its former decision. -PEOPLE V. BENNETT; Cal., 50 Pac. Rep. 703.

46. CRIMINAL LAW-Sentence-Prior Conviction.-The only authority shown in a judgment roll for a convic tion under Pen. Code, § 666, giving the court the right to consider a former conviction without the jury find. ing a special verdict therefor, where, as provided by section 1158, "the answer of the defendant admits the charge," was a recital in the udgment that, subsequent to the time the defendant was informed of the information against him, he "confesses the prior conviction:" Held sufficient, in the absence of specific code requirements as to how the "answer" should be shown.-PEOPLE V. MCNEILL, Cal., 50 Pac. Rep. 588.

47. CRIMINAL PRACTICE-Murder Indictment.-An Indictment for murder, which charges that defendant killed deceased by "beating her with his fists, and by choking her, and by pushing and dragging her into the water, and holding her under the water, whereby she was drowned," is sufficient, if all said acts constituted the means by which the crime was accomplished; and does not violate Hill's Ann. Laws, § 1273, providing that, "where the crime may be committed by use of different means, the indictment may allege the means in the alternative."-STATE V. FEISTER, Oreg., 50 Pac. Rep. 561.

48. CRIMINAL PRACTICE-Seduction.-An information alleging that defendant did "unlawfully, willfully, and feloniously, by persuasions, promise of marriage, and other false and fraudulent means, seduce, have sexual intercourse with, and debauch M, an unmarried woman of previous chaste character," sufficiently charges the crime of seduction.-STATE V. ROGAN, Wash., 50 Pac. Rep. 583.

49. DEED BY CORPORATION - Unsealed Deed.-A corporation can convey real property in the manner prescribed by the statutes, and not otherwise; and a deed executed by a corporation, and having the corporate seal, must be held effectual as a conveyance of title as against an unsealed deed of the same corporation for the same property, notwithstanding the latter deed, though made at a later time, was first recorded, and actual possession of the premises was taken under it. -ALLEN V. BROWN, Kan., 50 Pac. Rep. 505.

50. DIVORCE-Voluntary Dismissal of Suit.-Mill. & V. Code, § 3334, providing that the court may decree costs against either party, except a female in whose favor a decree is made, and may order the cost to be paid out of any property in the power of the court, does not authorize the chancellor, in a suit by a wife for divorce and alimony, wherein plaintiff has attached defendant's property, to tax the cost against defendant, and sell the attached property in payment thereof, where plaintiff voluntarily dismissed the suit before the return day of the writ.-HALL V. HALL, Tenn., 42 8. W. Rep. 273.

51. EASEMENTS - Water Companies-License.-The E Water Co., whose ditch headed in a river, agreed to al low the C Co. to take water from the E ditch, and a function was effected some distance from the river. As a consideration for the agreement, the C Co. enlarged the E ditch from the river to the junction. The ditch was then placed under the joint control of the companies, and was maintained from the river to the junction at their mutual expense. The agreement ran for no definite period, and did not further define the rights of the parties: Held, that the right of the C Co. IRRIGATING a continuing easement.-CHICOSA DITCH CO. v. ELMORO DITCH CO., Colo., 50 Pac. Rep. 731.

was

right founded merely on his possession either at the time of the commencement of the action or at the time of the judgment.-BREON V. ROBRECHT, Cal., 50 Pac. Rep. 689.

54. ELECTORS-Residence-Constitutional Law.-Seetion 3, art. 5, of the constitution, disables persons kept at any asylum at public expense, from acquiring a residence there for voting purposes. Therefore the inmates of the State Soldiers' Home, located in Ford county, who have removed there from other parts of the State, are disqualified from participating in the elections held in such county,-LAWRENCE V. LEIDIGH, Kan., 50 Pac. Rep. 600.

55. EMINENT DOMAIN Construction of RailroadDamage. Where the nature and extent of a railroad company's liability, if any, depended largely upon the construction of the terms of an ordinance of a city of the second class, granting the defendant's lessor the right to build and maintain its tracks over and along certain streets of said city, It was error for the trial court to leave the construction of the ordinance entirely to the jury, without giving them any guidance as to the interpretation thereof.-ATCHISON, ETC. R. Co. V. ANDERSON, Kan., 50 Pac. Rep. 603.

56. EQUITY · Assumption of Debt.-A grantee of a debtor, by assuming payment of the debt, becomes, as between the two, the principal debtor, so that the grantor, without first making payment, may bring ac tion to enforce payment by the grantee.--KRELING V. KRELING, Cal., 50 Pac. Rep. 547.

57. EQUITABLE LIENS-Partnership Associations.-W leased to B and others the fire clay on certain land, and a site for the erection of brick works, the lease providing that, as the lines of such site could not then be defined, the lessor would, on completion of the works, give the lessee a deed of the land occupied thereby. The lessees subsequently formed a limited "partnership association," and B borrowed money from W, which was used in the erection of the plant, giving his judgment note, with warrant of attorney to enter judgment on B's two-fifths interest in the plant of the association "now building and to be built," and such note was entered of record: Held, that the judg ment was a lien on B's equitable Interest in the land.IN RE FAIR HOPE NORTH SAVAGE FIRE-BRICK Co.'s ESTATE, Penn., 38 Atl. Rep. 519.

58. EQUITY PLEADING-Amendment of Bill after Rep lication. When the substance of the bill contains ground for relief, and the prayer and proofs are in conformity therewith, leave to amend, enlarging the claim of right, and changing the character or quantity of the relief sought, will not be granted after replica tion filed and proofs taken.-BASS, RATCLIFF & GRET TON V. CHRISTAIN FEIGENSPAN, U. S. C. C., D. (N. J^`, 82 Fed. Rep. 260.

59. FEDERAL COURTS-Jurisdiction.-A suit to re strain the enforcement of a city ordinance limiting charges for artificial gas, on the ground that it allows no profit to the gas company, and therefore deprives it of its property without due process of law, and de nies it the equal protection of the laws, contrary to the fourteeth amendment, is one involving a federal ques tion, and a federal court has jurisdiction, regardless of the citizenship of the parties.-INDIANAPOLIS GAS CO. V. CITY OF INDIANAPOLIS, U. S. C. C., D. (Ind.), 82 Fed. Rep. 245.

60. FEDERAL COURTS-Jurisdiction - Equity Powers. -The federal courts have jurisdiction, and in the ex ercise of their general equity powers will grant relief, where the suit is a direct attack for the purpose of nullifying a judgment of a State court obtained by fraud or rendered without jurisdiction, and to enjoin a threatened sale of lands thereunder. -NORTHERN PAC. RY. Co. v. KURTZMAN, U. S. C. C., D. (Wash., Fed. Rep. 241.

61. FEDERAL COURTS-Jurisdiction of Suit for Legacy. -Pending the settlement of an estate in the probate court, a citizen of another State, who is a legatee 10der the will, may maintain a suit in the federal court

against the resident executor and the other legatees and heirs to recover such legacy.-BRENDEL V. CHARCH, U. S. C. C. (Ohio), 82 Fed. Rep. 262.

62. FRAUDS, STATUTE OF-Resulting Trusts.-The provision of the statute prohibiting the creation of trusts concerning lands, unless in writing, expressly excepts those arising by implication of law, and recognizes the existence and enforceability of such trusts where it is made to appear that by agreement, and without any fraudulent intent, the party in whom the title is vested was to hold the land in trust for the party paying the purchase money. - RAYL V. RAYL, Kan., 50 Pac. Rep. 501.

63. FRAUDULENT CONVEYANCES-Preferences-Fraud. -It is not fraudulent per se for a merchant to transfer his entire stock of goods to satisfy one creditor to the exclusion of other creditors. - IN RE MULLER, Cal., 50 Pac. Rep. 660.

64, FRAUDULENT CONVEYANCES Right of Grantee to Confess. The grantee in a conveyance attacked by a judgment creditor of the grantor as fraudulent may inquire into the ground of the judgment, and show that it does not give the attacking creditor a right to ¡mpeach the transfer; and, to that end, he may show that the judgment is for a liability created after the transfer.-GREGORY V. LAMB, Ky., 42 S. W. Rep. 339.

65. HOMESTEAD-Amount of Exemption.-Defendant, as head of a family, declared a homestead upon com. munity property. Upon the death of his wife be was left childless. Plaintiff sued upon a debt contracted during the existence of the homestead: Held, that the homestead was exempt, to the amount of $5,000, under Civ. Code, § 1265, providing that, if the selection of homestead was made by a married person from community property, the land, on the death of one of the spouses, vests in the survivor. ROBINSON V. DOUGHERTY, Cal., 50 Pac. Rep. 649.

66. HUSBAND AND WIFE - Community Property. Where a husband received money belonging to his wife at the time of their marriage, in Tennessee, where they resided, when the common law was in force therein, declaring that marriage operated as a gift from the wife to the husband of all money and personalty held and owned by her at the date of the marriage, and reduced to possession by the husband during the marriage, and they afterwards removed to Texas, where he invested the money in land, the land was not community property, but the separate estate of the husband. — MCDANIEL V. HARLEY, Tex., 42 S. W. Rep. 323.

67. INJUNCTION - Solvency.-In an action to restrain defendant from collecting a certain judgment on the ground that, though standing in the name of defendant, an alleged agent of plaintiff, it was in fact the property of plaintiff, the insolvency of defendant was immaterial.-BENNETT BROS. Co. V. CONGDON, Mont., 50 Pac. Rep. 556.

68. INSURANCE-Conditions Subsequent. - Provisions of an insurance policy that are in the nature of conditions subsequent have no place in a declaration on the policy. They are matters of defense. WHITTLE V. UNITED FIRE INS. CO., R. I., 38 Atl. Rep. 498. 69. INSURANCE-Misrepresentations.-A person named B, doing business under the firm name of B Bros., insured his goods in his firm name: Held, that his representation that the goods belonged to B Bros. was not a violation of the provision of the policy that it should be void if the insured had concealed or misrepresented any material fact, or if the interest of the insured was not truly stated. - BONNET V. MERCHANTS' INS. Co., Tex., 42 S. W. Rep. 316.

70. JUDICIAL SALE-Vacating Sale under Foreclosure. -Where a party, at whose instance a sale of real es tate has been set aside, fully complies with the terms imposed by the court as conditions to setting aside the sale, it is error to enjoin a resale of the property under the judgment, merely because the officer to whom the purchaser paid the amount of his bid has made an unauthorized application of a portion of the money to

71. JUSTICES OF THE PEACE

the payment of taxes and costs, and refuses, for that reason, to pay to the purchaser the whole sum bid on demand.-CHAPIN V. PYLE, Kan., 50 Pac. Rep. 408. - Jurisdiction. - Where two justices of the peace on the same day issue ex. ecutions against the same debtor, one justice has no Jurisdiction to declare void the execution issued by the other.-CARY V. ÁLLEGOOD, N. Car., 28 S. E. Rep. 61.

72. LANDLORD AND TENANT-Leases-Assignment.-An action of covenant by a lessor against an assignee of the lease, brought at the request of the lessee, who had not been released from his liability, is not such an election to treat the assignee as the lessee as will release the original lessee from liability. - WHITCOMB V. CUMMINGS, N. H., 38 Atl. Rep. 503.

73. LANDLORD AND TENANT - Subtenancy-Agency. — If M rented land from W, giving to the latter his promissory note for the rent, payable to W, and at the time of the renting W was himself a tenant of a certain company which was the true owner of the rented premises, and it appeared that M contracted with knowledge of the company's ownership, and thereafter a distress warrant issued against M at the instance of the company to collect the amount of rent specified in the note, the company being at that time the owner of the note, a motion for a nonsuit, made at the trial, on the ground that the relation of landlord and tenant did not exist between the parties, was properly denied. (a) Under the facts recited, M became a subtenant of the company; and, under the law of this State, a subtenant becomes the tenant of the owner, at the election of the latter. MCCONNELL V. EAST POINT LAND CO., Ga., 28 S. E. Rep. 80.

74. LIBEL-Damages - Instructions.-In an action for a libel per se, plaintiff is entitled to compensatory damages, without regard to the good faith or caution which attended the publication. TAYLOR V. HEARST, Cal., 50 Pac. Rep. 541.

75. LIFE INSURANCE-Fraudulent Change of Beneficia. ries. A declaration filed by children against the mother, which recites that a deceased father procured a policy of life insurance, in which the children were named as beneficiaries, but which, during the life of the father, and while he was non compos mentis, he was induced to change by fraud and undue influence of his wife so as to make her sole beneficiary, and alleging the death of the father and the collection of the policy by the mother, sets forth a good cause of action, and should not have been dismissed on demurrer. - CASON V. OWENS, Ga., 28 S. E. Rep. 75.

76. MALICIOUS PROSECUTION -Arrest without Warrant.-A city ordinance providing that any policeman shall arrest without warrant any person where the circumstances reasonably show that he has committed a felony or breach of the peace does not authorize the arrest without warrant of a person under circumstances tending to show that, a few minutes before, he had embezzled or stolen a sack of coal worth less than a dollar. GRIFFIN V. SAN ANTONIO & A. P. RY. Co., Tex., 42 S. W. Rep. 319.

77. MARINE INSURANCE — Liability for Constructive Total Loss. Underwriters are not liable for a constructive total loss, except where they consent to an abandonment under a policy containing a warranty against partial loss.-WASHBURN & MOEN MANUFG. CO. v. RELIANCE MARINE INS. Co., U. S. C. C. of App., First Circuit, 82 Fed. Rep. 296.

78. MASTER AND SERVANT — Fellow-Servants - Negli. gence. A railroad employee, who, after finishing his employment for the day, and leaving the workshop and grounds of the company, is injured while moving along a public highway in the city, by negligent acts of other employees of the company on its moving trains, does not stand in the relation of a fellow-serv ant with them, in the meaning of the law applicable to injuries occurring to one servant by the negligence of another.-FLETCHER V. BALTIMORE & P. R. Co., U. S. S. C., 18 S. C. Rep. 35.

79. MORTGAGE-Payment - Application.-The holder of a debt secured by mortgage cannot apply in reduction or payment of the debt a claim owing by him to the debtor, under Code Civ. Proc. § 726, declaring that there shall be but one action for the recovery of any debt or the enforcement of any right secured by mortgage, which action must be in accordance with the provisions of "this chapter." - MCKEAN V. GERMANAMERICAN SAV. BANK, Cal., 50 Pac. Rep. 656.

80. MUNICIPAL CORPORATIONS - Disincorporation. St. 1895, p. 115, provides for the disincorporation of cities of the sixth class, and makes it the duty of the board of trustees to call an election for such purpose upon receiving a petition in that behalf signed by not less than one-fourth of the qualified electors of the city: Held, that a complaint that avers that the peti tion was signed by the requisite number of qualified electors is good on demurrer, although the petition it. self does not aver that the subscribers are such. FREDERICK V. CITY OF SAN LUIS OBISPO, Cal., 50 Pac. Rep. 661.

81. MUNICIPAL CORPORATIONS-Liabilities Exceeding Revenue.-Judgment against a city for water furnished it can only be allowed to the amount of revenues for the respective fiscal years when water was furnished, which were unappropriated when the claims for water accrued.-HIGGINS V. CITY OF SAN DIEGO, Cal., 50 Pac. Rep. 670.

82. MORTGAGES - Taxes Priority.-Acts 1871, ch. 68 (Mill. & V. Code, § 806), provides that when land is sold under decree the judge shall, before confirmation, direct a reference to ascertain whether on the day of sale there were any taxes unpaid which were a lien on the land, and, if there were, that there shall be a decree that such taxes be paid out of the first money collected from the sale: Held that, whenever the aid of a court is invoked to enforce the lien of a mortgagee by sale, the court will require that all taxes on the premises shall be first paid out of the proceeds of the sale, without reference to whether they were assessed before or after the mortgage lien attached.-DUNN V. DUNN, Tenn., 42 S. W. Rep. 259.

83. MORTGAGES-Trustee's Sale-Fiduciary Relations. -The fact that the trustee in a trust deed is a clerk in the store of the cestui que trust does not create a fiduciary relation between the makers of the deed and the cestui que trust, and hence it is competent for the trustee to sell the property at a trustee's sale to the cestui que trust.-MONROE V. FUCHTLER, N. Car., 28 S. E. Rep. 63, 84. MUNICIPAL CORPORATION-Bid Made by Mistake.A bid for public work can be withdrawn, upon the ground of mistake, although the charter of the city contains a provision that bids cannot be withdrawn or canceled until the board shall have let the contract for which such bid is made and the same shall have been duly executed."-MOFFITT Co. v. CITY OF ROCHESTER, U. S. C C., N. D. (N. Y.), 82 Fed. Rep. 255. 85. MUNICIPAL CORPORATIONS - Franchise Forfeit ure. An ordinance granting a franchise to an electric company required the company within 15 months to construct so much of its plant as would furnish power, etc., to all the business portion of the city, and to expend in said construction not less than $50,000 the first It further provided that if, at the expiration of year. the time given "to make the improvements and expenditures," the same have not been made, then "this franchise is hereby declared to be forfeited:" Held, that a forfeiture was declared only in the event of failure to expend the money "and" make the improvements within the time specified.-COMMERCIAL ELECTRIC LIGHT & POWER Co. v. CITY OF TACOMA, Wash., 50 Pac. Rep. 592.

86. MUNICIPAL CORPORATIONS-Instructions.-In an action against a city to recover damages for overflow. ing plaintiff's lots by the improper construction of a sewer, it is error to submit to the jury the question of the ownership of the lots, without telling them what constitutes ownership or title.-MCARTHUR V. CITY OF DAYTON, Ky., 42 S. W. Rep. 343.

87. MUNICIPAL CORPORATIONS-Surface Water-From Streets.-A town is not liable for injury to abutting property from surface water, though it is turned thereon by reason of the highway and the drain thereunder being allowed to remain out of repair.-MURRAY V. ALLEN, R. I., 38 Atl. Rep. 497.

88. MUNICIPAL CORPORATIONS-Tide Lands - Extending Streets.-Const. art. 15, § 3. providing that municipal corporations shall have the right to extend their streets over tide lands, authorizes an extension only in the di rect line of the street.-ToWN OF ILWACO V. ILWACO RY. & NAV. Co., Wash., 50 Pac. Rep. 572.

89. MUNICIPAL CORPORATIONS-Warrants.-In the ab sence of a law providing in what order city warrants shall be paid, the courts will direct such application as will be fair to the warrant holders, and yet subserve the best interests of the city, though the city treas urer, if permitted to exercise his discretion, would make a different application.-FIRST NAT. BANK OF NORTHAMPTON, MASS., V. ARTHUR, Colo., 50 Pac. Rep.

738.

90. MUNICIPAL CORPORATIONS Water CompaniesPower to Fix Rates.-Under Const. art. 14, providing that the rates of compensation for the use of water supplied to any municipal corporation shall be fixed annually by the governing body thereof, it is within the province of the courts to review such action to the extent, at least, of ascertaining whether the rates so fixed will furnish some reward for the property used and services furnished.-SAN DIEGO WATER CO. V. CITY OF SAN DIEGO, Cal., 50 Pac. Rep. 633.

91. NEGLIGENCE-Cotton Compress.-Where adjacent property was endangered by sparks emitted from the smokestack of a cotton compress, but the probable consequence of the operation of the compress was not such as to render the business a nuisance and unlaw ful, the compress company, both in constructing and operating its plant, was bound to take only such pre caution and use such means to lessen the danger and prevent injury to adjacent property as a man of ordinary prudence, conversant with the business, and understanding its operation and the incidental danger to adjacent property, would have taken and used.PLANTERS' WAREHOUSE & COMPRESS Co. v. TAYLOR Ark., 42 S. W. Rep. 279.

92. NOVATION-Sale of Bonds Pledged as CollateralWhere bonds of a corporation, pledged as collateral security for debts of the corporation, are subsequently sold by the board of directors, the purchaser assum ing and agreeing to pay such debts, the sale does not create a novation of the indebtedness, so as in any wise to affect the rights of the creditor to proceed against the corporation, or its property in the hands of a re ceiver.-VANCE V. ROYAL CLAY MANUFG. CO., U. 8. C.. N. D. (Ohio), 82 Fed. Rep. 251.

93. NEGLIGENCE What Constitutes.-To a declara tion substantially alleging that the plaintiff sought to purchase a particular kind of loaded cartridges, and was negligently given, by defendant's agent to sell. certain loaded cartridges, which were represented to be of the kind asked for, and which were alleged to be very similar in size, make, and mark to those desired, but were in reality of different caliber, and that on a count of such difference in caliber the plaintiff (he be ing without fault or negligence in handling the car tridges so purchased, and while using the same prop erly) was injured by the premature explosion of one of them: Held (1) That it was error to sustain a demurret for want of a cause of action. (2) That the allegation in the declaration authorized a submission of the esse to a jury to determine the facts involved,-among them, whether or not the injury could have bee avoided by the plaintiff in the exercise of ordinary care.-SMITH V. CLARKE HARDWARE CO., Ga., S. 5. Rep. 74.

94. NUISANCE-Division Fences and Walls.-A struct ure standing wholly on the lot of the owner thereof not within the inhibition of St. 1885, p. 45, regulating

the height of "division fences" and "partition walls" in cities and towns.-INGWERSEN V. BARRY, Cal., 50 Pac. Rep. 536.

95. PARTITION-Judgment.-The fact that one of the parties against whom a judgment in partition was rendered was a minor who was not represented by a guardian ad litem did not invalidate the judgment; said minor, during pendency of the suit, having transferred his interest in the land to the party in whose favor the judgment was rendered.-SHELBURN V. MCCROCKLIN, Tex., 42 S. W. Rep. 329.

96. PARTNERSHIP Dissolution-Good Will.-A firm composed of W, D, and S dissolved on the death of W, and D and S separated. The old firm had a large list of customers in its business of insurance. A third person, knowing that S had a right to compete for the continuance of the insurance business with the old customers, paid him a sum of money to be admitted into partnership with him: Held, that there was no sale of the good will of the old firm, so as to entitle D to an accounting.-DYER V. SHOVE, R. I., 38 Atl. Rep. 498. 97. POSTMASTER Liability of Money Embezzled by Clerk. It is no defense to an action on the official bond of a postmaster, to recover public funds unaccounted for, that such funds were embezzled by a clerk appointed under the civil service laws.-UNITED STATES V. BRYAN, U. S. C. C., N. D. (Cal.), 82 Fed. Rep. 290.

98. PRINCIPAL AND SURETY - Official Bonds-County Trustee. Where it is claimed in an action on the bond of a county trustee that he was delinquent for a previous term, and that funds subsequently collected were improperly applied as credits on such previous delinquency, the surety must show such misappropri ation by dates, items, and amounts, and that specific items were improperly credited, before he can raise an equity to be relieved or credited by such items.-STATE V. HAYS, Tenn., 42 S. W. Rep. 266.

99. PRINCIPAL AND SURETY Subrogation.-A surety paying without suit a note providing for attorney's fees in case of a suit is subrogated to the payee's rights under such provision, and may recover such attorney's fees in a suit against the maker.-BEVILLE V. BOYD, Tex., 42 S. W. Rep. 318.

100. REAL ESTATE BROKERS-Production of Purchaser -Commission.- An owner listed lands with an agent, who afterwards told him of a prospective purchaser that wished to deal directly with the owner. The owner then agreed to pay the agent a commission for the mere production of a purchaser. The purchase was made by the person introduced, and at the price at which the lands were listed: Held, that the fact that the contract between the owner and the agent was concealed from the purchaser, since he was not thereby required to pay an increased price, did not taint the contract with fraud, so as to release the owner from liability for the agent's commission. -McCAMPBELL V. CAVIS, Colo., 50 Pac. Rep. 728.

101. RECEIVERS

Dividends.-Where a creditor fails to avail himself of an order of court directing a receiver to distribute money of an insolvent bank then on hand, the creditor does not thereby obtain a lien upon the remaining assets for his pro rata share in such fund.-ROCKWELL V. PORTLAND SAV. BANK, Oreg., 50 Pac. Rep. 566.

102. RECEIVERS-Property Subject to Order.-Defendant was directed by judgment to make a certain payment in money, and in default thereof the court or dered specified real estate to be sold, the proceeds to be applied on said judgment, and, in case of a deficiency, judgment therefor to be docketed against defendant: Held, that the court could not take into its custody, through a receiver, any property not em. braced in the judgment.-KRELING V. KRELING, Cal., 50 Pac. Rep. 549.

103, REFERENCE Powers of Referee.-The terms of the order of reference determine the scope of a ref. eree's authority, and a reference to state an account

gives him no authority to try and determine the whole issue.-BRADSHAW V. MORSE, Mont., 50 Pac. Rep. 554. 104. REMOVAL OF CAUSES - National Bank Receivers. -A receiver of an insolvent national bank, appointed by the comptroller of the currency, against whom an action is brought in a State court to recover less than $2,000, has no right to remove the same to a federal court. FOLLETT V. TILLINGHAST, U. s. C. C., D. (Wash.), 82 Fed. Rep. 241.

105. REVIVAL OF ACTIONS-Presumption on Appeal.An action having been brought by two persons as partners, one of whom died before the case came to trial, and a judgment having been rendered in favor of the survivor and the executors of the deceased partner as his successors in interest, it will be presumed, in the absence of any showing in the record to the contrary, that the action was duly revived before the trial.-KELLEY V. STEVENS, Kan., 50 Pac. Rep. 595.

106. SALE-Delivery-Change of Possession.-Plaintiff, by contract in writing, purchased a flock of lambs, and branded each with his own brand, and at the same time entered into an agreement by which the vendor was to care for them, as plaintiff's agent. Thereafter the vendor kept the lambs separate from others, and marked the wool separately: Held, that there was a sufficient delivery and parting with the ownership, and that the contract was valid as to attaching crediters of the vendor. - CADY V. ZIMMERMAN, Mont., 50 Pac. Rep. 553.

107. SALE - Principal and Agent. - A principal's appropriation and sale of part of the goods purchased by his agent without authority is a ratification of the entire transaction. - MOFFITT-WEST DRUG Co. v. LYNEMAN, Colo., 50 Pac. Rep. 737.

108. SALE-Retention of Title.-Where one sells sewer pipe to the contractor for construction of a ditch for a county, by agreement providing that it shall be shipped to a certain point by the seller, taken from there by the contractor, and paid for by orders on the county after it is put in the ground, title does not remain in the seller till after the pipe is paid for.-BAKER V. HEIDINGER, Wash., 50 Pac. Rep. 569.

109. SEDUCTION-Evidence. In a prosecution for seduction it is competent for the State to show other acts of sexual intercourse between defendant and pros. ecutrix since the date of the act alleged. - STATE V. ROBERTSON, N. Car., 28 S. E. Rep. 59.

110. TAXATION-Assessment.-Where part of the land conveyed to one C, was separately assessed in the unseated list, the fact that the number of acres men. tioned in an assessment to C of a larger tract, as seated land, substantially corresponded with the acreage mentioned in C's deed, was not conclusive that the larger assessment included the unseated land.-EVERHART V. NESBITT, Penn., 38 Atl. Rep. 525.

111. TAXATION Injunction Against Collection. Though a tax law be unconstitutional, equity will not enjoin the collection of taxes thereunder unless it is shown, not only that plaintiff would be without remedy at law, but that the enforcement of the tax would produce irreparable injury, or lead to a multiplicity of suits, or bring a cloud upon his title.-WASON V. MAJOR, Colo., 50 Pac. Rep. 741.

112. TAXATION-Mortgagor and Mortgagee. - Const. art. 13, § 4, providing that for purposes of taxation and assessment a mortgage shall be deemed an interest in the property affected thereby but speaking of the holder of the legal title as the owner of the property, and making the taxes assessed against the security as well as those against the property liens on the latter, and providing that a payment by the owner of the property of the tax levied on the security shall, to the extent thereof, discharge the security; and Pol. Code, § 3617, which, treating of revenue, and defining the term "real estate," declares that a mortgage, when land is pledged for the payment thereof, shall, for the purpose of assessment and taxation, be deemed an interest in the land-do not give the mortgagee a distinct

real property in the land, on which the lien of taxes assessed against the holder of the legal title cannot attach-CALIFORNIA LOAN & TRUST Co. v. WEIS, Cal., 50 Pac. Rep. 697.

113. TAXATION OF FOREIGN CORPORATION.-The relator was a New Jersey corporation, organized for the purpose of investing its capital in the securities of an Illinois corporation, and distributing the profits. It maintained an office in New York, with several salaried employees. Its whole capital was invested in the stock of the Illinois corporation, which was deposited with a New York trust company as security for an issue of bouds by the relator, whose whole business consisted in the collection and distribution of the dividends on the Illinois stock. It carried an average balance in a New York bank of over $25,000, derived from such dividends: Held, that the relator, though it was doing business in New York, and had property there, did not employ any part of its capital in that State, and so was not taxable under Laws 1880, ch. 542, as amended by Laws 1885, ch. 501, and subsequent enactments.- PEOPLE V. ROBERTS, N. Y., 47 N. E. Rep. 974.

114. TAXATION OF SAVINGS BANKS Deposits.-The primary relation of a depositor in a savings bank to the corporation is that of a creditor, and, for the purpose of ascertaining the amount of property of a sav. ings bank liable to taxation, the amount of its deposits is to be deducted from its gross assets, as a liability.PEOPLE V. BARKER, N. Y., 47 N. E. Rep. 973.

115. TAXATION-Valuation of Property.-Under sections 2 and 3, art. 13, Const., all taxable property within this State must be assessed and taxed on a valuation fixed at its actual cash value, or as near such value as is reasonably practicable. The test of such value is the cash price for which the property valued would sell in open market.-STATE V. THOMAS, Utah, 50 Pac. Rep. 615.

116. TRADE-MARKS-Infringement.-Where the name, portrait and fac simile signature of another are employed without his consent and against his will, and are so assumed with a view to deceive the public into the belief that the product marketed and sold was prepared under his supervision, and offered to the public with his sanction, an injunction will be granted.— KATHREINER'S MALZKAFFEE FABRIKEN MIT BESCHRAENKTER HAFTUNG V. PASTOR KNEIPP MEDICINE Co., U. S. C. C. of App., Seventh Circuit, 82 Fed. Rep. 321.

117. TRUSTEES-Investments-Liability for Depreciation.-Trustees are not liable for losses resulting from the depreciation of authorized investments made in good faith, where they use all ordinary care in determining on the investment.-IN RE BARTOL, Penn., 38 Atl. Rep. 527.

118. TRUSTS Sufficiency of Evidence. Where a widow purchased the interests of her children in certain real estate devised to her for life, remainder to them, their claim that she paid for their interests with the proceeds of personal estate in which they had an interest, and therefore holds in trust for them, is not sustained by the evidence.-POOL V. DETRAZ, Ky., 42 S. W. Rep. 346.

119. VENDOR'S LIEN-Foreclosure-Setting Aside Sale. -After eight months of unexcused delay, a sale under a judgment foreclosing a vendor's lien, at which the vendee was present and objecting, will not be set aside on the ground of an irregularity in the sheriff's adver. tisement.-HORNE V. KIMBELL, Tex., 42 S. W. Rep. 325. 120. VENDOR'S LIEN-Notice.-When a recorded deed recites that certain notes are given in part payment, and that the vendor's lien is reserved to secure the notes, a subsequent purchaser is charged with notice of such lien.-LINDLEY V. NUNN, Tex., 42 S. W. Rep. 311. 121. VENDOR AND PURCHASER-Executory Contract.under a title bond is A purchaser in possession treated as the equitable owner, and may mortgage, sell or devise his interest.-SKAGGS V. KELLY, Tenn., 42 S. W. Rep. 275.

122. VENDOR AND VENDEE-Fixtures.-Improvements permanently attached to land by a yendee in posses sion under an executory contract of purchase became part of the land, and cannot be removed by the vendee without the vendor's consent.-POMEROY V. BELL, Cal., 50 Pac. Rep. 683.

123. WATERS-Appropriation-Pleading. - Comp. St. 1887, div. 5, ch. 74, relating to water rights, requires a notice of location to be posted at the point of diver sion, and the appropriator to file with the county re corder a notice of appropriation. Section 1257 (Civ. Code 1895, § 1888) provides that a failure to comply with the provisions of the chapter deprives the appropria tor of the right to the water, as against a subsequent claimant who complies therewith, but by complying with the provisions of the act the right to the use of the water shall relate back to the date of posting the notice: Held, that the only effect of the statute is to give the appropriator complying therewith the beneft of the doctrine of "relation back," and priority se cording to the date of posting notice, and a water right may be acquired, without complying with the statute, which is good against all subsequent appropriators, by the actual diversion and appropriation of the water of a stream for a beneficial use.-MURRAY V. TINGLEY, Mont., 50 Pac. Rep. 723.

124. WILL-Codiell-Construction.-Though a codiel that changes a will must prevail, yet both the will and codicil must be construed together, and the one gen eral intent pervading both must be gathered.-HUNT V. HUNT, Wash., 50 Pac. Rep. 578.

125. WILL-Contest-Burden of Proof.-The burden is on the contestants of a will to show incapacity, fraud, or undue influence; and, unless the paper presented for probate is irrational or inconsistent, it is not nec essary for the attesting witnesses to prove the capacity of the person executing it.-KING V. KING, Ky., 42 8. W. Rep. 347.

126. WILL-Limitations - Charges on Real Estate.Even if a will charges debts of testator on his real es tate, the lien of the debts will be lost by statutory lim itation, unless the will also creates an express trust for their payment. A trust giving testator's debts lien on his real estate unaffected by statutory limits tion is not created by his will directing generally that all his debts be paid as soon as may be, devising spect fied land to certain sons, and giving the residue of his real estate to the remaining son, thereafter directing that said son pay three-fourths of all testator's debts and legacies, and that another son pay the remaining fourth thereof, dividing his personal estate among his children equally, and appointing as executors the two sons directed to pay the debts.-IN RE MITCHELL'S E TATE, Penn., 38 Atl. Rep. 489.

127. WILL-What Constitutes.-A letter to an under taker, authorizing him to have the writer's body cre mated, closed as follows: "My brother P will take charge of my estate, and be the sole administrator, without bonds, to trade, sell or occupy, las may seem t him fit:" Held, that the letter did not appolat an ecutor, nor make any devise, and was not entitled to probate as a will.-IN RE MEADE'S ESTATE, Cal., 50 Pac Rep. 541.

128. WITNESS-Cross-Examination.-Where a prose cuting witness stated that he was assaulted by on wearing an overcoat like one that was exhibited to him, it was error to refuse to have him on cross-exa ination answer as to whether on a former trial beh not positively identified the overcoat as being worn his assailant, whose identity was a question in di pute. PEOPLE V. TURNER, Cal., 50 Pac. Rep. 587.