99. NEGLIGENCE-Defective Bridge.-In an action for personal injuries caused by a defective highway bridge, a complaint alleging that the bridge "became decayed, shaky, out of repair, timbers rotten and displaced, so that it was obviously defective and danger ous continuously for more than a year prior to the ac cident; that defendant could have readily discovered the defective and dangerous condition in ample time to have made repairs and prevented said accident,"does not show that plaintiff was negligent in using the bridge.-HOMAN V. FRANKLIN COUNTY, Iowa, 68 N. W. Rep. 559.

100. NEGLIGENCE-Proximate Cause-Railroad CrossIng.-A defect in a gate at a railroad crossing is not the proximate cause of an injury received by one who, after passing by the gate, sees a train approaching, but tries to cross the track, and gets his foot caught, and is consequently injured by the train.-BALTIMORE & O. R. Co. v. ANDERSON, U. S. C. C. of App., 75 Fed. Rep. 811.

101. NEGOTIABLE NOTES Bona Fide Purchasers.The prima facie case arising from the mere possession of a note negotiable at a bank, placed by statute on the footing with foreign bills of exchange, that the holder is a bona fide holder for value and before maturity, is not overcome by a showing of a failure of consideration, so as to require the holder to introduce evidence to prove himself a bona fide holder.-MCCARTY V. LOUISVILLE BANKING CO., Ky., 37 S. W. Rep. 144.

102. PARTNERSHIP — Creation of Trust. A partner who uses the firm money to pay for improvements on his own land, with his copartner's knowledge and consent, charging such fund to his individual account on the firm books, becomes the individual debtor of the partnership, not a trustee therefor, and his copartner cannot follow the fund, and have it declared a lien on the improvements. - LASSITER V. STAINBACK, N. Car., 25 S. E. Rep. 726.

104. PARTNERSHIP What Constitutes.-In an action on a note signed by one person, against him and sev eral other persons alleged to be partners, under the name of the person signing the note, in which defendants claimed that the partnership, if any, was a min. ing partnership, it was error to charge that where several persons associate themselves together, and agree to contribute funds for, and to bear losses and share the profits of, the business, "such an association constitutes a general partnership," since such elements do not absolutely constitute a general partnership.-CONGDON V. OLDS, Mont., 46 Pac. Rep. 261.

105. PLEDGE Rights of Owners Waiver. Where the owner of stock which has been wrongfully pledged for another's debt notifies the pledgee of his title, and the latter, after the pledgor has made an assignment for the benefit of creditors, sells the stock, and, after applying the proceeds to his claim against the pledgor, turns over the balance to the assignee, the owner is entitled to recover the amount of such balance from the pledgee.- LE MARCHANT V. MOORE, N. Y., 44 N. E. Rep. 770.

106. POWER OF ATTORNEY — Construction.-A power of attorney to an agent authorizing him to "superintend" property of his principals, and to "preserve, manage, sell, and dispose of" the same, and to "manage, work, sell, and dispose of" other property, did not confer authority on the agent to execute a promissory note in the name of his principals, or to mortgage their property to secure the same, though the note was given in settlement of an antecedent debt contracted by the agent in the management of the prop erty.- GOLINSKY V. ALLISON, Cal., 46 Pac. Rep. 295.

107. PRINCIPAL AND AGENT-Authority of Agent.-A purchaser of land subject to a lease, who permitted the former owner to collect the rents, which he paid

over to her from time to time, thereby recognized him as her agent, and was bound by an authority given by him to the tenant to sell grain, and such authority operated as a waiver of her lien for rent on the grain so sold.-WILSON V. FONES, Iowa, 68 N. W. Rep. 588.

108. QUIETING TITLE-Constructive Notice-Bona Fide Purchaser.-Proceedings in the probate court for the sale of a decedent's land, showing a petition for its sale to pay debts of decedent, and the sale of the land in pursuance of such petition, is not constructive notice, to a subsequent bona fide purchaser from the heirs, of the unrecorded administrator's deed.ROBERTSON V. WHEELER, Ill., 44 N. E. Rep. 870.

109. QUO WARRANTO-Removal from City Office.-The proper remedy of one removed from a city office by the mayor is by quo warranto proceedings against the incumbent appointed as his successor, and in such proceedings the court may inquire into the sufficiency of the charges and findings upon which the removal was made.-STATE V. KIRKWOOD, Wash., 46 Pac. Rep. 331.

110. RAILROAD COMPANY Defective AppliancesNegligence.-A railroad company which undertakes to haul a foreign car, and has an opportunity to in spect it, is negligent if it fails to discover and repair dangerous defects in the coupling appliances.-BENDER V. ST. LOUIS & S. F. RY. Co., Mo., 37 S. W. Rep. 133. 111. RAILROAD COMPANY Street Railroads-Negligence. The fact that, just before deceased drove over a horse-railway track at a street crossing in the dusk of evening, a car moving along the near track intervened between deceased and the car by which she was struck, which was coming in the opposite direction on the further track, makes the question of contributory negligence one of fact for the jury.-THORESEN V. LA CROSSE CITY RY. Co., Wis., 68 N. W. Rep. 548.

112. RAILROAD COMPANY-Street Railway - Negli gence. In an action against a street railway company for personal injuries, the fact that plaintiff was negli. gent in attempting to cross defendant's track in front of a car approaching from behind, in a collision with which plaintiff's wagon was overturned, will not prevent a recovery for injuries received on account of defendant's negligence in restarting the car after it had come to a full stop after the collision, and again striking the wagon as plaintiff was attempting to extricate himself.-MCDIVITT V. DES MOINES ST. R. Co., Iowa, 68 N. W. Rep. 595.

113. RAILROAD COMPANIES-Crossings-Contributory Negligence. A person crossing a railroad track on a public highway has a right to assume that the signal required of the company at such points by statute will be given.-HARPER V. BARNARD, Iowa, 68 N. W. Rep. 599.

114. RELIGIOUS SOCIETIES-Capacity to Sue.-Trustees of a non-incorporated religious association have legal capacity to sue in equity in behalf of such association, if not as trustees as members thereof.-CALLSEN V. HOPE, U. S. D. C. (Alaska), 75 Fed. Rep. 758.

115. RELIGIOUS SOCIETIES-Charitable Trusts.-Where property is conveyed in trust for a certain church parish, a limitation that, on such beneficiary ceasing to exist in union with the diocese, the property shall be held in trust for another parish, is valid.-PARISH OF CHRIST CHURCH V. TRUSTEES OF DONATIONS AND BEQUESTS FOR CHURCH PURPOSES, Conn., 35 Atl. Rep. 552.

116. REMOVAL OF CAUSES-Separable Controversy.Where the cause of action is joint or several, and plaintiff elects to treat it as joint, no one of defendants can treat the suit as against him as severable for the purpose of removal. -BROWN V. COXE BROS. & Co., U. S. C. C. (Wis.), 75 Fed. Rep. 689.

117. REPLEVIN-Right to Possession.-Where mort. gagors of a lot-remove a house from it after sale of the lot on foreclosure of the mortgage, replevin by the purchaser to recover the house will not lie before the period of redemption has expired and he is entitled

to possession. -PEOPLE'S SAV. BANK OF FRESNO v. JONES, Cal., 46 Pac. Rep. 278.

118. SALE Sufficiency of Evidence.-The fact that goods sold are charged on the seller's books to another than the one to whom they are delivered is not conclusive evidence that such other was the real purchaser, but is open to explanation.-LANE V. TURNER, Cal., 46 Pac. Rep. 290.

119. SALE - False Representations.-In the purchase of stock from a bank, the purchaser may rely on the yearly published statement of the bank as to its condi. tion, which, if false, will authorize a recovery from the bank of the damages suffered by the purchaser.- ExCHANGE BANK OF KENTUCKY V. GAITSKILL, Ky., 37 S. W. Rep. 160.

120. SALE-Warranty.-A promise by the seller, in a bill of sale of a stallion guarantying him to be a breeder, that, on satisfactory proof that he is not a breeder, the seller will give another in exchange for him, on his being delivered at a certain place, limits the buyer's remedy, in the absence of a refusal of the seller to comply with such agreement.-FIRST NAT. BANK OF FT. COLLINS V. HUGHES, Cal., 46 Pac. Rep. 272.

121. SCHOOLS AND SCHOOL DISTRICTS - Contracts by Officers. A contract by the president and secretary of a school district does not bind the district, unless expressly authorized by the board of directors in session, or ratified thereby.-WEIR FURNACE Co. v. INDEPEND ENT SCHOOL DIST. OF SEYMOUR, WAYNE COUNTY, Iowa, 68 N. W. Rep. 584.

122. SPECIFIC PERFORMANCE Contract to Make Devise. Where the object of a suit in equity is to secure the specific performance of an alleged parol contract to leave the estate of a foster parent to the child, the rule is that the agreement must be clearly established by satisfactory proofs. Such proofs do not exist in uncertain and unnecessary inferences.-MCTAGUE V. FINNEGAN, N. J., 35 Atl. Rep. 542.

123. TAXATION - State Board of Equalization.-The State board of equalization was empowered by Const. art. 12, § 15, to adjust and equalize the valuation of the taxable property among the several counties of the State." Section 9 limits the rate of taxation to be imposed for State purposes: Held, that the State board of equalization was without power to increase proportionately the valuation of the property in the several counties of the State, and thereby increase the aggregate total.-WALLACE V. STATE BOARD OF EQUALIZATON, Mont., 46 Pac. Rep. 266.

124. TELEGRAPH COMPANIES-Taxation.-The provis. ion of Act March 6, 1893, § 11, that if a telegraph company refuse to pay a tax against it, and action therefor be brought, as authorized, in the name of the State by the attorney-general, judgment shall include a penalty of 50 per cent. of the amount of the tax, is not invalid.-WESTERN UNION TEL. CO. V. STATE, Ind., 44 N. E. Rep. 793.

125. TRADE-NAME- Transfer.-T, who had profitably conducted a banking business for 15 years under the name of the "Bank of Tomah," made a voluntary assignment of "all and singular" his "lands, tenements, hereditaments, appurtenances, goods, chattels, prop. erty and effects of every kind and description," and the assignee thereafter conveyed to plaintiffs the "building, fixtures, good will, and the name of the 'Bank of Tomah,' thereby intending to sell and convey all the rights and privileges appertaining to said banking business enjoyed by" T "while conducting said banking business in the city of Tomah:" Held, that plaintiffs thereby acquired the exclusive right to the trade name.-BANK OF TOMAH V. WARREN, Wis., 68 N. W. Rep. 549.

126. TRESPASS-Venue.-An action of trespass for an injury to real estate must be brought in the county where the real estate is situated.-GRACE V. COX, Ind., 44 N. E. Rep. 813.

127. TRIAL-Jury.-Where the court, on the trial of a case triable by the court, submits certain issues to the

jury, it is in its discretion to disregard any verdict which the jury may render.-HORNBROOK V. POWELL, Ind., 44 N. E. Rep. 802.

128. TRIAL - Second Verdict New Trial. Where a second verdict has been rendered on substantially the same issues of fact in favor of the same party, the rule of discretion applicable to the first ground of a new trial does not apply; and if at the last trial there was nothing objectionable in the rulings of the presiding judge, and the evidence, though conflicting, supported the second verdict, it should not be set aside.-LEWIS V. EQUITABLE MORT. CO., Ga., 25 S. E. Rep. 728.

129. TRUST DEED-Release.-A trust deed executed to secure the payment of notes for the price of the land covered by the trust deed provided that the land might be subdivided, and that on payment of a certain sum, or more, at any time, on the indebtedness secured thereby, a part of the premises should be released therefrom, and further provided for the manner of determining the amount of such release: Held, that the fact that no subdivision was made until after the purchaser made payments on said indebtedness did not deprive him of the right to a release based upon the payments made before such subdivision.-LANE V. ALLEN, Ill., 44 N. E. Rep. 831.

130. TRUSTS — Parol Agreements.-Where title to lands is received by the grantee under a verbal agreement to hold part of it in trust for another, the parol trust is void, under 1 Starr & C. St. p. 1200, which declares that "all declaration or creations of trusts or confidences of any lands" shall be manifested by some writing signed by the party to be charged.-ELLIS V. HILL, Ill., 44 N. E. Rep. 858.

131. VENDOR AND PURCHASER-Outstanding Title-Assumption.-One who buys land for much less than its market value, with the agreement to assume the risk of an outstanding claim to a portion thereof, cannot purchase such claim, which has never been judicially established, and obtain credit therefor when sued by the vendor for the purchase price.-COX V. JOHNSON, Ky., 37 S. W. Rep. 154.

132. VENDOR AND PURCHASER-Rights and Remedies. -In an executory contract for the sale of real estate, equity treats the vendor as the trustee of the purchaser, and the purchaser as the trustee of the pur chase money for the vendor. This rule rests upon the doctrine that equity considers that done which ought to be done.-HENDRIX V. BARKER, Neb., 68 N. W. Rep. 531.

133. WILL-Defeasible Estate-Death without Issue.Testator, after having used expressions which, though containing no words of inheritance, would, standing by themselves, have given a fee-simple absolute to his two grandsons, added a provision "that the property willed by me to the said grandchildren should be held in common, and, if either of them should depart this life without leaving living issue, then and in that case the survivor, or the heirs of his body, shall inherit all the property and estate devised to both of them:" Held, that the latter words referred to a death either before or after testator's death, and that each grandson took a base or determinable fee, defeasible by his death without living issue, leaving the other grandson surviving.-FIRST NAT. BANK V. DE PAUW, U. S. C. C. (Ind.), 75 Fed. Rep. 775.

134. WILLS-Action to Set Aside.-One may maintain an action to set aside a probated will, though not an heir, but claiming under a prior, unprobated will, which by her petition she claims to be entitled to probate.-KOSTELECKY V. SCHERHART, Iowa, 68 N. W. Rep. 591.

135. WILLS-Revocation - Presumption.- Where one makes a will, and retains custody of it, the presumption is, if it cannot be found after his death, that he destroyed it, with intention of revoking it; hence it is incumbent on one claiming the contrary to overcome the presumption.-GARDNER v. GARDNER, Pa., 35 Atl. Rep. 558.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 27, 1896.

The decision of the Supreme Court of Illinois in the case of People v. Chase, declaring what is known as the Torrens system of real estate transfers unconstitutional, though it unfortunately disposes of what, in most features, is a wise enactment of the legislature of that State, will be of value, as suggesting to those contemplating the passage of such a law, probable defects which it would be well to avoid. The decision of the Illinois court does not apply to the law as a whole but only to one of its features, though it must be admitted that the decision of the court takes from the act one of its chief merits.

The action in this case was an information filed by the State's attorney to inquire by what right the defendant exercised the functions of the office of registrar of deeds. A plea was filed justifying under the so called "Torrens Land Title Act." A demurrer was interposed which the lower court overruled. This judgment was reversed by the supreme court with directions to the lower court to enter a judgment of ouster against the defendant. The decision hinged upon the character of the action of the registrar or recorder of deeds in examining into the title of property and in giving a certificate of title which under the law, if it were not contested within that time, would become in five years a valid title, proof against contests. The point to be decided was whether the act of the official in recording and granting a certificate which the law made incontestible after a certain period was ministerial or judicial, and the court decided that it was judicial and, therefore, could be performed only by a judicial officer. In other words, it was held by the court that the act conferred judicial power upon the recorder or registrar, and therefore violated the constitution which provides that the judicial powers shall be vested in courts therein named, and is therefore invalid without reference to other objections urged against it. The validity of the certificate under prescribed conditions was one of the chief advantages of the new system, and to rob the officer who issues and grants the certificate

of the power to make it valid destroys much of the effectiveness and value of the measure. In answer to the argument that the registrar was not a judicial officer but only a ministerial officer, the court thought that it would be difficult to more clearly and positively confer judicial powers upon a person unqualified under the constitution to exercise those powers than is done by this law. This, doubtless, resulted from an attempt to adopt the provisions of a similar law in force in Australia, Canada, England, and perhaps other countries, by which the certificate of title issued becomes conclusive as to the ownership of the property, and in which countries no constitutional or other restriction exists against the legislative grant of such powers upon non-judicial officers. The powers of the registrar are no less judicial under the statute than those in the countries referred to. The only difference is there there is no valid objection to the validity of the law, while here it is fatal. In Re, etc., ex rel. Bond construing "the Transfer of Land Statute," 6b. L. R. (L.) 458, it is said: "The intention of the legislature was obviously to impose the duty upon the registrar to prevent instruments being registered which, in law, as well as in fact, ought not to be registered in the first instance, and to determine the validity of the instruments, as well as the priority of registration in point of time. He has, therefore, to discharge not merely ministerial but judicial duties." The Illinois court said that they were "not unmindful of the well settled rule that there are many cases in which ministerial officers exercise quasi judicial powers or discretions, and yet the laws conferring such powers are held to be no violation of the constitutional provision under consideration. These cases are referred to and commented upon in Owners of Lands V. The People, 113 Ill. 309, but what we have already said sufficiently distinguishes the powers conferred upon the registrar by this act from all such cases."

For many reasons it will be unfortunate if the Torrens system of land transfers does not become available in all the States. It has operated admirably in Australia, where, of course, the freshness of all land titles created circumstances most favorable to its sucIt has the merit of simplicity, directness and certainty in the establishment of

cess.

titles and the making of transfers and frees land ownership from the costly processes hitherto in vogue. It is possible that a plan may be devised by which our bunglesome system may be improved by the ingrafting of the most advantageous features of the Torrens system.

NOTES OF RECENT DECISIONS.

CORPORATIONS-ISSUE OF STOCK-SALE BELOW PAR-INSOLVENCY-PREFERENCE TO DIRECTORS.-In Rickerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 75 Fed. Rep. 554, the United States Circuit Court of Appeals for the Sixth Circuit, decided some interesting questions of corporation law, the holdings being that when a corporation, not for the purpose of restoring its capital, impaired by losses in business, but for the purpose of providing new capital to carry on or extend its business, issues and sells stock at less than its par value, the purchasers of such stock take the same subject to the contingency that, in the event of the insolvency of the corporation, they would be liable to creditors, who had become such in ignorance of the terms of the their purchase, for the difference between the price actually paid for the stock and its par value. The leading case of Handley v. Stutz, 139 U. S. 417, was distinguished. It was also held that in the absence of statutory or charter provisions, however, a corporation may agree with a subscriber to its stock to receive less than the par value therefor; and a creditor of the corporation, who becomes such with knowledge of such an agreement between the corporation and the subscriber, cannot require the subscriber, upon the insolvency of the corporation, to pay his stock in full; that while the mere insolvency of a corporation does not, either under general principles of law or the law of Michigan, render invalid a preference given, while insolvent, to its directors, who are also creditors of the corporation, yet, to sustain such a preference, the utmost good faith must appear, not only in respect to the bona fides of the debt paid, but in respect to all the steps taken to secure the preference. Accordingly, held, that where three directors, who constituted a majority of the board, and whose votes were

necessary to the action taken, transferred to themselves, in payment of an antecedent debt, all the available assets of the corporation, though they had previously assured a creditor that his claim should be paid before that of the directors, the preference so obtained by the directors was invalid, and the assets so transferred to the directors should be ratably distributed among all the creditors of the corporation.

MASTER AND SERVANT PERSONAL INJURY -NEGLIGENCE FELLOW-SERVANT.-In Callan v. Bull, 45 Pac. Rep. 1017, decided by the Supreme Court of California, which was an action for personal injuries, it appeared that defendant entered into a contract with agents of the United States to construct a harbor jetty; that plaintiff was injured by the breaking of a cap on a bent, which had been negligently constructed. The contract provided that: "The work is to be executed under the supervision of the engineer officer in charge, or his agent. No ma

terial of any description will be placed in the works without his knowledge and instructions at the time. * The contractor must keep upon the works at all times responsible agents, who shall have full authority to carry out the instructions of the agent of the United States, and all material,

supervision, and labor furnished by the contractor will be subject to the approval of the engineer officer in charge." It was held that defendant was not the agent of the United States in the performance of the contract, but, under its provisions, was an independ ent contractor and employer. Under the provision in the contract that "the contractor must keep upon the works at all times a responsible agent," defendant appointed B as superintendent. The men employed by defendant were divided into several crews, with each of which there was a foreman. in charge of them all, helping in the work. If one portion of the work was in advance of the others, the men were taken from that, and placed at work on other portions. The men were all engaged in the same general business. It was held that, with reference to those acts which were not within the personal duties of defendant, B was but a fellow-servant with all of the other employees, within Civ. Code, § 1970, and hence defendant was not liable for the

B was

and himself at times

negligence of any of such fellow-servants in the construction of the bent at which the accident occurred. The work upon which plaintiff was employed was to construct a jetty into the waters of the bay, and the making of the bent was a part of the work to be done by the laborers themselves out of materials furnished by defendant. It was held

that the bent was not a place furnished by defendant, within the rule that an employer must see that the place in which his employee is to work is reasonably safe.

CRIMINAL LAW SENDING THREATENING LETTERS BY COLLECTION AGENCY.-The conclusion of the Supreme Court of Missouri, in the case of State v. McCabe, will especially interest collection agencies, and especially those which resort to questionable methods for the collection of debts. The holding is that the provision of the Missouri Revised Statutes of 1889, prohibiting creditors from threatening to injure the credit or reputation of a debtor, by publishing his name as a bad debtor, unless the debt is paid, is constitutional, and does not deprive the creditors of property without due process of law; nor does it limit the freedom of speech; and that an indictment which alleges a threat to publish the name of a debtor in the "Claimant Agency" as a bad debtor, is sufficient without alleging the connection of the defendant with the paper or its character. It is immaterial whether it is a corporation, firm name, or is wholly fictitious. Those who raised the question of constitutionality of the act asserted that conceding they did threaten to ruin the credit and reputation of the prosecuting witness as a business man, they were guilty of no offense under the laws of this State, because they say they had a right to do so. As to this the court very properly says:

Can it be maintained that the guaranty in the federal and State constitutions of life, liberty, and property justifies any citizen in threatening to destroy the credit or reputation of another citizen? If it can, then it amounts to this: that not only are the courts open to him to obtain a judgment for any sum due him, and the process of the law is awarded him to enforce that judgment, but in addition there to he has the right to threaten the publication of

of collecting debts. The State has provided every needed remedy, both ordinary and extraordinary, to enforce the payment of all just debts through the agency of her courts of justice, and among these remedies is not included the right to threaten to destroy credit and reputation. Such a course is well calcu lated to produce a breach of the peace. If once per mitted and sanctioned by the courts, it will soon degenerate into an intolerable and oppressive wrong. Unjust claims will be extorted from timid debtors. Honest and deserving men will be held up to scorn, and published as dishonest, merely because they bave not the means with which to meet their obligations. The position of counsel that, because a man is too poor or unable to meet all his obligations as soon as due, no wrong can come to him by publishing his inability to do so, in the most offensive manner, cannot be countenanced by this court. It is alike unsound in law and morals. The law does not authorize the collection of just debts even by the malicious threatening to injure the debtor in his person, property, credit, or reputation. To deny him the privilege of so doing in no sense deprives him of the protection of his property rights under the bill of rights or constitution.

LIABILITY OF DECEDENT'S ESTATE-SERVICES -INFANT'S CONTRACTS CREATING FAMILY RELATIONS.-In Purviance v. Schultz, it is decided by the Appellate Court of Indiana that an intention to pay for services rendered may be shown by an agreement to pay therefor by a bequest by the person receiving the benefit of the services; that where a person receiving the benefit of another's services promises to pay therefor by a bequest, his estate is liable, on failure to make such bequest, for the value of the services; that an infant is competent to assume by express contract the family relation toward persons not related by blood, so as to prevent his recovery for services rendered in the family, and that there is no presumption of law, where one person renders services to another not related by blood, and receives, in return, food, rainment, and shelter, that the family relations did not exist between them. The court says:

The appellee brought this action against appellant, as the administrator of the estate of Elmina E. Purviance, deceased, to recover for work and labor alleged to have been performed for the decedent. There was a trial by jury, which resulted in a verdict and judg ment in favor of the appellee in the sum of $309. The only error assigned in this court is the overruling of the motion for a new trial. In 1883, John W. Purviance, the husband of appellant's decedent, lived upon