pany operates its various mines under one system, and the proceeds of the ore extracted from each are used indiscriminately, for the common benefit of all, a receiver appointed on the foreclosure of mortgages covering a part only of the company's property, with power to take possession of the mortgaged premises and to carry on the mines, who is permitted by the company to take possession of its entire property, and to work all its mines, rendering them more valuable and more capable of paying creditors, cannot be considered a trespasser, and is not personally liable to a general creditor of the company for sums realized by him from a mine not covered by the mortgage.-Staples v. May, Cal., 23 Pac. Rep. 711.

73. MORTGAGE-Foreclosure.- Plaintiff and defendant stipulated as to what the judgment in a foreclosure suit should be. Afterwards plaintiff's attorney, in the absence of plaintiff and without his knowledge or consent, changed the stipulation by agreement with defendant and his attorney so as to make the judgment include less than it originally included. The decree, by inadvertence, was drawn according to the original stipula. tion: Held, that the judgment would not be disturbed, as the power to make such a change was not within the implied authority of an attorney. Trope v. Kerns, Cal., 23 Pac. Rep. 691.

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74. MORTGAGES-Statute of Limitations. A court of equity will, without proof of actual payment, discharge from record a mortgage, barred by the statute of limitations, which was given before complainant's purchase of the land covered by it, by one who then owned an equitable interest therein, and of which complainant had no actual knowledge.-Kingman v. Sinclair, Mich., 45 N. W. Rep. 187.

75. MORTGAGE-Tenants in Common.- Where a mortgage is given to the mortgagees jointly, but to secure the amount of the separate indebtedness of the mortgagor to each of them, they take as tenants in common, each having an undivided interest in proportion to his claim; and therefore the fact that the mortgage is vold, as to one of the mortgagees, as against creditors of the mortgagor, does not affect its validity as to the others.-Farwell v. Warren, Wis., 45 N. W. Rep. 217.

76. MORTGAGES-Future Advancements.- A mortgage for a specific sum given in good faith as security for future advances, is a valid security, as against the general creditors of the mortgagor, for advances not exceeding the sum specified in the mortgage.-Louisville Banking Co. v. Leonard, Ky., 13 S. W. Rep. 521.

77. MUNICIPAL CORPORATIONS Contracts. - In the absence of express statutory authority, a municipal corporation cannot make a permanent and exclusive contract with a water company to build water-works and supply it with water. Such authority cannot be implled from the general power conferred by its charter to contract for the needs of the municipality. -Greenville Water-works Co. v. City of Greenville, Miss., 7 South. Rep. 409.

78. MUNICIPAL CORPORATIONS-Charter. - An attempt by a town of over 1,000 inhabitants, incorporated under Rev. St. Tex. tit. 17, ch. 11, to reorganize under the provisions of title 17, ch. 1, Id., does not result in the surrender of its existing charter, even though all steps were taken as prescribed. Harness v. State, Tex., 13 S. W. Rep. 535.

79. MUNICIPAL CORPORATION Publication of Notices. -Neither the duty nor the power to contract for the publication of notices, claims, advertisements, proclamations, reports, or ordinances is imposed by the terms of the charters of cities of the first class upon the city, the mayor, the council, or either or any officer of the city. Call Pub. Co. v. City of Lincoln, Neb., 45 N. W. Rep. 245.

80. MUNICIPAL CORPORATION-Officers.-All officers of a city are prohibited from being directly or indirectly interested in any contract or agreement to which the city, or any one for its benefit, is a party, and such contract may be avoided by the city. Grand Island Gas Co. v. West, Neb., 45 N. W. Rep. 242.

81. MUTUAL BENEFIT INSURANCE.- Where neither the beneficiary of mutual benefit insurance certificates nor the trustee for the beneficiary and her husband (the beneficary's parents) could insure the life of the assured for the beneficiary's benefit, under defendant's charter, if the trustee's husband induced the assured to Insure her life for the benefit of the beneficiary, and paid therefor, the certificates were void; but if they were issued to the assured on her own application, and paid for with her money, and if she died a natural death, the beneficiary can recover, unless the insurance was fraudulently procured.-Whitmore v. Supreme Lodge, Mo., 13 S. W. Rep. 495.

82. NEGLIGENCE-Appeal.-Where a person driving at a trot along a city street is upset by a pile of mud which the city has caused to be piled up in the middle of the street, and allowed to freeze, the questions of negligence and contributory negligence are questions of fact, on which the judgment of the appellate court of Illinois is conclusive.-City of Champaign v. Jones, Ill., 23 N. E. Rep. 1125.

83. NEGOTIABLE INSTRUMENTS-Bona Fide Purchasers. -In an action brought on a promissory note by an indorser against the makers, where facts were alleged in the answer showing fraud on the part of the payee in the inception of the note, and the plaintiff replied, denying such allegation, the trial court held the burden of proof to be upon the defendant, and upon the offer of proof by the defendant the plaintiff objected to any testimony on the part of the defendant because the answer admits the execution and purchase of the note, and because the facts pleaded do not constitute defense or show that plaintiff acted in bad faith In its purchase, which objection was sustained: Held error.-Haggland v. Stuart, Neb., 45 N. W. Rep. 263.

84. NEW TRIAL-Notice. After a cause on the calendar of the district court has been tried, and a verdict rendered, if the court grants an order for a new trial, from which the adverse party appeals to the supreme court, the cause must be again noticed for trial after an affirmance of the order appealed from, and the remanding of the cause to the district court. - Mead v. Billings, Minn., 45 N. W. Rep. 228.

85. NUISANCE-Evidence.- A powder magazine in the neighborhood of plaintiff's residence held a nuisance.Comminge v. Stevenson, Tex., 13 S. W. Rep. 556.

86. PARTNERSHIP-Administration.-A suit against the surviving partner and administrator of his deceased partner for a settlement of the partnership accounts, brought within six months after the grant of administration cannot be maintained under Code Ala. 1886, § 2263, which provides that "no suit must be commenced against an executor or administrator as such until six months, and no judgment rendered against him as such until eighteen months, after the grant of letter testamentary or of administration."- Word v. Word, Ala., 7 South. Rep. 412.

87. PARTNERSHIP Powers of Partners. Where the managing member of a mining partnership, in disregard of positive instructions from his copartners, borrows money for partnership purposes, but solely on his own credit, and without their knowledge, it is error, in an action against the partnership for the money, to instruct that the copartners are liable if the act was "necessary for carrying on the business of the partnership. -Randall v. Meredith, Tex., 13 S. W. Rep. 576.

88. PLEDGE-Rights of Pledgee. Where a person, to secure a debt and further advances, pledges and assigns, among other collateral, the note of a third person, secured by a deed of trust, and the note is afterwards satisfied, the pledgee cannot apply the security of the trust-deed to satisfy any part of the pledgeor's indebtedness. Newman v. Bank of Greenville, Miss., 7 South. Rep. 403.

90. RAILROAD COMPANY-Killing Stock. The absence of one of the hooks in a gate-post of a railroad fence, which does not prevent the fence from being securely fastened against the escape of animals, is not such a defect as will render the railroad company liable for two horses which were killed on its track, under the circumstances of this case.-Davenport v. Chicago, etc. R. Co., Wis., 45 N. W. Rep. 215.

91. RAILROAD COMPANY-Fires.-An unnecessary delay of ten or fifteen minutes, by a land-owner, in making an effort to extinguish a fire set by the engine of a railroad company on its right of way, does not warrant the court in directing a verdict for defendant in an action for the loss occasioned by the spread of the fire, where there is evidence that the land owner could not have arrested its progress had he acted with the utmost promptness.-Mills v. Chicago, etc. Ry. Co., Wis., 45 N. W. Rep. 225.

92. RAILROAD COMPANIES-Use of Streets.-A statutory license to occupy the streets of a city with a line of steam-railway, which is conditional upon paying, before proceeding with the construction, damages to the owners of property injured thereby, contemplates such payment as a condition precedent; and the company may be enjoined from violating the condition. That the statute provides that either party may proceed to have the damages assessed will not make it incumbent upon the property owner to take steps for that purpose, rather than resort to the remedy of injunction.Georgia, etc. R. Co. v. Ray, Ga., 11 S. E. Rep. 352.

93. RAILROAD COMPANY Obstruction of Street. A railroad company, contracting to remove cotton received by a compressing company, from its warehouse where it was received, to its compressing mill, is liable for damages occasioned by a nuisance resulting from the accumulation of the cotton in a public street owing to its failure to remove the same.-Marine Ins. Co. v. St. L., etc. Ry. Co., U. S. C. C. (Ark.), 41 Fed. Rep. 643.

94. REMOVAL OF CAUSES. Under Act Cong. March 3, 1887, ch. 373, § 2, an action may be removed, though by the section, requiring suits between citizens of different States to be brought in the district of the residence of either plaintiff or defendant, it could not have been originally commenced in the district; neither party being resident therein.-Amsinck v. Balderston, U. S. C. C. (R. I.), 41 Fed. Rep. 641.

96. SALE-Rights of Seller.-Where the seller elects to resell the goods which the buyer has refused to accept, the buyer's knowledge of the legal right to resell, resulting from his refusal to comply with the contract, a sufficient notice to him of the intention to resell to entitle the seller to recover the damages sustained by a resale.- Waples v. Overaker, Tex., 13 S. W. Rep. 527.

97. SALE BY INSOLVENT DEBTOR.-A sale by an insoly. ent debtor to one of his creditors in consideration of his debt, and of the payment by him of debts due some of the other creditors, is valid, if the entire consideration amounts to the fair value of the goods sold, and no benefit is reserved to the debtor. Chipman v. Stern, Ala., 7 South. Rep. 409.

98. TRIAL Exceptions. Comp. Laws N. M. § 2197, which provides that "exception to the decision of the court upon any matter of law arising during the progress of the cause, or to the giving or refusing of instructions, must be taken at the time of such decision In equity causes, no exception shall be required,"

refers to bills of exceptions in common-law causes, aud not to exceptions to a master's report in equity causes. -Newcomb v. White, N. Mex., 23 Pac. Rep. 671.

99. TRIAL-Juror.- Where the question on motion for new trial is whether a juror declared himself in favor of one of the parties before the trial, and there is evidence to show that he did so, the affidavits of the other jurors showing that he made similar declarations in the jury-room are admissible.- Hyman v. Eames, U. S. C. C. (Colo.), 41 Fed. Rep. 676.

100. VENDOR and Vendee. In an action for the pur. chase money of land, defendant's plea asked a rescission of the contract and alleged that the vendor represented a part of the land to be "good hammock land," and that the vendee, by the artifice of the vendor, was prevented from examining that portion because the approach thereto was wet, and she did not have on proper shoes, and that, therefore, she relied on the vendor's statements, which were false: Held, that the facts alleged, though they might not authorize rescission of the contract as a whole, would authorize an abatement as to that part of the land which the vendee was not able to examine. Thompson v. Boyce, Ga., 11 S. E. Rep. 353.

101. VENDOR AND VENdee.

In an action to foreclose a purchase money mortgage, where a general judgment is not sought against the vendee, a plea which alleges that one of the deeds in the vendor's chain of title was a forgery, but which does not allege that the vendor warranted the land, or that there was any fraud in the transaction, or that any part of the purchase money had been paid, is properly stricken out.— O'Neal v. Carmichael, Ga., 11 S. E. Rep. 352. 102. VERDICT. - Verdicts are to have a reasonable intendment, and to receive a reasonable construction. A verdict is good if the title sufficiently identifies the cause in which it is rendered, and the findings of the matter submitted in issue may be ascertained and clearly understood from the wording of it. Kelsey v.. Chicago, etc. Co., S. Dak., 45 N. W. Rep. 204.

103. WILL-Construction. - Where a will gives to the wife of testator all his estate, both real and personal, "during her life," with "full and ample authority to dispose of the whole as she pleases," but makes several devises of any property not alienated before her death, and which she has not by will disposed of, such devises will take effect upon any property so disposed of by her. McCullough's Admr. v. Anderson, Ky., 13 S. W. Rep. 353.

105. WILL-Probate. A testator devised land to his wife for twenty-one years, then to any children he might have, or, in case of the death of his children, to his wife for life, and in case no child of his survived her, then on her death to the children of M. After the probating of will, testator's widow brought sult to have it set aside. The executor and a guardian ad litem for testators child filed answers: Held, that the children of M, who had under the will a contingent remainder, were represented in the suit by the parties thereto, and, as a proceeding to vacate a will is a proceeding in rem, they were bound by the decree annulling the probate of the will.-Miller v. Foster, Tex., 13 S. W. Rep. 529.

106. WILL-Description of-Legatee.-A bequest to the "Board of Trustees of the General Convention of the Universalists in the United States of America, a corporation, their successors and assigns," is not invalidated by the fact that the corporation had changed its name to the "Universalist General Convention" before the execution of the will. Elnell v. Universalist General Convention, Tex., 13 S. W. Rep. 552.

The Central Law Journal.

ST. LOUIS, JUNE 20, 1890.

Our next issue will, as usual, be the index and last number of this volume, which began with the first of the year. The cordial reception which our last index received from subscribers assured us that we had at last succeeded in presenting an index worthy of the reputation of this JOURNAL, and one which, in point of practical value, could not be excelled. We shall endeavor to make the coming index even more complete. As before, we shall issue a complete index-digest to all the editorials, notes of recent decisions, leading articles, annotated cases, book reviews, etc., and a separate word index to all the weekly digests of current opinions. In this way, we not only give our subscribers an easy reference to all that has appeared in the JOURNAL during the current volume, but we place before them a complete view of all the decisions of the courts for the past six months, thus, in effect, presenting a complete United States digest for the period named.

Notwithstanding the announcement that appears at the head of the column of digests each week, and repeated statements on our part, we have reason to believe that a great many practitioners do not yet appreciate the practical value of this JOURNAL, as a means of keeping up with the current opinions. We are little inclined to sound our own praises, but a proper regard for the truth compels us to say that this JOURNAL is all, in the way of current reporting, that a practitioner absolutely needs. We give him the important cases, reviewed editorially, commented upon at length, or reported in full and annotated, and all of the remainder we present in the form of a very full and complete digest. What more does a lawyer need in this direction? Or rather how much more than this has he the time and inclination to study? It is impossible, even with the greatest industry, to read all the opinions fully, and the system we are pursuing enables one to feel that at least nothing will escape his search. The VOL. 30-No. 25.

fact that we are increasing our circulation each year at a substantial rate, that there is hardly a county in the United States where this JOURNAL is not taken, and that the CENTRAL LAW JOURNAL has the largest circulation of any law journal or law newspaper in the world (which we are at all times prepared to substantiate) is the best evidence of

its value.

The United States Supreme Court has adjourned until October, without any perceptible relief of its docket. On the contrary, though an increased number of cases have been disposed of during the present term, as compared with previous terms, the court still leaves the docket a little more burdened than it was at the close of last term. According to the reports, the appellate docket of the court at this term exhibits an increase of thirty-one cases in the number left undisposed of, as compared with the docket at the close of the previous term. At the close of the October term, 1888, there remained undisposed of on the appellate docket 1,146 cases. There were docketed during the 1889 term 489 cases, making the total number of cases before the court 1,635, of which 460 were disposed of, or forty-three more than during the previous term. This means that exceptional measures on the part of the members of the present court will not, in the absence of relieving legislation, appreciably lift the pressure on the court or enable it to catch up with its business. In short, legislative action must be had without much delay, unless the court is to get hopelessly in arrears. It is worthy of notice that the most striking feature of the court's work during the term has been the large number and variety of cases involving a construction of the interstate commerce clause of the federal constitution.

Apropos of what we said last week on the subject of criticisms of the decisions of the United States Supreme Court, a correspondent in Iowa sends us an editorial clipped from a daily newspaper published in his locality, commenting upon the "original package" decision. The ideas, expressed by the writer, are so unique and novel that we, reproduce it for the benefit of our readers, with the belief

that its study will either lead to a reversal by the supreme court on rehearing, or the incarceration of its author in some private asylum. Here it is verbatim, literatim, et punctatim:

Let us look at this decision just a little. As far as we can learn the supreme Judge took their text from the United States constitution. article as follows, that a congress shall have power to regulate comerce with foreign nations, and among the several states, and with the Indian tribes, now congress seemingly had made no laws about original packages and the supreme court therefore decides that original packages can be shipped into any state by a nonresident.

The supreme court may be higher authority than Iowa and her people and her legislature, but what about congress? Is not congress higher authority than the supreme court? If so, what then about South Dakota, did not South Dakota put prohibition in her constitution? and was not the constitution of South Dakota adopted, as it were under the wings of congress, and sanctioned by congress? And should not this have more weight with the court than the mere silence on the part of congress about original packages? The foreigner and nonresident are preferred, they have more privileges than the resident and the citizen; they can get our money but do not have to pay any of our taxes. Is that good morals or even good law?

As has been noted in these columns, from time to time, the decisions of the federal courts have been uniformly against the con

criminal cases, came before the Supreme Court of the United States in Wight v. Nicholson, 10 S. C. Rep. 487. There, it was held that the federal circuit court, at a subsequent term, may order an amendment of its record by a nunc pro tunc entry showing that a criminal cause certified to it by the district court had been remitted before sentence pronounced by the latter court, though no written memoranda of the proceedings of the previous term are on file in the cause. Chief Justice Fuller and Justice Harlan dissented from this conclusion. Justice Miller says:

The present case comes within the clause of this section which declares the power of the court to make nunc pro tunc entries to supply some omission in the record of which was done at the time of the proceedings. An extensive list of authorities is cited in the foot-note of Mr. Bishop, and among those which support the power of the court to make a record of some matter which was done at a former term, of which the clerk had made no entry, the following cases directly affirm that proposition: Galloway v. MeKeithen, 5 Ired. 12; Hyde v. Curling, 10 Mo. 227; State v. Clark, 18 Mo. 432; Nelson v. Barker, 3 McLean, 379; Bilansky v. State, 3 Minn. 427 (Gil. 313). The opinion of the court in this latter case contains a somewhat full reference to the history of this subject, as it is found in the reports of the English cases, and in Blackstone's Commentaries (volume 3, p. 408,) the result of which is to show that at an early day the En

The

tion law. This law prohibited the sale, within the State, of any beef which had not been inspected in the State within twenty-four hours before being slaughtered, and was, of course, a blow at the dressed beef industry. courts held that the act was repugnant to the provision of the constitution giving congress power to regulate commerce among the several States, as well as the provision declaring that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. This was held by Judge Nelson, of the Minnesota district, and by Judge Blodgett, of the Illinois district. Every one was, therefore, prepared for the decision just rendered by the Supreme Court of the United States, which confirms the decisions of the subordinate federal courts holding the act unconstitutional.

NOTES OF RECENT DECISIONS.

CRIMINAL LAW-NUNC PRO TUNC ENTRIES. -A case of considerable interest to criminal practitioners, and involving the question as to the validity of nunc pro tunc entries in

the pleadings were all ore tenus, and great liberality was necessarily allowed in amendments, that the abuse was corrected by the king, who made the declaration that, "although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own records shall be a warranty for their own wrong, nor that they may raze their rolls, nor amend them, nor record them contrary to their orginal enrollment." This Blackstone declares, meant only that the justices should not by their own private erasure change a record already made up, or alter the truth to any sinister purpose.

In the Minnesota case, the plaintiff in error had been convicted of the crime of murder, and after trial and verdict, and after the case had been carried to the supreme court of the State, the record of proceedings on the trial was amended so as to show affirmatively that each juror was sworn as prescribed by law; that they were put in charge of the officer to keep them as prescribed by law: and that they were polled at the request of defendant on their coming in with their verdict; matters which, it seems, had been omitted in the record of the judgment. The supreme court in that case, as we think, stated with force and precision the true rule on this subject. They said: "While we would go as far as any court in reprobating a rule which would place the proceedings of a court almost entirely at the mercy of the subordinate officers thereof, we would be scrupulously careful in adopting any rule which would tend to destroy the sanctity or lessen the verity of records. And while we admit the power to amend a record after the term has passed in which the record was made up, we would deprecate the exercise of the power in any case where there was the least room for doubt about the facts upon which the

amendment was sought to be made. But when the facts stand undisputed, and the objection is based upon the technical point alone that the term is passed at which the record was made up, it would be doing violence to the spirit which pervades the administration of justice in the present age to sustain it. It is our opinion that this power, of necessity, exists in the district court, and that its exercise must in a great measure be governed by the facts of each case."

The case in 5 Iredell, although a civil suit, established the doctrine that a court has a right to amend the records of any proceeding term by inserting what had been omitted either by the act of the court or clerk, and that when so amended it stands as if it had never been defective, or as if the entries had been made at the proper time. The case of Hyde v. Curling, 10 Mo. 227, which was also a civil suit, seems to have been well considered, is thus stated in the syllabus of the report: "A court has power to order entries of proceedings had by the court at a previous term to be made nunc pro tunc; but, where the court has omitted to make an order which it might or ought to have made, it cannot at a subsequent term be made nunc pro tunc." See also State v. Clark, 18 Mo.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS-PREFERENCE - CONFESSION OF JUDGMENT. In a recent number of the current volume of this JOURNAL, p. 345, we had something to say, by way of criticism, of the case of Farwell v. Nillson, wherein the Supreme Court of Illinois denied the doctrine laid down in White v. Cotzhausen, 28 Cent. L. J. 334, by the Supreme Court, as to the effect of preferences preceding or contemporaneous with an assignment for the benefit of creditors. It will be remembered that the latter court held that under the Illinois statute, the instruments by which such preferences were attempted, were held to operate as an assignment, and hence void under the statute forbidding the giving of preferences in an assignment. The Illinois court, in the case first mentioned, refused their assent to this proposition, though in fact a construction of their own statute. The case is now reported in 24 N. E. Rep. 74, and it appears that the court simply adopt, as their own, the opinion of Judge Moran, filed below. Their conclusion, in substance, is that the Illinois act concerning voluntary assignments does not affect the right of a failing debtor to prefer creditors by giving judgment notes, though all his property be sold on execution to satisfy them, since such notes, not being voluntary assignments, are not within the purview of the act. As we said before, this result is calculated to defeat the very object and intent of the law. So, also, seems to think the Supreme Court of South Carolina,

in the recent case of Putney v. Freisleben, 11 S. E. Rep. 337, wherein they hold, upon the authority of White v. Cotzhausen, that where all an insolvent debtor's property is transferred to certain of his creditors by confession of judgment and proceedings thereunder, such acts are equivalent to an assignment with preferences, and are therefore void under Gen. Stat. S. C. § 2014; and that where an insolvent debtor in one day confessed judgment in several suits, and authorized executions to issue forthwith, whereby all his property was transferred to certain creditors, mostly near relatives, such acts one were all parts of transaction, amounting, in effect, to an assignment with preferences. The same doctrine is also laid down in Straw v. Jenks, 43 N. W. Rep. 941.

The statutes of nearly one-half of the States require that the acknowledgment of a deed or other conveyance by a married woman shall be made and certified in a manner different from the acknowledgment of other persons. Ordinarily a difference of form and manner is a matter of little consequence, but in this instance the case is quite otherwise, although there is no substantial reason why this should be so, nor why the acknowledgment of the wife should now be in any manner different from that of other persons. The requirement of a privy examination is a relic of the dark ages, already expunged from the statutes of a majority of the States, but through extreme conservatism permitted to yet linger in the jurisprudence of others.

The Wife-Disabilities at Common Law.At common law the civil disabilities of a married woman was complete; she had no power to contract, and her civil existence was considered as merged in that of her husband.' The doctrine of the incapacity of the feme

1 Martin v. Dwelley, 6 Wend. 9; s. C., 21 Am. Dec. 245; Hitz v. Jenks, 123 U. S. 298; 2 Kent's Com. 129, 132, 163; Butler v. Buckingham, 5 Day, 492; s. C., 5 Am. Dec. 174; Blackstone's Com. 291, 292; Goff v. Roberts, 72 Mo. 570; 3 Wash. on Real Prop. 281; Lindley v. Smith, 46 Ill. 523; Baxter v. Bodkin, 25 Ind. 172; Thayer v. Torrey, 37 N. J. Law, 339; Webb on Record of Title, §§ 9, 100.