88. Evidence Copy of Deed.-Where the certified copy of a deed acknowledged before a mayor recited that it bears the mayor's official seal, it will be presumed that the omission of the "(L. S.)" in the copy was the mistake of the recorder making the copy.-Hubbard V. Swofford Bros. Dry Goods Co., Mo.. 108 S. W. Rep. 15.

an

89. Delay in Transporting Cattle.-In action to recover for defendant's negligent delay in transporting cattle, witnesses held qualified to state the usual time of transportation between the point of shipment and the market.-St. Louis I. M. & S. Ry. Co. v. Boshear, Tex., 108 S. W. Rep. 1032.

90. Expert Testimony.-A statement of an expert witness that he believes he is capable of expressing an opinion on the matter in issue is a sufficient expression of his opinion as to his own competency.-El Paso & S. W. Ry. Co. v. Smith, Tex., 108 S. W. Rep. 988.

91. Recitals in Deeds.-Ordinarily recitals of extraneous facts in a deed are not evidence of the facts stated as against strangers, though binding on the parties and their privies.-Dennis Bros. v. Strunk, Ky., 108 S. W. Rep. 957.

92. Exceptions, Bill of-Number of Bills.Where appellant defendant presented one bill of exceptions, and subsequently plaintiff presented another bill of exceptions, both of which the court signed and made part of the record, they will be treated as supplementary to each other. United States Benev. Soc. V. Watson, Ind., 84 N. E. Rep. 29.

93.

to

Executors and Administrators-Suit Try Title. In a suit to try title between grantees of a woman's heirs and grantees of her administrator, a certificate granted by the board of land commissioners held a part of her estate, and subject to administration, and not a donation to her heirs.-Fields v. Burnett, Tex., 108 S. W. Rep. 1048.

94. Fines Power of Court to Remit.-Where a person has been adjudged guilty of contempt by a federal court for willful violation of an injunction order entered in a suit to which he was not a party and a fine has been imposed as a punishment and paid, such fine goes to the United States, and the court, at least after the term has passed, has no jurisdiction to remit the same.-Butte & Boston Consol. Min. Co. v. Montana Ore Purchasing Co., U. S. C. C., D. Mont., 158 Fed. Rep. 131.

95. Fire Insurance-Powers of Agent.-To recover for a loss under a policy, by the terms of which liability thereon was suspended for nonpayment of a premium note, on the ground that an agent had continued the policy in force, the agent's authority so to continue the policy must be shown.-American Ins. Co. V. Hornbarger & Harris, Ark., 108 S. W. Rep. 213.

96. Forgery-Uttering Forged Note.-In a prosecution for uttering a forged note, the fact that defendant forged the instrument need not be established, but the charge is sustained by proof of an uttering.-State v. Fisk, Ind., 83 N. E. Rep. 995.

97. Fraud-Pleading.-The mere characterization of an act in a pleading as having been done "with intent to defraud the plaintiff" does not charge fraud.-Gill v. Manhattan Life Ins. Co., Ariz., 95 Pac. Rep. 89.

98. Frauds, Statute of-Parol Gift of Land.A parol gift of land accompanied by possession

100. Guaranty Bills and Notes.-Whether a guaranty of a note stipulates that the maker will pay or whether it stipulates that the guarantor will pay, the undertaking is absolute, whether the maker is solvent or not, and the guarantor may pay or see that it is paid.-Elgin City Banking Co. v. Hall, Tenn., 108 S. W. Rep. 1068.

101. Habeas Corpus-Hearing.-Where a person in custody alleges in his petition for writ of habeas corpus that another court has made an order granting him bail, and the evidence shows no such order ever entered of record, there is a failure to establish such order and the application should be denied.-Ex parte Stevenson, Okl., 94 Pac. Rep. 1071.

102. Homicide-Indictment.-An indictment for homicide is not fatally defective because it fails to allege the means or instrument by which the wound was inflicted, or the nature of such wound.-Molina v. Territory, Ariz., 95 Pac. Rep. 102.

104. Husband and Wife-Community Property. A woman marrying in good faith a man having a wife held entitled to her community interest in property acquired by him subsequent to the marriage.-Hammond v. Hammond, Tex., 108 S. W. Rep. 1024.

105. Estate by Entirety.-Where a husband and wife have an estate by the entirety in land, the wife may sue for the possession thereof as against all persons except the husband.-Holmes v. Kansas City, Mo., 108 S. W. Rep. 9.

106. Property of Wife. The common-law rule that property purchased with the earnings of a wife and children belonging to the husband held inapplicable in a proceeding to set aside exemptions to the husband in bankruptcy from other property.-In re Diamond, U. S. D. C., N. D. Ala.. 158 Fed. Rep. 370.

107. Separate Maintenance.-It was a question for the legislature to declare under what conditions it should accord the right to a married woman to maintain an action for separate maintenance.-Hiner v. Hiner, Cal., 94 Pac. Rep.

1044.

108. Indictment and Information-Indorsement of Names of Witnesses.-Objection that the names of some of the witnesses were not indorsed on the indictment held too late when made after final judgment.-State v. Long, Mo.. 108 S. W. Rep. 35.

109. Incest-Indictment.-The allegation that the crime of adultery and fornication has been committed may be regarded as surplusage not affecting the sufficiency of the facts alleged to charge incest.-McCaskill v. State, Fla., 45 So. Rep. 843.

110. Interstate Commerce Police Power.Transportation of goods from another state into New Jersey, and delivery in the original packages to the purchasers in that state under a contract of sale, cannot be interfered with by the state or any of its municipalities, except for police purposes.--Simpson-Crawford Co. v. Borough of Atlantic Highlands, U. S. C. C. 158 Fed. Rep. 372.

111. Limitation of Actions Commencement of Action.-Where the service of process in an action is quashed, plaintiff may cause the issuance and service of another summons in the same action on the petition previously filed, or an amended petition, and commence the action anew within Rev. St. 1899. sec. 3461.-Clause v. Columbia Savings & Loan Assn., Wyo., 95 Pac. Rep. 54.

112.

Mines and Minerals-Notice of Claims.The object of the law in requiring the location of mining claims to be made with reference to some natural object or permanent monument is to direct attention to the locality in which the claim can be found.-Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co., Idaho, 95 Pac. Rep. 14.

113. Mortgages-Assumption by Purchaser..A general assumption clause in a deed held not to constitute such a contract as to make the case an exception to the general rule that a mortgagee foreclosing against a subsequent grantee maintains his action on the doctrine of subrogation.-Sherman V. Goodwin, Ariz., 95 Pac. Rep. 121.

114.—Payment of Debt.-Where land is conveyed subject to a mortgage and the grantee pays it will extinguish the debt, although he has an assignment made to another.-Lydon v. Campbell. Mass., 84 N. E. Rep. 305.

115. Municipal Corporations Street Improvements. A contract for street improvements according to specifications, one of which required that all loss or damage arising from the nature of the work to be done should be sustained by the contractor, was void. Glassell v. O'Dea, Cal.. 95 Pac. Rep. 44.

116. Partnership-Liability of Partner.Where a person with his consent has been held out as a partner. liability as such is fastened on him; and an unauthorized holding out will have this effect as a result of a subsequent ratification. Meinhard, Schaul & Co. V. Bedingfield Mercantile Co., Ga., 61 S. E. Rep. 34.

117. Realty.-Where a partnership dissolution agreement provided for the payment of partnership debts and adjustment of the rights of partners in the firm assets, held a conversion of partnership real estate into personalty is to be regarded as having been effected.-Rosenbaum v. City of New York, 109 N. Y. Supp. 775.

118. Patents-Assignments.-A resolution of corporate stockholders and a formal assignment in accordance therewith held to pass its equitable interest in letters patent to an invention useful in its business but purchased by its president for himself.-American Circular Loom Co. v. Wilson, Mass.. 84 N. E. Rep. 133.

119. Payment-Presumptions.-Where the presumption of payment of a debt arising by the debtor's executing his note either to the creditor or to a third person deprives the party accepting the note of a collateral security some other substantial benefit such circumstance rebuts the presumption.-Beach v. Huntsman, Ind.. 83 N. E. Rep. 1033.

120.

or

-Replevin.-In an action to replevy

horses purchased by plaintiff from defendant's intestate, which plaintiff claimed had been paid for by canceling a debt due him from intestate, evidence of a check drawn by plaintiff in favor of intestate's grandson held admissible as corroborating plaintiff's testimony.-Cobb v. Holloway, Mo., 108 S. W. Rep. 109.

121. Principal and Agent-Authority of Agent. -Held, that an express company was liable for the act of an agent in settling a loss in excess of his authority, where his agency was not brought to the attention of the claimant who supposed he was acting as principal.-Brooks v. Shaw, Mass., 84 N. E. Rep. 110.

122. -Liability of Principal.-A manufacturer selling through an agent an alcoholic beverage held liable for the agent's representations that the beverage was nonalcoholic.-Haynor Mfg. Co. v. Davis, N. C., 61 S. E. Rep. 54.

123. Process-Defects.-The irregularity ог imperfection of a summons or a service thereof which will deprive the court of jurisdiction must render the summons or the service so defective that it will authorize a collateral impeachment of the judgment rendered thereon.— Clause v. Columbia Savings & Loan Assn., Wyo., 95 Pac. Rep. 54.

Crossing.-A

124. Railroads—Accident at traveler approaching a railroad crossing and the employees in charge of an approaching train held required to exercise the same vigilance to avoid accidents.-Lake Shore & M. S. Ry. Co. v. Brown, Ind., 84 N. E. Rep. 25.

125. Injuries to Animals.-In an action for killing plaintiff's mare, the giving of an instruction and the refusal of an instruction requested by defendant held error.-Rhinehart v. St. Louis & S. F. R. R. Co., Mo., 108 S. W. Rep. 103.

126.--Injuries to Persons on Track.-Where a person is loitering or standing on a railroad crossing, he may be guilty of negligence, but it cannot be said that the railroad owes him no duty of warning.-Central of Georgia Ry. Co. v. Motz, Ga., 61 S. E. Rep. 1.

allow

127. Receivers Compensation.-The ance of compensation to a receiver for himself and his attorneys must be made in the first instance by the court appointing the receiver, where the action is pending, and the allowance of that court binds only the parties to the suit. -Berry v. Rood, Mo., 108 S. W. Rep. 22.

128. Religious Societies-Ecclesiastical Controversies.-Civil courts have no jurisdiction of ecclesiastical controversies which do not violate civil or property rights.-Fussell v. Hail. Ill., 84 N. E. Rep. 42.

129. Sales-Action for Damages.-In an action for breach of a contract to purchase beams to be manufactured, the profit ca a sale to another, though made after commencement of the action, should be deducted from the seller's damage.-Isaacs v. Terry & Tench Co., 109 N. Y. Supp. 792.

130.- Breach of Warranty.-Where plaintiff by misrepresentation as to quality sold goods by sample to defendant, who upon discovering the breach of warranty notified plaintiff, held that in an action for the price of the goods defendant could use the breach of warranty as a defense by way of setoff.-Webb & Preston v. Milford Shoe Co., Ky., 108 S. W. Rep 229.

131.- -Implied Warranty.-A woolen merchant selling cloth not of his own manufacture to a tailor does not impliedly warrant the qual

ity or fitness thereof, even as to latent defects. Strauss v. Salzer, 109 N. Y. Supp. 734.

selling

132. Warranties.-A manufacturer a beverage for re-sale held to impliedly warrant that it may be sold without obtaining a liquor license.-Haynor Mfg. Co. v. Davis, N. C., 61 S. E. Rep. 54.

133. Salvage-Nature of Service.-There can be no lien for salvage for services rendered to a vessel while in a dry dock, permanently attached to the shore, for repairs, in extinguishing a fire communicated to such vessel from buildings on the land; nor is a suit to enforce a claim for such services within the admiralty jurisdiction.-The Jefferson, U. S. D. C., E. D. Va., 158 Fed. Rep. 358.

134. Schools and School Districts Public Schools. In a suit to enjoin the issue of bonds to build a school building, even if plaintiff was estopped to question the illegality of a meeting of the district board by having participated therein and having knowledge thereof, such facts were a matter of defense by way of estoppel.-Riggs v. Polk County, Or., 95 Pac. Rep. Bonds. Proceedings for the issuance of school bonds taken by the trustees of a district held not affected by the fact that they cast lots to determine the length of their respective terms, the term of none of them having expired.-McGinnis v. Board of Trustees of Bardstown Gradd School Dis., Ky., 108 S. W. Rep. 289.

5.

135. Validity of

Construction.

136. Statutes The words "and" and "or," when used in a statute, are convertible as the sense may require.-People v. Butler, 109 N. Y. Supp. 900.

137 Construction of Penal Statutes.-Although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of Congress, and this intention is to be collected from the words employed in the statute.-United States v. Lonabaugh, U. S. D. C., D. Wyo., 158 Fed. Rep. 314.

138. Subrogation-Rights of Surety.--Where a creditor has proved his debt in bankruptcy, the surety held entitled to subrogate himself to the creditor's rights on paying the balance due. -Schmitt v. Greenberg, 109 N. Y. Supp. 881.

139. Taxation-Liability of Executor.-The executor of a trustee is not liable for taxes on a trust estate held by his testator during the testator's lifetime, but not held or administered on by the executor.-State v. Valley Trust Co., Mo., 108 S. W. Rep. 97.

140. National Banks. The cashier of a national bank as agent of the bank has no authority to list the capital stock for assessment against the bank, and the mistake of the cashier in so listing the capital stock will not estop the bank from recovering the taxes paid under protest on such void assessment.-Weiser Nat. Bank v. Jeffreys, Idaho, 95 Pac. Rep. 23. 141.--Tax Deeds.-The recording of a valid tax title is notice that the grantee therein disclaims a tenancy under a lease of the premises, and an action against him must be brought within two years.-Hudson v. Schumpert, S. C., 61 S. E. Rep. 104.

142. Towns Public Debt.-A township advisory board has no power to make an appropriation, unless there are funds available for that purpose or create any indebtedness in excess of the debt limit fixed by Const. art. 13, sec. 1. -State v. Johns, Ind., 84 N. E. Rep. 1.

143. Trespass to Try Title-Burden of Proof. -In trespass to try title, where plaintiffs

claimed an equity as against the legal title in defendants, the burden was on the plaintiffs to show that the defendants were not bona fide purchasers.-Wallis, Landes & Co. v. Dehart, Tex., 108 S. W. Rep. 180.

144. Trial-Directing Verdict.-Where plaintiff fails to state a case upon his opening, presiding judge is authorized to order a verdict for defendant at once, or to wait unti. the plaintiff's evidence or the entire evidence has been introduced before doing so.--Hey v. Prime, Mass., 84 N. E. Rep. 141.

145. Direction of Verdict.-It is improper to peremptorily instruct for plaintiff in any cause where his prima facie case is not admitted, or where it is admitted, if defendant has introduced evidence which tends to disprove it. -Reynolds v. Hood, Mo., 108 S. W. Rep. 86.

146. Evidence.-A general manager of a corporation may not testify as to what the nature of his duties are, where the by-laws of the corporation prescribe such duties, since the bylaws are the best evidence.-Green v. Hereford, Ariz., 95 Pac. Rep. 105.

147.

Instructions.-Abstract propositions of law in instructions when not pertinent and necessary to the case as made tend rather to confuse than aid the jury, and it is the better prac-. tice to reduce the issue of fact to as limited a compass as is consistent with full instructions. -Salmon v. Helena Box Co., U. S. C. C. of App., Eighth Circuit, 158 Fed. Rep. 300.

148. Peremptory Instructions.-It was error to grant a peremptory instruction for defendant in an action for damages for destruction of property by fire, where there was evidence that the fire was set out by defendant's servant.-Gibson V. W. C. Wood Lumber Co., Miss., 45 So. Rep. 834.

149. Trover and Conversion-Damages.-In estimating the value of personalty converted plaintiff may recover the highest amount which he can prove between the time of conversion and trial.-Walton v. Henderson, Ga., 61 S. E. Rep. 28.

150. Trusts-Creation of Trust. Whether words and acts of an alleged trustor indicate with reasonable certainty an intention to create a trust, and the subject, purpose, and beneficiary of the trust, is a question of fact.-Noble v. Learned, Cal., 94 Pac. Rep. 1047.

151. Enforcement.-Where two stockholders deposited their stock with another under an agreement that the stock should be sold for the benefit of the corporation, both stockholders were necessary parties to an action based on the violation of the agreement.-Parmenter v. Homans. 109 N. Y. Supp. 800.

152.

--

United States Indian Commissions.-The disbursing officer of an Indian Treaty Commission held required to account to the government for payments made to one of the commissioners for subsistence and for salary paid to him while he was absent from the field on leave. United States v. Hoyt, U. S. C. C., E. D. Wash., 158 Fed. Rep. 162.

153. Vendor and Purchaser-Bond to Convey. -A bond for title executed by a trustee under which the obligee went into possession held sufficient to vest the equitable title in the obligee sufficient to sustain a subsequent conveyance of the legal title as against a judgment creditor of the beneficiary.-Oder v. Jump, Ky., 108 S. W. Rep. 292.

Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 18, 1908

DO THE MARRIED WOMEN'S ACTS PERMIT A PERSONAL JUDGMENT TO BE RENDERED AGAINST A MARRIED WOMAN GARNISHED FOR HER HUSBAND'S DEBT?

Our various Married Women's Acts which have attempted to remove some, if not all, of the common law disabilities of married women, have involved the courts in much confusion. Possibly the unfriendly attitude of the courts toward this legislation is responsible for some of the difficulty in which they often find themselves in determining the status of married women under these modern statutes.

A federal district court had occasion recently to wrestle with the Arkansas Married Women's Act, and the decision of the court assumes the hostile attitude which is taken by nearly all the courts towards this legislation, and practically retains the common-law disabilities of married women in spite of the statute, at least so far as they relate to actions between husband and wife, or actions by third persons to reach property of the husband in the wife's pos

session.

The case to which we refer in the preceding paragraph is that of Allen-West Commission Co. v. Grumbles, 161 Fed. 461, where it was held that a personal judgment could not be rendered against a married woman garnished for her husband's debt. In that case the attempt was made to reach, by garnishment, money which the wife had obtained by the sale of some of her husband's personalty. On the garnishment proceedings it was shown that at the time of the service of the garnishment the wife had in her possession the property sought to be reached, but afterwards turned it over to her husband. The plaintiff

sought to secure a personal judgment against the wife, but the court held this to be impossible, even though the statute permitted married women to sue and be sued, on the ground that the husband was not given the right by such a statute to sue his wife, and, therefore, since the creditor cannot recover from the garnishee if the debtor himself could not, the plaintiff's action against the wife of the debtor for a personal judgment must fail.

While the argument of Judge Rogers in this case is apparently irresistible in its logic, we desire to call attention to a practical difficulty which such a construction of our Married Women's Acts raises, raises, to-wit: that it enables a wife to assert her commonlaw disabilities whenever she is sued, or where for any other reason such assertion is desirable, but dignifies her with all the rights of a person sui juris when she. herself, comes to sue or to engage in business, or to enforce her contracts or her right to hold property. At common law a creditor could attach any personal property in the possession of the wife for the husband's debts (Miles v. Williams, I P. Wms, 249), but under the Married Women's Acts the wife's personality is exempt from executions against the husband, (21 Cyc. 1585). A creditor is therefore in a worse situation so far as regards the husband's or wife's personal property which may pass so readily from one to the other than he was before the disabilities of coverture were removed.

Take the situation in the principal case as an instance. A wife sells some of her husband's personalty and receives the money therefor. At common law the creditor need not wait a minute; he can order the sheriff to seize the property, or the proceeds, as the husband's, under an attachment against the husband. Under our Married Women's Acts this procedure is impossible. The wife is sui juris to the extent, at least, that she can now receive personal property from her husband, and can hold it in her own right free from the control of her husband and from seizure

under execution or attachment for his indebtedness. Such statutes make it necessary, in order for the creditor to reach personal property belonging to the husband in the hands of the wife, to summon her as garnishee. Then, if he cannot go further and compel her to respond personally where she is proven to have been possessed of the personalty sought to be reached, and refuses to turn it over or to make satisfactory disclosure, opportunities for gross injustice are afforded under the protection of law.

Moreover, even if the husband could sue his wife under any of the Married Women's Acts, he could not recover from her a valid gift of personalty, even where made without consideration.

er to seize it in her possession as the property of the debtor or to hold her personally responsible as garnishee for the value. of the personalty which she thus holds at the time of the service of the garnishment process.

V.

the court in the principal case have said in such a case, that the wife could not have been summoned as garnishee and judgment rendered against her, simply on the ground

that the debtor could not have recovered the gift from his wife in an action against her? No; because Judge Rogers specially excepts such a case, saying: "The rule that a plaintiff by garnishment cannot place himself in a superior position as regards a recovery than is occupied by the principal defendant is subject, under the weight of modern decisions, to the exception that, where one is in possession of property of another upon a contract which was fraudulent as to creditors, it may, in his hands, be reached by garnishment." Why, then, make an exception in a case where under statute or judicial construction the husband or wife are not permitted to sue one another? A gift of personalty by the husband to the wife may be good as to all the world except as to the husband's creditors. The latter's action against the wife in the form. of a garnishment proceeding is more in the nature of an action to declare such a conveyance fraudulent, and to seize it for the creditor's protection. Garnishee process, however, is the only effective process in such cases. It does the creditor no benefit to have the wife return the gift to her husband. He must be permitted eith

a judgment against the husband, used this language: "The marital relations in this state have been materially changed by the Code so far as rights of property are concerned. The wife may be seized of the legal estate in lands, and she may hold the legal property in personalty, in her own right no trustee being necessary, and, in respect to property held to her sole and separate use, she has the right to resort to courts of law or equity for its protection. A married woman carrying on business in her own name as a sole trader contracts debts in respect to her business as if she were a feme sole. The remedy given to her creditors for the recovery of debts due them, by the process of attachments against her property, and credits, would be nugatory and worthless, if she could be permitted to place her funds or property in the hands of her husband, and it should be he'd that an attachment of this kind could not be laid in his hands as garnishee."

NOTES OF IMPORTANT DECISIONS

EASEMENT-WHAT IS A "WAY OF NECESSITY?"-What is a way of necessity which is supposed to go with a conveyance of land? Does it mean a way of convenience or must the way, scught to be imposed on the land of another, be one of actual necessity? Thus.