erected by a mechanic who expended moneyand labor at the instance of the husband: Hughes v. Peters, supra; or if made with the full knowledge of the wife: Capp v. Stewart, supra; or he be insolvent: Robinson v. Hoffman, Webster v. Hildreth, supra. Because the wife could not prevent it, and because if the estate would be liable, it would enable the husband to destroy the separate estate, and because a separate estate cannot be charged by the voluntary act of another: Corning v. Fowler, supra; Washburn v. Sproat, 16 Mass. 449; Wells v. Ban

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES.1

SUPREME COURT OF ILLINOIS.2

SUPREME COURT OF KANSAS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.*

SUPREME COURT OF OHIO.5

ACCOUNT.

Account rendered-Mistake-Correction.-An account rendered is only prima facie evidence against the party making it: Clark v. Marbourg, 33 Kans.

Where there has been no mutual examination of an account consisting of many items, and the creditor notifies the debtor of a round sum being due thereon, which, by the mistake of the creditor is much smaller than the actual balance due, and the debtor gives his note for such balance and receives in return a receipt in full: Held, that the creditor may bring his action upon the original account, and if the debtor as a defence answers and attempts to prove an account stated and settled, the creditor may show under a reply containing a general denial that there has been no adjustment or settlement of the items of the account between him and the debtor; that the receipt was given by him to the debtor through mistake, and that the debtor is only entitled to credit for the amount of the note given by him: Id.

1 Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1884. The cases will probably appear in 114 U. S. Rep. 2 From Hon. N. L. Freeman, Reporter; to appear in 112 Ill. Rep.

3 From A. M. F. Randolph, Esq., Reporter; the cases will probably appear in 33 Kans. Rep.

4 From John Lathrop, Esq., Reporter; to appear in 138 Mass. Rep.

5 From E. L. DeWitt, Esq., Reporter. The cases will probably appear in 41 or 42 Ohio St. Rep.

ACTION. See Conflict of Laws.

AGENT.

Power to Sue.-Where a principal is absent, his general agent, having sole authority to manage his business, will necessarily have authority to bring suits to collect debts, and insurance in cases of loss by fire, such power being essential to an efficient discharge of his duties: German Fire Ins. Co. v. Grunert, 112 Ill.

AMENDMENT. See Sheriff.

ASSIGNMENT. See Conflict of Laws.

Contract-Evidence.-An agent appointed by the owner to sell coal lands upon commission, employed another to aid him in effecting a sale, promising to give the latter, as was claimed, one-half of his commissions in case of a sale at a given price, which sale was effected through the latter, and after the death of the former the latter presented a claim against his estate for one-half of the commissions received. It was held, on a review of the evidence, there was no equitable assignment of half of the claim for commissions, but that the relation between the two was merely that of creditor and debtor: Wyman v. Snyder, 112 Ill.

The burden of proof is upon a party who claims an equitable assignment of one-half of a demand, to show that fact by satisfactory evidence; and this is not shown by proof of casual admissions or statements of the party holding the demand, varying in form of expression and in sub stance, especially when rebutted by the conduct and acts of the party claiming the assignment: Id.

BILLS AND NOTES. See Duress.

Overdue Note-Receipt of Interest in Advance-Note-Surety-Interest. The receipt of interest in advance upon an overdue promissory note, from the maker, does not of itself import such a giving of time as will discharge a surety: Haydenville Sav. Bank v. Parsons, 138 Mass.

Payments and the indorsements of payments, upon a promissory note in which no rate of interest is expressed, of interest at the rate of seven per cent. per annum, in respect of time after the note has become overdue, do not amount to a change of the contract, or satisfy the statutory requirement of an agreement in writing to bind the maker to pay that rate in the future: Id.

COMMON CARRIER. See Master and Servant.

Sick Passenger-Duty of Railroad-Negligence-Damages.-In an action brought against a railroad company in behalf of the next of kin, by the personal representatives of a deceased person, to recover damages for injuries resulting in the death of such person, nominal damages may be recovered, if it appears that his death was caused by the wrongful act or omission of the defendant, although no actual pecuniary damages may have been shown or suffered: Atchison, T. & S. Railroad v. Weber, 33 Kans.

It is the duty of a railroad company carrying passengers to provide for their quiet and comfort, and secure them against the annoying and offensive conduct of other passengers; and where the conduct of a pas

senger is such as to render his presence dangerous to fellow passengers, or such as will occasion them serious annoyance and discomfort, it is not only the right, but the duty of a railroad company to exclude such passenger from its train: Id.

Where an unattended passenger after entering upon a journey becomes sick and unconscious, or insane, it is the duty of the railroad company to remove him from the train and leave him until he is in a fit condition to resume his journey, or until he shall obtain the necessary assistance to take care of him to the end of his journey: Id.

The duty of a railroad company to such a passenger does not end with his removal from the train, but it is bound to the exercise of reasonable and ordinary care in temporarily providing for his protection and comfort; and held, that the railroad company may have exercised due care towards such a passenger who is without friends or money when it carefully and prudently removes him from its train, and promptly places him in charge of the overseer of the poor. The statute makes it the duty of the overseer of the poor in any township or city to grant temporary relief to any non-resident who may be found lying sick therein, or in distress and without friends or money, and the expense of providing such relief is to be paid out of the county treasury: Id.

CONFLICT OF LAWS.

Action for Diverting Stream to Injury of Property in another State. -An action of tort, for diverting the waters of a natural stream in this Commonwealth, and preventing the same from coming to the plaintiff's mill in an adjoining state, may be maintained in this Commonwealth : Mannville Co. v. Worcester, 138 Mass.

In an action for diverting the waters of a natural stream, and preventing the same from coming to the plaintiff's mill, the fact that a certain percentage of the water was returned to the stream may be considered in estimating the amount of damages: Id.

Assignment of Insurance Policy-Foreign Company.-If an assignment is made in this Commonwealth, between parties domiciled here, of a policy of insurance issued by a company organized under the laws of another state, but delivered here, the questions of the validity of the assignment and of the capacity of the parties to contract are to be determined by the law of this Commonwealth: Mutual Life Ins. Co. v. Allen, 138 Mass.

CONSTITUTIONAL LAW. See Criminal Law.

Right of Holder of Coupons of Virginia State Bonds to Pay Taxes therewith—Law impairing the Obligation of a Contract― What is not a Suit against a State within the Eleventh Amendment to the Constitution of the United States.-In an action of detinue for personal property, distrained by the defendant for delinquent taxes, in payment of which the plaintiff had duly tendered coupons cut from bonds issued by the state of Virginia under the funding act of March 30th 1871, held, that by the terms of that act, and the issue of bonds and coupons in virtue of the same, a contract was made between every coupon holder and the state that such coupons should "be receivable at and after maturity for all taxes, debts, dues and demands due the state;" the right

of the coupon-holder, under which, was to have his coupons received for taxes when offered, and that any act of the state which forbids the receipt of these coupons for taxes is a violation of the contract, and void as against coupon-holders: Poindexter v. Greenhow, S. C. U. S., Oct. Term, 1884.

An action or suit brought by a tax-payer, who has duly tendered such coupons in payment of his taxes, against the person who, under color of office as tax collector, and acting in the enforcement of a void law, passed by the legislature of the state, having refused such tender of coupons, proceeds by seizure and sale of the property of the plaintiff, to enforce the collection of such taxes, is an action or suit against him personally as a wrongdoer, and not against the state, within the meanng of the eleventh amendment to the constitution of the United States: Id.

CONTRACT. See Conflict of Laws

CORPORATION. See Municipal Corporation.

Subscription to Stock-Liability of Subscriber for Debts.-There is no liability on a subscription to the stock of a corporation, the amount of whose capital stock is fixed, until the whole amount of the stock is subscribed: Temple v. Lemon, 112 Ill.

A subscriber to the capital stock of a proposed corporation, when the full amount of stock fixed by law or by the action of those connected therewith is not subscribed, cannot be held liable individually for a debt of such corporation, unless for some cause he has estopped himself from alleging that the whole of the fixed capital stock was never subscribed: ld.

COSTS. See Errors and Appeals.

CRIMINAL LAW.

Presentment or Indictment by a Grand Jury-Infamous Crime-Constitutional Law.-A person sentenced to imprisonment for an infamous crime, without having been presented or indicted by a grand jury, as required by the fifth amendment of the constitution of the United States, is entitled to be discharged on habeas corpus from the Supreme Court of the United States: Ex parte Wilson, S. C. U. S., Oct. Term 1884.

A crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the provision of the fifth amendment of the constitution, that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury: Id.

DAMAGES. See Conflict of Laws; Malicious Prosecution.

DIVORCE.

Insane Wife-Suit by Guardian.-The guardian of an insane woman cannot bring and maintain an action against her husband for divorce and alimony, or for alimony alone: Birdsell v. Birdsell, 33 Kans.

DOMICILE.

Infant Orphan residing with a Grandparent.-The grandfather or grandmother of an infant, when the next of kin, is the guardian by

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nature of such infant; and infants having a domicile in one state, who after the death of both their parents take up their residence at the home of their paternal grandmother and next of kin in another state, acquire her domicile: Lamar v. Micou, S. C. U. S., Oct. Term 1884.

DURESS.

Note given by Person under Arrest.-No action can be maintained upon a promissory note, given by a person while under arrest on a complaint for larceny of property exceeding in value $100, to the owner of the property alleged to have been stolen, under an agreement that the complaint shall be placed on file, the plaintiff having received the note with notice of the circumstances; and the question of the guilt or innocence of the accused person is not open in such action: Gorham v. Keyes, 138 Mass.

EQUITY. See Assignment.

Practice Allowing New Answer.-A motion by a defendant in a bill, to set aside an interlocutory decree and for leave to file a new answer, is addressed to the sound discretion of the court, with which this court will not interfere, unless it can see that such discretion has been abused: Schmidt v. Braley, 162 Ill.

The proper practice in a case where a defendant desires to file a new answer to the bill, is to prepare the answer and submit it to the court with the motion for leave to file it. If the proposed new answer is frivelous, impertinent or scandalous, the court should not allow it to be filed:

ld.

Reformation-Specific Performance-Evidence.-In an action to reform a contract and for relief thereunder, after the same is reformed, the court may specifically enforce the same when that may be done, or may give adequate compensation for its non-performance: Columbus & Toledo Railroad v. Steinfield, 41 or 42 Ohio St.

On trial of an action to reform a written substituted contract for fraud or mistake, and to enforce the same when reformed, or if the same could not be reformed, then to rescind the written contract, there may be given in evidence the original writing made by the same parties upon the subject-matter in dispute, and also the subsequent acts done or procured to be done by the party charged with the fraud and which tend to prove the fraud or mistake: Id.

On such a trial, the court may find that the written contract in dispute does not contain the true agreement of the parties, but if the party complaining neither pays back nor offers to return the money received by him under the contract, it is error to order the contract to be set aside and held for naught: Id.

ERRORS AND APPEALS.

Motion to Dismiss Writ of Error for want of Jurisdiction.— Costs on. -The Supreme Court of the United States upon dismissing a writ of error for want of jurisdiction can adjudge to the defendant in error the costs incident to his motion to dismiss, though not the costs of the suit: Bradstreet Co. v. Higgins, S. C. U. S., Oct. Term 1884.