erty on execution, or other legal process, is not such part payment by the debtor as is declared by said section 22 of the Code to have the effect of arresting the running of the statute of limitations.-MOFFITT v. CARR, Neb., 67 N. W. Rep. 150.

65. LIMITATION OF ACTIONS-Part Payment.-Plaintiff deposited with a third person money to be used by defendants in buying wheat for plaintiff; and defendants, after using the greater part of such money, went out of the business, and, more than six years before the commencement of an action to recover an alleged balance, turned over to such third person the amount of wheat on hand, and ordered such third person to turn it and the amount of the unused deposit over to plaintiff, but he failed to do so for more than a year from the time of the order: Held, that a payment of the unused deposit, made at such time, and within six years from the bringing of the action, could not take the case out of the statute.-SWEET V. ELLIS, Mich., 67 N. W. Rep. 533.

66. LIMITATIONS-Husband and Wife-Negotiable Instruments.-Limitations do not run, during the continuance of the marital relation, against notes made by a husband to his wife before their marriage, and which were due, but not barred, at the date of the marriage.-FOURTHMAN V. FOURTHMAN, Ind., 67 N. W.

Rep. 966.

67. LIVERY STABLE KEEPER-Lien-Conversion.-The fact that a stable keeper, while holding possession of horses under a claim of lien for their keeping, used them on a hack, from which he derived some profit, would not constitute a conversion, as a matter of law, which would debar him from the enforcement of his lien-there being evidence that the horses were benefited by the use, and it not appearing that the keeper refused to account for the value of their use-but the question of conversion was for the jury.-BRINTNALL V. SMITH, Mass., 44 N. E. Rep. 223.

Instruction.-In

a

68. MALPRACTICE - Negligence malpractice case, an instruction that defendant was required to use only the degree of care and skill of the physicians in his neighborhood is not ground for reversal, where there was evidence that there were other physicians in the neighborhood presumably of average ability, when compared with similar localities.PELKY V. PALMER, Mich., 67 N. W. Rep. 561.

69. MARRIAGE-Voidable Slave Marriage.-A marriage in Maryland, during slavery, between a free negro woman and a slave, was voidable, and was avoided by his going to a free State, and there contracting an other and valid marriage, as soon as he had procured his freedom.-BUTLER V. BUTLER, Ill., 44 N. E. Rep. 203.

70. MASTER AND SERVANT-Contract of Employment -Damages. A contract of employment between a theatrical manager and an actress provided that the employer should have the right to cancel the contract at any time on giving the employee one week's notice and paying one week's additional salary. The manager refused to allow the employee to enter upon the service: Held, that such refusal was, in contemplation of law, a termination of the contract under its provisions, and the employee's damages were, by its terms, liquidated at the amount of two weeks' salary. -WATSON V. RUSSELL, N. Y., 44 N. E. Rep. 161.

71. MASTER AND SERVANT-Negligence-Contributory Negligence. An employee is not guilty of contributory negligence merely because an act of his violates a rule of his employer, he not having knowledge of the rule. -BROWN V. LOUISVILLE & N. R. Co., Ala., 19 South. Rep. 1001.

72. MECHANIC'S LIEN.-The right of a subcontractor to a lien is not lost because the notice of lien stated that the contract had been completed, and the contract price was all due, when, in fact, a portion of the work had been omitted, and was afterwards performed by the principal contractor, and charged to the subcontractor under the terms of his contract, where such omission was unintentional, and was not known

by the claimant until after filing the lien, and the statement appears to have been made in good faith.RINGLE V. WALLIS IRON WORKS, N. Y., 44 N. E. Rep. 175.

73. MINING CLAIM-Interest of Locator.-The interest of the locator of a mining claim prior to the payment of money for the grant of a patent, being merely a right to the exclusive possession of the land, based on conditions subsequent, is not such an estate that dower attaches thereto.-BLACK V. ELKHORN MIN. CO., U. S. S. C., 16 S. C. Rep. 1101.

74. MORTGAGE - Assignment of Debt.-The assignment of a debt secured by mortgage carries the mort. gage with it, without any assignment of the mortgage itself, and where there are several notes secured by the same mortgage the assignment of one operates as an assignment of proportionate interest in the mortgage.-CRAM V. COTTRELL, Neb., 67 N. W. Rep. 452.

75. MORTGAGE - Foreclosure-Litigation of Adverse Title.-In an action to foreclose a mortgage, against the mortgagors and others holding the legal title, the question as to whether such title is subsequent or prior to the mortgage may be litigated.-PENNSYLVANIA MORTG. INV. Co. v. GILBERT, Wash., 45 Pac. Rep. 43.

76. MUNICIPAL CORPORATIONS-Defective Streets.-A complaint in an action against a municipality for injuries due to a defective bridge, not describing the defect, and merely alleging that the bridge was out of repair for a "long length of time," does not sufficiently show constructive notice on the part of the municipality of the existence of the defect.-TOWN OF CULLMAN V. MCMINN, Ala., 19 South. Rep. 981.

77. MUNICIPAL CORPORATION Election Contests.Election contests and the manner thereof having been provided for by Gen. St. § 427, only in case of county and precinct offices, a city cannot, by its charter, provide for contests in case of municipal offices, and give the superior court jurisdiction thereof, under Const. art. 11, § 10, providing that any city of 20,000 inhabitants may frame a charter for its government,consistent with and subject to the constitution and laws of the State, and Id. art. 4, § 6, providing that the superior court shall have jurisdiction of cases not otherwise provided for.-FAWCETT V. SUPERIOR COURT OF PIERCE COUNTY, Wash., 45 Pac. Rep. 23.

78. MUNICIPAL CORPORATION-Extension of Boundaries. Where the officers in whom power is vested generally to define or extend the boundaries of a city have undertaken to extend its boundaries, the owner of land so incorporated cannot, at least after the lapse of a number of years, maintain an action for the purpose of restraining the collection of the city taxes on the ground that there was no authority to incorporate the particular land in question.-SAGE V. CITY, Neb., 67 N. W. Rep. 455.

79. MUNICIPAL CORPORATIONS-Fire Department Regulations.-Under Laws 1882, ch. 410, § 463, providing that the board of fire commissioners, upon finding that any premises where combustible materials are lodged are defective, may order the same to be remedied, and, upon failure to obey the order, the occupant may be fined, etc., the determination by the board that the use made of the premises by the occupant is dangerous is not final, but may be reviewed in an action brought to enforce the penalty.-FIRE DEPARTMENT OF CITY OF NEW YORK V. GILMOUR, N. Y., 44 N. E. Rep. 177.

80. MUNICIPAL CORPORATION - Ice on Sidewalk.-A city is not liable for personal injuries caused by ice on a sidewalk, formed by water flowing to the ground about two feet from the walk, through a pipe extending from a sag in an eaves trough.-GAVETT V. CITY OF JACKSON, Mich., 67 N. W. Rep. 517.

81. MUNICIPAL CORPORATION — Indebtedness - Payment. Under section 3, art. 8, Const. Idaho, and sections,82 and 86 of "An act concerning cities and villages" (Laws 2d Sess. 1893, p. 124), a city indebtedness incurred during one fiscal year cannot be paid from the income

or revenue of a future fiscal year, unless a fund is especially provided for that purpose, and collected therefor in such future year.-THEISS V. HUNTER, Idaho, 45 Pac. Rep. 2.

82. MUNICIPAL CORPORATIONS-Negligence.-One who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.-VILLAGE OF CONNEAUT V. NAEF, Ohio, 44 N. E. Rep. 236.

83. MUNICIPAL CORPORATIONS-Operating Railroad.— Where a city hired a railroad train, with its crew to operate it, which it used on a temporary track, laid down on its own grounds in grading and filling the same, it was, in effect, operating a railroad, and is governed, in its liability to its employees, working with the train, by the employers' liability act.-COUGHLAN V. CITY OF CAMBRIDGE, Mass., 44 N. E. Rep. 217.

84. MUNICIPAL CORPORATIONS-Street Improvements -Repairs.-A city provided by ordinance for taking up the stone pavement on a street, and relaying the same with brick. It appeared that the old pavement was in bad condition, and needed repair: Held, that the undertaking was not an original improvement, for which the abutting property owners were liable on a compulsory charge, and consequently a petition of the owners was not a condition precedent to the enactment of the ordinance.-REUTING v. CITY OF TTIUSVILLE, Penn., 34 Atl. Rep. 916.

85. NATIONAL BANKS Shareholders- Estoppel.Stock of a bank was purchased by defendants, of the president thereof, at a time when there was no overissue, and when the amount purchased was credited to him on the books. At the time, or shortly afterwards, the stock, by his direction, was transferred from his account to theirs, on the stock journal and stock ledger, and new certificates were issued to them. Thereafter they were treated by the bank as the law. ful owners of the stock, and were allowed to vote the same and receive dividends thereon. The bank having failed, suit was brought to collect an assessment made against defendants as shareholders: Held, that they were estopped from claiming that they were not stockholders, although the president neglected to cancel the old certificate, and afterwards hypothecated part of them, thereby creating an overissue.BURT V. BAILEY, U. S. C. C. of App., 73 Fed. Rep. 693.

86. NEGLIGENCE-What Constitutes.-Negligence is the failure to exercise such care, prudence, and forethought as, under the circumstances, duty requires should be given or exercised. It may consist in the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do.-BROTHERTON V. MANHATTAN BEACH IMP. CO., Neb., 67 N. W. Rep. 479.

87. NEGOTIABLE INSTRUMENTS - Surety-Conditional Signing. A person to whom a note is sent by a surety thereon, on the express condition that he will sign as co-surety before delivering the same to the payee, but who delivers the note without signing it, for the purpose of taking up a note of his own, and subsequently regains possession thereof by indorsement from the payee, cannot recover thereon from the surety.YOUNG V. SMITH, Wash., 45 Pac. Rep. 45.

88. NEGOTIABLE INSTRUMENTS-Corporation Note.Where the note of a corporation is negotiable in form, the affixing of the corporate seal does not destroy its negotiability.-CHASE NAT. BANK V. FAUROT, N. Y., 44 N. E. Rep. 164.

rity, or forbearing to take security or otherwise, to his loss.-WAY V. DUNHAM, Mass., 44 N. E. Rep. 220.

90. NEGOTIABLE INSTRUMENTS-Material AlterationRelease of Sureties.-Where a note is made in California, without designating a place of payment, and is indorsed by sureties, the subsequent insertion of "at Ilion National Bank, Ilion, N. Y.," written by the maker before delivery, is a material alteration, which releases the sureties; since without the alteration the note would have been payable only in California, under Civ. Code, §§ 1489, 3100.-PELTON V. SAN JACINTO LUMBER CO., Cal., 45 Pac. Rep. 12.

91. NEGOTIABLE INSTRUMENT-Note-Release.-A release in writing, by the payee, of one of the makers of a joint and several note, and the indorsement of a corresponding credit on the note, do not operate as a release of the remaining makers, where such was not the intention, but will have the effect only of a covenant not to sue.-ELGIN CITY BANKING CO. V. SELF, Tex., 35 S. W. Rep. 953.

92. NEGOTIABLE INSTRUMENTS-Warrant of Attorney -Judgment.-In a note executed in Ohio, a warrant of attorney authorizing an appearance, without process, to confess judgment against the makers, in any court of record, is sufficient to confer jurisdiction on a court of record in that State to enter judgment upon confes sion of an attorney of that court.-FIRST NAT. BANK OF ATHENS, OHIO, V. GARLAND, Mich., 67 N. W. Rep. 559. 93. NEGOTIABLE NOTE-Indorsement by Manager of Corporation.-The possession of a negotiable note payable to a corporation, and bearing the indorsement of such corporation, regular in form, and signed by its general manager, is prima facie sufficient to show that the officer so indorsing the note had authority to do so, and to entitle the holder thereof to recover.-CITIZENS' NAT. BANK V. WINTLER, Wash., 45 Pac. Rep. 38. 94. NUISANCE-Abatement-Injunction.-A city board of health, acting regularly, within its jurisdiction, will not be enjoined from summarily abating odors and gases emanating from a manufactory which it has adjudged a nuisance, it not appearing that the odors or gases are not or could not be a nuisance, whereby the health of the inhabitants of the city is or could be injured.-LIEBIG MFG. CO. v. WALES, Dela., 34 Atl. Rep.

902.

95. OFFICE AND OFFICER-Eligibility.-Under St. 1894, § 3746, providing that no person shall "at the same time fill a municipal office and a county office," one who has been elected city tax collector cannot hold the office after accepting the office of deputy sheriff.KEATING V. CITY OF COVINGTON, Ky., 35 S. W. Rep. 1026.

96. PARTNERSHIP-What Constitutes.-The receipt by a party of a share of the profits of a venture merely as compensation for services, such party having no interest in the property made the subject of the venture, and no power in the management or control of such property, other than that of an ordinary retail salesman thereof, does not constitute such person a part. ner.-ETNA INS. CO. OF HARTFORD, CONN., V. BANK OF WILCOX, Neb., 67 N. W. Rep. 449.

97. PARTNERSHIP-What Constitutes.-An agreement between two persons to share the profits of a business is, inter se, prima facie proof only that they are partners.-KOOTZ V. TUVIAN, N. Car., 24 S. E. Rep. 776.

98. PARTITION AND ACCOUNTING-Decree.-In an ac tion for partition and for an accounting of rents and profits of land, where a decree determining the parties to be co-tenants, and directing partition, is made, and no appeal taken, on appeal from a subsequent decree, entered on report of the commissioners, determining the rights of the co-tenants to the rents and profits, the question whether the parties are co-tenants cannot be reviewed.-HUNT V. HUNT, Mich., 67 N. W. Rep. 510. 99. PARTITION-Adverse Claim by Defendant.-Where a bill for partition shows that complainant has legal title to an undivided portion of the land, and defendant sets up an apparently bona fide adverse claim, the court will not adjudicate the conflicting claims, but

will stay proceedings until the rights of the parties have been determined by a suit at law.-HARRISON V. TAYLOR, Ala., 19 South. Rep. 986.

Construction.-An

100. PARTY-WALL AGREEMENT agreement for the construction of a wall in common by joint property owners, to the height of three stories on the land of one, does not justify the assumption that the other party may, of his own motion, and for his own sole benefit, extend said wall upward still another story, irrespective of a therefrom threatened easement ripening, or of injury likely to result to the property adjacent.-CALMELET V. SICHL, Neb., 67 N. W. Rep. 468.

101. PRINCIPAL AND AGENT-Authority of Agent.-Authority to sign an agreement to arbitrate cannot be inferred from acts as special agent, having no reference to such arbitration, or the subject-matter therein contemplated.-MANUFACTURERS' & BUILDERS' FIRE INS. Co. v. MULLEN, Neb., 67 N. W. Rep. 445.

102. PRINCIPAL AND SURETY-Release of Surety.-An agreement by a creditor to extend the time for pay. ment of a debt on terms different from the contract creating it, without the consent of the sureties, releases the latter, notwithstanding an understanding between the debtor and creditor that such should not be the effect of the extension.-TEMPLEMAN V. TEXAS BREWING CO., Tex., 35 S. W. Rep. 935.

103. PROCESS SERVICE-Exemption of Suitors.-One W, a citizen and resident of Pennsylvania, was plaintiff in a suit pending in a federal court in Missouri against a Missouri corporation. Pursuant to the advice of his counsel that his presence was necessary, W went to Missouri to attend the trial of the case. On the day for which the case was set down for hearing, it was adjourned one day on account of the illness of defendant's counsel, and as W was leaving the court house a summons was served upon him in a suit instituted against him, in a State court, by a citizen of Illinois, through the same attorneys who appeared for the defendant in W's suit. Another summons in the same case was served upon him, later in the day, at his hotel. W removed the case into the federal court, appearing specially for that purpose, and moved to set aside the service of the summons on the ground that he was exempt from such service: Held, that the service should be set aside, notwithstanding the courts of Missouri hold service made under similar circumstances to be good.-HALE V. WHARTON, U. S. C. C. (Mo.), 73 Fed. Rep. 739.

104. RAILROAD COMPANIES-Accident at Crossing.Notwithstanding the statutes of Utah provide that railroad companies crossing streets and thoroughfares shall ring the locomotive bell and sound the whistle, yet this statute will not relieve the railroad company from the charge of negligence in failing to adopt such other reasonable measures for public safety as common prudence may dictate, considering the danger, locality, travel and surrounding circumstances. The rule is founded in common law that every one must so conduct and use his own property as, under ordinary cir cumstances, he will not injure another, if the injury can be avoided by the use of reasonable care.-ENGLISH V. SOUTHERN PAC. CO., Utah, 45 Pac. Rep. 47.

105. RAILROAD COMPANIES-Crossing Accidents.-To recover for an injury alleged to have been sustained at a railroad crossing by a collision with an engine on account of the neglect of the railroad company to cause a bell or whistle to be sounded as its engine approached such crossing, it is not enough for the injured party to show that he was injured at the crossing, and that no signal by bell or whistle was given, and that such default of the railroad company was negligence; but, to recover, the injured party must further show that the default and negligence of the railroad company were the proximate cause of the injury sued for.-OMAHA & R. V. RY. Co. v. TALBOT, Neb., 67 N. W. Rep. 599.

106. RAILROAD COMPANIES-Deed-Forfeiture.-Where a deed conveys to a railroad company land on which to erect pumping stations temporarily, until it can es

tablish permanent ones, in consideration that the company fills a tank for the grantor once a week, and provides that the land shall revert on default of the company to fill the tank, or on its ceasing to use the land, pump houses and machinery erected thereon become fixtures, which, on forfeiture of the land, pass to the grantor as part of the land.-GULF, C. & S. F. RY. Co. v. DUNHAM, Tex., 35 S. W. Rep. 947.

107. RAILROAD COMPANIES-Fires-Pleading.-A complaint which alleged that plaintiff had been damaged by fire from the engines of defendant railroad company, caused by the negligence of defendant, is supported by proof of either defective construction or negligent operation of the engines, or of negligence in permitting combustible material, to remain on its right of way.-LOUISVILLE & N. R. Co. v. MILLER, Ala., 19 South. Rep. 989.

108. RAILROAD COMPANIES-Negligence in Operating Trains. In the operation of a railway train outside of towns and villages, no rate of speed, however great, is alone sufficient evidence to establish negligence.OMAHA & R. V. R. Co. v. KRAYENBUHL, Neb., 67 N. W. Rep. 447.

109. RAILROAD COMPANIES-Negligence of Railroad's Surgeon.-A railroad company is not liable for any negligence of its surgeon, employed by it to treat gratuitously its injured employees, in causing an injured employee to be moved from one place to an other.-YORK V. CHICAGO, M. & St. P. RY. Co., Iowa, 67 N. W. Rep. 574.

110. RAILROAD COMPANIES-Operating Leased Roads -Receivers.-The receivers of a railroad company are bound to account for and apply the income of a leased road in accordance with the covenants of the lease as long as they operate it, and the claim of the lessor for rent accrued while its road was so operated is a valid set-off against a claim for supplies and materials furnished by such receivers.-CHARLOTTE, C. & A. R. Co. V. CHESTER & L. NARROW GAUGE R. Co., N. Car., 24 S. E. Rep. 769.

111. RECEIVERS-Appointment-Approval of Bonds. -Where receivers of the property of a party to an action are appointed, the order of appointment requir ing such receivers to give bonds, to be approved by the court, before they are authorized to act, and enjoining the commencement or prosecution of suits against the party, the appointment of such receivers and their title to the property in question date from the entry of the order of appointment, and not from the time of the approval of their bonds; and a judg. ment obtained against the party, between the entry of such order and the approval of the receivers' bonds, is invalid, and creates no lien on the property.-CONNECTICUT RIVER BANKING Co. v. ROCKBRIDGE Co., U. S. C. C. (Va.), 73 Fed. Rep. 709.

112. REMOVAL OF CAUSES.-A defendant sued as á member of a partnership is not entitled to remove a cause to the federal court because plaintiff is a national bank, nor because such defendant is a non-resident of the State, where his codefendants and partners, as well as plaintiff, are citizens of the State.-NATIONAL BANK OF COMMERCE OF TACOMA V. GALLAND, Wash., 45 Pac. Rep. 35.

113. REPLEVIN Dismissal by Plaintiff.-In replevin, where the property has been taken under the writ, and delivered to the plaintiff, he cannot dismiss the action, and thereby prevent the defendant from hav ing the right to the possession determined in that suit. -VOSE V. MULLER, Neb., 67 N. W. Rep. 598.

114. SALE OF BONDS Warranty.-Where both the vendor and vendee of negotiable bonds contemplate valid securities, of which they are many outstanding, and those delivered are void, not because of a want of power to enact the law under which they were issued, or because they are ultra vires for some other legal cause, but because they have been stricken with nullity by a constitutional provision adopted after the act authorizing the issue of the securities, there being nothing on their face to indicate their invalidity,

there is a breach of the implied warranty of identity, and the vendor may recover.-MEYER V. RICHARDS, U. S. S. C., 16 S. C. Rep. 1148.

115. SALE OF TIMBER - Executory Contract.-A contract for the sale of timber, whereby the seller, upon cutting and skidding the logs, was to be paid a certain price per 1,000 feet, and upon banking them was to receive an additional sum, and when they were put afloat by the seller he was to receive the purchaser's note for the balance due, remained executory until the logs were put afloat, and while the logs were upon the bank the purchaser was not entitled to take posses sion thereof.-STRONG, DEEMER & Co. v. DINNINY, Penn., 34 Atl. Rep. 919.

116. SLANDERING TITLE Landlord and Tenant.-A landlord, by falsely stating to a person, to whom the tenant is attempting to sublease, that the premises cannot be used for saloon purposes, and thereby preventing the consummation of the sublease, is not liable to the tenant unless the statement was malicious. -HARRISON V. HOWE, Mich., 67 N. W. Rep. 527.

117. TAXATION - Exemption.-A State bank charter provided for the payment of a certain tax on shares of stock, which should be in lieu of all other taxes, and also authorized the taking of "stock" deposits, the person making them to have the right to take stock for the amount of such deposit, and it gave the bank an unlimited right to increase the stock: Held, that the contract obligation not to tax shares of stock beyond the amount named in the charter did not apply to stock issued to depositors after the adoption of a State constitution providing for a greater rate of taxation on all property.-BANK OF COMMERCE V. STATE, U. S. S. C., 16 S. C. Rep. 1113.

118. TORT Fraud and Negligence.-A complaint, alleging that defendant, an architect employed by plaintiff to superintend the erection of a house, had falsely and negligently, and acting in collusion with the builder, represented to plaintiff that a certain amount of labor and materials had gone into the house, whereby plaintiff was induced to pay the builder an amount of money called for by the contract, was sufficient, as to the allegations of fraud and negligence, to show a cause of action against defendant. -COREY V. EASTMAN, Mass., 44 N. E. Rep. 216.

119. TRESPASS-Pleading-Withholding Possession.An action to recover damages for withholding the pos session of real property for a specified time, given by Code Proc. §§ 214, 534, is equivalent to the common-law action of trespass for mesne profits, and plaintiff may claim and show the value of the use and occupation of the premises in question as one of the items of damage. -COLUMBIA & P. S. R. Co. v. HISTOGENETIC MEDICINE Co., Wash., 45 Pac. Rep. 29.

120. TRUST-Implied Trust-Fraud.-In the absence of fraud in the procuration of a deed of conveyance of land, fraud cannot be predicated of a mere refusal of a grantee to perform a parol promise, not proven by any writing, to hold the same in trust for the grantor. -LOVETT V. TAYLOR, N. J., 34 Atl. Rep. 896.

121. TRUST Powers of Trustees.-A testator, who had large business interests and outstanding obligations, by his will devised and bequeathed all his estate to his executors in trust, for the term of five years, with full power to sell and mortgage, the will containing the further recital: "My object in creating the aforesaid trust is in order that my estate may be kept together in the manner therein provided until my various business interests can be closed up advantageously to my said estate:" Held, that the will created a trust, which authorized the trustees to extend and renew indebtedness of the testator, and to execute new notes binding on the estate for money to pay maturing indebtedness, in the legal discretion of the trustees.-PACKARD V. KINGMAN, Mich., 67 N. W. Rep.

551.

122. TRUST-Resulting Trust-Parol Proof. - Where a husband, with his wife's knowledge and approval, invests her money in real estate, and without her con

sent takes title to himself, a resulting trust arises in her favor, though no fraud, mistake, or breach of faith on the part of the husband be shown.-LLOYD V. WOODS, Penn., 34 Atl. Rep. 926.

123. TRUST-Resulting Trust-Payment of Considera. tion. The rule that a resulting trust in land can only arise in favor of one paying the purchase money when it is paid "at the time of the purchase" means that the payment must be made at or before the time of the conveyance, and before the legal title has become vested in the purchaser; hence such a trust will arise in favor of one who, by agreement with a purchaser, pays the consideration under an executory contract, which payment is a condition precedent to convey. ance of the land.-MOORE v. Moore, Miss., 19 South. Rep. 953.

124. TRUSTEE-Compensation.-Where the trustee to whom firm property is conveyed in trust to settle the firm affairs sells at public auction, for greatly less than their value, accounts owing from solvent debtors of the firm, without ascertaining the financial condition of such debtors, he is chargeable with the full value of the accounts so sold.-WEISEL V. COBB, N. Car., 24 8. E. Rep. 782.

125. VENDOR AND PURCHASER-Rescission of Contract, -A bond for the conveyance of property provided that, in case of default in payment of the purchase money as therein stipulated, it should become void, and the amount theretofore paid by the purchaser should be retained as rent. A portion of the purchase money was also secured by mortgage on other property. There was default in the making of payments, and the vendor demanded possession of the property, which was surrendered, and the purchasers rented it: Held, that such action amounted to a rescission of the contract by the vendor, and he could not thereafter enforce the remaining notes or the mortgage securing the same.-STEINER V. BAKER, Ala., 19 South. Rep. 976. 126. WASTE-Duty of Life Tenant.-A life tenant is not required to keep the buildings insured for the benefit of the remainder-man.-HARRISON V. PEPPER, Mass., 44 N. E. Rep. 222.

127. WILL-Construction of Devise.-A will devising certain land to the widow of the testator further provided, "After her decease the said real estate above described I give and bequeath to my son, and after his decease said real estate to belong to his heirs:" Held, that the son took a life estate only, with remainder in his heirs.-DEFREESE V. LAKE, Mich., 67 N. W. Rep. 505. 128. WILLS-Absolute Devise.-In a bequest reciting, "I will and bequeath to my son L, the sum of $200, to be paid to him by my daugher within one year after the death of my wife, "if she survive me," the words "if she survive me" limit the time of payment, and not the nature of the estate, which is absolute.-IN RE LOVASS' ESTATE, Wis., 67 N. W. Rep. 605.

129. WILLS-Legacy Payable from Realty.-Testator, after making certain legacies to be paid from the proceeds of the realty, gave other legacies, to be paid from the avails of personalty, and subsequently gave the residuary estate, real and personal, to be divided among certain persons: Held that, in case the personal estate was insufficient for the payment of the legacies directed to be paid therefrom, such legacies, after payment of the legacies directed to be paid from the proceeds of the realty, should also be paid from the balance of such proceeds.-IN RE NEWCOMB'S WILL, Iowa, 67 N. W. Rep. 587.

130. WILLS-Rule in Shelley's Case.-Testator devised land to his son for his natural life and after his death to the "heirs of his body by him begotten," with remainder over if he should have no "heirs of his body by him begotten him surviving." Held, that the devise was to the son for life, with remainder to his children, who took as purchasers, and therefore the rule in Shelley's Case did not apply, so as to extend the devise to a fee-simple.-GRANGER V. GRANGER, Ind., 44 N. E. Rep. 189.

Central Law Journal.

ST. LOUIS, MO., AUGUST 7, 1896.

The New York Law Journal interestingly reviews the novel case of Williams v. Hays, 37 N. Y. Supp. 708, wherein the New York Supreme Court was called upon to decide as to the merits of the plea of insanity as a defense to torts growing out of negligence. In that case it appeared that defendant who was one of several joint owners of a vessel, he owning a minority interest, was under a contract with his co-owners by which he was to sail her on shares; he to man her, pay the crew, furnish supplies and have absolute control. On a former decision by the court of appeals (143 N. Y. 442), it was held that defendant was owner of the vessel pro hac vice and in no sense the agent of his coowners. On a voyage for a southern port the vessel encountered storms, and defendant for more than two days was constantly on duty. Then, becoming exhausted, he went to his cabin and took a large dose of quinine, leaving the mate in charge. The mate found that the rudder was broken and useless, and that the vessel could not be steered. He caused the defendant, the captain, to come on deck, who refused to believe that the vessel was in any trouble and refused the help of two tugs, the masters of which saw the difficulty under which his vessel was laboring, and successively offered to take her in tow. They cautioned him that his vessel was gradually and certainly drifting upon the shore, and in broad daylight she did drift upon the shore without any effort upon the part of the defendant or any of his crew to save her, and she became a total wreck. Defendant's defense to liability for such carelessness is that he was unconscious and insane from the time of going to his cabin as aforesaid, until after the wreck, when he found himself in the life-saving station.

The court of appeals when the case was before them held that the mere fact that the defendant may have been insane would constitute no defense for tortious negligence resulting in the loss of the vessel and cargo. The decision was by a bare majority, and

the three members of the court who dissented did not give the grounds for their action. The opinion of the court, by Judge Earl, cites some authorities to the effect that insanity is not a defense to the recovery of damages in a civil action for torts of negligence. That judicial opinion is not, however, unanimous on the subject is suggested by the dissents in the New York case and also by utterances of various text writers. See Bevin on Negligence, 2d ed., 52-55; Wharton on Negligence, § 88, 2 Jaggard on Torts, 872; Clerk and Lindsell on Torts, II, 34. In his treatise on "The Common Law" (page 109) Justice Oliver Wendell Holmes, speaking of the liability of persons of various infirmities for negligence, says: "Insanity is a more difficult matter to deal with, and no general rule can be laid down about it. There is no doubt that in many cases a man may be insane and yet perfectly capable of taking the precautions, and of being influenced by the motives, which the circumstances demand. But if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse."

Judge Cooley, who favors the opinion that lunatics should be held liable for tortious negligence (Cooley on Torts, 2d ed., 117), puts it on the ground of public policy-not, of course, on the ground of culpability of the lunatic. The broad policy of the law is that the estates of lunatics shall compensate for injuries sustained through their torts, in like manner as such estates are liable for the To the support of the lunatics themselves.

same substantial effect is Shearman & Redfield on Negligence, at section 57. Our contemporary does "not perceive a logical basis for the distinction drawn by Justice Holmes between partial insanity and that of a 'pronounced type.' And, considering insanity simply in the abstract, without any reference to the cause that produced it, the theory of Judge Cooley would seem consistently to require its rejection as a defense to liability for merely passive torts of negligence."

The court of appeals did, however, reserve the question whether defendant would be liable if he became insane solely in consequence of the great strain and exposure attending his efforts to save the vessel during