close up an alley running between the lots, especially where the act provides for compensation for the damages by the use of the street, and makes no mention of damages from closing the alley.-Georgia, etc. R. Co. v. Harvey, Ga., 10 S. E. Rep. 971.

33. EQUITY-Fraud-Weight of Evidence.-A petition by the equitable owners of swamp land, seeking to can. cel deeds thereof to defendants on the ground of fraud and want of consideration, alleged that defendants, as attorneys, associated themselves with plaintiffs' attorney to secure a patent for the land from the county, and obtained the deeds on the express understanding that, if successful, they would pay one half the notes given by plaintiffs' ancestor to the county for the purchase price, and also deed back to plaintiffs' attorney one half of the land in trust for plaintiffs; that defendants thereafter repudiated the agreement: Held, that the petition stated a cause of action, though it failed to allege that defendants intended to defraud plaintiffs in the first instance, when the deeds were executed.Sayer v. Devore, Mo., 13 S. W. Rep. 201.

34. EQUITY-Pleading.-The criterion of immateriality of interrogatories in a bill in equity is not whether an affirmative answer will prove the bill, but whether it tend to prove the bill.- Uhlmann v. Arnholt & Schaeffer Brewing Co., U. S. C. C. (Penn.), 41 Fed. Rep. 369.

35. EXECUTION SALE- Executors.- Where land sold upon a judgment recovered by an executor is bid in by him at execution sale, and by mistake the sheriff's deed is made out to the heirs of the testator, the land becomes an asset of the estate, and the fact of the mistake may be shown in a subsequent suit between the devisees of the testator and parties deriving title from the executor. Bennett v. Kiber, Tex., 13 S. W. Rep. 220.

36. EXECUTION-Supplementary Proceedings.-A complaint showing a judgment in favor of plaintiff; an execution to the county of the debtor's residence, he being an unmarried man; its return unsatisfied; an indebtedness by two of the defendants to the judgment debtor in specific sums, not exempt from execution, and his refusal to apply the same in satisfaction of the judgment, and that a third defendant is asserting some claim to that indebtedness-states facts sufficient to require all the defendants to answer.-American White Bronze Co. v. Clark, Ind., 23 N. E. Rep. 855.

37. EXECUTIONS-Claim and Delivery.-In ar action of claim and delivery, brought against a sheriff, the defendant justified his seizure and detention of the property under two certain writs of attachment in his hands against the property of plaintiff and anticipating that plaintiff would claims uch property exempt from seizure under the general exemption law of the State, defendant alleged, further, that the debts sought to be recovered in the actions in which the attachments were issued were debts incurred by plaintiff under false pretenses, setting forth such pretenses: Held, a good defense, under section 5139, Comp. Laws.-Taylor, v. Rice, N. Dak., 44 N. W. Rep. 1017.

38. EXEMPTIONS-Joint Owners.-The interest of one joint owner of property may be sold on execution against her, though the property is exempt as to the other joint owner.-Stanton v. French, Cal., 23 Pac. Rep. 355.

39. FRAUDULENT CONVEYANCE-Possession. To constitute a "delivery or change of possession," under the fourth section of the insolvent law (Laws 1881, ch. 148), there must be an actual delivery and change of possession. A mere symbolical delivery and constructive change of possession is insufficient.-Chickering v. White, Minn., 44 N. W. Rep. 988.

40. FRAUDULENT CONVEYANCES.-Where there is a controversy as to whether a mortgage executed by defendant is a sham, he cannot prove that fact, on cross-ex· amination of plaintiff's witness, by statements which he made to witness out of court, though he may ex. amine as to such statements for the purpose of testing

the witness' recollection.-Eldredge v. Sherman, Mich, 44 N. W. Rep. 948.

41. FRAUDULENT CONVEYANCES-Evidence.-Where an action is brought to set aside a sale on the ground that it was made in fraud of creditor, admits that he was indebted to defendants when the sale was made, it is error to refuse to instruct the jury that defendants were not required to prove the Items of their account, but that the indebtedness might be shown by the debtor's admissions, or by any evidence that satisfied the jury of the correctness of defendants' claim.-Hirsch v. Richardson, Miss., 7 South. Rep. 323.

42. FRAUDULENT CONVEYANCES-Secret Trusts.-Held, that a parol agreement reserved a trust in the property conveyed by a debtor in favor of a creditor, and, not being apparent in the bill of sale, was secret, and consequently the transaction was against public policy, and fraudulent in law, and therefore void as to attaching creditors.-Newell v. Wagness, N. Dak., 44 N. W. Rep. 1014.

43. GARNISHMENT-Assignment.-Defendant in attchment, who was working for a county under a contract gave to the county clerk the following order: "You are hereby directed to deliver to J all warrants issued by the board of county commissioners to me for and on account of [the work done], to be held by said J as collateral security for a note of even date hereto attached." The clerk accepted the order by writing across the face, "Accepted this 7th day of June, A. D. 1883:" Held, that the claim against the county was so assigned as to be beyond the reach of a garnishment.-Lewis v. Board of Commissioners, Colo., 23 Pac. Rep. 338.

44. GRANTS-Conditions. Land was conveyed to a town for a highway by deed conditioned "that no house building, or other erection whatsoever, except a public monument, shall be built or erected or permitted upon" it: Held, that an area way constructed below the surface of the land for the purpose of supplying light and access to the basement of an adjoining building, by means of gratings flush with the sidewalk that was laid over it, was not an erection upon the land, within the meaning of the condition.-Rose v. Hawley, N. Y., 23 N. E. Rep. 904.

45. HIGHWAYS-User. Where plaintiff claims a highway over defendant's land by user, evidence is admissible for defendant that such user was, under an agreement made by the highway authorities with him that the public might cross his land temporarily, for the purpose of avoiding a defect in the highway as originally laid out, until the true highway could be put. in safe condition, and that he continued to allow such use of his land, relying on the promise of the authorities year after year to restore it to him, as such user is not sufficient.-Commissioner of Highways v. Riker, Mich., 44 N. W. Rep. 955.

46. HOMESTEAD- Selection. - Under Code Ala. § 2534, providing that, in homestead exemption contests, the commissioners shall make allotment by metes and bounds, having consideration of the debtor's selection, and the quality and quantity of the real estate, from the land most contiguous to the dwelling, and includ. ing the dwelling and appurtenances, the debtor cannot select the land in an irregular and arbitrary manner, and without reference to contiguity, or the former useto which it was put.- Jaffrey v. McGough, Ala., 7 South. Rep. 333.

47. HOMESTEAD — Head of Family. A brother who lives with his invalid sister, who is dependent on him for support, and whom he does support, is the head of a family within the meaning of the homestead laws, though his sister owns the property in which they live. -Moyer v. Drummond, S. Car., 13 S. W. Rep. 952.

48. HUSBAND AND WIFE-Division of Property.-Under Civil Code Cal. § 158, a division of community property between a husband and wife on their separation, followed by the record of an inventory of the wife's separate property, including her share of the divided property, gives the wife priority therein over a creditor

of the husband who had both actual and constructive notice of the division before bringing suit, though there had been no immediate delivery of the divided property to the wife, followed by an actual and continued change of possession. Carter v. McQuade, Cal., 23 Pac. Rep. 348.

49. INSURANCE-Proof of Loss.- A contract of fire insurance made in Iowa, the statutes of which State provide in what counties an action may be brought on the policy, does not limit the right to bring an action for loss of the property to that State. The action is transitory in its nature, and may be brought wherever service may be had on the company. Insurance Co. v. McLimans, Neb., 44 N. W. Rep. 991.

50. INSURANCE-Waiver.-In an action on a life policy, the defense was that default in the payment of a premium had forfeited the policy. The time of pay. ment was extended by a general agent of the company, pending negotiations relative to the exchange of the life policy for a paid-up policy, who had been accus tomed to receive premiums after they were due and the company had been accustomed to ratify his acts by accepting the premiums: Held, that the general agent was specially authorized to extend the time of payment of premiums. Wyman v. Phonix, etc. Ins.

Co., N. Y., 23 N. E. Rep. 907.

55. JUSTICES OF THE PEACE-Procedure. - Irregularities in a summons issued from a justice's court, in not fully apprising defendant of the nature of the action, or of the relief that will be demanded in case of default, are waived by appealing after default, though defend. ant appear specially in the appellate court to move to dismiss the action.-Gage v. Maryatt, Mont., 23 Pac. Rep. 337.

56. LANDLORD AND TENANT-Forcible Dispossession.In an action for damages for unlawful and violent dispossession, brought by tenants against a landlord, evidence that defendant was a hard tempered and dangerous man is admissible to show the effect of his actions and threats on the conduct of plaintiffs in leav. ing the premises, and to rebut the statement of defendant's counsel, in the presence of the jury, that, though defendant did chase plaintiffs off and did have a gun there, it was done with the advice of counsel, and without any intention of hurting anybody.— Baumier v. Anteau, Mich., 44 N. W. Rep. 939.

---

57. LICENSE Pool selling, Act Tenn. April 8, 1889, entitled "An act to provide revenue for the State," etc., imposing a license fee "upon each person engaged in selling pools upon any running, trotting, or pacing race in this or in any other State," does not extend the law authorizing the sale of pools on races run on licensed tracks within the State, so as to legalize the selling of pools on races taking place out of the State. -Palmer v. State, Tenn., 13 S. W. Rep. 233.

Whether, upon the facts, the account was a "mutual and open account" within the meaning of the statute. -In re Hiscocks Estate, Mich., 44 N. W. Rep. 947.

59. MASTER AND SERVANT-Negligence. In order to recover punitive damages for injuries caused by the negligence of defendant's servant, it is not necessary to show knowledge by defendant of habitual negligence or incompetency of the servant, and, if plaintiff attempts to show it, a failure will not prevent recovery.Southern Exp. Co. v. Brown, Miss., 7 South. Rep. 318.

60. MASTER AND SERVANT - Fellow-servant. - The assistant road master, under whose supervision plaintiff was working, had general charge of about 150 miles of defendant's road, and controlled all the section gangs along that line. He had full oversight of the work in which plaintiff was engaged at the time of the injury, and it appeared that plaintiff looked on him as the responsible head, from whom he (plaintiff) received his orders, and who had power to discharge him: Held, that he was not a fellow-servant of plaintiff, but represented defendant, who was liable for his negligence while in the line of his duty.- Harrison v. Detroit, etc. R. Co., Mich., 44 N. W. Rep. 1034. 61. MEASURE OF DAMAGES Warranty. When an article, made and delivered under an express warranty as to its fitness for a particular purpose, proves unfit for that purpose, the proper measure of damages recoverable by the vendee, if he uses the article, is not the cost of changing it and making it conform to the warranty, but the losses sustained by him, including profits he would have made.— Beeman v. Banta, N. Y., 23 N. E. Rep. 887.

63. MINES AND MINING- Rev. St. U. S. § 2324, does not require a notice of a mining claim to be either posted or recored, but intrusts that matter to local regulation, subject to the condition that, when a notice is required to be recorded, it shall contain inter alia, a description of the property: Held, that where the local rules require that a notice shall be posted and recorded, and in reference to the notice to be posted repeat the requirements of the statute, the recording of a notice as it is posted is sufficient, provided that the posted notice itself sufficiently complies with the rules. Carter v. Boci Galupi, Cal., 23 Pac. Rep. 362.

64. MINING CLAIMS-Location. The provision of Rev. St. U. S. § 2320, in reference to the location of mining claims, that "the end lines of each claim shall be parallel with each other," is merely directory, and a claim located substantially in compliance with that section, and containing no more area than it authorizes, is not vitiated, even so far as to affect the right given by § 2322 to follow a vein beyond the side lines, by the fact that one of the end lines diverges. Doe v. Sanger, Cal., 23 Pac. Rep. 365.

65. MORTGAGES-Foreclosure.-Where, on foreclosure of a "blanket" mortgage on property, which is also covered by junior mortgages on the separate parcels, a sale is ordered in parcels in the inverse order in which the junior mortgages were given, and the sale of the last lot produces a surplus, such surplus cannot be regarded as constituting a specific fund, subject to the specific lien upon the last lot, but a common fund, distributable to all of the lienors upon the land sold, in the crder of the dates when the liens were created. Burchell v. Osborne, N. Y., 23 N. E. Rep. 896.

66. MORTGAGES-Sales under Powers.-A sale, under a power in a mortgage, in gross as one parcel, of several separate and distinct tracts of land, is not void, but only voidable, for good cause shown, as that it was the result of fraud, or that prejudice resulted to the mort

gagor or owner of the equity of redemption.-Willard v. Finnegan, Minn., 44 N. W. Rep. 985.

67. MORTGAGE-Foreclosure. An order made by the district (circuit) judge, under the provisions of § 5411, Comp. Laws, refusing an order enjoining foreclosure proceedings by advertisement, is an order of the judge, and not of the court, and is not appealable.-Commercial Nat. Bank v. Smith, S. Dak., 44 N. W. Rep. 1024.

68. MUNICIPAL CORPORATION.-Ice on Sidewalks.-The duty of a city to exercise reasonable care to keep its sidewalks in a safe condition does not extend to the removal of ice, which constitutes no other defect than slipperiness, there being no such accumulation of ice as to constitute an obstruction to travel, and no ridges or inequalities of such height, or lying at such inclination or angle, as would be liikely to trip passengers or cause them to fall.-Henkes v. City of Minneapolis, Minn., 44 N. W. Rep. 1026.

69. MUNICIPAL CORPORATION.-Street Improvements. -The city charter of Galvestion authorizes the city to pave and improve streets whenever, by a vote of two thirds of the aldermen, they may deem it necessary, provided the city pays one third, and the abutting owners two-thirds, of the cost: Held, that a petition by the city to collect of an abutting owner his share of the cost is insufficient to support a judgment by default, if it fails to allege that the two-thirds vote of the alderman was passed, as required.-Wood v. City of Galveston, Tex., 13 S. W. Rep. 227.

70. MUNICIPAL CORPORATIONS-Business Tax.-Under a charter giving the municipal authorities the right to impose a business tax on all persons doing business in the city, and to impose this t by requiring owners of wagons engaged in carrying on the the owner's business in the city to take out a license therefor, the owner of woodland near the city, which he is clearing up, who hauls the wood into the city and sells it, having no of fice or woodyard, cannot be required to pay a license tax, as he is not engaged in business in the city.—Gunn v. Mayor, Ga., 10 S. E. Rep. 972.

71. MUNICIPAL CORPORATIONS-Actions.-The statutes of New York do not empower a municipal corporation, either expressly or by implication, to borrow money to defray the expenses of a suit instituted in its behalf.Wells v. Town of Salina, N. Y., 23 N. E. Rep. 870.

72. NEGOTIABLE INSTRUMENTS-Contribution.-A party who signs as surety a note renewing one wherein he is a joint maker, is so benefited by the new note as to ren der his estate liable in equity upon his decease, for the payment of the new note.-Bell v. Boyd, Tex., 13 S. w. Rep. 232.

73. NEGOTIABLE INSTRUMENTS.-Where there is no evidence that defendant assumed payment of a due-bill given by a third person, the fact that he did pay part of it does not render him liable for the balance.-Walker v. Noell, Tex., 13 S. W. Rep. 231.

74. NEGOTIABLE INSTRUMENTS-Drafts-Acceptance.A telegraph promising to pay a certain draft constitutes an acceptance of the draft.—In re Armstrong, U. S. C. C. (Ohio), 41 Fed. Rep. 381.

75. NEGOTIABLE INSTRUMENT.-In an action on a note signed by defendant and three others, if, when the note was drawn and signed by the real debtor, there was no understanding and agreement on the part of defendant that he would sign, and that the payee did not accept the note as signed, but merely took it, temporarily, to procure the other signers, and did not turn over the consideration till all had signed, defendant was liable; but if the note was delivered as a fully executed note, and the consideration was passed over, and the payee afterwards took the note to defendant, and he signed it, there was no consideration therefor and defendant was not liable.-Steers v. Holmes, Mich., 44 N. W. Rep. 922.

76. NEW-TRIAL-Newly-discovered Evidence.-An ap plication for a new trial, based on newly discovered evidence is properly overruled, on the assignment of the trial judge that the witnesses relied upon were summoned by the accused to attend the trial, and were

personally present during the trial, and were not interrogated by him.-State v. Dorsey, La., 7 South. Rep. 327.

77. OFFICIAL BONDS Clerk of Court. The sureties on the bond of the clerk of a district court, conditioned that he shall "properly account for all money coming into his hands" as required by law, are liable for his misappropriation of money paid to him as clerk, under order of court, though such order is based upon the practice of the court, and not upon direct statutory authority.-In re Finks, U. S. D. C. (Va.), 41 Fed. Rep. 383.

78. PARENT AND CHILD-Bastards.-Mansf. Dig. Ark. § 445, et. seq., enabling the mother of a bastard child to cast the legal liability for its support on the father, furnishes a sufficient consideration for the father's promise to pay her for the maintenance of the child.-Dair's Est. v. Harrington, Ark., 13 S. W. Rep. 215.

79. PARTNERSHIP-Fraunulent Conveyances.-A transfer of all of the firm property by one of the partners to his father, in payment of a loan made by the father to aid him buying his interest in the business, which trans. fer was made without the consent, express or implied, of his copartner, is void, as against the partnership creditors, though no wrong was actually intended, and though a part of the money loaned by the father was used in paying firm debts.-Feucht v. Evans, Ark., 13 S. W. Rep. 217.

80. PARTNERSHIP.-Complainant, having bought an interest in a mercantile business and advanced money, afterwards made a contract with his partner by which the latter agreed to close up the business on a certain date when complainant might at his option, receive the amount he had paid for his interest, and the advances made by him, with interest or the amount he had in. vested, and half the profits: Held, that at the time agreed upon, complainant could elect to be a creditor of the firm to the extent of his investment and interest or to remain a partner.-Brinson v. Berry, Miss., 7 South. Rep. 322.

81. PARTNERSHIP-Corporation.-Construction of articles of a copartnership and rights in the formation of a corporation therefrom.-Hennessy v. Griggs, N. Dak., 44 N. W. Rep. 1010.

82. PLEADING-Exemplary Damages.-In an action for breach of contract, a general allegation that defendant broke the contract "willfully, fraudulently, and with malice" is not sufficient to authorize a recovery of exemplary damages.-Hooks v. Fitzenrieter, Tex., 13 S. W. Rep. 230.

Dower.

83. POWER OF ATTORNEY A power of attorney to sell land and receive payment, though ineffectual, because the officer who took the acknowledg. ment was not authorized thereto, confers authority to make an executory contract for the sale of land, which is not affected by the subsequent marriage of the principal; and a deed executed by the attorney in his own name, without disclosing his principal, though for that reason, not a valid execution of the power, is com. petent evidence to show the sale of land, and payment of the price; and vests in the vendee an equitable title. -Joseph v. Fisher, Ind., 23 N. E. Rep. 856.

84. PRINCIPAL AND AGENT - Ratification. Where a lease is executed by an unauthorized agent, the prin'cipal, by accepting the rent for five years without objection, and permitting the tenants to make alterations, ratifies the acts of her agent, and waives any right to disaffirm upon any ground.— Clark v. Hyatt, N. Y., 23 N. E. Rep. 891.

cess of his efforts in procuring a contract for his principal, and his subsequent performance of the work, the principal will not be permitted to stimulate his efforts with the promise of reward, and then, when the contract is obtained and the compensation assured after construction, terminate the agency for the sole purpose of securing to himself the agent's profits.-Warren Chemical, etc. Co. v. Holbrook, N. Y., 23 N, E. Rep. 908.

87. PRINCIPAL AND SURETY-Contribution. The equitable right of contribution between sureties having long been recognized as the foundation of an implied contract, and the legal action on such contract being barred after three years, contribution sought by an administrator of a paying surety from a co-surety will be refused in a court of equity after an unaccounted for delay of nearly eighteen years.- Pickering v. Leiberman, U. S. D. C. (Del.), 41 Fed. Rep. 376.

-

88. RAILROAD COMPANIES-Persons on Track. Deafness of one about to cross a railroad track imposes on him increased vigilance in the use of his eye-sight; and those operating a train may, in the absence of knowl. edge, and of any fact that would arouse their suspiclons, assume, on seeing him, that he is in the possession of all his senses, and using them for his own safety. International, etc. R. Co. v. Garcia, Tex., 13 S. W. Rep. 223. 89. RAILROAD COMPANIES- Crossings. In an action for injuries received at a railroad crossing, it is a question for the jury whether plaintiff's failure to look for approaching trains was negligence, and hence it is proper to refuse to instruct that if plaintiff, by using his senses of sight and hearing, could have discovered the train in time to avoid the accident, he cannot recover.-Gnif, etc. Ry. Co. v. Anderson, Tex., 13 S. W. Rep.

196.

90. RAILROAD COMPANIES- Transportation Arrangement. Where the receiver of a railroad company makes an arrangement for the transportation of the freight and passengers of another railroad company over the line of his road, and there is no provision making the arrangement obligatory on either party for any stated period of time, the receiver may terminate such arrangement at will, without previous notice to the other company.- Investment Co. v. Ohio, etc. Ry. Co., U. S. C. C. (Ohio), 41 Fed. Rep. 378.

91. RAILROAD COMPANIES-Stopping Train in Dangerous Place. It is a question for the jury whether or not it is negligence to lock the door of a privy on a railroad car, leaving no person in attendance to unlock it, and stopping over a cut twenty feet in depth without giving notice to the passengers of the danger to which they would be exposed if they attempted to leave the car.- Wood v. Georgia, etc. Co., Ga., 10 S. E. Rep. 967.

92. RAILROADS- Damages to Abutting Property. - In an action against an elevated railroad company to recover damages for the maintenance of its railroad in front of plaintiff's premises, an instruction that, in estimating the damages caused by the interference with the light, air, and access appurtenant to the prem ises, "the jury may take into consideration any benefits peculiar to plaintiff's house which have arisen by the construction of the road, as shown by the evidence," is not in conflict with Laws N. Y. 1850, ch. 140, § 16, and Laws 1875, ch. 606, § 20, providing that, in determining the amount of compensation for lands taken, no allowance shall be made on account of the benefits derived from the construction of the road. Newman v. Metro politan, etc. Ry. Co., N. Y., 23 N. E. Rep. 901.

93. REMOVAL OF CAUSES-Citizenship. - -The plaintiff, was at the time of its commencement, and so continued up to the admission of the State of South Dakota, a resident and citizen of the said territory of Dakota, and is now a citizen of the State of South Dakota, and defendant was at the time the action was commenced, and is now, a citizen of the State of New York: Held, on motion of defendant to transfer cause to the circuit court of the United States for the district of South Dakota, that his right to such transfer must be determined on the hypothesis that the State of South Dakota had been admitted into the Union, and the federal

--

courts established therein, and the plaintiff a citizen thereof, at the time the action was commenced.-Dorne v. Richmond Silver Min. Co., S. Dak., 44 N. W. Rep. 1021. 94. RES ADJUDICATA Administrators. A matter tendered as an issue on an executrix's final account, regularly opposed by a creditor of the succession, evidence adduced thereon pro et con, and finally and con. tradictorily determined by a definite judgment on appeal, cannot be thereafter litigated between the same parties. Such a decree constitutes res adjudicata.— Succession of Duhe, La., 7 South. Rep. 327.

95. SALE-Statute of Frauds. Held, upon the facts, that the jury was warranted in finding that the sale was not accompanied by immediate delivery, and followed by an actual and continued possession, as required by Gen. St. Colo. p. 509, § 14, which makes every sale of goods and chattels by a vendor in possession vold as against the creditors of the vendor unless the sale "be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold." Baur v. Beall, Colo., 23 Pac. Rep. 345.

96. SCHOOL DISTRICTS-Teacher's Salary.-Every contract relating to the employment of a teacher who does not hold a lawful certificate of qualification is vold by the express terms of the statute, and every warrant issued in payment of services of such teacher is without consideration and void.-Goose River Bank v. Willow Lake School, N. Dak., 44 N. W. Rep. 1002.

97. TELEGRAPH COMPANIES-Negligence. An action will not lie against a telegraph company, either under the statute or at common law, for failure to transmit a verbal message, orally delivered to the operator, in the absence of evidence of a custom to that effect.-Western Union Tel. Co. v. Dozier, Miss., 7 South. Rep. 325.

98. TRESPASS-License.-Permission to cut and carry off timber on land owned in common, given by one of the tenants, is a mere naked personal license, not assignable, and is revoked by a conveyance by such tenant of his interest to his co-tenants, or by withdrawal of the permission. Ward v. Rapp, Mich., 44 N. W. Rep. 934.

99. TRESPASS-Prospective Damages.-Defendants un lawfully entered upon plaintiff's farm, and dug two parallel ditches, thirty feet apart, and threw up the earth between them into a turnpike, claiming (but erroneously) that the locus in quo, was a public highway: Held, that these acts constituted a single trespass, and gave only a single cause of action, in which the plaintiff was entitled to recover all damages, present or prospective, resulting to the land from the trespass.— Ziebarth v. Nye, Minn., 44 N. W. Rep. 1027.

100. TRIAL BY COURT- New Trial. Where a trial is had to the court, and its findings announced, an undetermined motion for a new trial operates to reserve the case, and continue the jurisdiction beyond the term for the purpose of disposing of the motion and settling a bill of exceptions.-Stocking v. Morey, Colo., 23 Pac. Rep. 343.

101. TRUSTS AND TRUSTEE. Where one receives a deed absolute in form, but intended as security only, and with a promise to reconvey upon payment, he becomes a trustee for the grantor to the extent of grantor's interest therein. Likewise, when one receives personal property as security only, and under a promise to return the same on certain contingencies, he becomes a trustee for the owner. — Jasper v. Hazen, N. Dak., 44 N. W. Rep. 1018.

102. WATERS AND WATER COURSES-Obstruction.-The right to use a navigable river is a public, and not a private right, and the owner of land on the stream cannot maintain an action for an illegal obstruction of navigation which prevents his use of this public right. To entitle him to maintain a private action, the obstruction must constitute an invasion or violation of some private right, as distinguished from the public right.— Swanson v. Mississippi, etc. R. Co., Minn., 44 N. W. Rep. 986.

The Central Law Journal.

ST. LOUIS, MAY 23, 1890.

The Judiciary Committee of the House, in reporting in favor of the amended Torrey bankruptcy bill, make an intelligent and forcible presentation of the reasons for the enactment of a bankruptcy law. The committee point out that most of the commercial centers of the country are near State lines, and that as a result all of the large business concerns and most of the small ones do business in two or more States. The fact that the laws in the several States differ, subject these promoters of the commerce of the country to needless expense and to confusion, arising out of the fact that their rights and responsibilities are changed when they cross State lines. The differences and conflicting provisions of State laws are therefore obstructions to commerce and charges upon it. Injustice is worked by the State laws relating to preferences, which do away with the principle of equitable distribution by enabling one creditor to collect the amount due, while another having equal rights goes empty handed. The passage of an equitable bankrupt law would, by doing away with these hindrances, strengthen commercial credit and enlarge commercial intercourse.

We

A correspondent, whose letter will be found in another column, very properly takes us to task for the "countenance given to the idea that the federal courts can properly inquire into the question whether execution by electricity is 'cruel and unusual' punishment,' referring to a comment made by us in an issue of recent date on the Kemmler case. desire to say that the editorial to which exception is taken was inserted simply as a matter of news, and that the remark with which it concluded was inserted without any thought on the subject, except perhaps that if Judge Wallace could so far abuse a wise discretion by granting such a writ, at such a time and for such a purpose, he would, very probably, go to the length of considering the case upon its merits. Since that time, however, the VOL. 30-No. 21.

writ has been transferred to the United States Supreme Court, and it is a very easy matter to determine its fate there in advance. That court will undoubtedly dismiss the writ upon the ground that the provision in the federal constitution as to "cruel and unusual" punishments only applies to congress and federal offenses, and can in no way be held a limitation upon State power. It has repeatedly been decided by that court that the provisions of this article of the constitution apply to national and not to State legislation. Pervear v. Commonwealth, 5 Wall. 475; Spies v. Illinois, 123 U. S. 131. Chief Justice Waite in the case last cited says: "That the first ten articles of amendment were not intended to limit the powers of the State governments in respect to their own people, but to operate on the national government alone, was decided more than half a century ago, and that decision has been steadily adhered to since."

As a result of the popular outcry against this defeat, or rather delay of justice, the New York legislature passed a bill abolishing capital punishment, almost without debate. By some it is charged that the bill was put through by bribery, and that the money to pay for the votes comes from a moneyed corporation that is interested in preventing the electrical execution law from going into effect. But we have reason to believe with the Albany Law Journal, that "the result undoubtedly came about from a disgust felt at the outrageous course pursued by counsel in Kemmler's case, in which there never was a shadow of doubt nor a decent pretense for debate, but in which, as nearly everybody believes, some powerful citizens or corporations have undertaken to defeat the laws of this State, lest their business should be hurt." Be that as it may, the abolition of capital punishment, we believe, to be a good thing in itself, and in that view, the procedure adopted in the Kemmler case may prove to have been of some service.