece and to the heirs of such nephew, who had died in the meantime, and not to the heirs of the deceased grandson.-ROBINSON V. FINCH, Mich., 74 N. W. Rep. 472.

124. WILLS-Rights of Devisees.-Where a testator devised and bequeathed to two minor granddaughters, children of a deceased daughter, one undivided share the residuum of his estate, and the will in terms de clared that the income of the residuum should be paid over, share and share alike, to certain residuary dev isees and legatees, including these granddaughters, who should take their share in the place of their de ceased mother, they were, even during their minority, entitled annually to their share of such income, al though it was in the will elsewhere declared that, in the event of the death of either or both of them before majority, or before a distribution of the estate, for which the will provided, "the distributive share" of such granddaughter or granddaughters should revert to the testator's estate. -PEARCE V. LOTT, Ga., 29 8. E. Rep. 276.

125. WILLS-Testamentary Capacity.-In determining the capacity of a testator to make a will, it is proper to show his habit of drinking intoxicating liquors, in connection with their effect on his mind at the time of the execution of the will.-BALL V. KANE, Del., 39 Atl. Rep. 778.

126. WILL-Testamentary Capacity-Delusion.-That testatrix was under a delusion as regards a relative whom she excluded from participation in her estate is not shown by evidence that, shortly before making the will, her feelings toward such relative underwent a marked change, so that she came to fear and dislike her.-IN RE MCGOVERN'S ESTATE, Penn., 39 Atl. Rep. 816.

127. WITNESS-Husband and Wife.-A husband can not be examined as a witness without the wife's con sent in a suit to subject real estate held by them as oint tenants to the payment of a judgment against the [husband.-MICHIGAN BEEF & PROVISION Co. v. COLL, Mich., 74 N. W. Rep. 475.

Central Law Journal.

ST. LOUIS, MO., MAY 27, 1898.

The English courts have universally held invalid bequests and devises for the saying of masses as superstitious uses or creating perpetuities. The majority of the American decisions, however, are directly opposed to the English rule and uphold such devises. Three very recent cases sustain them and one denies their validity. The affirmative cases are Moran v. Moran (Iowa), 73 N. W. Rep. 617, 39 L. R. A. 204; Hoeffer v. Clogan (Ill.), 49 N. E. Rep. 527; and Harrison v. Brophy (Kan.), 51 Pac. Rep. 883. The Wisconsin Supreme Court however in McHugh v. McCole, 72 N. W. Rep. 631, holds that such a bequest to a bishop to be used for masses is an attempt to create a trust without living beneficiaries who can enforce it and is therefore invalid. The Alabama court in Festorazzi v. St. Joseph Roman Catholic Church, 25 L. R. A. 360, held that a bequest to be used in solemn mass for the repose of the testator's soul could not be supported as a charitable bequest. So the decisions on this subject are not yet in entire accord, though the tendency of the American courts is all in the direction of sustaining the validity of these bequests. The court in the Kansas case, which is the latest on the subject, says that the English statute against superstitious uses "is opposed to the spirit of religious toleration which has always prevailed in this country." The Illinois case treats a bequest to a church for masses on behalf of the souls of certain persons as a valid charitable trust, since the masses will be said in public and the gift may thus aid public worship. The Iowa case in which such bequest was made to a definite person considers it immaterial if the element of charity is absent, since the trust is for a known lawful purpose and should not fail for want of a name or legal classification. The Kansas case holds that such a bequest to a person is not a trust, but upholds it as an absolute gift. As to the point made by the court in the Wisconsin case that the intention of the testator could not be given effect because he had put it in the form of a trust provision, the Iowa court says: "It is not wise in such cases for courts to quibble about the technical trusts or beneficiaries. Results are

of greater importance than technical names, and a bequest for a known lawful purpose, where the power of execution is prescribed and available, should never fail for want of a name or a legal classification, unless it is in obedience to a positive rule of law."

arms.

We commend to deputy sheriffs the recent ruling of the Supreme Court of Mississippi in the case of Brown v. Weaver, 23 South. Rep. 388. The legal principles enunciated in that case though not new, are instructive and timely in view of the tendency on the part of police officers toward the too free use of fire The ruling of the court in that case is that a deputy sheriff who shoots a misdemeanant fleeing to escape after arrest, exceeds his authority, and that the sheriff and his bondsmen are liable for the act of such deputy. The opinion, by Whitfield, J., is particularly valuable in that it discusses the extent and limits of the right of civil officers to kill persons accused or convicted of crime when they are attempting to escape. The plaintiff had been arrested in a bastardy proceeding and was shot by the deputy sheriff from whom he had escaped, without violence

simply running away-on the theory that the deputy had the right to shoot and kill if necessary to prevent the escape.

"It is admitted," says Judge Whitfield, "that an officer cannot offer to kill one who flees to avoid arrest for a misdemeanor, although it may appear that he can never be taken otherwise. If he runs, then, before the officer has laid his hands upon him with words of arrest, he may do so, without danger to his life; but if, by surprise or otherwise, he be for a moment sufficiently restrained to constitute an arrest, and then break away, the officer may kill him if he cannot overtake him. Such is the effect of the argument, and of the rule in support of which it is made. We can see no principle of reason or justice on which such a distinction can rest, and we therefore hold that the force of violence which an officer may lawfully use to prevent the escape of a person arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary, on the one hand, to

effect the arrest, by overcoming the resistance he encounters, or, on the other, to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or inflict upon him great bodily harm, except to save his own life, or to prevent a like harm to himself. Counsel for appellees cite the text of Mr. Bishop in his work on Criminal Procedure (3d ed., vol. 1, sec. 161). But it is shown conclusively in Thomas v. Kinkead, 55 Ark. 502, that the two cases cited by Mr. Bishop (Caldwell v. State, 41 Tex. 86, and Wright v. State, 44 Tex. 645), are not in point. In the fourth edition of Mr. Bishop's work on Criminal Procedure (volume 1, p. 91, sec. 161, pars. 1, 2, notes 1, 4), Mr. Bishop reviews and criticises the cases of Reneau v. State, 2 Lea, 720, and Thomas v. Kinkead, supra, stating that in the first case the court, which cited his New Criminal Law (volume 2, secs. 648, 649) 'as supporting its view, failed to note that in these sections he was only speaking of an officer killing a misdemeanant 'flying from arrest' originally, and not one resisting arrest or attempting an escape.' He criticises Thomas v. Kinkead as unsound, and calls it 'an unfortunate decision. In note 1, at page 91, he cites State v. Sigman, 106 N. Car. 728, 11 S. E. Rep. 520, as supporting the view that an officer may kill a misdemeanant who attempts to 'break away' from the officer, and thus escape. In Thomas v. Kinkead, the Arkansas Supreme Court, as we think, correctly shows that the decision in State v. Sigman, supra, is correct, but that the language of the court in that case is inconsistent with the decision and the general line of reasoning in the case. In Mr. Bishop's New Criminal Law (8th ed., sec. 647, par. 3, note 1), Mr. Bishop cites Jackson v. State, 76 Ga. 473, to the proposition that after an arrest, whether for felony or misdemeanor, or during an imprisonment, the life of the prisoner may be taken, if necessary to prevent the escape.' That was the case of a guard killing a convict in the penitentiary, who, he supposed, was trying to

prisonment for mere misdemeanor, by simply running away. If Mr. Bishop means merely to say that when a misdemeanant, after arrest, tries to 'break away,' violently resist ing or assaulting the officer, the officer may kill him, as in self-defense, to prevent the infliction of a felony upon himself, the doctrine is sound, and not in conflict with the cases he criticises; but if he means to say, as we understand him, that an officer may kill a misdemeanant whom he has arrested, and who eludes the officer, and gets away from him, without resisting the officer, and without employing any force, while such misdemeanant is effecting his escape merely by running away, then such doctrine is not sound, in our judgment, and is unsupported by the authorities."

NOTES OF IMPORTANT DECISIONS.

LANDLORD AND TENANT-LEASE-ASSIGNMENT -LIABILITY OF ASSIGNEE.-In Wilson v. Lunt, 52 Pac. Rep. 296, decided by the Court of Appeals of Colorado, it was held that where a lease is assigned by an instrument binding the assignee to pay the rent, he is liable for such rent even after he has assigned the lease and transferred the possession. The court says: "The precedents generally predicate the right of the lessor to bring an action at law against the assignee of a term on the privity of estate which arises when the assignment is executed and the assignee enters. Following this principle to its legal conclusion, it is held that the assignee by a deed poll may avoid any liability for the rent by an assignment to another, though the transfer be made to an irresponsible party, and for the express purpose of freeing himself from the obligation. Nor has it always been held necessary for the assignee to show that he has been devested of the paper title, but it is enough that he was not in possession during the time for which the rent is claimed. Tayl. Landl. & Ten. § 452. This indicates that the gravamen of the suit is in reality the use and occupation, though the privity, which is the legal result of the assignment, must exist to sustain the action. This is because there is no contractual relation between the lessor and the assignee, and use alone has not usually been held enough to permit the lessor to sue. Just why it was not adjudged that a contract might be implied, from the use, and that this would allow the lessor to sue in assumpsit, is not plain, without a careful examination of the distinctions which existed at the common law, and the forms of action which prevailed under that system. To the modern lawyer, except as the profession is bound by precedent, which is un

doubtedly a salutary principle in many ways, as it tends to the stability of the law, the reasons assigned in the cases which hold that there must be a privity of estate to maintain the action are a little unsatisfactory. In this case, however, we are not compelled to insist on its modification; but we have indulged in the reflection in order to bring out more prominently the idea that in truth it is the use which gives the lessor the right to sue, and not the privity in estate. The privity is only requisite because the parties did not contract, and formerly assumpsit could not be brought unless the parties sustained this relation. As we look at the pleading, it is based on facts which avoid the necessity to apply the rule in all its strictness. It will be remembered that this was not a naked transfer by a deed poll, without promises and assumptions, but was like the grant of an estate from A to B, executed only by the grantor, but containing an agreement to pay an incumbrance. It resembles many cases where the grant has been of an estate subject to an incumbrance, where the grantee agreed to pay, because, as has already been recited, the transfer from Timerman to Lunt was on the express consideration and the substantial agreement by Lunt to perform the conditions and covenants contained in the lease, and to pay the rent reserved for the term. In this case, as in the former, the law would annex to the acceptance of the estate the performance of the promise contained in the condition. We regard this circumstance as the controlling one in the present inquiry, and the present decision will turn entirely on our conclusions about it.

"The real inquiry is whether the agreement to pay, expressed in the assignment, fixes, enlarges, or modifies Lunt's liability. Of this there would seem to be little doubt. We are free to admit that strong courts and able judges have apparently expressed the law otherwise, and some of the very cases which will be cited in support of this opinion have been criticised, distinguished, and possibly practically overruled, in the very jurisdictions where they were originally announced. But they have been cited, relied on, and followed by the supreme court of this State, and are thereby rendered authoritative and binding on us. The true basis on which Lunt's liability can be maintained is the principle, so often announced in modern cases, that where one makes a promise to pay another the debt which he owes an action will lie by him for whose benefit the promise is made. It is only a question as to the application of the rule. The appellee strenuously insists, and supports his contention by strong cases, that the conveyance of an estate by the assignee, which destroys the privity which has so many times been held indispensable to the maintenance of an action at law by the lessor against the transferee of the term, prevents the application of the doctrine. In this jurisdiction there seems to be no such limitation or exception. In fact, a recent case in the supreme court, to which counsel made no reference, clearly negatives this idea. In

principle it is like the case at bar, though it only concerns the grant of an estate subject to a mortgage, which the grantee assumed and agreed to pay. The very lucid and able opinion of Mr. Justice Goddard in the Starbird case, 48 Pac. Rep. 652, presents a complete answer to the appellee's contention. As the learned justice so felicitously puts it: "There is a diversity of opinion among the courts of last resort in this country, growing out of the particular view that each tribunal has taken as to the ground of the liability of the grantee who assumes the payment of a mortgage upon the property conveyed to him,— some holding that his liability depends on the equitable doctrine of subrogation, and that the obligation he assumes can be enforced only in an equitable proceeding, while others hold that it arises out of contract, and constitutes a legal liability, enforceable in an action at law. The latter is not only the better and more generally accepted view, but is the one that prevails in this jurisdiction. The court makes a direct application of the principle under discussion to the case which is under consideration, and rests the liability of the grantee in a deed poll to pay an incumbrance on the promise expressed in the deed. Surely, if the grantee may be sued at law by the mortgagee on the promise expressed, when it was made only to the grantor, there can be no objection, on principle, to a suit by the lessor against the assignee, even after transfer, and in the absence of the privity which might be essential where there was no express promise. It has been so decided, and there are many cases which, to our minds, uphold this application of the doctrine. Lehow v. Simonton, 3 Colo. 346; Green v. Morrison, 5 Colo. 18; Starbird v. Cranston (Colo. Sup.), 48 Pac. Rep. 652; Mulvany v. Gross, 1 Colo. App. 112, 27 Pac. Rep. 878; Wood, Landl. & Ten. § 337; Wilts. Mortg. Forec. ch. 11; Brewer v. Dyer, 7 Cush. 337; Carnegie v. Morrison, 2 Metc. (Mass.) 381; Mellen v. Whipple, 1 Gray, 317; Arnold v. Lyman, 17 Mass. 400; Hall v. Marston, Id. 574; Center v. McQuesten, 18 Kan. 476; Johnson v. Knapp, 36 Iowa, 616; Taylor v. De Bus, 31 Ohio St. 468; Frank v. Maguire, 42 Pa. St. 77; Lawrence v. Fox, 20 N. Y. 268; Port v. Jackson, 17 Johns. 239."

GAME LAWS-CONTRACT FOR STORAGE DURING CLOSED SEASON VALIDITY.-In Haggerty v. St. Louis Ice Manuf. & Storage Co., 44 S. W. Rep. 1114, decided by the Supreme Court of Missouri, it appeared that plaintiffs employed defendant to store game during the "closed season," which they had on hand at the commencement of such "closed season," intending to withdraw it when the "open season" returned. It was held, that defendant's contract to preserve the same, and to restore it, was void, and plaintiff could not recover for its breach, under Rev. St. 1889, §§ 3901, 3902, prohibiting the killing of such game at certain times of the year, and making it a misdemeanor for any person to have in his possession any of the