115. PROHIBITION Jurisdiction. A writ of prohibition to the court of appeals held not to lie after it had affirmed the judgment, sent its mandate to the trial court, and adjourned the term.-Klingelhoefer v. Smith, Mo., 71 S. W. Rep. 1008. 116. PROPERTY-Water Pipes.-Water pipes and meter, laid in the streets by the owner of a town site, held to be personal property, and transferable by bill of sale.— Mulrooney v. Obear, Mo., 71 8. W. Rep. 1019. - 117. QUINTING TITLE Removing Cloud. A sheriff's deed, executed pursuant to a sale of land under execution issued on a void justice's judgment, constitutes a cloud, which the land owner is entitled to have removed. -Purdy v. Law, Mich., 94 N. W. Rep. 182. 118. RAILROADS-Farm Crossing.-Where a farm crossing was located and constructed across a railroad by agreement, its location could not be changed afterwards by one party without the consent of the other. Speer v. Erie R. Co., N. J., 54 Atl. Rep 539. 119. RAILROADS Fires. It is a legitimate conclusion that a loaded freight train laboring up a grade will throw out sparks. Brooks v. Missouri Pac. Ry. Co., Mo., 71 S. W Rep. 1083. 120. RAILROADS - Negligence. Though plaintiff was negligent in having its train across defendant's track, the negligence of defendant's crew in not seeing it and avoiding the accident is the proximate cause. - Missouri Pac. Ry. Co. v. Chicago G. W. Ry. Co., Mo., 71 S. W. Rep. 1081. 121. REMOVAL OF CAUSES-Objection to Jurisdiction.— A defendant, by removing a cause brought in a court of a state of which neither party is a resident, waives the right to object to the jurisdiction of the federal court over him; and plaintiff also waives the right to object to the court's jurisdiction, where, after the removal, he consents to the entry of orders affecting matters in controversy. Foulk v. Gray, U. S. C. C., S. D. W. Va, 120 Fed. Rep. 156. 124. SALES - Insolvency.-In order to avoid fraud, it is not incumbent on the buyer of goods to inform the seller of his insolvency; no inquiry being made as to his finan cial condition.-Stein v. Hill, Mo., 71 S. W. Rep. 1107. 125. SPECIFIC PERFOMANCE - Equity Jurisdiction. Where, in a suit for specific performance, all of the defendants are personally served and defend, the jurisdic. tion of equity is not ousted by the fact that the land lies in a sister state.-Barringer v. Ryder, Iowa, 93 N. W. Rep. 56. 126. STREET RAILROADS- Look and Listen.-Ordinary care to discover an approaching street car by looking or listening is all that is required of a driver -Stanley v. Cedar Rapids & M. C. Ry. Co., Iowa, 93 N. W. Rep. 489. 127. STREET RAILROADS - Negligence. - Contributory negligence of one crossing a street railway tract held - State v. United Owner of not excused by negligence of railroad. Rys. & Electric Co., Md., 54 Atl. Rep. 612. 128. STREET RAILROADS-Special Damage. property abutting on street held not entitled to complain because electric road would be constructed on part of street not designated by the company's charter. Baker v. Selma St. & S. Ry. Co., Ala., 33 So. Rep 685. 129. TAXATION- Assessment. The board of equalization should not deny relief to one whose property has been assessed too high, on the ground that to lower his assessment would reduce the aggregate assessment.Sarpy County v. Clarke, Neb., 93 N. W. Rep. 416. 130. TAXATION Back Assessment.-In the absence of any other authority than Rev. St. 1899, §9199, there cannot be an assessment for a previous year where merely personal property of an individual was omitted from assessment.-City of Hannibal v. Bowman, Mo., 71 S. W. Rep. 1122. 131. TAXATION-Delinquent Taxes.- Where the county board has purchased real estate for delinquent taxes, it cannot cancel the sale without the full payment of taxes, penalties, interest, and costs. — Kelly v. Dawes County, Neb., 93 N. W. Rep. 405. 132. TAXATION-Double Tax-To assess the shares of the stock of a bank in the hands of the holders at its full value, and also to assess and tax the real estate of the bank, is not unconstitutional as double taxation Illinois Nat. Bank v. Kinsella, Ill., 66 N. E. Rep. 338. 133. TAXATION - Property Omitted.-Employment by county supervisors of one to discover property omitted from taxation held not illegal, because all taxes col· lected thereby do not inure to benefit of county. Disbrow v. Board of Sup'rs of Cass County, Iowa, 93 N. W. Rep. 585. 134. TELEGRAPHS AND TELEPHONES-Construction of Statute.-Code 1873, § 1324, as amended by laws 19th Gen. Assem. ch. 104, construed in the light of Code 1873, § 466, and Laws 22d Gen. Assem. ch. 1, 16, and held to authorize occupation of city's streets by telephone company without city's consent, notwithstanding Code 1851, § 26, par. 5.--Chamberlain v. Iowa Tel. Co., Iowa, 93 N. W. Rep. 596. 135. TENANCY IN COMMON- Fraud.-Where one joint owner of property sold the same and turned over to the other less than he received, the latter could recover, though he received as much as his share was really worth.-Walker v. Evans, Mo., 71 S. W. Rep. 1086. 136. TENDER- Worn Nickel.-Street car conductor held not entitled to eject passenger for refusal to pay fare in other than worn coin.-Ruth v. St. Louis Transit Co., Mo., 71 S. W. Rep. 1055. 137. TORTS-Pleading.-An allegation of conspiracy in an action for tort held matter of inducement, and, though not proved, not to prevent recovery of defend. ants, shown to have participated in the tort.-Young v. Gormley, Iowa, 93 N. W. Rep. 565. 138. TRADE MARKS AND TRADE NAMES-Identity of Names. A person engaging in the same business as another previously doing business under the same name may not dress his goods in a manner calculated to increase the confusion and enable his goods to be sold as those of his competitor.-Chickering v. Chickering & Sons, U. S C. C. of App., Seventh Circuit, 120 Fed. Rep. 69. 139. TRIAL-Evidence.-A party waives an objection to evidence by introducing the same character of evidence himself.-Ruth v. St. Louis Transit Co., Mo., 71 S. W. Rep. 1055. 140. TRIAL-Juror-Withdrawal of a juror by direction of the court produces a mistrial, so that, there not hav ing been any trial, a new trial cannot be directed.-Rosengarten v. Central R. Co., N. J., 54 Atl. Rep. 564. 141. TRIAL-Juror's Conversation with Plaintiff.-Refusal to discharge jury because of a conversation during trial between a juror and one of the plaintiffs held not error.-Vowell v. Issaquah Coal Co., Wash., 71 Pac. Rép. 725. 142. TRIAL- Separate Trial. — - One of several defend ants in action to revive judgment held not entitled to a separate trial as a matter of right.-Haupt v. Simington, Mont., 71 Pac Rep. 672. 143. TRUSTS-Death of Trustee. Where a permanent trust is created and a trustee named, the trust will not lapse on the death of such trustee, but the court will ap point succeeding trustees In re Gay's Estate, Cal., 71 Pac. Rep. 707. 144. TRUSTS-Execution Sale.-Purchase by tenant of his cotenant's interest on execution sale under agreement held not to show a constructive trust.-Stafford v. Stafford, Tex., 71 S. W. Rep. 984. 145. TRUSTS-Possession.-A cestui que trust, entitled to possession of real estate, may, without the trustees, sue to enjoin interference with its right.--Cape v. Plymouth Congregational Church, Wis., 93 N. W. Rep. 449. 146. TRUSTS-Quitclaim Grantee.-A grantee under a quitclaim, given to secure a debt, held to hold the property as trustee.-Babcock v. Wells, R. I., 54 Atl. Rep. 596. 147. UNITED STATES-Waiver of Exemption.- Where the United States sues, it waives its exemption so far as to allow a presentation by defendant of set-off to the extent of the demand made. United States v. Warren, Okla., 71 Pac Rep. 685 148. VENDOR AND PURCHASER-Defective Title. One who has agreed to purchase land if the abstract shows perfect title is not required to point out specific objections in a defective abstract.-Lessenich v. Sellers, Iowa, 93 N. W. Rep. 348. 149. VENDOR AND PURCHASER-Inability to Give Good Title. A vendor being unable to give a good title as contracted at the time stipulated, the purchaser need not wait, but, without formal offer of performance, may re cover payments made.-Burke v. Schrieber, Mass., 66 N. E. Rep. 411. 150. VENDOR AND PURCHASER.-Insolvency of Buyer.Belief of one, agreeing to give title to certain land, that he had a right thereto, held to render binding on the vendee his contract to purchase the land, though at the time of the contract, the belief was ill-founded.-Hollifeld v. Landrum, Tex., 71 S. W. Rep. 1107. 151 VENDOR AND PURCHASER Option to Re-Purchase. In an action by the grantee by quitclaim from a lessor, with knowledge of the option of purchase in the lease, against the lessee, to recover on the ground of a wronful holding over, held that, by reason of what defendant had done under the option, he was entitled to judgment-Sizer v. Clark, Wis, 93 N. W. Rep. 539. 152. WAREHOUSEMEN Cold Storage. - In an action against the owner of a cold storage warehouse in which plaintiff had stored celery for damages resulting from the failure to keep the storage room at a uniform and proper temperature, plaintiff's failure to remove the celery after learning that the temperature was not proper held not to render him guilty of contributory negligence as a matter of law. - Rettner v. Minnesota Cold Storage Co., Minn., 93 N. W. Rep. 120. 153 WATERS AND WATER COURSES- Overflow.-In an action for damages from overflow of plaintiff's land, caused by defendant, it is not necessary to a recovery that the particular damages caused should be within the anticipation of reasonably intelligent and prudent persons.-Schmeck pepper v. Chicago & N. W. Ry. Co., Wis., 93 N. W. Rep. 533. 154. WATERS AND WATER COURSES Pleading. Where a complaint admits defendant's right to discharge water on plaintiff's land, but merely seeks to regulate the right, the answer need not set up the right relied on.-Durning v. Walz, Oreg., 71 Pac. Rep. 692. 155. WILLS - Ademption of Legacy. - Exchange of stock in bank, on its consolidation with other banks, for stock in consolidated bank, held not an ademption of legacy of such stock.-In re Peirce, R. I., 54 Atl. Rep. 588. 156. WILLS - Conditions in Restraint of Marriage.All conditions annexed to gifts or devises generally prohibiting marriage, or where there is an attempt to fetter or restrain marriage by unreasonable conditions, are inoperative and void as being against public policy; and not only conditions actually prohibiting, but also any such as lead to probable restraint of marriage, are void. Kennedy v. Alexander, D. C. App., 31 Wash. Law Rep. 158. 157. WILLS-Construction.-Under a will giving testatrix's son the right to live on her farm, held, that the son, if living on the farm, should pay taxes, repairs and expenses. In re Martin, R. I, 54 Atl. Rep. 589. 158. WILLS-Construction. A legatee of table linen of small value held, under the facts, not entitled to take under a clause directing the distribution of testatrix's residuary estate among the legatees.-Kenan v. Graham, Ala., 33 So. Rep. 699. 159. WILLS-Legal Representative. -- A husband held not a legal representative of his wife, so as to take an interest in her real estate, she dying testate.-In re Lesieur's Estate, Pa., 54 Atl. Rep. 579. 160. WILLS.-Setting Aside.-A will will not be set aside because testator was a believer in spiritualism.- Bu chanan v. Pierie, Pa., 54 Atl. Rep. 583. 161. WILLS-Testamentary Capacity-Prejudice against testator's son, not amounting to an insane delusion, held not sufficient to invalidate a will bequeathing to such son one-fourth of the remainder of testator's estate and the balance to another son.-Schmidt v. Schmidt, Ill., 66 N. E. Rep. 371. 162. WILLS-Validity of "Rough" Draft of Proposed Will. - When an unsign and unattested paper was propounded for probate as a will of personal property, held that the jury were properly instructed that if they found from the evidence that the paper was written by deceased as a draft of a will from which she intended to have a more formal will prepared and executed, their verdict should be for the caveators unless they should further find that deceased was prevented by sudden sickness or death from carry. ing this intention into effect-Cruit v. Owen, D. C. App., 31 Wash. Law Rep. 222. 163. WITNESSES Attack on Character. - Where accused has taken the stand, a question on cross-examination as to whether he had ever been in the petitentiary, held not inadmissible, as the question simply went to his character as a witness. -State v. McCoy, La., 33 So. Rep. 730. 164. WITNESSES-Competency.-Certain testimony held incompetent, under Evidence Act, § 4, P. L. 1909, p. 363, rendering illegal testimony as to transactions with a testator, save under certain conditions. - Baker v. Bancroft, N. J., 54 Atl. Rep. 563. 165. WITNESSES-Husband and Wife.-Under the expressed provision of 2 Starr & C. Ann. St. (2d Ed.), p. 1837, a husband may testify in behalf of the wife, where the litigation concerns her separate property-Cassem v. Heustis, Ill., 66 N. E. Rep. 283. 166. WITNESSES- - Husband of Administratrix.-Where a married woman is sued as administratrix, her husband is a competent witness.-Gordon v. Sullivan, Wis., 93 N. W. Rep. 457. 167. WITNESSES-Impeaching Testimony.-Statements of accused, taken under oath, contrary to Code, § 1143, cannot be referred to by solicitor on trial to impeach his testimony.-State v. Parker, N. Car., 43 S. E. Rep. 830 168. WITNESSES Memorandum. In order to use a memorandum to refresh a witness, he should produce the original or satisfactorily account for its absence.Volusia County Bank v. Bigelow, Fla., 33 So. Rep. 704. 169. WITNESSES - Wife in Divorce Suit. A wife is not competent to testify in an action brought by her for divorce on the ground of separation for five years. — Bore. ing v. Boreing, Ky., 71 S. W. Rep. 431. 170. WORK AND LABOR-Family Relation.-In an action for work and labor, the defense that the work was performed as a member of defendant's family is unavailable unless pleaded. Schroeder v. Schroeder, Iowa, 93 N. W. Rep. 78. TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- CORRESPONDENCE AND BOOK REVIEWS A separate subject-index for the "Digest of Current Opinions" will be found on page 508, follow- whether passengers going to or from trains are validity of contract by a carrier providing for a par- right of purchaser of commutation ticket to frèe pas- stipulation against liability for negligence in grat- liability of railroads for injuries to passengers caused the non-liability of railroad companies maintaining CHARITIES-CONTINUED. hospitals for the malpractice of surgeons and the can a city act as trustee of a public charity under a liability of surgeon for negligence in performance of when a hospital is "charitable" so as to exempt it 464. CIVIL RIGHTS, boot-black stand as a "public accommodation." placing the consular service on a merit system, 161. what is a restraint or monopoly of interstate com- whether the holding of the majority of stock in one right to enjoin strikes because of interference with dissolution of the Northern Securities Company by right of congress under power to regulate com. combinations in restraint of interstate commerce, CONFLICT OF LAWS, extra-territorial force of statutes prohibiting a re- CONSTITUTIONAL LAW, the adoption of the referendum in Oregon, 12. validity of special juries, 128. constitutionality of statutes providing for the selec- vested rights in the defense of the statute of limita- power of a state to require an osteopathist to obtain right of a state to prohibit the grazing of sheep on right of a state to invalidate a sale of stocks on mar- the initiative and referendum as violating the con- right of a city to prohibit the erection of bill boards, extent of right to search and bind persons when constitutionality and construction of compulsory legislative interference with trades and professions, constitutionality of ordinance requiring the union constitutionality and effect of ordinances requiring federal limitations upon state action in regard to in- CONSTITUTIONAL LAW-CONTINUED. judgment for alimony as a "contract" or as "prop can the legislature delegate authority to notaries is the proceeding for punishment of the violation of parol waiver of conditions of policy with or without rule as to the specific enforcement of contracts in. validity of contract to procure property holders' con- validity of contracts entered into for the purpose of validity of contract to support candidates for politi- application of the rule of express aider to cases of validity of contract to supply evidence, 343. a copyright battle involving millions of dollars, 432. right of preferred shareholders to dividends, 65. preferential dividends not cumulative, 66. the doctrine that a guaranty of a stated dividend cre- whether a preferential share certificate is a certifi- whether guaranteed stock creates a lien superior to whether preferred shares may be issued without the remedy in equity of the holder of guaranteed stock, 69. liability of corporations on an executed contract not correlative rights of stockholders, policy holders and OREDITOR'S BILL. following improvements by husband on wife's pro- right of creditors to enforce a lien or follow property CRIMINAL LAW, whether a man may resist a public horse-whipping criminal responsibility of a servant who quits work temporary emotional insanity as a defense against a competency of a wife as a witness against her hus- testimony of collateral transactions to show in- evidence of dangerous character of deceased to prove evidence of turbulency of deceased for the purpose of general rules as to evidence of character, 149. necessity of proving aliunde right of self-defense, 150. habit of deceased in carrying weapons, as supporting admissibility of evidence of deceased's good charac- conviction of battery as a bar to prosecution for criminal liability of parent of child who dies without extent of right to search and bind persons when is the proceeding for punishment of the violation of pleading and proof of insanity in criminal cases, 466. DEBTOR AND CREDITOR, right of creditors to enforce a lien or follow property DESCENTS AND DISTRIBUTIONS, the doctrine of ultimus haeres in international law, 171. 15, 34, 54, 73, 94, 114, 134, 155, 173, 195, 215, 234, 255, 274, DIRECT LEGISLATION, the adoption of the referendum in Oregon, 12. DISCOVERY, right of attorney to propound fishinglinterrogatories, DIVORCE, extra-territorial force of statutes prohibiting a re- right of wife to obtain order for maintenance of foreign divorces and their effect on status and prop- judgment for alimony as a "contract" or as "prop- injuries from electricity in highways, 485. EQUITY, right to jury trial in equitable actions where it ap- ESTOPPEL, the doctrine of equitable estoppel as applied to parol waiver of conditions of policy with or without relevancy of evidence of price paid for similar land similarity in location as relevant in determining the when the silence of a party can be admitted as evi- competency of evidence relating to physical condi- compulsory physical examination of defendant, 89. testimony of collateral transactions to show intent, general rules as to evidence of character, 149. expert testimony as to authorship of marks in writ- United States census reports as evidence of popula- evidence of character in civil suits, 282. evidence of offer of aid, or of aid, to injured person, EXECUTORS AND ADMINISTRATORS, right of an executor to maintain an action for tort EXTRADITION, habeas corpus as a proper remedy to secure the re- bail in extradition cases, 432. "FAMILY EXPENSE." See HUSBAND AND WIFE. parol waiver of conditions of policy with or without is a fire insurance policy a promissory note payable the insurable interest of a stockholder in corporate FIXTURES, ornaments as fixtures, 274. mortgagee's right to fixtures, 484. FORMER JEOPARDY. See CRIMINAL LAW. FRAUDULENT CONVEYANCES, conveyance of mining property for stock in mining whether a sale attacked for fraud of vendor will be right of creditors to enforce a lien or follow property FRIGHT, right of action for injury resulting from fright, 244. validity and application of statutes prohibiting all right to enjoin multiplicity of garnishment proceed- |