acts of one person can be successfully invoked as an estoppel by another, such other must have relied on and been prejudiced by the acts of which he complains.-Dent v. Smith, Kan., 92 Pac. Rep. 307.

63. Evidence-Documents. On the death of plaintiff his personal diary was brought into court by subpoena at the instance of defendant. Held, that where there was no averment that there was anything in the diary pertinent to the issue it would not be admitted.-Dorris v. Morrisdale Coal Co., Pa., 64 Atl. Rep. 855.

64. Negligence. On an issue as to defendant's negligence in failing to guard the cutter heads of a machine discussions between defendant's foreman and a deputy factory inspector as to the necessity and propriety of guarding the heads held incompetent.-Adams v. Peterman Mfg. Co., Wash., 92 Pac. Rep. 339.

65. Res Gestae.-The declaration of a servant not within the scope of his employment held admissible against his employer only when it constitutes a part of the res gestae.-Conklin v. Consolidated Ry. Co., Mass., 82 N. E. Rep. 23.

66.-Self-Serving Declarations.-The opinions of physicians as to a person's condition, based upon statements made by him while they were examining him to discover the extent of his injuries, but not for treatment, are inadmissible as based upon self-serving declarations. Chicago Union Traction Co. v. Giese, Ill., 82 N. E. Rep. 232.

67. Executors and Administrators-Estoppel. -The administrator of the mortgagor in a deed of trust held estopped to claim that the mortgagee had lost his right because not making sale immediately after maturing all the debt for default in payment of part of it when due. -Caldwell v. Kimbrough, Miss., 45 So. Rep. 7.

68. Exemptions-Bankruptcy.-A waiver of homestead and exemption in a note signed by one partner in the firm name is effectual against the separate property of the partner signing the note.-Perry v. Britt-Carson Shoe Co., Ga., 59 S. E. Rep. 216.

cotton

and

69. Fixtures-Machinery.-In woolen mills all machinery actually affixed to the freehold, though only by screws, or bolts, or connected with it by belts or bands, passes with the realty.-Equitable Guarantee & Trust Co. v. Knowles, Del., 67 Atl. Rep. 961.

70. Forgery-Indictment.-Where a forged paper is such that without the existence of extrinsic facts no apparent legal liability is created thereby, the indictment must aver such facts as will disclose its capacity to deceive and defraud, and enable the court judicially to see its tendency.-State v. Floyd, Ind., 81 N. E. Rep. 1153.

71. Gas-Authority to Lay Pipes.-An ordinance authorizing a gas company to transmit gas to other municipalities is not bad because not limiting the right to those municipalities in which the gas company has lawful authority to lay pipes.-Millville Imp. Co. v. Pitman, Glassboro & Clayton Gas Co., N. J., 67 Atl. Rep. 1005. 72. Habeas Corpus-Right to Discharge.— The right of accused to a discharge because four terms had intervened after his original mistrial without his being again brought to trial will not be determined by the court in an intermediate proceeding.-People v. Strassheim, Ill., 81 N. E. Rep. 1129.

supreme

73. Want of Jurisdiction.-One improperly sentenced on a verdict sufficient as a verdict for assault and battery will be remanded to the court for sentence as for assault and battery.-Ex parte Burden, Miss., 45 So. Rep. 1. 74. Highways-Right of Abutting Owners.The owner of land through which a highway passes has a right to make any reasonable use of it which does not interfere with the enjoyment of the public easement.-King v. Norcross, Mass., 82 N. E. Rep. 17.

75.

Homicide-Evidence.-A visit of decedent's widow to the office of defendant's counsel after the homicide held not admissible against defendant to show that decedent's widow was in sympathy with defendant, or that she had with him, prior to the homicide, illicit relations. Sasser v. State, Ga., 59 S. E. Rep. 255.

76. Husband and Wife-Joint Conveyance.Where land is conveyed to husband and wife jointly, and judgment is entered against the husband, the wife, after the death of the husband, takes the land free from judgment.-Hetzel v. Lincoln, Pa., 64 Atl. Rep. 866.

77. Indictment and Information-Issues and Proof. It is not sufficient to sustain a conviction on a particular charge to prove that defendant was guilty of some other charge, or general bad conduct, but the proof must establish his guilt of the particular charge set forth in the indictment.-Lowell v. People, Ill., 82 N. E. Rep. 226.

78. Injunction—Construction of Decree.-A directed verdict enjoining defendant from tearing up, removing, or otherwise abandoning a section of road held not to require defendant to replace a portion of the road already torn up. -Atlantic & B. Ry. Co. v. Brown, Ga., 59 S. E. Rep. 278.

79. Intoxicating Liquors-Wrongful Sale.Where a witness purchased a liquid sold to him as whiskey, it was immaterial, in a prosecution for selling intoxicating liquor illegally that the witness did not drink any of the whiskey.Tompkins v. State, Ga., 58 S. E. Rep. 1111.

80. Judges-Death of Judge Presiding at Trial. In case of the death of a federal judge who presided at the trial of a criminal case after a verdict of conviction, but before sentence, his successor may impose sentence on the defendant where the record contains sufficient to guide his discretion.-United States v. Meldrum, U. S. D. C., D. Oreg., 156 Fed. Rep. 390.

in a

82. Questions Determined.-Where, suit for violation of a contract, the court gives judgment on some items, but dismisses the claim as to others, as in case of nonsuit, there can be a defense in a second suit on the items with respect to which the judgment of nonsuit was rendered.-Amos Kent Lumber & Brick Co. v. Payne & Jouber, La., 44 So. Rep. 728.

83. Res Judicata.-A judgment in an action to quiet title held not res judicata in a subsequent action to quiet title.-Bird v. Winyer, Wash., 87 Pac. Rep. 259.

84. Judicial Sales-Purchase by Attorney.— Title of an attorney to land purchased at judi

cial sale in proceedings in which he so acted falls with the reversal of a decree directing the sale. Johnson v. McKinnon, Fla., 45 So. Rep. 23. 85. Jury-Disqualification.-It was no ground for challenge to the array that 12 of the 48 jurors had just served in the trial of another jointly indicted with defendant; such ground of challenge being available only to the poll.Paulk v. State, Ga., 58 S. E. Rep. 1109.

86. Landlord and Tenant-Improvements by Tenant. The right of a tenant to receive payment from the landlord for improvements placed on the premises arises from express contract only. Diedrich v. Rose, Ill., 81 N. E. Rep. 1140. 87. Relationship.-The relation of landlord and tenant exists where one person occupies the land of another in subordination to the other's title, and with his consent, express or implied.-Hawkins v. Tanner, Ga., 59 S. E. Rep.

225.

88. Larceny-Instructions.-Where in a prosecution for hog theft defendant claimed that he intended only to wound and kill it, it was error to refuse to charge that, if such defense was made out, defendant was not guilty.-Paulk v. State, Ga., 58 S. E. Rep. 1108.

89. Life Estates-Rights of Life Tenant.Where a widow took a life estate charged with a legacy to her son, and made various payments to the son, of which she kept no account, she could not charge such payments against the estate at the expense of the remaindermen.-Vanatta v. Carr, Ill., 82 N. E. Rep. 267.

90. Transfer of Rent Notes.-Where a life tenant, who was also executor and trustee, rented the land, he could transfer the rent notes, and the rights of the transferee would be superior to that of the remainderman after the death of the life tenant.-Hines v. McCombs, Ga., 58 S. E. Rep. 1124.

in

91. Life Insurance-Discrimination.-An surance policy providing that in consideration of the policy holder giving information as to insurance agents and risks an annual income based on 1 per cent of the amount of cash premiums taken in by the company in any one year would be given such policy holder operates as an illegal discrimination, and is violative of Code, 1906, sec. 2600.-Cole v. State, Miss., 45 So. Rep. 11.

92. Limitation of Actions-Effect of Amending Petition.-If a suit is brought in time, and the declaration imperfectly states a cause of action, subsequent amendments, though filed after limitations has run, will not be barred if they state the same cause of action in a different form.-George B. Swift Co. v. Gaylord, Ill., 82 N. E. Rep. 299.

93. Mandamus-Limitations.-Where a judgment creditor fails to have execution issued in five years on a judgment against a city of the first class, and also fails to revive such judgment within one year after dormancy, it is barred by limitations.-Beadles v. Smyser, Okl., 87 Pac. Rep. 292.

94. Municipal Board.-Mandamus to require a municipal body to perform a purely ministerial statutory duty may issue on the application of a resident taxpayer of the municipal district. -Lay v. Common Council of City of Hoboken, N. J., 67 Atl. Rep. 1024.

95.- -Necessary Parties.-In a mandamus proceeding to compel the county superintendent of schools to sign a township treasurer's bond,

the former treasurer is not a necessary party, since his right to the office is not involved.Hertel v. Boismenue, Ill., 82 N. E. Rep. 298. 96. When Writ Denied.-Writ of mandamus may be refused where its granting would decide questions of importance between persons not parties to the proceeding.-Smith v. Hodgson, Ga., 59 S. E. Rep. 272.

97. Master and Servant-Dangerous Premises. Where blasting was a daily occurrence in a coal mine, the law would impute to the mining boss and to the mine operator knowledge that the effect of the blasting was to loosen material overhead in the rooms where the miners were. Antioch Coal Co. v. Rockey, Ind., 82 N. E. Rep. 76.

98. Fellow Servants.-Where the master has conferred upon a member of a class of workmen carrying on a particular branch of his business authority to control or direct the movements of men under his charge, while in the exercise of such authority the relation of fellow servants does not exist.-East St. Louis Connecting Ry. Co. v. Meeker, Ill., 82 N. E. Rep. 202.

V.

100. Injury to Employee.-A planing mill company held not free from liability for injury to an employee caused by an unguarded saw because it had furnished a proper safeguard, and he failed to adjust it, where it is not shown to have been his duty to adjust it.-Johnson Far West Lumber Co., Wash., 92 Pac. Rep. 274. 101.-Injury to Minor Servant.-Proof that a boy under 16 years of age was put to work on or about a dangerous machine is evidence of the employer's negligence.-Schmidt v. Printing Business of Edwin C. Bruen, 106 N. Y. Supp. 443.

102.- -Risks Assumed.-A servant undertakes the risks of his employment so far as they spring from defects incident to the service, but he does not risk the negligence of the master himself.-McCabe & Steen Const. Co. v. Wilson, Okl., 87 Pac. Rep. 320.

on District

103. Mechanics' Liens-Work Buildings. Where work done on a barn was merely incidental to work done on the house on the same premises, a mechanic's lien including both was not objectionable as including work on two distinct buildings.-Stephens v. Duffy, Ind., 81 N. E. Rep. 1154.

104. Mines and Minerals-Effect of Deed.Where the owner of a placer claim located a lode claim, which conflicted with the placer, and thereafter deeded a part of the lode claim, the deed conveyed such portion of the placer as was within the part of the lode claim conveyed. -Collins v. McKay, Mont., 92 Pac. Rep. 295.

105. Leases.-Where a lease was executed for coal mining for one year and as long as the lessee may continue to mine it, the mining to begin the next day, and after two years no mining had been done, equity will cancel the lease. Starn v. Hoffman, W. Va., 59 S. E. Rep. 179.

daries on the ground.-New England & Coalinga Oil Co. v. Congdon, Cal., 92 Pac. Rep. 180. 107. Mortgages-Power to Declare. After the exercise of the power given the mortgagee in a deed of trust to mature the entire debt for default in payment of any of it when due, held it is too late for the debtor to tender the amount due up to the time of default.-Caldwell v. Kimbrough, Miss., 45 So. Rep. 7.

108. Rights of Mortgagee in Possession.A mortgagee or his grantee in possession should be allowed in his account the cost of all necessary repairs and reasonable expenses and for any permanent improvements erected with the consent of the mortgagor.-Gillett v. Romig, Okl., 87 Pac. Rep. 325.

109. Municipal Corporations-Civil Service.Where, under the civil service law, the municipal civil service commission cannot refuse to certify a pay roll because an employee named therein examined and certified for a position is performing duties not appropriate to the position, the commission cannot make a rule to this effect.-People v. Williams, 106 N. Y. Supp. 459.

110. Proceedings for Validation of City Bonds. Where an intervener, in a proceeding for the validation of city bonds, interposes obejctions based on facts which do not appear in the pleadings, the burden is on him to prove the facts thus set up.-Spencer v. City of Clarkesville, Ga., 59 S. E. Rep. 274.

111. Repeal of Ordinance.-It is within the power of a city council to repeal any ordinance passed by it where the repeal does not affect the contractual rights of the city, nor the rights of third parties or taxpayers.-City of Santa Barbara v. Davis, Cal., 92 Pac. Rep. 308.

112. Street Improvement.-Under Ann. Code 1892, sec. 3012, it was immaterial to abutting owners, assessed for street improvement, whether the work was done by the city under the street commissioner, or let out by contract, so long as they were charged no more than the actual cost of the work.-Edwards House Co. v. City of Jackson, Miss., 45 So. Rep. 14. 113. Navigable Waters-Riparian Rights.Under the common law, if the owner of land bounded by the shore upon tidewater make improvements upon or reclaim the shore adjoining his lands, the part of the shore so improved or reclaimed belongs to him, and cannot be granted by the state.-Heiney v. Nolan, N. J. 67 Atl. Rep. 1008.

Dentists.

114. Negligence A complaint against a dentist for injuries caused by his negligently dropping a tooth down plaintiff's trachea into her lung held not demurrable for failure to show that defendant's negligence was the proximate cause of the injury.-McGehee v. Schiffman, Cal., 87 Pac. Rep. 290.

115. Elements.-To constitute actionable negligence there must exist a duty of the person charged to protect the complaining party from injury, a failure to perform the duty, and an injury resulting from the failure.-Chicago Union Traction Co. v. Giese, Ill., 82 N. E. Rep. 232.

116. Injury to Person on Track.-Contributory negligence to be a defense to an action for injuring a person by negligence after discovering his peril, must be the negligent act or omission of the injured party with knowledge of the then present and impending peril. Southern Ry. Co. v. Stewart, Ala., 45 So. Rep. 51.

117. Nuisance-Places Near Highway.-The

fact that a manufacturing plant was maintained in close proximity to the public highway would not make the establishment a nuisance, or its erection and operation per se negligent. -Fort Wayne Cooperage Co. v. Page, Ind., 82 N. E. Rep. 83.

V.

118. Pilots-Penalties for Violation of Regulations.-A pilot's license, duly granted under the pilotage act, is property, and the board of pilot commissioners has no power to revoke, annul, forfeit, or suspend such license as a penalty for the breach of its rules.-Virden Board of Pilot Com'rs, Del., 67 Atl. Rep. 975. 119. Principal and Agent-Authority of Agent. Where one accepts the benefit of a bond issued through the agent of a bonding company, as is estopped from questioning its authorization.-American Bonding Co. v. Loeb, Wash., 92 Pac. Rep. 282.

120. Principal and Surety-Action by Surety. -Where the liability of a surety becomes absolute, he may file a bill against the principal debtor, though the creditor had not demanded him.--Craighead V. Schwartz, payment from

a

124. Expulsion of Passengers.-Where passenger, after being put off a train near a station, walks down the track three or four miles, and is struck by another train, negligence in expelling held not the proximate cause of the injury. Seaboard Air Line Ry. v. Smith, Ga., 59 S. E. Rep. 199.

125. Injuries to Person on Track.-A count of a complaint against a railway company for of causing the death plaintiff's intestate by negligence after discovering his peril held sufficient as against a demurrer.-Southern Ry. Co. v. Stewart, Ala., 45 So. Rep. 51.

126. Use of Right of Way.-A railroad may make such reasonable changes in its tracks as may be necessary for the advantageous use of its property and its growing needs.-Townsend v. N. Y. Cent. & H. R. R. Co., 106 N. Y. Supp. 381. 127. Removal of Causes-Effect of Removal. -The removal of a cause does not preclude the defendant from challenging the jurisdiction of either the state or federal court over his person or from claiming exemption from being sued in a state other than that of his residence.Davis v. Cleveland, C., C. & St. L. R. Co., U. S. C. C., N. D. Iowa, 146 Fed. Rep. 403.

128. Sales Right to Reclaim Goods.-To authorize a seller to recover from the buyer the goods solds and delivered because of the fraud of the buyer, it must be shown that the buyer formed an intent not to pay for the goods at the

-

131. Statutes-Intention of Legislature.-The intent of the legislature constitutes the law and may be as effectually manifested by what is necessarily implied as by what is expressed, and where there are conflicting manifestations of the legislative will the last is controlling.— Great Northern R. Co. v. United States, U. S. C. C. of App., Eighth Circuit, 155 Fed. Rep. 945.

132. Taxation-Delinquent List.-A delinquent list of lands sold for taxes held not fatally defective because the dollars and cents were not indicated by figures purporting to state the amount charged against the property.-Chapman v. Zobelein, Cal., 92 Pac. Rep. 188.

133. Telegraph and Telephones Duty to Public.-Duties of a telegraph company, being a public service company, to the general public who have occasion to transact business with it, declared.-Dunn V. Western Union Telegraph Co., Ga., 59 S. E. Rep. 189.

134. Theaters and Shows-Right of Admission. The holder of a ticket of admission to a place of amusement is, on being refused admission, entitled to recover the amount paid therefor and necessary expenses incurred to attend.-People v. Flynn, N. Y., 82 N. E. Rep. 169. 135. Trade-Marks and Trade Names-Illegal Use. Retiring partner held not deprived of right to use his own surname in connection with his new business, though such name was a portion of the trade-mark used by the old firm.-White v. Trowbridge, Pa., 64 Atl. Rep.

862.

strike

of

136. Trade Unions-Strikes.-A members of a labor union against an increase of labor without an increase of compensation or to improve the condition of its members as laborers, though not so announced at the time, is justifiable.-Searle Mfg. Co. v. Terry, 106 N. Y. Supp. 438.

137. Trusts-Distribution of Income.-Though the will directed the payment of the income of the trust fund yearly to testator's children, the trustee should pay to the guardian of the only child SO much income as was necessary for maintenance and education.-Baker V. Fooks, Del., 67 Atl. Rep. 969.

138. Vendor and Purchaser-Duty to Take Title.-A purchaser was not required to accept title where projections on the house on the adjoining lot overreached the property in question a few inches, though the house owner agreed to remove them.-Walters v. Mitchell, Cal., 92 Pac. Rep. 315.

Venue-Non-Joinder

139. of Unnecessary Party. In an action against a husband and his wife to recover a personal judgment against her, held his failure to join her in moving for a change of venue to the county of their residence cannot affect her rights to a change.— Anaheim Odd Fellows Hall Ass'n v. Mitchell, Cal., 92 Pac. Rep. 331.

140.

Waste-Injunction.-Equity will enjoin equitable waste by the owner of a base fee only when the contingency determining the estate is reasonably certain to happen, and the waste constitutes a wanton and unconscious abuse of the owner's rights.-Fifer v. Allen, Ill., 81 N. E. Rep. 1105.

Courses-Interstate

141. Water and Water Streams. In an action by a resident of Wyoming to enjoin residents of Montana from diverting water from a stream rising in Montana and flowing into Wyoming, the rights of the complainant are governed by the laws of Wyoming. -Morris v. Bean, U. S. C. C., D. Mont., 146 Fed. Rep. 423.

142. Prescriptive Rights.-The burden is on one claiming the right to use water by prescription to establish such right, but is discharged by showing continuous occupancy and use for more than five years.-Gurnsey v. Antelope Creek & Red Bluff Water Co., Cal., 92 Pac. Rep. 326.

143. -Riparian Rights.-The right of a riparian owner to a reasonable use of the water in a stream does not authorize him to raise a dam, which destroys or materially damages the property of others.-Durga v. Lincoln Creek Lumber Co., Wash., 92 Pac. Rep. 343.

The

144. Wills-Counsel Fees on Appeal. counsel fees on an unsuccessful appeal by the unsuccessful proponent of a will cannot be imposed by the appellate court on the estate.Skillman v. Lanehart, N. J., 67 Atl. Rep. 1034. 145. -Election.-The proceeds of certain insurance which a widow took because she was sole heir of her husband, the insured, held not a part of her separate estate at her husband's death, within Ann. Code 1892, sec. 4499, providing for the distribution of the husband's estate in case the widow elected not to take under his will.-O'Reily v. Laughlin, Miss., 45 So. Rep. 19. 146.- -Probate.-It is incumbent on one petitioning for the probate of the will of a decedent to make satisfactory proof of the will, and, if he fails to do so, the trial court must. though there is no opposition of the probate. refuse probate. -In re Hayden's Estate, Cal., 87 Pac. Rep. 275.

147. Witnesses-Competency.-One having no interest in a suit involving the location of a boundary line held competent to testify with respect to the directions given him as to the running of a line by the general manager, since deceased, of one of the parties.-Douglas Land Co. v. Thayer, Va., 58 S. E. Rep. 1101.

148. Confidential Communications.-The relation of physician and patient being established, communications by the patient to the physic'an will be presumed to be necessary for proper treatment in a professional capacity.Dambmann v. Metropolitan St. Ry. Co., 106 N. Y. Supp. 221.

149. Cross-Examination.-Where a witness in an action for injuries to stock in transit did not testify as to the cause of the injury, he cannot be asked on cross-examination whether he had not stated that the horse was killed by kicks from the other horses.-Ross v. Minneapolis. St. P. & S. S. M. Ry. Co., Minn., 113 N. W. Rep. 573.

150. Cross-Examination of Accused.-In a prosecution for homicide, it was not error to permit the state to examine accused as to what he knew about a defense previously interposed in his behalf, which had been abandoned.-Smith v. State, Tex., 105 S. W. Rep 182.

Central Law Journal.

ST. LOUIS, MO., MARCH 13, 1908.

CONSTRUCTION OF PHRASE "DEATH AT THE HANDS OF JUSTICE" AS APPLICABLE TO THE LIABILITY OF INSURANCE COMPANY ON POLICY PREVENTING RE

COVERY WHERE DEATH IS "SUPERINDUCED AT THE HANDS OF JUSTICE."

Our attention has been called to an interesting decision of the Supreme Court of Georgia in the recent case of Supreme Lodge, Knights of Pythias v. Crenshaw, 58 S. E. Rep. 628, where that court holds that even though the killing by the husband of the paramour of the wife be under such circumstances that the law would class the act as justifiable homicide, such killing is not at the hands of justice, either punitive or preventive. The provision in the policy over which the controversy arose was as follows: "It is agreed that if death is caused or superinduced at the hands of justice, or in violation of, or attempt to violate, any criminal law, then there shall be paid" a lower sum than the face of the policy, to be calculated according to the method prescribed in the application. The answer of defendant, basing its defense on this provision in the policy, alleged that the death of the insured was caused or superinduced by the hands of justice, for that he was shot to death by R. C. Lindsay while he was engaged in the attempt to commit the offense of adultery and fornication with the wife of the said Lindsay, who discovered them under circumstances showing that the act was about to begin, and the said Lindsay acted promptly and in the burst of passion and indignation which overwhelmed him on discovering the outrage which had been done him, and that the killing was justi

fiable.

The plea then set forth the amount that is admitted to be due under the terms of the policy, which amount the defendant tendered to the plaintiff.

The contention of the defense was certainly persuasive, if not convincing. It was not that the death of the insured was the result of the administration of punitive justice, but that it was the result of the administration of preventive justice that the law allows the husband to kill his wife's paramour under certain circumstances, and the killing under these circumstances is in the administration of preventive justice within the meaning of the code. The code provision referred to was section 2118, as follows: "Death by suicide, or by the hands of justice, either punitive or preventive, releases the insurer from the obligation of his contract."

To this contention of the defense Justice Cobb, speaking for the court, said: "We do not think that the word 'preventive' in the Code is to be given this interpretation. The word 'punitive' certainly refers to death inflicted by an officer of the law in obedience to the commands of the law. The word 'preventive' must be construed to refer to a killing by an authorized officer of the law, or a private person standing for the time being in the attitude of a | public officer; as a member of the sheriff's posse, or the like, under these circumstances where the law authorizes the tak

ing of human life in the advancement of public justice. It cannot be properly interpreted to ever include a killing by a private person to avenge or prevent a private wrong, even though the circumstances be such that the homicide is justifiable. This section is to be construed in connection with Pen. Code, 1895, § 70, which enumerates the different cases of justifiable homicide, among them being the killing of a human being by commandment of the law in execution of public justice, and by permission of the law in the advancement of public justice. The word 'preventive' was used to convey the same idea as is conveyed in the section of the