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personal property of the lessees at any time in or upon the demised premises, to secure payment of rent. The building leased was in process of erection for use as an hotel, and was not completed until January, 1891. The furniture was ordered for the hotel after the lease had been made, and, because of delays in finishing the building, was not placed in the hotel until December, 1890, and January, 1891. In January, 1895, there was rent unpaid, and the lessees' successors mortgaged the furniture to secure debts by them owing to other parties, who were aware of the above-noted provision in the lease. Held, that the mortgagees were entitled to the first lien upon the furniture mortgaged.-NEW LINCOLN HOTEL CO. V. SHEARS, Neb., 78 N. W. Rep. 25.

64. LANDLORD AND TENANT-Negligence.-Where there is no evidence to show what length of time unknown to landlord a nail had protruded from the floor of a hallway used by his tenant, no recovery can be had against him where it caused an injury to his tenant's wife, since it was necessary to establish that it had protruded for such a length of time as to charge him with constructive notice.-IDEL V. MITCHELL, N. Y., 52 N. E. Rep. 740.

65. LIFE ESTATES-Rights of Remainder-men.-Where the holder of a life estate in lands has sold part or all of them, the remainder-men cannot sue to recover the land sold until the life tenant's death.-SIMONTON v. WHITE, Tex., 49 S. W. Rep. 269.

66. LIFE INSURANCE-Application-Validity.-A con. tract for insurance, by which the underwriter, in consideration of the insurance, agrees to make a loan to insured, is not repugnant to Laws 23d Gen. Assem. ch. 33, § 1, prohibiting life Insurance companies from discriminating between individuals of the same class and expectancy of life, and from making any contract not expressed in the policy, or giving any special inducement for insurance not specified in the policy.-KEY V. NATIONAL LIFE INS. CO., Iowa, 78 N. W. Rep. 68.

67. LIFE INSURANCE-Change of Beneficiaries.-Where plaintiffs based their right to recover on a policy in the name of defendant on the ground that assured had changed the beneficiaries, they are estopped from alleging in the same action that defendant was not the beneficiary, under a claim that they were entitled to the insurance as heirs of decedent's former wife, to whom the policy was payable prior to her death.-ANDERSON V. GROESBECK, Colo., 55 Pac. Rep. 1086.

68. LIFE INSURANCE-Insurable Interest.-Where an insurance company contracts with a person whose life is insured to pay the sum insured to another, it is unnecessary for such other, in an action on the policy, to show an insurable interest.-PRUDENTIAL INS. CO. OF AMERICA V. HUNN, Ind., 52 N. E. Rep. 772.

69. LIFE INSURANCE-Legal Heirs-Illegitimate Children. An insurer is bound to pay to insured's illegiti mate children their share under a certificate payable to "legal heirs," where insured had made them his legal heirs, under Code, § 3385, by recognizing them in writing, though he did not inform insurer of their existence, and insurer paid the amount of the policy to the legitimate children after having used diligence to find the legal heirs.-BROWN V. IOWA LEGION OF HONOR, Iowa, 78 N. W. Rep. 73.

70. LIFE INSURANCE POLICY-Assignment.-The de. fendant issued a policy of insurance on the life of the plaintiff, payable to himself in 20 years. Subsequently plaintiff assigned the policy to H, by a written assignment absolute in form, but in fact merely as security or indemnity for a loan which he agreed to procure for the plaintiff, but which he failed to do. H, however, remained in the possession of the policy, and subsequently assigned it to a bank as security for a loan, which he has never repaid. The bank made the loan relying on the absolute assignment from plaintiff to H, and believing, from an examination of it, that H was the owner of the policy, and without any knowl edge that plaintiff had any claim to it, or of any equities between him and H. When the policy matured, the defendant paid it to the bank, but with

notice of plaintiff's claim. From the time the policy was assigned to H until it matured, H paid the premiums on it, which plaintiff has never repaid. Held, that the bank took the assignment of the policy subject to the equities between plaintiff and H, and that plaintiff was not estopped, as to the bank, to assert his rights, by the fact that he had executed and delivered to H an assignment of the policy absolute in form.-BROWN V. EQUITABLE LIFE ASSUR. SOC. of UNITED STATES, Minn., 78 N. W. Rep. 103.

71. LIMITATIONS-New Promise.-To remove the bar of the statute of limitations, the acknowledgment or promise must be express, in writing, and signed by the party chargeable thereby. The acknowledgment must be in the writing itself, and cannot be read into it by means of oral testimony. Held, that the words of the defendant's testator which are relied upon are not in the letter, nor are any words having an equivalent meaning. The court cannot write them in.—JOHNSTON V. HUSSEY, Me., 42 Atl. Rep. 312.

72. MARRIED WOMAN-Principal or Surety.-A note executed by the only two bona fide stockholders of a corporation, one of whom was a married woman, for money used by the corporation, was an original undertaking, and not a contract to answer for the debt or default of another, within Ky. St. § 2127, providing that no part of a married woman's estate shall be subjected to the payment of any liability upon such a contract unless such estate shall have been set apart for that purpose.-WILLIAMS V. FARMERS' & DROVERS' BANK, Ky., 49 S. W. Rep. 183.

73. MASTER AND SERVANT Assumption of Risk.Though a brakeman knew, after he entered upon his employment, that it was customary to dump ashes on a track in a yard where trains were made up, he did not assume the risk occasioned thereby, so as to preclude him from recovering for injuries caused by his stepping on a clinker while coupling cars at night; the risk not being one which ordinary prudence would require him to refuse.-LOUISVILLE & N. R. Co. v. VESTAL, Ky., 49 S. W. Rep. 204.

74. MASTER AND SERVANT-Fellow-servants.-The rule that there can be no recovery of the master for injuries inflicted upon one of two co-equal fellow-servants, even by the gross negligence of the other, applies also to a statutory action for death by willful neglect.-ED. MONSON V. KENTUCKY CENT. RY. CO., Ky., 49 S. W. Rep. 200.

75. MASTER AND SERVANT-Negligence-Assumption of Risk. In an action brought by an administratrix to recover damages for the death of her intestate, alleged to have resulted from defendant's negligence while such intestate was in its employ, it is held that, on the evidence, the question of such negligence, and also that of the intestate's assumption of the risk, were for the jury.-LUND v. WOODWORTH, Minn., 78 N. W. Rep. 81.

76. MASTER AND SERVANT-Personal Injuries-Pleading. A declaration in an action to recover for injuries received by a brakeman while uncoupling cars is not insufficient after verdict, as showing contributory neg. ligence, merely because it shows the cars to have been in motion, without setting out facts making it necessary to so make the uncoupling, where the speed is not stated, and it is alleged that it was plaintiff's duty to uncouple the cars while they were being propelled over the line of road, and that he was in the exercise of due care for his own safety.-CLEVELAND, C., C. & ST. L. RY. CO. V. BAKER, U. S. C. C. of App., Seventh Circuit, 91 Fed. Rep. 224.

77. MINES-Ditches-Petition for Right of Way.Comp. St. 1887, div. 5, § 1497, authorizing a mine owner to petition for a right to construct a ditch over another's claim if the right "shall not have been acquired by an agreement," requires the mine owner to make an unsuccessful attempt to come to an agreement before filing his petition.-GLASS V. BASIN MINING & CONCENTRATING Co., Mont., 55 Pac. Rep. 1047.

78. MINING CLAIM-Location-Survey-Mistake.-One who has located a claim, filed his notice, and procured a survey thereof by the United States deputy surveyor, as required by law, cannot be deprived of his property because the surveyor failed by mistake to include all that was covered by his location notice, where the mistake was cured by a resurvey, under the orders of the interior department, within a few days after the owner discovered it.-BASIN MINING & CONCENTRATING CO. v. WHITE, Mont., 55 Pac. Rep. 1049.

79. MORTGAGE BY WIFE Payment of Husband's Debt.-Where a husband made to his wife a convey. ance of land upon which he had previously executed a mortgage to a third person, and the wife, being thus clothed with the title, borrowed money, and gave her promissory note for the same, intending to use a por tion thereof in paying off the incumbrance, which was in fact done, she could not, although the intention to pay off the incumbrance was known to the lender at the time the loan was made, defeat a recovery by the lender upon the note, either in whole or in part, upon the ground that it was given for her husband's debt, or for money with which to pay the same. -TAYLOR V. AMER. FREEHOLD LAND-MORT. CO. OF LONDON, Ga., 32 S. E. Rep. 153.

80. MUNICIPAL CORPORATIONS-Injunction-Receiver. -A bill to obtain a construction of a municipal charter, to determine whose duty it is thereunder to call and hold an election for officers, and incidentally ask. ing for the appointment of a receiver to take charge of funds belonging to the municipality, and to enjoin the municipal officers from paying illegal claims,-no attempt being made to compel an election or to seek a forfeiture of the charter,-presents a purely abstract question.-HURLBUT V. TOWN OF LOOKOUT MOUNTAIN, Tenn., 49 S. W. Rep. 301.

81. MUNICIPAL CORPORATION-Licenses-Tax.-A city ordinance requiring every person who buys claims to pay a license tax, is unconstitutional in so far as it requires the payment of such a tax by persons buying claims only against the city.-BITZER V. THOMPSON, Ky., 49 S. W. Rep. 199.

82. MUNICIPAL CORPORATION-Licenses-Tax.-A city ordinance requiring the payment of a license tax by every person engaged in the business of contracting for public work is void in so far as it requires the pay. ment of such a tax by contractors for street improvements, the tendency being to create a monopoly in the business of public works, and to increase the burden of abutting property owners, who are required to pay the cost of the improvements.-FIGG V. THOMPSON, Ky., 49 S. W. Rep. 202.

83. NEGLIGENCE-Defective Street-Street Railway.In the absence of knowledge to the contrary, one driv. ing over a street is entitled to presume that it is in a reasonably safe condition for travel.-CITIZENS' ST. R. Co. V. BALLARD, Ind., 52 N. E. Rep. 729.

84. NEGLIGENCE Pleading.-A petition to recover for personal injuries received through the negligent and careless discharge of a revolver by defendant while exhibiting it to bystanders, must aver that plaintiff was without contributory negligence.KLEINECK V. REIGER, Iowa, 78 N. W. Rep. 33.

85. PARTNERSHIP - Attachment.-Equity will not relieve against an attachment of firm property obtained on the collusive consent of a partner, since such consent does not affect the rights of the firm or the other partners, and they have an adequate remedy at law if the attachment be wrongful.-THAMES V. SCHLOSS, Ala., 24 South. Rep. 835.

86. PARTNERSHIP-Deed of Trust by Firm.-A deed of trust made for the benefit of partnership creditors, by one partner alone, is not for that reason invalid, where It appears that he had the entire management of the business, and there is no showing of fraud as to the other partner.-KELLER V. SMITH, Tex., 49 S. W. Rep. 263.

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liability accruing at the same time, and arising from one breach of the same contract.-WHEELER V. ROHRER, Ind., 52 N. E. Rep. 780.

88. PROCESS-Service on Foreign Corporations.-Code 1873, § 2585, authorizing a corporation having an office for the transaction of business in any county to be sued in such county with respect to any business grow. ing out of or connected with the business of the agency, merely fixes the county in which suit may be brought, and does not define the manner of acquiring jurisdiction. -MOFFETT V. CHICAGO CHRONICLE Co., Iowa, 78 N. W. Rep. 45.

89. PROCESS Service on Non-residents.-Service of summons upon a non-resident defendant can only be made in cases where service might be made by pub. lication, and the failure to file the affidavit required before service by publication is as fatal, as a jurisdictional defect, with respect to personal service upon a non-resident, as with respect to service by publication; overruling a conflicting holding in Cheney v. Harding, 21 Neb. 68, 32 N. W. Rep. 64.-ROWE V. GRIFFITHS, Neb., 78 N. W. Rep. 20.

90. QUIETING TITLE-Pleading.-Under Acts 1892-93, p. 42, authorizing a person in the peaceable possession of land, claiming to own it (his title being disputed, but no suit pending to test its validity), to sue to settle the title, a bill cannot be maintained which fails to aver that no such suit is pending.-PARKER V. BOUTWELL, Ala., 24 South. Rep. 860.

91. RAILROAD COMPANY Claims against Receiver.Where materials for the repair of a railroad track furnished to the lessee were taken possession of and used in making such repairs by the receivers of the general system of which such line of road formed a part, the seller became a creditor of such receivers therefor; and they are not relieved from liability by the fact that they afterwards surrendered such line of road to a receiver appointed in another suit for that line singly.— CENTRAL OF GEORGIA RY. Co. v. HITCHCOCK, U. S. C. C. of App., Fifth Circuit, 91 Fed. Rep. 209.

92. RAILROAD COMPANY-Negligence-City Ordinance. -An ordinance prohibiting the obstruction of a street so as to delay any company carrying its apparatus to or from any fire does not make a railroad company liable for injuries received by a person in going to a fire in the performance of his duties while crossing a street which the railroad company had obstructed, unless the obstruction was such as to delay a fire com. pany in carrying its apparatus to or from the fire.SOUTHERN RY. Co. v. PRATHER, Ala., 24 South. Rep. 836. 93. RAILROAD COMPANY - Proximate Cause Negligence.-A freight took a siding to allow a passenger train approaching from the front to pass. The switch was left unturned but the headlight on the engine was covered to indicate that the track was clear. Freights were required to carry in the cupola of the caboose a red light, which, when removed, indicated to an approaching train that the switch had been reset, but no light was carried on such freight. Trains in passing were to be in perfect control, so as to stop if signals were not right, and, had such light been displayed, the passenger would have stopped, and an accident result. ing in the death of the engineer averted. Held, that the failure to provide the red light was the proximate cause of the injury.-DENVER, ETC. R. Co. v. SIPES, Colo., 55 Pac. Rep. 1093.

94. RAILROAD COMPANY-Receivership-Lien.-Where a railroad is in the hands of a receiver for administration as a trust fund for the payment of incumbrances, the court may declare a lien in favor of a claim, accruing shortly before the receiver's appointment, for cars furnished to the road, and necessary for its successful operation, prior in right to existing mortgages.-ST. LOUIS, ETC. K. Co. v. O'HARA, Ill., 52 N. E. Rep. 734. 95. RAILROAD COMPANY Receivership-Priority of Liens. Where the only property of an insolvent railroad company consists of a leaseholdținterest in a line of road extending into or through different States, and

the rolling stock used in operating the same, and creditors' suits are commenced in the federal courts in each of the different jurisdictions, and judgment creditors in the different States are, by the local statutes, given a priority of lien on certain of the property of the company, in the distribution of assets the pro ceeds of such property, either of rolling stock or leasehold or both, will be apportioned according to the mileage in each State, and the judgments therein given priority as to the respective portions.-THOMAS V. CINCINNATI, ETC. RY. Co., U. S. C. C., S. D. (Ohio), 91 Fed. Rep. 195.

96. RELIGIOUS SOCIETIES-Injunction.-A majority of a religious congregation, or the trustees thereof, will not, at the suit of a minority of such congregation, be enjoined from employing as pastor for the congrega. tion a minister professing and teaching the same organic creed professed by the congregation, on the ground that such minister teaches certain doctrines and practices a certain church polity not taught and practiced by the minority, nor by the original founders of the congregation.-WEHMER V. FOKENGA, Neb., 78 N. W. Rep. 28.

97. SALES-Implied Warranty-Executory Contracts. -An executory contract to make and deliver an article implies an agreement that it shall be filtly made for the use contemplated by both parties.-NASHUA IRON & STEEL CO. V. BRUSH, U. S. C. C. of App., First Circuit, 91 Fed. Rep. 213.

98. SALES-Novation.-Plaintiff contracted to sell and deliver fruit to a firm. Previous to its delivery, the partners formed a corporation with other persons, which succeeded the business of the firm. The corpo ration received the fruit, and assumed the duties of the firm in relation thereto. Held not essential to plaintiff's right to recover the price that there should have been a formal novation of the corporation in the contract and a release of the firm from liability thereon; hence such novation and release need not be alleged.-MITROVICH V. FRESNO FRUIT PACKING CO., Cal., 55 Pac. Rep. 1064.

99. SEDUCTION-Witness-Impeachment.-In a prosecution for seduction, after a witness for defendant denied having sexual intercourse with prosecutrix, the evidence being of a negative character, and favorable to neither party, defendant could not impeach him by examining him as to contrary declarations.-PEOPLE v. GODWIN, Cal., 55 Pac. Rep. 1059.

100. STATUTES-Repeal.-Laws 1881, ch. 84, § 15, provid. ing for the payment out of the State treasury of the costs and expenses of criminal prosecutions arising in unorganized counties, being valid when enacted, was not abrogated by the adoption of the State constitution, which prescribes a new method of making appropriations.-MORGAN V. STATE, S. Dak., 78 N. W. Rep. 19.

101. TAXATION-Valuation of Franchises.-Ky. St. §§ 4077, 4079, providing for the taxation of franchises of corporations, apply to all corporations, and are, therefore, not unconstitutional as making a discrimination. In valuing the franchise of a corporation for taxation, the indebtedness of the corporation and cost of operating its business are not to be deducted.—PADUCAH ST. RY. Co. v. MCCRACKEN COUNTY, Ky., 49 S. W. Rep. 178. 102. TAXATION OF PUBLIC PROPERTY- Exemption.Under Const. Ky. § 170, providing that "public property used for public purposes" shall be exempt from taxation, the property of a city used in connection with its fire department, and also public parks of the city, are exempt from taxation by the State.-CITY OF OWENSBORO V. COMMONWEALTH, Ky., 49 S. W. Rep. 320.

103. TRESPASS.-Injunction does not lie to restrain the owner of property situate on plaintiff's land from removing it, where it does not appear that plaintiff will be unable to collect his damages, or that by removing it himself he can prevent the trouble, or that the harm is more than a purely technical trespass.GATES V. JOHNSTON LUMBER CO., Mass., 52 N. E. Rep. 736.

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104. TROVER - Judgment — Title.-A judgment for plaintiff in trover does not operate to transfer the title to defendant until satisfaction thereof.-JOHN A. TOLMAN CO. V. WAITE, Mich., 78 N. W. Rep. 124.

105. VENDOR AND PURCHASER-Contracts-Rescission. -A conveyance to one having actual knowledge of a contract of sale previously made does not entitle the vendee under the contract to rescind and recover back partial payments.-KREIBICH V. MARTZ, Mich., 78 N. W. Rep. 124.

106. VENDOR AND PURCHASER-Vendor's Lien-Fraud of Vendee.-A vendor has no lien for damages resulting from fraudulent misrepresentations as to the value of the property taken by him in payment for the land. -GRAHAM V. MOFFETT, Mich., 78 N. W. Rep. 132.

107. WAREHOUSE-Negligence.-A warehouse receipt issued by a warehouseman to his bailor, excepting the former from liability for loss from certain causes, construed, and held that the loss in this case did not result from any of the excepted causes.-HUNTER V. BALTIMORE PACKING & COLD STORAGE Co., Minn., 78 N. W. Rep. 11.

108. WATERS - Surface Water-Diversion.-Action will lie against a municipal corporation for collecting surface water in a channel, and pouring it on the land of another.-TOWN OF THORNTOWN V. FUGATE, Ind., 52 N. E. Rep. 763.

109. WILLS-Devise Description of Land.-Where testator devised to 8 "the portion of land upon which she now lives, consisting of 145 acres," and devised to F "the remaining portion, consisting of 155 acres, being the portion upon which I now reside," S is entitled to 145 acres off of the end of the tract on which she lives, and F takes the remainder, though it contains more than 155 acres, as it is to be presumed that testator intended to dispose of all of his estate, and the gen. eral description is not to be limited by the subsequent particular description.-CUNDIFF V. SEATON, Ky., 49 S. W. Rep. 179.

110. WILLS-Survivorship.-Survivorship relates to death of testator, who, having but one child, devised his real estate to his wife so long as she remained a widow, and provided that "the above estate that is bequeathed to my wife shall be in full possession of my only daughter at the death or marriage of my wife, provided she shall be living, and, if she is not living, at the death or marriage of my wife, then the estate to go to the use of my brothers."-ASPY V. LEWIS, Ind., 52 N. E. Rep. 756.

111. WILLS Vested Remainder.-Testator, by his will, devised to his son during his life, and at his death to his children, certain lands. Another clause of the will provided that, in case any of testator's children should die leaving no lineal descendants, their respective shares should be equally divided between "my surviving children and the lineal descendants of such as may be dead, the descendants to take such parts as their ancestors would have taken if alive." Of the devisee's children five survived. One had died without issue, leaving a widow, on whom he had settled the estate which he took under his grandfather's will, and one died during the life of his father, leaving a widow and five children. Held, that each of the grandchildren took a vested remainder of the land devised to their father for life.-WARING V. WARING, Va., 32 S. E. Rep. 150.

112. WITNESS Attorney and Client Confidential Communications.-An attorney who prepared papers for his client may testify as to the facts connected with their execution, such as whether the client was drunk, but not to the confidential reasons given for desiring their execution.-LANG V. INGALLS ZINC CO., Tenn., 49 S. W. Rep. 288.

113. WITNESSES-Impeachment.-Testimony as to a witness' reputation for honesty in the payment of debts is inadmissible to impeach his reputation for veracity.-CALKINS V. ANN ARBOR R. Co., Mich., 78 N. W. Rep. 129.

Central Law Journal.

ST. LOUIS, MO., MARCH 31, 1899.

In

The decision of the case of Merrill v. National Bank, 19 S. C. Rep. 360, by the Supreme Court of the Untied States, gave rise to considerable diversity of opinion among the members of the court, four of the justices dissenting from the conclusion of the majority. The controversy arose out of the failure of a national bank and the claim of a creditor against assets in the hands of a receiver. substance the decision of the court was: (1) That on the failure of a national bank, a creditor thereof, whose debt is secured by pledge, is entitled to be recognized and classed by the comptroller of the currency to the full amount of his debt, without in any way taking into account the collaterals by which the debt is secured, and on the amount so recognized he is entitled to be paid out of the general assets the sum of any dividends which may be declared. (2) That this right to be classed for the full amount of the debt, without regard to the value of the collaterals, is fixed by the date of the insolvency, and continues to the final distribution, whatever may be the change in the debt thereafter brought about by the realization of the securities, provided only that the sums received by the creditor by way of dividends and from the amount collected from the collaterals do not exceed the entire debt, and therefore extinguish it. The dissenting judges, in an exhaustive opinion reviewing the authorities, claim that the enforcement of the above propositions will produce inequality among creditors and operate injustice and "as a necessary consequence are inconsistent with the National Banking Act."

A rather novel question of the admissibility of evidence is to be found in the recent case of Plummer v. Ricker, 41 Atl. Rep. 1045, decided by the Supreme Court of Vermont. There the court, admitted evidence of exclamations while asleep under the following circumstances: The case was one for damages sustained from a vicious dog. The plaintiff's father was asked to describe in a general way how his son appeared from the time he was bitten down to the time the wounds healed, and stated, among other things, that at night especially, the moment he would drop into a

drowse, he would jump right up and call, "Take him off-the dog is biting me!" The trial court, in holding that this testimony was admissible, said: "If the boy's story is found to be true, it tends to show that the dog made a visible attack upon him; and that has a bearing upon the question of how it may have affected his nerves-impressed itself upon him. We think that if it should be found that it so impressed him that, when asleep, the impression followed him, made him nervous, and caused him to cry out, it is evidence indicating the condition of the boy. It is not evidence that the dog ever bit him."

The defendant excepted to this ruling, but the supreme court sustained it in the following language: "Under this ruling the jury were at liberty to consider the words spoken by the plaintiff while in sleep, upon the question of how the attack of the dog impressed itself upon him and affected his nerves. Words spoken while in sleep are not evidence of a fact or condition of mind. They proceed from an unconscious and irresponsible condition; they have little or no meaning; they are as likely to refer to unreal facts or conditions as to things real; they are wholly unreliable; and a jury ought not to be allowed to guess that such expressions are produced by a present mental or physical condition. The expressions of a person respecting a past mental or bodily condition cannot be shown by a non-professional witness. The testimony of such a witness is confined strictly to such such complaints, expressions and exclamations as furnish evidence of a present existing pain or malady. State v. Fournier, 68 Vt. 262; Knox v. Wheelock, 54 Vt. 150. The expressions of a person in sleep may be induced without cause, and by past, as well as present conditions. In dreams, things long forgotten return, and we live over a past which has no relation to present conditions, and exclamations then made are as likely to be induced by a past as by a present condition. If what the plaintiff said while in sleep can be given any meaning, it was narration of a past event, and did not indicate his present mental or physical condition, and the testimony was hearsay and inadmissible. State v. Fournier, supra. In People v. Robinson, 19 Cal. 40, it is held that words spoken in sleep are not admissible in evidence."

NOTES OF IMPORTANT DECISIONS.

SPECIFIC PERFORMANCE CONVEYANCE OF LAND-PAROL CONTRACT.-In Svenberg v. Fosseen, 78 N. W. Rep. 4, the Supreme Court of Minnesota holds that where, in a parol agreement for the purchase of real estate, the consideration consists of services to be rendered which are of such a peculiar character that it is impossible to estimate the value to the vendor by a pecuniary standard, and neither party intended so to measure them, the performance of the services will entitle the vendee to a specific performance, notwithstanding the contract was by parol; and this rule is especially applicable where, in addition to such services, the vendee, at the request of the vendor, subsequently sold real estate at a sacrifice, and paid the proceeds over to the vendor, as further consideration, and where, after the full performance of the services, it is out of the power of the court to restore the vendee to the situation in which he was before the contract was made, or to compensate him in damages. The court cites and reviews the following cases: Slingerland v. Slingerland, 30 Minn. 197, 39 N. W. Rep. 146; Davison v. Davison, 13 N. J. Eq. 246; Van Dyne v. Vreeland, 11 N. J. Eq. 370, 12 N. J. Eq. 142; Wright v. Wright, 58 N. W. Rep. 54; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 655, 60 Amer. Rep. 270; Brinton v. Van Cott, 8 Utah, 480; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. Rep. 788.

ACCIDENT INSURANCE-WHAT CONSTITUTES ACCIDENT.-In Feder v. Iowa State Traveling Men's Association, 78 N. W. Rep. 252, decided by the Supreme Court of Iowa, it was held, in action of policy of accident insurance, that the death of insured will not be held accidental merely because it results from the rupture of an artery as he reaches to close a window, it not appearing that anything was done or occurred which he had not foreseen and planned, except the rupture. The following is from the opinion: "Did his death result from an accidental cause?' Various definitions of the word 'accident' are quoted by the appellants, and among them are the following: It is an unexpected event, which happens as by chance, or which does not take place according to the usual course of things.' Insurance Co. v. Burroughs, 69 Pa. St. 43. "The equitable definition of the term "accident" includes, not only inevitable casualties, and such as are caused by the act of God, but also those which arise from unforeseen occurrences, misfortunes, losses, and acts or omissions of other persons, without the fault, negligence, or misconduct on the part of the person injured.' Bostwick v. Stiles, 35 Conn. 198. 'An event which takes place without one's foresight or expectation;' and it may include an injury received in a common-law affray, without the fault of the person injured. Supreme Council Order of Chosen Friends v. Garrigus, 104 Ind. 133, 3 N. E. Rep. 818. 'An event that takes place

without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and, therefore, not expected.' Schneider v. Insurance Co., 24 Wis. 30. An accident is the happening of an event without the aid and the design of the person, and which is unforeseen.' Paul v. Insurance Co., 112 N. Y. 472, 20 N. E. Rep. 349. An event that takes place without one's foresight or expectation; an undesigned, sudden, and unexpected event.' Webst. Int. Dict. See also Casualty Co. v. Johnson (Miss.), 17 South. Rep. 2; Carnes v. Association (Iowa), 76 N. W. Rep. 683. The ordinary and popular meaning of the word ‘accidental' is said to be 'happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected.' Association v. Barry, 131 U. S. 100, 9 Sup. Ct. Rep. 755.

"It is argued that the rupture of a blood vessel is not the usual result of an effort to close shutters; therefore, when it occurs. it is unusual, unexpected, and an accident. While it may be true that an accident is an event which takes place without one's foresight or expectation, and is undesigned, it is not true that every unforeseen, undesigned, and unexpected event is an 'accident,' within the ordinary and popular meaning of that term. Thus, a person might voluntarily and knowingly expose himself to a contagious disease, or to excessive heat or cold, or, to sudden changes of temperature, or might adopt a strange diet or mode of living; but, if death resulted, it would not be due to an accidental cause, although wholly undesigned, unforeseen, and unexpected. So, if a person suffering from some weakness or disease should subject himself to conditions which would not injuriously affect persons in ordinary health, but would be dangerous to him, and injury result, it would not be due to an accidental cause. For example, if a person having a diseased heart should take violent exercise voluntarily, and death should result, the cause would not be accidental. Southard v. Assurance Co., 34 Conn. 574. See also Bacon v. Association, 123 N. Y. 304, 25 N. E. Rep. 399; Sinclair v. Assurance Co., 3 El. & El. 478. Although a result may not be designed, foreseen, or expected, yet, if it be the natural and direct effect of acts voluntarily done, or of conditions voluntarily assumed, it cannot be said to be accidental.

"We do not think the cases relied upon by the appellant hold a contrary rule. In Hamlyn v. Insurance Co., 1 Q. B. Div. 750, it appears that a person sustained an injury to his knee in attempting to catch a rolling marble; but it was found that the injury resulted from an unnatural position or movement of the leg, which was not intended by the person injured. The injury considered in Insurance Co. v. Burroughs, 69 Pa. St. 43, was caused by the unintended slipping of a pitchfork in the hands of the person injured, in such a manner that it struck him in the bowels, and caused the injury. The case of Burkhard v. Insurance Co., 102 Pa. St. 262, involved the act of

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