edge or information whether the person to whom the delivery was made was the person who signed the order for the goods, and with whom the consignor had dealt as with the true consignee. They were delivered without any evidence of identity whatever, and such delivery was an act of gross negligence on the part of the carrier. In the case of Samuel v. Cheney, 135 Mass. 278, an impostor, during the time he remained in Saratoga Springs, bore the name of A. Swannick. He rented a house or shop, secured a box at the postoffice, and had letter heads printed with his name, upon which was given the number of his post-office box, all for the purpose of perpetrating the swindle. There was a reputable merchant in Saratoga Springs named Arthur Swannick, who carried on his business in the name of A. Swannick. The swindler ordered a bill of goods from the plaintiff in Boston, signing the name of A. Swannick; and the plaintiff forwarded the goods by defendant, as carrier, believing the latter was from the reputable merchant, consigning the goods to "A. Swannick, Saratoga Springs." At the same time the plaintiff sent a bill for the goods addressed to "A. Swannick, Post-office Box 1,595," that being the box of the swindler, which, of course, went to him. On the arrival of the goods they were delivered to the swindler, without any identification, except that the carrier had previously delivered a package of cigars at his shop. Action was brought against the carrier on the ground that this was a misdelivery, but the court held that the delivery was good. The court in that case said: "The defendant would be justified in delivering the goods to him whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them." To the contention of the plaintiff that he intended to send the goods to Arthur Swannick, the court answered: "We think the more correct statement is that he intended to send them to the man who ordered and agreed to pay for them, supposing erroneously that the man was Arthur Swannick. It seems to us that the defendant, in answer to plaintiff's claim, may well say: 'We have delivered the goods intrusted to us, according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your act in dealing with him, was the man to whom you sent them. We are guilty of no fraud or negligence.'" In Edmunds v. Transportation Co., 135 Mass. 283, goods were purchased from plaintiff by one claiming to be Edward Pape, of Dayton, Ohio, by personal negotiation. There was a reputable business man in Dayton named Edward Pape, and plaintiff supposed he was dealing with him. The goods were delivered by plaintiff to defendant carrier, to be transported to Dayton, and delivered to Edward Pape. Delivery was made to the swindler. In the opinion, the court says: "The sale was voidable by the plaintiff, but the carrier by whom they were forwarded had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pape, owned the goods, and, upon their arrival in Dayton, had the right to demand them of the carrier. In delivering them to him, the carrier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pape, and thus answered the directions upon the package, and who was the person to whom the plaintiff sent them." In the case of Dunbar v. Railroad Corp., 110 Mass. 26, one Gorman presented himself in Boston to Dunbar, representing that he was John H. Young, of Providence. In the name of Young he purchased goods and had them consigned by defendant carrier to "John H. Young, Providence, R. I." On the arrival of the goods, Gorman pretended to the carrier that he was the agent of John H. Young, and secured the delivery of the goods. Dunbar sued for a misdelivery. The opinion of the supreme court says: "The plaintiff sold the gin and whisky, which are the subject of this action, to a person calling himself John H. Young, of Providence, and delivered them to the defendants, to be carried to the same person in Provi. dence by the same name. As he was the only person in Providence who bore that name, there was no other individual to whom the defendant could deliver the property, and delivery to him would be a performance of the contract." There are numerous cases arising upon commercial paper which adopt the same rule as held in the foregoing cases: Palm v. Watt, 7 Hun, 318; Kohn v. Watkins, 26 Kan. 691; U. S. v. Nat. Exch. Bank, 45 Fed. Rep. 163; Hoge v. Bank, 18 Ill. App. 501. CORRESPONDENCE. COMPARATIVE NEGLIGENCE IN ILLINOIS. To the Editor of the Central Law Journal: In his article on "Contributory Negligence per se in Accidents at Railway Crossings," at page 497 of the last issue of the JOURNAL, Mr. Andrew Lees says the doctrine of comparative negligence obtains in Illinois and Georgia. I do not know about Georgia, but it is no longer in force in this State. Pennsylvania Coal Co. v. Kelly, 156 Ill. 9, 17; City of Lanark v. Dougherty, 153 Ill. 163, 165. GEO. WARNER YOUNG. Joliet, Ill. BOOK REVIEWS. HALE ON BAILMENTS AND CARRIERS. This is the latest of what is known of the "Hornbook" series, adapted principally for the use of students. It presents a clear and accurate statement of the law of bailments in such a form that its principles may be most readily grasped and retained. In successive chapters is discussed bailments in general, bailments for the sole benefit of the bailor, bailments for the bailee's sole benefit, bailments for mutual benefit, pledge and hiring, innkeepers, carriers of goods, carriers of passengers. Published by West Publishing Co., St. Paul, Minn. WHITTAKER'S SMITH ON NEGLIGENCE. This is the second American edition of a work whose first appearance in this country in 1880 met with a favorable reception by the profession. The reason of this was in part the very high character of the English work of Mr. Smith, which was thus substantially reproduced in the form of an American editor, but it is only fair to say that a good part of its merit consisted of the very able and elaborate notes on the part of the American editor, Mr. W. H. Whittaker, of the Cincinnati bar. In the present edition the work has been re-edited and enlarged, with the citation of all the American cases brought down to date. Many of the notes have been rewritten so as to state the present law; about one hundred and twentyfive pages of new matter has been added, and more than five thousand new cases cited. The text of the English author remains intact, and the American law is stated in the notes. These notes are very exhaustive, and bear evidence of great research and care on the part of the editor. We have no doubt that the volume will be found of great value to the practitioner in the field covered by it. A new and novel feature is incorporated in the table of citations; in this, that all text books cited in the volume are included in the table in their proper alphabetical order, displayed in capital letters. This will frequently serve as a guide to those text books upon questions wherein the principle involved is more fully discussed in some special treatise. The treatise is in one volume of nearly seven hundred and fifty pages. Published by F. H. Thomas Law Book Co. RENO'S EMPLOYERS' LIABILITY ACTS. The English Employers' Liability Act of 1880 has been followed in the United States by the Alabama Act of 1885, the Massachusetts Act of 1887, and the Colorado and Indiana Acts of 1893. Other States are contemplating the passage of such an act. Though differing somewhat in details, these statutes agree in their main features, and all have the effect of extending the common law liability of employers for personal injuries suffered by their employees. Many decisions have already been rendered involving the construction and interpretation of these statutes. The design of this volume is to review the law specially applicable to statutes of this character. It will, therefore, readily be seen that the work has an especial value which will increase with the passage of similar acts by other States. The author has done his work well. It is clearly and concisely written, and accurately and exhaustively prepared in point of citation of authorities. In the appendix is the text of the various Employer's Liability Acts. It is an attractive volume of over four hundred pages, published by Houghton, Mifflin & Co., Boston and New York. BOOKS RECEIVED. The American Probate Reports: Containing Recent Cases of General Value Decided in the Courts of the Several States on Points of Probate Law. With Notes and References. By A. A. Greenhoot, of the New York Bar. Vol. VIII. New York: Baker, Voorhis & Company. 1896. A Manual of Elementary Law. By Walter Denton Smith, Instructor in the Law Department of the University of Michigan. St. Paul, Minn.: West Publishing Co. 1896. American Railroad and Corporation Reports. Being a Collection of the Current Decisions of the Courts of Last Resort in the United States Pertaining to the Law of Railroads, Private and Municipal Corporations, Including the Law of Insurance, Banking, Carriers, Telegraph and Telephone Companies, Building and Loan Associations, etc., etc. Edited and Annotated by John Lewis, Author of "A Treatise on Eminent Domain in the United States." Volume XII. Chicago: E. B. Myers & Company, Law Publishers. 1896. The American State Reports, Containing the Cases of General Value and Authority Subsequent to those Contained in the "American Decisions" and the "American Reports," Decided in the Courts of Last Resort of the Several States. By A. C. Freeman and the Associate Editors of the "American Decisions." Vol. XLVIII. San Francisco: Bancroft-Whitney Company, Law Publishers and Law Booksellers. 1896. INDIANA....1, 4, 5, 6, 15, 27, 37, 45, 49, 61, 62, 77, 80, 81, 95, 97, 99, 108, 110, 115, 116, 117, 119 * IOWA... .25, 28, 42, 71, 83, 93, 120, 123 KANSAS.. ...........................................................14, 57, 64, 94, 106, 107, 111, 113 KENTUCKY. ....17, 33, 50, 54, 124 ..11, 21 48, 53, 79, 101, 103, 104, 114 MASSACHUSETTS. MICHIGAN.................... ..... MINNESOTA.............. ...3, 8, 22, 24, 26, 58, 74, 92, 98, 105, 125 MISSOURI......... MONTANA........ NEBRASKA ............................. NORTH DAKOTA.... OHIO...... OREGON... TENNESSEE.. .39, 40, 44, 47, 51, 78, 87 .52, 122 29, 30, 34, 55, 60, 75, 82, 85, 100, 102, 112 ..19, 86 .23, 43, 84 ..20 ...7, 12, 13, 59, 72, 118 TEXAS. 9, 36, 38, 41, 46, 56, 63, 65, 66, 67, 68, 69, 73, 76, 88, ... ............................10, 18, 109 ......16 1. ACCIDENT INSURANCE-Death While Violating Law. -An insurance company will not be absolved from liability under a clause providing that the policy should not cover death while insured was engaged in any unlawful act, unless the natural and reasonable consequences of violating the law was to increase the risk.CONBOY V. RAILWAY OFFICIALS' & EMPLOYEES' ACC. ASSN., Ind., 43 N. E. Rep. 1017. 2. ADMINISTRATION-Claim Secured by Collaterals.Where a creditor of a decedent, whose estate is insolvent, holds collateral security for his claim, and after his claim is proved disposes of the security, the sum realized operates as a partial payment to reduce his claim pro tanto, and he is thereafter entitled to dividends only on the amount remaining due on the claim. —SULLIVAN V. ERLE, Colo., 44 Pac. Rep. 948. 3. ADMINISTRATION-Devise in Lieu of Dower.-The will gives the widow one-third of the estate "in lieu of all her right and interest in my estate under the stat. utes of the State of Minnesota;" she elected to take under the will, and was thereafter given an allowance under said third subdivision: Held, as against the other devisees, she cannot have such an allowance except as an advancement out of her own share, and the allowance so granted is held not to be such an advancement.-IN RE BLAKEMAN'S ESTATE, Minn., 67 N. W. Rep. 69. 4. ADMINISTRATION-Settlement of Estate.-Where petitions have been filed to compel an administrator to pay claims which have been allowed against a solv. ent estate, and the only question is whether the administrator has a right to settle the estate without paying them, it is not a "civil action," within Rev. St. 1881, § 412 (Rev. St. 1894, § 416), granting a change, in such an action, on the application of either party.EVERROAD V. LEWIS, Ind., 43 N. E. Rep. 1010. 5. ADVERSE POSSESSION-Color of Title.-Deeds which do not contain a description of land claimed by adverse possession are inadmissible to establish color of title. -WILSON V. JOHNSON, Ind., 43 N, E. Rep. 930. 6. APPEAL-Necessary Parties.-An appeal from an order granting a writ of assistance to place a purchaser of land at an administrator's sale in possession, by one of the defendants alleged to be in possession of the land, without making his codefendant a party, either appellant or appellee, will be dismissed.-ROACH V. BAKER, Ind., 43 N. E. Rep. 932. 7. ASSIGNMENT FOR BENEFIT OF CREDITORS-Schedule of Property.-Under Mill & V. Code, § 2733, providing that a debtor making a general assignment shall annex thereto a full and complete inventory or schedule under oath of all his property of every description, an affidavit to the schedule in a general assignment, which states that the schedule embraces a complete list of the property belonging to the debtor "subject to execution," and which is not signed by the afflants, is insufficient, and invalidates the assignment.-MCMILLAN V. WATAUGA BANK, Tenn., 35 S. W. Rep. 765. 8. ASSIGNMENT FOR BENEFIT OF Creditors.-An assignment for the benefit of creditors, under the insolvency laws of this State, by a debtor, after garnishee proceedings have been commenced against him, is not an involuntary, but a voluntary, assignment.-HAWKINS V. IRELAND, Minn., 67 N. W. Rep. 73. 9. ASSUMPSIT FOR STOLEN PROPERTY.—Assumpsit for money had and received will lie by the owner of stolen money against the thief, the tort being thereby waived. -GOULD V. BAKER, Tex., 35 S. W. Rep. 708. 10. ATTACHMENT-Affidavit.-In proceedings to discharge an attachment, when the fraudulent intent set up in the affidavit on which the writ was based is denied by affidavit on the part of the defense, and it is also denied that any creditor was defrauded, the burden is upon the plaintiff in attachment to show, not only the existence of such facts as justified the issuing of the writ, but also that the charge, as to the fraudulent acts and purposes, was true.-DESERET NAT. BANK OF SALT LAKE CITY V. LITTLE, ROUNDY & Co., Utah, 44 Pac. Rep. 930. 11. ATTACHMENT-Bond of Indemnity.-An officer who has taken a bond of indemnity for the seizure of goods under an attachment may recover thereon after the rendition of a judgment for conversion against him, without having paid such judgment.-BRIGGS V. MCDONALD, Mass., 43 N. E. Rep. 1003. 12. ATTACHMENT-Sufficiency of Evidence.-An attach. ment bill alleged that defendants had fraudulently disposed of their property. Defendants filed a plea in abatement, denying such allegation. The only evidence on the issue was that after defendants promised plaintiffs' attorney to pay part of their claim, and secure the balance by a day named, they made a trust deed by which they preferred other creditors. The deed recited that it was "only a partial conveyance of our assets for these purposes, and no others." Their assets would not pay the preferred creditors: Held, that the court properly dismissed the attachment.WYLER V. MCGREW, Tenn., 35 S. W. Rep. 754. 13. BANKS-Insolvent Bank-Depositor-Trust Fund. -Where a general depositor presented his check to a bank, accompanied with a demand for payment, but, by reason of the false representations of the president as to the solvency of the bank, was induced to with. draw said check, and to allow his money to remain in the bank, he cannot, as a preferred creditor, maintain a bill to recover the amount of said check, against a receiver appointed after the bank was declared insolyent.-VENNER V. COX, Tenn., 35 S. W. Rep. 769. 14. BANKS-Trust Funds.-Where money is paid to, and accepted by, a bank for the purpose of transmitting the same to the holder of a note made by the person so paying, and the same is by such bank mingled with its assets and used to swell its general estate, and is not transmitted, and the bank thereafter makes an assignment for the benefit of its creditors, the money so received will be held to be a trust fund; and, though the specific money cannot be followed, a trust therefor will attach to the entire estate, which may be enforced against the assignee. RYAN V. PHILLIPS, Kan., 44 Pac. Rep. 909. 15. BENEVOLENT SOCIETY-Insurance-Forfeiture.— If an agent of a fraternal insurance association may change by parol agreement the time fixed by the bylaws for monthly payments, and waive a forfeiture which would otherwise result from the failure to make such payments at the time so fixed, a forfeiture was not waived by the mere promise of the branch presi dent of such association that he would send notice when payments became due, where it did not appear that the president, in making such promise, assumed to act on behalf of the association, nor that the parties in interest were misled thereby.-EICHEL V. SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD, Ind., 43 N. E. Rep. 1014. 16. BILL OF EXCEPTIONS-Death of Trial Judge.-On the death of the trial judge before the first day of the term of court next succeeding the time at which the trial was had, and until which the time within which to file the bill of exceptions was extended, his successor in office, as the court, may settle and allow the bill.CONWAY V. SMITH MERCANTILE CO., Wyo., 44 Pac. Rep. 940. 17. CARRIERS OF GOODS-Failure to Furnish Cars.-A railroad is not liable for failure to furnish cars to a coal company for shipment of such company's coal, the railroad having, by reason of a strike among the employees of all the other coal companies in that district, been obliged to take its coal trains onto another division of its road, to haul coal to supply its engines. -LOUISVILLE & N. R. Co. v. QUEEN CITY COAL CO., Ky., 35 S. W. Rep. 626. 18. CARRIERS-Passengers - Negligence.-The court inclines to the view that it was negligence per se, on the part of the defendant, not to maintain the shed high enough for a person to pass beneath it safely while walking on top of the refrigerator cars; but if, for any reason, it may be lawful to maintain the shed at an insufficient height, then the exercise of ordinary care requires the railroad company to give warning in some way-either by word or other proper method-of the train's approaching the same, to all persons whose duties expose them to danger because of the structure. -SAUNDERS V. SOUTHERN PAC. CO., Utah, 44 Pac. Rep. 932. 19. CERTIORARI-Remedy by Appeal.-Certiorari is not the proper remedy to correct an error of law aris. ing at a trial before a justice of the peace in any case where the ordinary remedy by appeal would be available.-LEWIS V. GALLUP, N. Dak., 67 N. W. Rep. 137. 20. CONSTITUTIONAL LAW-Eligibility of Women to Office.-Laws 1893, p. 62, making women eligible to educational offices within the State, in so far as it makes them eligible to the office of county superintendent of schools, violates Const. art. 6, § 8, which makes only electors (who must, under Id. art. 2, § 2, be male citizens) eligible to county offices.-STATE V. STEVENS, Oreg, 44 Pac. Rep. 898. 21. CONSTITUTIONAL LAW-Public Office.-St. 1895, ch. 501, §§ 2, 6, providing that if a veteran makes application for appointment to public office under the civil service rules, and makes an affidavit that he is quali fied to perform its duties, accompanied by a certificate from three citizens that said applicant is fully competent, such applicant shall be preferred "for certification and appointment in preference to all other ap plicants not veterans, except women," violate the constitutional provisions that persons appointed to public office in preference to others shall be adjudged qualified by the appointing power, or by some public officer or board authorized to determine the qualifications of applicants.-BROWN V. RUSSELL, Mass., 43 N. E. Rep. 1005. 22. CONSTITUTIONAL LAW Statutes Repeal.-The amendment to the constitution prohibiting special legislation, and providing that general laws shall be uniform in their operation, does not impart to general laws, touching any of the subjects as to which special legislation is prohibited, a repealing effect they would not have without it, or change existing rules of statutory construction as to repeals by implication, or render such general laws invalid unless they repeal all prior special laws relating to the same subject. Whether such special laws shall be repealed, and, if so, when and how, are matters left by the amendment to the discretion of the legislature.-PUTNAM V. SECOND JUDICIAL DISTRICT COURT OF RAMSEY COUNTY, Minn., 67 N. W. Rep. 77. 23. CONSTITUTIONAL LAW-Statutes Uniformity of Operation. The act of May 16, 1894, entitled "An act providing for the construction, improvement and repair of public highways" is unconstitutional, in this: that its subject-matter is general, while its operation and effect are local.-HIXSON V. BURSON, Ohio, 43 N. E. Rep. 1000. 24. CONSTITUTIONAL LAW - Taxation.-That part of Gen. St. 1894, § 1526, which authorizes a person liable to taxation, when making up the amount of credits which he is required to list, to deduct from the gross amount thereof the amount of all his bona fide indebtedness, is constitutional.-STATE V. MOFFETT, Minn., 67 N. W. Rep. 68. 25. CONTRACT-Agent.-One of the joint signers of a contract for the erection of a building, who was authorized to represent the other owners, as well as him. self, in dealing with the contractors and in superintending the work, is personally liable for a change made by him in the terms of the contract, though the contractors knew that the change was beyond the scope of his authority, and made without the knowledge of the other owners.-GUTHERLESS V. RIPLEY, Iowa, 67 N. W. Rep. 109. 27. CONTRACT Restraint of Trade.-In the sale by one partner of his interest in the partnership business to the other partner, an agreement on the part of the former not to engage in a rival business in the locality so long as the other remains in such business, as part of the consideration of the sale, is not invalid as unreasonable.-O'NEAL V. HINES, Ind., 43 N. E. Rep. 946. 28. CONTRACT-Services.-Where a person rendering services is a member of the family of the person served, and is receiving support therein, before recov ery can be had an expectation that compensation should be made must be shown.-TANK V. ROHWEDER, Iowa, 67 N. W. Rep. 106. 29. CONTRACTS - Time - Specific Performance.-Parties to a contract for the sale of land may make time of its essence, by a distinct provision to that effect in the contract; and where they have done so a court of equity will refuse to enforce specific performance in favor of a party who has been in default, unless strict performance has been waived.-BROWN V. ULRICH, Neb., 67 N. W. Rep. 168. 30. CONVERSION-Bar to Action.-The fact that property has been taken from a party who converted it under or by virtue of legal process, or in any manner, presents no defense to an action against him by the owner or person entitled to it, for its conversion, unless it further be shown that such owner or person entitled to the property has received it, or the proceeds of any sale which may have been made of it.-COBURN V. WATSON, Neb., 67 N. W. Rep. 171. 31. CORPORATIONS-Certificate of Increase of Stock.Act June 15, 1895, requiring all companies, "at present organized" and doing business under the laws of the State, that may hereafter increase their capital stock, to pay a specified fee, includes corporations subsequently organized, since the object of the act was to raise revenue, and Rev. St. ch. 131, § 1, declaring rules for the construction of statutes provides (subdivision 1) that statutes shall be liberally construed, so as to carry out the intent with which they were enacted, and (subdivision 2) that words in the present tense include the future.-PEOPLE V. HINRICHSEN, Ill., 43 N. E. Rep. 73 not complied with regulations regarding foreign corporations doing business in the State does not render contracts of such corporations void, except as against citizens.-BOYINGTON V. VAN ETTEN, Ark., 35 S. W. Rep. 622. 33. CORPORATIONS - Stock Subscriptions - Fraud.That, at the time defendant promised to subscribe for stock in the plaintiff corporation, the person to whom he gave such promise intentionally concealed the fact that one of the objects of the corporation was to subscribe for stock in another corporation, does not entitle defendant to avoid his subsequent subscription on the organization of the corporation, when its charter authorized the subscription to the stock of other corporations, and it does not appear that any fraud was practiced by the officers of the corporation. -OIL CITY LAND & IMPROVEMENT Co. v. PORTER, Ky., 35 S. W. Rep. 643. 34. COUNTY BOARD Claims against County.-A county board has exclusive original jurisdiction to examine and pass upon claims or demands against the county properly cognizable for aduit and allowance, and the jurisdiction of the district court, as to such, is appellate merely.-STENBERG V. STATE, Neb., 67 N. W. Rep. 190. 35. COUNTY BOARDS-Power to Fix Compensation.Under Const. art. 10, § 10, providing that the county board shall fix the compensation of all county officers, with the amount of their necessary clerk hire and other expenses, and that the compensation shall not be changed during office, the county board may fix a single amount as the compensation of a county clerk, which will include personal compensation, clerk hire, and expenses of office; and, when so allowed, it must be accepted as full compensation for those items.BRISSENDEN V. CLAY COUNTY, Ill., 43 N. E. Rep. 977. 36. CRIMINAL LAW-Altering Cattle Brands.-On trial for altering the brand of cattle, where the court had charged that before the jury could convict they must believe beyond a reasonable doubt that defendant altered the brand with intent to defraud the owner, it was proper to refuse to charge for defendant if he believed that the animal had been stolen, and changed the brand with intent to prevent the thief from recovering it.-CHILDERS V. STATE, Tex., 35 S. W. Rep. 654. 37. CRIMINAL LAW - Assault Information.-Where an information charges an assault in the language of the statute, a failure to aver that defendant unlaw. fully attempted to commit a violent injury on the person named, and that he had the present ability so to do, is waived without a motion, before verdict, to quash the information.-WOODWORTH V. STATE, Ind., 43 N. E. Rep. 933. - 38. CRIMINAL LAW - Assault Self-defense.-Where the State's evidence shows an assault by defendant, unprovoked by an act of prosecutor, and defendant's evidence shows, at most, an agreement by defendant to engage in mutual combat at prosecutor's request, an instruction as to right of self-defense in case the difficulty was provoked by defendant is not required by the evidence.-WALTERS V. STATE, Tex., 35 S. W. Rep. 652. 3. CRIMINAL LAW-Banks - Receiving Deposit.-Under Rev. St. § 3581, making it a crime for any bank officer to "receive or assent" to the reception of any deposit of money, knowing the bank to be insolvent, a conviction cannot be had on an indictment charging merely that defendant did "receive" the deposit, on proof of an "assent" to the reception of the deposit.STATE V. WELLS, Mo., 35 S. W. Rep. 614. voted, is insufficient.-STATE V. CLARK, Mo., 35 S. W. Rep. 613. 41. CRIMINAL LAW - Homicide - Indictment.-An indictment for murder, which alleges that the killing was done with "malice," omitting the word "aforethought," is fatally defective.-CRAVEY V. STATE, Tex., 35 S. W. Rep. 658. 42. CRIMINAL LAW Homicide-Self-defense.-On a trial for murder, evidence that defendant, in attempting to make a lawful arrest, shot deceased, who was about six feet from him and making no resistance, in the back, precludes the defense that the shooting was done in self-defense, or justified by defendant's forcible resistance of arrest.-STATE V. WESTON, Iowa, 67 N. W. Rep. 84. 43. CRIMINAL LAW-Indictment-Venue.-Venue is an essential requisite of an indictment. And where in an indictment, there is a defect, in failing to allege that the offense was committed at the county where the indictment is found, such defect is not cured by section 7215, Rev. St., which provides that "no indictment shall be deemed invalid for want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor for want of averment of any matter not necessary to be proved; nor for any other defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits."-KNIGHT V. STATE, Ohio, 43 N. E. Rep. 995. 44. CRIMINAL LAW-Instructions-Alibi.-In a criminal case, where defendant attempted to show an alibi, an instruction that such defense "is as legitimate and valid as any other defense, nor is the defendant bound to establish this defense beyond a reasonable doubt; and if, from the whole evidence, you have a reasonable doubt of his presence at the commission of the the offense, as before explained, you must give him the benefit of that doubt, and acquit," is sufficiently explicit to show defendant's rights under that defense.STATE V. BRYANT, Mo., 35 S. W. Rep. 597. 45. CRIMINAL LAW-Receiving Deposit When Insolvent. The provision of Rev. St. 1894, § 2031, that the failure, suspension, or involuntary liquidation of a bank or banker within 30 days after receiving a deposit shall be prima facie evidence of an intent to defraud in the receipt of such deposit, is not unconstitutional, as depriving accused of the presumption of innocence.STATE V. BEACH, Ind., 43 N. E. Rep. 949. 46. CRIMINAL LAW-Variance.-Under an indictment charging an aggravated assault with a knife, conviction for an assault with a stick cannot be had.-HERALD V. STATE, Tex., 35 S. W. Rep. 670. 47. CRIMINAL PRACTICE-Violation of Election Laws. -Rev. St. 1889, § 3748, providing that "if any judge or clerk of an election, or any other person," shall will. fully and knowingly receive and place in the ballot box any ballot not legally voted by a qualified voter, etc., applies only to judges and clerks of election, and persons ejusdem generis; and an indictment thereunder which fails to aver that defendant was such a judge or clerk, or acting in a similar capacity, is invalid.-STATE V. KRUEGER, Mo., 35 S. W. Rep. 604. 48. DECEIT-Complaint.-A complaint stating a rep resentation as to the width of a street, made by defend by a second marriage with remainder "to the right heirs" of said life tenants, on their death without issue, and, after the termination of the life estate, suit is brought by the collateral heirs of the husband to recover the land, or a part thereof, the collateral heirs of the wife should be joined as plaintiffs.-BRENT V. LONG, Ky., 35 S. W. Rep. 640. 51. EJECTMENT-Wrongful Possession-Description. -Where a defendant, without permission, has inclosed a lot owned by plaintiff, though he does not claim ownership, and offers to remove the fence, but does not do so, an instruction that he is unlawfully in possession is justified. Where the construction of a written instrument is erroneously submitted to a jury, the error is without prejucice if it appears that they gave it to the correct construction.-COMFORT V. BALLINGAL, Mo., 35 S. W. Rep. 609. - 52. ELECTION CONTEST Statement of Contest.-A statement filed under Comp. St. § 1043, to contest an election to a certain office, on the ground that marked ballots were voted and counted at said election, and that mistakes were made in counting the votes, which failed to state that contestant was a candidate for said office, or that the ballots were unlawfully marked or counted, or the nature of the alleged mistakes, or whether such mistakes affected the result, or that any electors were prevented from casting their ballots, was insufficient.-GILLESPIE V. DION, Mont., 44 Pac. Rep. 854. 58. EQUITY - Practice.-Where a complainant has properly brought an action in equity for an accounting in regard to partnership property of defendants, and on such accounting it appears that there is no property to which he has a claim, but that he is entitled to a personal judgment against defendants as partners, he may properly be given such judgment by the chancery court.-MCLEAN V. MCLEAN, Mich., 67 N. W. Rep. 118. 54. ESTOPPEL IN PAIS.-Where plaintiff purchased a growing crop of tobacco, agreeing to pay certain debts of the seller, and the creditors whose claims he had assumed, and who had obtained an attachment before the sale, levied it on the crop after it was cut, plaintiff who was not a party to the action, was not estopped by his failure to object to the sale, from claiming the proceeds, as against a purchaser who had full knowl edge of his title.-SMITHER V. MCGINNIS, Ky., 35 S. W. Rep. 630. 55. EVIDENCE AT FORMER TRIAL-When Admissible. -Before a witness can be allowed to give his recollec tions of the evidence of a deceased witness, it must be shown, as a foundation, for the introduction of such evidence in such manner, that it was given or taken for use in a former action between the same litigants; that the party against whom it was given had, from the manner of its reception, an opportunity to crossexamine the deceased witness; that it involved the same subject-matter; and that the witness called to state it recollects, and can repeat in substance, the evidence of the deceased witness.-TwOHIG V. LEAMER, Neb., 67 N. W. Rep. 152. |