property for public use without just compensation: Constitu tion, art. 1., sec. 21.

The instruction requested was properly refused.

Counsel for appellant have called our attention to the case of Newell v. Minnesota etc. R'y Co., 35 Minn. 112, 59 Am. Rep. 303, which we find to be an authority for the proposition requested, and in conflict with the conclusion reached in this opinion. Not agreeing to the reasoning of that case, and the decision of a sister state being at most only persuasive authority, we prefer not to follow it.

We have carefully considered the several other assignments of error. None of them are well taken. Let the judgment be affirmed.

RAILWAY COMPANIES — STREETS. — While a street horse-railway may be constructed and operated in a city street without compensation to the abutting property owners, a municipality cannot authorize the construction and operation upon and over its streets of a steam-railway without compensation to the abutting lot-owners: Note to Theobald ▼. Louisville de. By Co., 14 Am. St. Rep. 569.

INDEX TO THE NOTES.

ACTION, abatement by prior action pending, 251.

ASSIGNMENT of trade-marks by assignment for benefit of creditors, 496. of trade-marks of which assignor's name is a part, 496-499.

BANKS AND BANKING, altered or raised checks, bank paying, when may recover of person to whom paid, 896.

check, contract implied from drawing of, 807.

check defined, 807.

check, drawer of, when released by delay in presenting for payment, 808.
check, drawer of, who withdraws his funds from the bank, 810.
check, forged, rights and remedies of bank paying, 890–899.
check, holder of, has no cause of action against bank, 807.
check, holder of, when may recover of drawer or indorser, 807.
check, indorsement of, by a forger, 898.

check, indorser of, delay in presenting for payment releases, 810, 811.
check, indorser of, warrants genuineness of all prior indorsements, 898.
check, presentment for payment, failure of, when does not relieve drawer,
809, 810.

check, presentment for payment, when holder and banker reside in dif.
ferent places, 809.

check, presentment for payment, when must be immediate, 808.
check, presentment for payment, within what time must be made, 807,
808.

depositor drawing check so as to admit of alterations, 898.

depositor, negligence of, whereby alterations and forgeries are encour aged, 897.

forged check, bank paying, can rarely recover of depositor, 890.

forged check, bank paying, when may recover of the person to whom payment was made, 892.

forged check, certification of, does not warrant genuineness of indorsements nor of body of check, 899.

forged check, certification of, warrants genuineness of drawer's signature, 899.

forged check, depositor, when must stand the loss, 894.

forged check, drawee of must know signature of drawer, 890.

forged check, drawee paying, cannot recover, if payment was to a bona fide holder, 890.

forged check, holder, bona fide, who is not, 893.

forged check, holder receiving payment, when must refund, 892, 893. forged check, negligence of depositor, when sufficient to make him liable for loss, 897.

forged check paid to bona fide holder, bank cannot recover of, 890.

BANKS AND BANKING, forged check, payment to holder who was negligent or did not act in good faith, 892.

forged indorsement of check, bank paying upon, is still liable to the true owner, 898.

forged indorsement of check, money paid on, when bank may recover, 898.

CONVEYANCES, Consideration, recital of payment of, when taken to be true,

288.

unrecorded, possession of land, when notice of, 289, 290.

unrecorded, presumption as to subsequent purchaser's notice of, 288. unrecorded, subsequent purchaser, what must show to avoid, 269. CORPORATION, Contracts made in corporate name when no corporation existą personal liability for, 162.

director's authority to represent corporation does not extend to cases in which he is interested, 304.

directors are agents of, 298.

directors, care required of, 98, 99.

directors, charter and law, liability for non-observance of, 101.

directors, compelling, to account for secret profits, 303, 305.

directors, consent of, to release of themselves, 304.

directors, contracts of, with corporation, are not void, 306.

directors, contracts with corporation in name of another, 304, 305.

directors, contracts with, ratification of, by a corporation, 308.

directors, contracts with, right of corporation to rescind, 305.

directors, contracts with, when not voidable, 307.

directors, contracts with, when valid, 300-302.

directors, contracts with, whether corporation may at same time avoid

and accept benefits of, 200.

directors, contracts with, whether corporation may disregard, 298. directors, diligence exacted of, 99, 100.

directors, duties, action for non-performance, who may maintain, 96.

directors, duties of, when suing without compensation, 96. directors, duties, to whom answerable for failure to perform, 96.

directors, duties of, stockholders, when may sue for omission to perform, 96.

directors forming other corporations to absorb profits, 302.

directors giving preference to themselves over other creditors, 307. directors, ignorance of, when will not shield them from liability, 97, 100. directors inaccurately spoken of as trustees, 298.

directors, incapacity of, to contract with, 299.

directors, incompetency to vote when they have interests adverse to those of the corporation, 300.

directors interested against corporation, votes of, cannot be counted, 300. directors interested against corporation may be counted as part of a quorum, 300,

directors interested against corporation, resolution adopted by vote of, 18 void, 300.

directors interested against corporation, vote of, cannot authorize issue of

note of corporation, 300.

directors, liability for committing exclusive control to others, 100.

directors, liability for failure to attend to official duties, 99.

directors, liability for gambling speculations, 99.

directors, liability for gross negligence, and what is, 98.

CORPORATION, directors, liability for gross negligence and inattention, 98. directors, liability for loans and acts prohibited by charter, 99.

directors, liability for making loan for greater amount than allowed by charter, 98, 99, 100.

directors, liability for mistake and errors of judgment, 97.

directors, liability for permitting others to usurp their duties, 99.
directors, liability of, when serving without compensation, 96,

directors may borrow money of, or buy property from, 300.

directors may contract with, where they do not represent both their in

terest and that of the corporation, 300.

directors, negligence, cases holding them not liable for, 96, 97.
directors, negligence for which they are answerable, 98.

directors, negligence in permitting cashier to embezzle funds, 96.

directors, negligence of, when a case for the jury, 99.

directors, non-performance of duties, ignorance resulting from, will not exonerate, 100.

directors of insolvent corporation cannot prefer themselves to its other creditors, 307.

directors, payment made to, in usual course of business, 307.

directors, proceeds of contract, when may not retain, 304.

directors, purchase by, at execution or judicial sales, 307.

directors, purchase by, of property of, 301.

directors, relation of, to corporation, 298.

directors representing conflicting interests of two corporations, 302, 306. directors, secret profits acquired by, representing adverse interests, 301,

303.

directors, suits by, to compel corporation to pay debt, 307, 308.

promoters, action against, to recover secret profits and preferences, 167. promoters, contracts of, ratification by corporation, and its effects, 161. promoters, contracts of, whether binding upon, 161.

promoters, contracts of, with corporation, if open and fair, are sus tained, 166.

promoters, contracts of, with corporation, when will not be upheld, 164, 166.

promoters, contracts reserving secret profits, 164.

promoters defined, 163.

promoters must act in good faith, 164.

promoters of, liability for contracts made in name of corporation, 162.

promoters of, presumed to be acting for corporation and their fellow. promoters, 166.

promoters, relation of, to corporation and to one another, 164.

promoters, right of action of, on contract made in name of corporation, 163.

promoters, sale by, of property to corporation, 165–167.

promoters, secret profits cannot be reserved by, 166.

stockholders or members, personal liability of, when there is no corpora

tion, 162.

COSTS, discharge of principal debt releases, 142.

CRIMINAL LAW, defendant, cross-examination of, 350.

defendant, evidence of, not to be treated as that of an accomplice, 230. defendant, failure of, to testify in his own behalf, 230.

defendant testifying cannot be excluded from court-room as a witness,

DEFINITION of check, 807.

of promoters of corporation, 163.

ELECTION, blank ballots, effect of, 880.

majority of persons voting, when sufficient, 880, 881.

quorum, what sufficient, 881.

ESTOPPEL by causing one to believe a fact, and to alter his condition, 24. by silence, 24.

of married woman, to deny that debt was contracted on her separate estate, 47.

EVIDENCE, physicians, privilege to testify did not exist at common law, 565. physicians, privilege of, not to testify, when exists under statutes, 565571.

See PHYSICIANS.

EXECUTION, chattels mortgaged, levy upon, 865.

restitution of possession taken under, when will be enforced, 264–266. GOOD-WILL of business, effect of transfer of, 496.

HUSBAND AND WIFE, alimony, contempt of court in failing to pay, 272 alimony, when may be allowed, 271.

INSURANCE, action to recover money paid on the ground that insured had been guilty of fraud and false swearing, 485.

death, presumption of cause of, 186.

life, premium, when may be paid after death, 666,

waiver by agent, 248.

waiver of conditions, what is sufficient evidence of, 247.

waiver of forfeitures, instances of, 247.

JUDGMENT, void, cannot sustain proceedings based thereon, 143.

void, if based on extinguished cause of action, 143.

JURISDICTION, subject-matter of, what is, 143.

loss of, by payment or extinction of cause of action pendente lite, 143. loss of, pendente lite, 143.

LEASE, parol contract for new lease, tenant being in possession under old one, 755.

parol, for more than one year is void, 753.

parol, for more than one year not enforceable at law, 752.

parol, for more than one year, not good for a year, 754.

parol, for more than one year, when creates mere tenancy at will, 754 parol, for more than one year, when good for a year, 753.

parol, for one year, but to commence at future date, 753.

parol, for three years, when void in New Jersey and Pennsylvania, 754 parol, part performance, continuance of prior possession is not an act of,

754.

parol, part performance, effect of, 755.

specific performance of parol contracts for, 755, 756.

specific performance, classification of cases in which may be decreed, 757.

LIMITATIONS, Statute of, purchaser at execution sale, when commences to run against, 55.

MARRIED WOMAN, estoppel to deny that debt was on account of her separate property, 47.