114. NAMES-Variance in Spelling. - A variance in the spelling of a name in a writ of execution held not fatal to a garnishment under the writ. Donohoe Kelley Banking Co. v. Southern Pac. Co., Cal., 71 Pac. Rep. 93. 115. NEGLIGENCE - Bees Attacking Horses.- Defend. ant's liability for horses killed by his bees held not measured by his duty to plaintiff as licensee if the proximate cause was the attack made by the bees while the horses were in the highway, hitched to a post there.— Parsons v. Manser, Iowa, 93 N. W. Rep. 86.

116. NEGLIGENCE-Care Demanded of Infant. — An infant of 12 years or above is chargeable with the measure of care demanded of an adult, unless he does not have the capacity sufficient to exercise the care of an adult.Charlton v. Forty-Second St., M. & St. N. Ave. R. Co., 80 N. Y. Supp. 174.

117. NEGLIGENCE - Imputed to Brother. The negligence of decedent's elder brother, in whose custody he was when killed by a street car, will be imputed to him. -Levine v. Metropolitan St. Ry. Co., 80 N. Y. Supp. 48. 118. NEW TRIAL-Denial of Motion. Where an excep. tion was taken to the denial of defendant's motion to direct a verdict, such motion may be reviewed without a motion for a new trial.- Prichard v. Deering Harvester Co., Wis., 93 N. W. Rep. 827.

121. OFFICERS-Salary. A de facto and de jure city offcer cannot be deprived of the salary attached thereto by reason of the usurpation of the office at the instance of the city authorities. Moores v. State, Neb., 93 N. W. Rep. 733.

122. PARTITION-Joint Owners.- Where two joint own. ers of a lot severally construct a building thereon, each constructing and owning a part, the property may be partitioned by sale and partition of the proceeds. Truth Lodge, No 213, A. F. & A. M. v. Barton, Iowa, 93 N. W. Rep. 106.

-

123. PARTITION- Tenant by the Entirety. A deed in partition, in which the husband of one of the co tenants was also named as a grantee, held not to make him a tenant by the entirety with his wife. Snyder v. Elliott, Mo., 71 S. W. Rep. 826.

124. PARTNERSHIP - Death of One Party.-Where sev. eral persons a reed to form a partnership at a future time, and one died prior to the time for the commencement of the partnership, the survivors held not entitled to negotiate a check given by deceased to the proposed partnership.- Dow v. State Bank, Minn., 93 N. W. Rep.

121.

129. POST OFFICE-Indictment.-An indictment charging an intent to defraud third persons unknown, who might receive counterfeit money from purchasers from defendant, held to contain a sufficient allegation of an intent to defraud.- Milby v. United States, U. S. C. C. of App., Sixth Circuit, 120 Fed. Rep. 1.

130. PRINCIPAL AND AGENT Commission. - A local agent of a machine company held entitled to commissions on sales secured through his efforts, regardless as to whether he or the general agent consummated the sale.-Davis v. Huber Mfg. Co., lowa, 93 N. W. Rep. 78.

131. PRINCIPAL AND AGENT-Construction of Contract. -A contract of agency construed and held to require the agent to keep the principal's goods insured, and that the agent was therefore liable for the damages sustained by his failure to do so.-Prichard v. Deering Harvester Co., Wis., 93 N. W. Rep. 827.

The recogni.

132. PRINCIPAL AND AGENT-Estoppel. tion of a certain person as an agent held not to estop the principal from denying that such person was his agent on a subsequent occasion. - Owens v. Hughes, Tex., 71 S. W. Rep. 783.

133. PRINCIPAL AND AGENT - Knowledge of Agent. The knowledge of an agent authorized to receive payment that the money was derived by the payor from funds held as guardian of an infant will be imputed to the principal. Manson v. Simplot, Iowa, 93 N. W. Rep.

75.

134. PROHIBITION-Expenses of Appeal.- Expenses of an appeal, and delays and annoyances incident thereto, do not affect its adequacy, so as to warrant employment of the writ of prohibition. - State v. Superior Court of King County, Wash., 71 Pac. Rep. 648.

135. PROHIBITION-Remedy at Law. A writ of prohibition will not be granted to restrain the court from entertaining an appeal, there being an adequate remedy by appeal.-State v. Neal, Wash., 71 Pac. Rep. 647.

136. RAILROADS-Failure to Allege Negligence.- Where a railroad company did not claim negligence in plaintiff's failure to stop before going over a crossing, an instruc tion predicate on the duty "to stop, look, and listen" was properly refused -International & G. N. R. Co. v. Ives, Tex., 71 S. W. Rep. 772.

137. RAILROADS- Vendor's Lien. A receiver's certifcates, duly issued by the court in the administration and maintenance of the property, held to have precedence over a vendor's lien on the property.-Royal Trust Co. v. Washburn, B. & I. R. R. Co., U. S. C. C. of App., Seventh Circuit, 120 Fed. Rep. 11.

138. RECEIVERS-Action by Corporation.— A corporation held to have power to commence an action after the appointment of a receiver, during a stay granted pending a decision by the supreme court on such appointment.-Boston & M Consol. Copper & Silver Min. Co. v. Montana Ore Purching Co., Mont., 71 Pac. Rep. 471.

139. RECEIVERS-Collateral Attack.- An order directing the payment of a judgment entered against a receiver on a contract made by him cannot be attacked on the ground that the court erred in appointing him.Painter v. l'ainter, Cal., 71 Pac. Rep. 90.

143. SALES-Contract.-Whether purchaser of seed oats was bound to know that printed card found in the sacks was a part of the contract limiting the warranty held to be for the jury.-Bell v. Mills, 80 N. Y. Supp. 34.

144. SALES-Custom.-Where a buyer failed to comply with a custom regulating payment for fruit sold, the seller was entitled to rescind the contract and recover the balance due -Minaker v. California Canneries Co., Cal., 71 Pac. Rep. 110.

145 SALVAGE -Beaching Steamship.- Salvage com. pensation awarded to tugs for services in beaching the steamship Saale after she had taken fire at her dock at Hoboken, and in assisting in putting out the fire and saving the lives of persons on board. - Merritt & Chapman Derrick & Wrecking Co. v. North German Lloyd, U. 8. D. C., S. D. N. Y., 120 Fed. Rep. 17.

146. SHERIFFS AND CONSTABLES - Liability on Official Bond. The sureties on a sheriff's official bond during one term of office are not liable for defalcations of such sheriff during a former term.-Work v. Kinney, Idaho, 71 Pac. Rep. 477.

147. SHERIFFS AND CONSTABLES Wrongful Levy. · Where a constable is sued for wrongful levy, his return to the writ, showing no service, is not conclusive of the fact that he made no levy. Dreese v. Keller, Kan., 71 Pac. Rep. 520. 148. SPECIFIC PERFORMANCE-Estoppel.-Vendor under an agreement for the sale of land held estopped to question the right of the assignee of the vendee on tender of purchase money. Pennsylvania Min. Co. v. Thomas, Pa., 54 Atl. Rep. 101.

149. STREET RAILROADS-Negligence. A street railway company held not necessarily free from negligence because running a car within the limit of speed fixed by ordinance.-Atherton v. Tacoma Ry. & Power Co., Wash., 71 Pac. Rep. 39.

150. STREET RAILROADS Wagon Driver. A wagon driver is not negligent as a matter of law in turning onto a track in front of a car which is far enough off to be stopped in time to avoid a collision -Blum v. Metropolitan St. Ry. Co., 80 N. Y. Supp. 157.

155. TRIAL Verdict Result of Prejudice. That the court bailiff, a son of defendant, was a brother of plaintiff and a witness for him, held not to support a contention that the verdict for plaintiff was the result of prejudice. McGibbons v. McGibbons, Iowa, 93 N. W. Rep. 55. 156. TROVER AND CONVERSION-Title to Street Paving. -The owner of a city lot does not, by paying assessments for street paving, acquire, as against the city, title to the material used in the paving in front of his lot, when taken up to make way for a new paving. - Jacquemin v. Finnegan, 80 N. Y. Supp. 207.

157. TRUSTS-Arising for Another's Benefit.-The rule that no trust arises in land purchased for another's benefit, unless the purchase money is supplied at the time, does not apply to express trusts or those arising by agreement. · Oberlender v. Butcher, Neb., 93 N. W. Rep. 764.

158. TRUSTS-Savings Banks.-Where a mother depos its fund in savings bank in trust for her daughter, the

161. USURY Interest Actually Paid. A payment of less than the legal rate held not usurious, though the note stipulated for usurious interest.-Alexander v. First Nat. Bank, Ky., 71 S. W. Rep. 883.

162. VENDOR AND PURCHASER-Fraud. -An offer to restore held not necessary before suit to rescind for fraud, and not necessary for costs, where it appears it would have been refused.-Hansen v. Allen, Wis., 93 N. W. Rep. 805.

163. VENDOR AND PURCHASER-Purchase of Land.— A purchase of land for value from one holding by deed absolute, and without notice that the deed was executed as security for a debt, takes the title freed from the equities of the grantor in such deed.-Long v. Fields. Tex., 71 8. W. Rep. 774.

164. VENDOR AND PURCHASER-Sale of Land - Where, in an offer to sell land, there is no stipulation as to the place of payment, and in response to such offer the pur chaser requires the delivery of the deed on payment at a place other than seller's residence, the seller can attach further conditions to the delivery of the deed-Hinish v. Oliver, Kan., 71 Pac. Rep. 520.

165. VENDOR AND PURCHASER. — Trust Funds. - One improperly holding as his own stock belonging to another, held responsible for all money received on such stock on the sale of the corporate assets.-Loetscher v. Dillon, Iowa, 93 N. W. Rep. 98.

166. VENUE-Motion to Remand.- Where a county court exceeds its jurisdiction in transmitting a cause to to the circuit court, the latter has jurisdiction to hear and decide a motion to remand.-State v. Circuit Court of Waukesha County, Wis., 93 N. W. Rep. 16.

167. WATERS AND WATER COURSES.-Civil Law Doctrine. The doctrine of the civil law with respect to interest in water by prior appropriation, and the applica tion thereof to beneficial use, is not a part of the laws of Nebraska-Crawford Co. v. Hathaway, Neb, 93 N. W. Rep. 781.

168. WATERS AND WATER COURSES-Diverting Stream. -Appropriation of considerable quantities of water in seasons when that may be done without sensible injury to lower owners does not give a prescriptive right to divert the whole stream in dry seasons.-Meng v. Coffey, Neb,93 N. W. Rep. 713.

169. WATERS AND WATER COURSES - Irrigation. Where all the waters of a stream have been appropriated for irrigation purposes, one who proposes to appropriate water which seeped from the stream has the burden of showing that such water was lost to the prior appropri ators.-Howcroft v. Union & Jordan Irr. Co., Utah, 71 Pac. Rep. 487.

170. WILLS-Execution of Codicil. Where a will containing charitable bequests was executed more than 30 days before the testatrix's death, the fact that she executed a codieil not affecting such charitable bequests within 30 days of her death did not invalidate the charities, under Civ. Code, §§ 1287, 1313.-In re McCauley's Estate, Cal., 71 Pac. Rep. 512.

171. WITNESSES-Part of Conversation.-Evidence of a witness concerning a conversation contradictory to the evidence of other witnesses, held admissible, though the witness did not hear all of the conversation.-Kelly v. State, Tex., 71 8. W, Rep. 756,

Central Law Journal.

ST. LOUIS, MO., JUNE 5, 1903.

RIGHT OF THE TRIAL COURT TO TAKE A CASE FROM THE JURY UPON THE OPENING STATEMENT OF COUNSEL.

One of the most interesting questions of trial practice is involved in the statement of the proposition we have taken as the subject of this editorial.

It is a familiar rule of practice that the admissions of counsel are binding as evidence in the case. Kapischki v. Koch, 180 Ill. 47. This was not a case of judgment upon plaintiff's opening statement, but the plaintiff in this case had entered his evidence and rested his case. At this interesting juncture, the defendant interposed what was in effect a demurrer to the evidence, and the trial judge, because of something that had been brought to his attention, or, perhaps, in order to save the time that would be required to listen to the defense, propounded to plaintiff's, counsel certain questions which drew from the latter an open court admission that plaintiff had previously brought suit upon the replevin bond, obtained judgment thereon, and that said judgment upon said replevin bond had been fully paid. Whereupon the court gave to plaintiff his election to take a voluntary nonsuit or to have a verdict directed against him, and a preference for the latter being expressed by counsel, a verdict was so directed and returned, and judgment thereon given. In sustaining the action of the lower court the Supreme Court of Illinois said: "We need not consider whether the same rule of pleading obtained at common law in actions of trespass, for the reason that all distinctions between the two forms of action have been abolished by statute in this state. The admission of counsel established facts which, under the pleadings, it was competent to consider, and which, if made prior to the motion which called upon the court to determine the sufficiency of the case in behalf of appellant, would, as a matter of law, conclusively have operated to defeat recovery in the action. The effect was not different because the admission was made while the court had the motion under consideration. The court rightfully considered the admission of coun

sel as constituting part of the case as made by the appellant, and correctly ruled there could not legally be a finding in his favor by the jury."

While the principle announced in the case just cited is true and supported by the authorities, it does not seem to be a corallary to that proposition recognized by all courts that a trial court has the right to take a case away from the jury because plaintiff in his opening statement to the jury makes certain damaging admissions which, if true, are sufficient to deny him any relief at law. The judicial opinions on this particular question are quite irreconcilable.

In England the courts take a firm stand against the right of the trial court to nonsuit a plaintiff upon his counsel's opening statement without the consent of his counsel. Fletcher v. London & Northwestern Railway Co., 65 Law Times Reports, 605. In this case plaintiff sued the defendants to recover damages for personal injuries sustained by him by reason of the negligence of defendants' servants. At the trial, after the plaintiff's counsel had opened his case to the jury, the judge said that he intended to nonsuit the plaintiff, unless counsel for the defendants objected to that course being taken, npon the ground that the facts stated did not show any cause of action for negligence against the defendants. The plaintiff's counsel did not assent to this course, but the judge, with the consent of the defendant's counsel, nonsuited the plaintiff. When this case came before the court of appeals, Lord Esher, Master of the Rolls, said: "I am of opinion that the judge at the trial struck too soon, even if he was entitled to strike at all. Further than that I am of opinion, that a judge at the trial has no right to nonsuit a plaintiff upon his counsel's opening statement without the consent of his counsel. The opening statement of counsel may be wrong as to some facts upon the instructions contained in his brief, or by accident, in spite of the greatest care, the evidence given may differ from the facts stated in the opening statement. For that reason a plaintiff's counsel has now the right to reply, and a defendant's counsel to sum up the evidence, because the evidence given often turns out to be different from that appearing in the instructions." Lopes, L. J., in delivering the opinion of the court

said: "I express no opinion upon the questions whether there was any evidence of negligence, and whether a certain document was admissible in evidence. I decide this case upon the ground that the judge at the trial, without the consent of the plaintiff's counsel and without hearing any evidence, nonsuited the plaintiff upon his counsel's opening. In my opinion no judge has power to nonsuit a plaintiff upon his counsel's opening without counsel's consent. Such consent was not given in this case, for Mr. Kennedy opposed the course which the judge took. It is almost unnecessary to point out how dangerous such a course may be. Briefs of counsel

do not always give all the facts of a case; sometimes there are other material facts which are not stated in the brief; sometimes the witnesses give evidence which differs from that which appears in the brief and alters the aspect of the case; sometimes upon the crossexamination of the plaintiff himself, evidence is elicited which is favorable to his case. For these reasons it is very undesirable that a judge should have the power to nonsuit a plaintiff upon the opening of his case. There must be a new trial."

While the question is thus firmly settled in England, the American courts are quite divided in opinion. Some courts have taken the English view and condemned the practice of nonsuiting a plaintiff on his counsel's opening statement. Hadley v. Transit Co., 76 Wis. 344; Jones v. Railroad, 5 Mackey, 8; Leonard v. Beaudry, 68 Mich. 312; Emerson v. Weeks, 58 Cal. 382; DeWane v. Hansow, 56 Ill. App. 575, cited with approval in 189 Ill. 125 at page 143. In the last case cited, the Illinois Court of Appeals said: "The court evidently was of the opinion that the plaintiff was bound by the opening statement made by his counsel to the jury, and that he did not state such a case as entitled him to a recovery against the defend

ant. We are not inclined to take this view of the law. While the office of a jury statement is to enlighten the jury upon the issues involved, so as to prepare their minds for the evidence to be heard, and the attorney making it should confine himself to the proposed proofs and make it sufficiently full for their understanding of the case, the plaintiff is not confined to the facts recited in the statement. He would be entitled to introduce evidence

and prove a case if no opening statement at all had been made."

Other American authorities are inclined to take a different view. In some of them, in most of them in fact, it is held that a court may enter judgment on plaintiff's opening statement whenever it is agreed by both parties that a verdict might be directed on the strength of such opening statement by plaintiff's counsel, each party claiming that the verdict should be directed in his favor. Crisup v. Grooslight, 79 Mich. 380; Garrison v. McCullough, 51 N. Y. Supp. 129.

They may which wit

They may

The United States Supreme Court, followed by some of the state courts, have, on very practical and common sense grounds, denied the theory announced by the English courts and held the plaintiff very strictly to account for everything his counsel may say especially upon his opening statement. Oscanyan v. Arms Co., 103 U. S. 263; Clews v. Bank, 105 N. Y. 398; Missouri Pacific R. R. v. Hartman (Kan. App.), 49 Pac. Rep. 110; Denenfeld v. Bauman, 58 N. Y. Supp. 111; Thompson on Trials, § 269. In the Oscanyan case, the United States Supreme Court said: "In the trial of a cause the admissions of counsel, as to matters to be proved, are constantly received and acted upon. dispense with proof of facts for nesses would otherwise be called. limit the demand made or the set-off claimed. Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court's procedure equally as if established by the clearest proof. And if in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the court may, upon its own motion, or that of counsel, act upon it and close the case. The suggestion in the argument, that the counsel who made the opening had been called into the case only two days before the trial, and was not, therefore, fully prepared to open it, does not merit consideration. In the first place, the record does not show that any application was made to the court for a postponement of the trial on that ground; in the second place, two days ought to have been ample time for the counsel to acquaint himself with the essential facts of the case; and in the third place, no new fact is even now men

tioned that would have materially changed his statement."

From a careful consideration of the above authorities we can conceive of no serious objection to the rule announced by the United States Supreme Court in the Oscanyan case. It is true that the practice of nonsuiting a plaintiff on his counsel's opening statement gives the trial court the power to pass upon the legal rights of the parties upon the statements of counsel rather than upon the facts as stated by witnesses. We see nothing in such a practice any more serious than the right of the trial court, on demurrer, to bind the plaintiff by his counsel's written statements in his pleadings. On the other hand, it is a serious waste of the court's time and the commonwealth's funds to continue a trial after admissions have been made by plaintiff, or his counsel, which would compel the court to set aside a verdict for plaintiff even if one was rendered. If a plaintiff is bound by his counsel's admissions on the trial of a case, we can conceive of no reason why an exception should be made in the case of admissions made in counsel's opening statements to the jury. True, a counsel might be careless and make misstatements, but that is the plaintiff's misfortune; he is equally bound by his counsel's mistakes in pleading. Moreover, as in the case of pleading, the trial court would permit him to correct a statement made to the jury, if done promptly and before judgment was passed nonsuiting his client.

In

Another very important argument in favor of this practice is that sometimes a plaintiff, who is so unfortunate as to have a bad case as far as the law is concerned, very often conceals those defects in his pleadings in order to escape the decision of the trial court on demurrer, and thus get to the jury. such case, if a counsel for plaintiff makes an admission in his opening statement which shows that under the law, he has no case, why, if such admission is binding upon the plaintiff, should the court go through the blind formality of hearing the plaintiff's evidence and then direct a verdict for defendant, or even of letting the case go to a jury and then setting aside a verdict in favor of the plaintiff, if one should so be rendered? believe, therefore, that the practice of nonsuiting plaintiff on his counsel's opening

We

statement is based on the most common sense principles, and results not only in making the attorneys guarded in their statements in the trial of a case, but works a great saving of time and expense to the state.

NOTES OF IMPORTANT DECISIONS.

NEGLIGENCE CONTRIBUTORY NEGLIGENCE IN JUMPING FROM MOVING TRAIN.-Is it always gross negligence for a person to jump from a moving train? The Supreme Court of Nebraska, in a recent case, holds that sometimes such action is justifiable. Chicago, B. & Q. Ry. Co. v. Winfrey, 93 N. W. Rep. 526. In this case, plaintiff was a passenger on defendant company's train. When she had reached her destination, and while attempting to leave the car in which she was riding, and before she had reached the door, the train began to move; and she was compelled to choose instantly, and without time for reflection, as to her course of action, and continued the act of alighting from the train, and in doing so was injured thereby. The court held that such action would not of itself necessarily bar a recovery, and that the question of contributory negligence was properly submitted to the jury, and its determin

ation thereof was final. The court said:

"The plaintiff in the case at bar was proceeding to alight from the train, when it had stopped at her destination, under the belief that she would be afforded a reasonable opportunity to accomplish the act in safety. While engaged in the performance of the act, by the starting of the train, or the failure to allow her a reasonable time to alight, which can be regarded only a wrongful and negligent act of the carrier, she was placed in a position where she had to choose instantly, and without time for reflection, between two lines of action,-one a continuation of the act of alighting, and the other a retracing of her steps, and remaining on the train till the next station was reached. Acting under such circumstances, and compelled to so act because of the negligent act of the carrier, she left the train, and in doing so received the injury for which she seeks a recovery in damages. Such action would not, in our judgment, amount to gross negligence, such as would preclude a recovery for the damages received as a result thereof. In any view of the subject, under the controverted facts in the case, the question was one for the jury, and its determination thereof, when properly submitted, becomes final. The case at bar is somewhat analogous to that of C., B. & Q. v. Hyatt, 48 Neb. 161, 67 N. W. Rep. 8, where a verdict for the plaintiff was upheld under facts less favorable to a right of recovery than those disclosed by the record herein. It appears from the opinion in that case that the passenger having arrived at her destination, and the train making its usual stop, the plaintiff immediately went out upon the platform of the car in which she was riding, for the pur